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States: Feds Can’t Dictate How Guard Works with Unions

06-22-22 WR Amicus
06-22-22 WR Amicus
Washington Report

The Mississippi attorney general led an 11-state legal effort last week to stop what they called “further federal encroachment on state National Guard units.”

The states filed an amicus - or friend of the court - brief supporting the Ohio Adjutant General’s Department’s petition for “certiorari," or the act of bringing a case before the Supreme Court.

The Ohio National Guard is challenging a Federal Labor Relations Authority order enforcing collective bargaining for its Guard dual-status technicians.

“The Constitution established a delicate balance between federal and state military power in order to maximize both the security and liberty of the people," said Mississippi Attorney General Lynn Fitch. "But, particularly in the last century, that balance has been increasingly disturbed in favor of federal authority."

“When a federal agency seeks to force a state National Guard to negotiate a collective bargaining agreement and collect union dues, it can hardly be said that there remains any balance to this vital structure at all," she added.

In The Ohio Adjutant General’s Department v Federal Labor Relations Authority, the Ohio Guard claimed it wasn’t bound by an expired collective bargaining agreement with the American Federation of Government Employees, Local 3970, AFL-CIO, which had represented Guard technicians.

The FLRA asserted jurisdiction over the dispute, concluding the Guard is an executive agency and dual-status technicians employed by the Guard are full-time federal civilian employees.

As a condition of their employment, Guard dual-status technicians must also be drill-status Guard soldiers or airmen.

On appeal of the FLRA order, a panel of the Sixth Circuit Court of Appeals affirmed the FLRA’s determinations the Guard and its technicians were bound by federal labor relations law.

The 11 state attorneys general called the panel's decision part of the “historical trend eroding state control over state National Guard units in favor of greater federal authority, even for no legitimate military purpose.”

The group said it “restrains an adjutant general from managing his Guard members."

"Controlling how the adjutant general negotiates with unions or determines when to promote his members has no battlefield connection that might justify wresting control from the states," they added.

The AGs of Alabama, Alaska, Arkansas, Idaho, Louisiana, Oklahoma, South Dakota, Texas, Utah and West Virginia joined Mississippi's AG in filing the amicus brief.

Readers can see the Ohio Adjutant General’s Department's case at https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0289p-06.pdf

 - By John Goheen