Ohio Adjutant General's Dept. v. FLRA
The Supreme Court ruled that a state National Guard acts as a federal agency — and must follow federal labor law — when it employs the special civilian-military workers known as dual-status technicians, upholding the Federal Labor Relations Authority's power to hear workplace disputes involving those workers.
The decision means that unions representing dual-status technicians at state National Guards across the country can use the Federal Labor Relations Authority to enforce collective-bargaining rights, even though National Guards are state institutions.
“it would be passing strange if dual-status technicians, who qualify as employees under the Statute, were supervised by an entity not required to safeguard the rights guaranteed employees under the Statute.”
The majority explaining why exempting the Guard from labor-law obligations would be inconsistent with the statute's employee protections.
How it got here: An FLRA administrative judge and then the full FLRA ruled against the Guard; the Sixth Circuit denied the Guard's petition for review; the Guard asked the Supreme Court to hear the case and the Court agreed.
The Case in Depth
What happened
Dual-status technicians work full time as civilian employees of the Ohio National Guard while also being required to maintain military membership in the Guard. The American Federation of Government Employees union represents these workers. When the Ohio National Guard refused to continue bargaining under a federal labor statute and canceled dues withholding for 89 technicians, the union filed unfair labor practice charges. The Guard argued it was a state entity, not a federal "agency," so federal labor law and the Federal Labor Relations Authority had no jurisdiction over it.
The question before the Court
Does a state National Guard act as a federal "agency" under federal labor law when it hires and supervises civilian employees who are also required to maintain National Guard membership?
The Court's answer
Yes — the Court ruled that the Ohio National Guard acts as a federal agency for purposes of the Federal Service Labor-Management Relations Statute when it hires and supervises dual-status technicians in their civilian role, giving the Federal Labor Relations Authority jurisdiction to hear the dispute and issue remedial orders.
The Court reached this conclusion through a chain of statutory definitions: federal law classifies each dual-status technician as an employee of the Department of the Army or Air Force, those departments are components of the Department of Defense, and the Department of Defense is explicitly listed as a covered "agency" under the labor statute. More importantly, the sole legal basis for a state adjutant general's authority to employ these workers is a formal delegation from the Secretary of the Army or Air Force — meaning when the Guard acts as employer, it acts on behalf of a covered federal agency.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Dual-status technicians employed by state National Guards nationwide retain enforceable federal labor rights, including the right to collectively bargain through the Federal Labor Relations Authority. State adjutants general who supervise these workers cannot opt out of federal labor law obligations simply because they are state officials acting under state appointment.
What changes now
The ruling is final. The Ohio National Guard must comply with the Federal Labor Relations Authority's remedial order, which requires it to bargain in good faith with the union and reinstate dues withholding for affected technicians. The decision applies broadly to state adjutants general across the country: when they supervise dual-status technicians, they must respect federal labor law, and the FLRA can enforce those obligations against them.
What this does not decide
The Court expressly declined to address whether the FLRA's authority is constitutional as applied to state militia members who are not employed in the service of the United States — that question was not accepted for review. The ruling is limited to the specific class of dual-status technicians hired by state adjutants general under a federal designation.
Concurrences and dissents
Dissent — Justice Alito
“Because petitioners are not actually federal agencies, a proposition that the Court does not dispute, the FLRA lacks jurisdiction to enter remedial orders against them.”Justice Alito's core objection: the majority never shows the Guard is literally an 'agency,' only that it acts like one.
Justice Alito argued that the plain text of the statute unambiguously forecloses the majority's result: the FSLMRS defines 'agency' as an 'Executive agency,' which means an executive department, government corporation, or independent establishment — and no petitioner fits any of those categories. Being designated to exercise the authority of an agency does not transform the designee into an agency itself, any more than a designated hearing officer becomes the Secretary of the Interior. The Thompson Field decision and the saving clause provide no rescue because that earlier ruling never addressed whether an adjutant general qualifies as a remedially subject 'agency.' Alito would have reversed and held that the FLRA lacks jurisdiction to issue remedial orders against the Guard.
How the Court got there
The legal reasoning, step by step
- The labor statute defines 'agency' to include the Department of Defense. Separately, federal law classifies each dual-status technician as 'an employee of the Department of the Army or the Department of the Air Force' — departments that are themselves components of the Department of Defense. The Court reasoned that components of covered agencies plainly fall within the labor statute's reach, so when the Guard supervises these workers, it exercises the authority of a covered federal agency.
- The sole legal basis for a state adjutant general's power to hire and supervise dual-status technicians is a formal designation from the Secretary of the Army or Air Force. That designation — not state law — is what gives the Guard its authority over these workers. Because the Guard acts as the federal Secretary's designee when employing dual-status technicians, it acts on behalf of a covered federal agency, not as an independent state actor.
- The Court found it would be anomalous to hold that dual-status technicians, who unquestionably qualify as federal 'employees' with bargaining rights under the statute, could be supervised by an entity that was not required to respect those rights. The labor statute protects 'each employee' and guarantees that right to be free from employer interference — a guarantee that would be hollow if the immediate supervisor were exempt.
- The labor statute's saving clause (§7135(b)) keeps prior administrative policies under its predecessor, Executive Order 11491, in full force unless specifically changed. A 1971 administrative ruling (Thompson Field) under that predecessor order directly addressed an identical dispute involving Mississippi's National Guard technicians and held the adjutant general was subject to the federal labor framework as a designated agent of the Army and Air Force Secretaries.
- Because the definitions of 'employee' and 'agency' in Executive Order 11491 were materially identical to those Congress later adopted in the labor statute, the Court applied a standard presumption: Congress is assumed to have maintained the same coverage that existed under the prior regime. The Court found nothing to undercut that presumption, and the saving clause confirmed Congress intended the prior practice to continue unless specifically revoked.