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Civilians work for military, but who sits at their bargaining table?

A labor dispute with National Guard technicians had the Supreme Court debating its role in the face of congressional authority. 

WASHINGTON (CN) — A majority of Supreme Court justices appeared skeptical Monday of arguments by the state of Ohio in a case concerning the labor rights of civilian members of the National Guard. 

Justice Elena Kagan said Congress gave guard technicians the ability to collectively bargain, and the only question was who would be at the table with them. While she acknowledged that the state argued the Defense Department would be more fit, Kagan noted Congress explicitly said it could not be the agency. Kagan said it was important for the court to consider Congress’ intent. 

“We try to make sense of statutes as a whole,” the Obama appointee said. 

Some of the justices worried about the court overstepping its authority when Congress had already spoken on the issue. 

“Surely you’re not saying we can decide whatever we want regardless of Congress’ intent,” Justice Ketanji Brown Jackson said to Ohio’s solicitor general. 

Justice Sonia Sotomayor worried the court’s ruling would interfere with national security. 

“We should be doing very little to interfere in that process,” the Obama appointee said. 

The principles of federalism seemed to guide a few of the conservative justices who appeared sympathetic to Ohio’s arguments. Justice Neil Gorsuch pondered if Congress could replicate the same delegation authority in other spending clause cases. Justice Clarence Thomas said the state should not be treated like an agency. 

“There’s always delegations but those delegees are not an agency,” the Bush appointee said. 

The case before the court arises from failed labor agreement talks between the Ohio National Guard and the American Federation of Government Employees, AFL-CIO. Civilian employees working with the National Guard entered into a labor agreement for the conditions of employment for the guard’s technicians in 2011. When that agreement ended by 2014, however, the guard and the union were not able to come up with a new agreement. 

Without a new agreement, the guard decided to abide by the 2011 deal. But that accord would be short-lived. Five years down later, the guard reversed course and decided it would no longer be bound by the expired agreement. The guard announced it would subsequently halt union dues deductions from technicians. 

The AFL-CIO claimed the guard's actions violated labor laws and filed multiple unfair labor practice charges with the Federal Labor Relations Authority. After an investigation, the FLRA general counsel found that the guard refused to negotiate in good faith and violated employees' rights under the Federal Service Labor-Management Relations Statute. 

After the Ohio adjutant general intervened on behalf of the guard, an administrative law judge found that the FLRA had jurisdiction and that the guard engaged in unfair labor practices. The guard was ordered to abide by the terms of the 2011 collective bargaining agreement. 

The FLRA adopted the administrative law judge’s findings on appeal, and the court of appeals turned down a review of the case. The justices will now decide if the FLRA’s congressional authority to review the labor practices of federal agencies extends to state militias. 

The Ohio adjunct generals claim that authority is limited. 

“Congress empowered the Authority to regulate the labor practices of federal agencies — executive departments, government corporations, and certain other ‘[e]stablishments within the executive branch,’” Benjamin Flowers, Ohio’s solicitor general, wrote in the state’s brief.  “That limited grant of power over statutorily defined federal entities does not confer any power over state entities and state officers. So the Authority has no power over state national guards or state adjutants general.” 

The FLRA said that Ohio’s problem is with the policy, not its enforcement, and therefore should be taking its complaint across the street. 

“Ultimately this is a policy disagreement Ohio can take to Congress,” Andres Myles Grajales, an attorney with the American Federation of Government Employees, told the court. 

The federal government argues that the Federal Service Labor-Management Relations Act gave guard technicians collective bargaining rights because they are employees of a covered federal agency. That law requires the guard to bargain with dual-status employees and comply with labor laws. 

“A contrary reading would contradict the text and structure of the relevant statutes, including the plain meaning of ‘designate,’” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “And it would make the collective bargaining rights that the Act explicitly confers on technicians effectively unenforceable. That would violate the basic principle that one statutory provision should not be read to invalidate another.”

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