21 F.4th 401
6th Cir.2021Background
- Ohio National Guard (the Guard) sent a 2016 memorandum repudiating the expired 2011 collective-bargaining agreement (CBA) with AFGE Local 3970 and questioning applicability of the Federal Service Labor-Management Relations Statute (the Statute).
- The Guard notified employees it lacked many Form 1187 dues authorizations, demanded resubmissions, and for about 89 technicians submitted Form 1188 cancellations on their behalf, terminating union dues withholding.
- The Union filed multiple Unfair Labor Practice (ULP) charges with the FLRA; the FLRA General Counsel issued complaints alleging refusal to bargain and unlawful interference with dues allotments.
- An ALJ found the Guard is an "agency" under 5 U.S.C. § 7103(a)(3), technicians are covered employees, and the Guard violated the Statute; the ALJ ordered cease-and-desist, reinstatement of dues, and reimbursement.
- The three-member FLRA panel (one dissent) adopted the ALJ decision; the Guard petitioned the Sixth Circuit arguing lack of FLRA jurisdiction, constitutional defects, and inability to comply with the order.
- The Sixth Circuit denied the petition, holding the FLRA has jurisdiction over the Guard and technicians, the order is constitutional, and the Guard can lawfully comply.
Issues
| Issue | Guard's Argument | FLRA/Union's Argument | Held |
|---|---|---|---|
| Whether the FLRA has jurisdiction over the Guard as an "agency" under the Statute | Guard: Not an executive agency for Statute purposes | FLRA: Guard is an executive agency when acting as employer of dual-status technicians | FLRA has jurisdiction; precedent (Michigan Army Nat'l Guard) controls |
| Whether dual-status technicians are covered by the Statute (uniformed-services exclusion) | Guard: Technicians are uniformed-service members and excluded from the Statute | FLRA: Technicians are federal civilian employees for these purposes | Technicians are covered; Statute applies to their civilian employment |
| Constitutional challenge (Militia Clause / Tenth Amendment) | Guard: Congress lacks power to regulate state Guard unless militia called into federal service; Tenth Amendment reserves control to states | FLRA: Congress may reach civilian employment aspects; courts have upheld FLRA jurisdiction over technicians | No constitutional bar; FLRA enforcement is permissible when Guard acts as employer of technicians |
| Legality / practicability of reinstating cancelled dues allotments | Guard: Reinstatement would violate federal law or be impracticable | FLRA: Restoring dues and reimbursing employees is lawful and required after unauthorized cancellations | Guard can lawfully comply; must reinstate allotments and reimburse unlawful cancellations |
Key Cases Cited
- Michigan Army Nat’l Guard v. FLRA, 878 F.3d 171 (6th Cir. 2017) (holds FLRA has jurisdiction over state Guards as employers of dual-status technicians)
- New Jersey Air Nat’l Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982) (characterizes technicians as civilian employees entitled to federal labor protections)
- Lipscomb v. FLRA, 333 F.3d 611 (5th Cir. 2003) (dual-status technicians are covered by the Statute; state Adjutants General can be regulated by FLRA in that capacity)
- Ass’n of Civilian Technicians v. FLRA, 230 F.3d 377 (D.C. Cir. 2000) (recognizes collective-bargaining rights for technicians under federal law)