U.S. Supreme Court to decide whether Federal Labor Relations Authority can regulate Ohio’s National Guard

WASHINGTON — The U.S. Supreme Court on Monday agreed to hear an Ohio case that asks whether the Federal Labor Relations Authority has the power to regulate the Ohio National Guard and its Adjutant General. The nation’s highest court agrees to hear between 100 to 150 of the more than 7,000 cases its asked to review every year.

Ohio Attorney General Dave Yost says Ohio Solicitor General Ben Flowers will argue the state’s case before high court when it sets a trial date.

“I have consistently gone to court to combat federal overreach, and this case is more of the same,” said a statement from Yost. “Long story short, the FLRA can regulate federal agencies only. Neither the Ohio National Guard nor Ohio Adjutant General’s Department is a federal agency. So the FLRA cannot regulate them.”

The case arose after a union representing technicians in Ohio’s Army and Air National Guards filed FLRA complaints that alleged the

Ohio National Guard committed unfair labor practices by not deducting labor dues from paychecks, not bargaining in good faith, failing to recognize the union, reassigning some technicians without consulting the union and recommending a halt to payroll deduction of union dues.

An administrative law judge determined the Ohio Guard hierarchy was covered by FLRA, and its dealings with union officials violated federal labor laws. A circuit court upheld its decision, concluding the Ohio Guard “is a federal executive agency.” Yost contends that ruling is wrong.

“The law is ossifying around a rule that degrades the Constitution’s separation of powers,” says Yost’s brief, urging the court to “review the matter before that happens.”

Attorneys for the FLRA said the lower court rulings were correct. It said the technicians have the right to collectively bargain under the Federal Service Labor-management Relations Act because they are federal civilian employees and because Ohio acts as representatives of a covered agency when it supervises them.

“The court of appeals correctly held that the text of the relevant statutes requires petitioners to collectively bargain with the technicians’ union and otherwise comply with the Act,” said its legal brief, which urged the Supreme Court to reject the case.

Eleven other states filed a joint brief that backed Ohio’s appeal, arguing the lower court decision “continues a damaging trend of eroding the constitutional design for checking and balancing national military power.” Their appeal said each of their states has a National Guard unit— “the modern-day version of what the Constitution calls ‘Militia’: armed, able-bodied citizens primarily led and trained by the States, ready to help the States meet emergencies and safeguard liberty.”

“Over time, the States’ power over the militia has been diminished, upending the constitutional design,” their brief said. “This case gives the Court an opportunity to halt this trend.”