On Monday, Jan. 9, AFGE’s General Counsel’s Office argued to the U.S. Supreme Court that the Federal Labor Relations Authority (FLRA) has the power to remedy unfair labor practices committed by the Ohio National Guard against dual-status, civilian technicians represented by AFGE. Deputy General Counsel for Litigation Andres Grajales argued for AFGE, and Assistant General Counsel Matt Milledge was co-counsel. Both did an extraordinary job.
Starting in 2016, the Ohio Adjutant General repudiated his collective bargaining agreement with AFGE Local 3970 and committed other unfair labor practices, despite a more than 40-year history of bargaining with AFGE and its dual status technicians. Ohio claimed that technicians had no collective bargaining rights and that it was not bound by the Federal Service Labor Management Relations Statute. The FLRA issued multiple complaints, all but one of which was upheld after a hearing before an administrative law judge – who recognized Ohio’s actions for what they were, “union busting in its purest form.”
The Ohio National Guard then filed exceptions, which were denied, and appealed to the U.S. Court of Appeals for the Sixth Circuit. AGC Matt Milledge argued before the court of appeals and the Guard’s appeal was rejected. Ohio then petitioned the Supreme Court for certiorari, which was granted on Oct. 3. And, after a very tight briefing schedule, the court heard arguments on Jan. 9.
The Ohio Adjutant General again argued that the FLRA has no jurisdiction over the Ohio National Guard as to AFGE’s bargaining unit. AFGE argued that these are clearly federal employees with federal collective bargaining rights under Title 5, which counsel for the Adjutant General eventually conceded. The union and the FLRA argued that the only way to enforce these rights is through FLRA exercising authority over the guard, just as it does for other federal employees. Under tough questioning by the justices, DGC Grajales argued that the statutes governing civilian technicians are unique in creating a group of employees – dual status technicians – who are federal employees with collective bargaining rights but who are subject to hiring, day-to-day supervision, and firing by an adjutant general, who is a state entity for other purposes unrelated to technicians’ civilian conditions of employment.
After an argument that stretched to more than 90 minutes, Chief Justice John Roberts Jr. thanked counsel for the parties and stated the case was considered submitted. The court will now review the matter and will likely issue a decision before the current term adjourns for recess in June.
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