U.S. justices appear to back U.S. labor agency oversight of state militias

A view of the U.S. Supreme Court building on the first day of the court's new term in Washington, U.S. REUTERS/Jonathan Ernst
  • Ohio says U.S. agency can't force National Guard to bargain with union
  • Justices suggested federal law delegates bargaining duties to states
  • National Guard technicians are federal employees

(Reuters) - Ohio's top lawyer on Monday struggled to convince justices on the U.S. Supreme Court that a U.S. labor agency that oversees the federal workforce lacks the power to force the Ohio National Guard and other state militias to bargain with unions.

Benjamin Flowers, Ohio's solicitor general, told the court that the National Guard is not a federal agency and therefore does not fall under the jurisdiction of the Federal Labor Relations Authority (FLRA) even though it employs civilian technicians who are considered federal workers.

But justices from the court's conservative majority and its liberal wing pressed Flowers during the 90-minute arguments on how the technicians could exercise their collective bargaining rights if the National Guard, which hires, fires and supervises them, is not at the table.

"Your argument would make much more sense if we were talking about the state highway patrol," Justice Clarence Thomas said.

Ohio is appealing a 2021 ruling by the 6th U.S. Circuit Court of Appeals that said the FLRA has the power to hear disputes between the National Guard and unions because its workers are considered employees of the U.S. Department of Defense.

The 6th Circuit in its decision upheld a FLRA ruling that said the Ohio National Guard violated federal labor law in 2016 by abruptly ending its 45-year bargaining relationship with a union.

The two other federal appeals to consider the issue — the 5th and D.C. Circuits — have ruled the same way.

Flowers on Monday said the Department of Defense had delegated oversight of technicians to states, but that did not make the National Guard a federal agency subject to the FLRA's jurisdiction. He said it was the department's obligation, and not that of individual states, to bargain with the workers' unions.

States operate their own National Guards, but are required by federal law to have them and to hire technicians who are members of the federal civil service.

Justice Elena Kagan noted that federal law required the Department of Defense to delegate those powers to states, suggesting that its bargaining duties also passed along to state militias.

And Justice Amy Coney Barrett said it did not make sense for Congress to intend for National Guard technicians "to have a different, weaker form of collective bargaining rights" than all other federal employees.

Nicole Reaves of the U.S. Solicitor General's Office, who argued the case for the FLRA, told the court that the National Guard is a "component" of the Department of Defense for the purposes of collective bargaining.

Reaves said offices within larger federal agencies are routinely tasked with bargaining, such as the U.S. Department of Justice delegating those duties to the Federal Bureau of Investigation with respect to its employees.

The case is Ohio Adjutant General's Department v. Federal Labor Relations Authority, U.S. Supreme Court, No. 21-1454.

For Ohio: Solicitor General Benjamin Flowers

For the FLRA: Nicole Reaves of the U.S. Department of Justice

Read more:

U.S. Supreme Court takes up challenge to federal oversight of state militias

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.