ARGUMENT ANALYSIS

If it ain’t broke, don’t fix it? Justices consider whether to alter the National Guard collective-bargaining landscape

From the beginning of Monday’s oral argument in Ohio Adjutant General’s Department v. Federal Labor Relations Authority, it was crystal clear that Ohio Solicitor General Benjamin Flowers would focus like a laser beam on the claim that the FLRA has no statutory authority to issue orders against state agencies.

“The Reform Act defines agencies to include executive departments, government corporations, and independent establishments,” he said, referring to a 1978 federal law that established collective-bargaining rights for employees of the federal government. “Adjutants General and state Guards are none of these things.” Ohio now clearly concedes that the dual-status National Guard technicians at issue in the case are federal employees by virtue of The Technicians’ Act. But, argued Flowers strenuously, that designation did not “convert” state agencies to federal agencies against whom the FLRA may issue orders. Justice Clarence Thomas underscored the concern: “That’s the leap that I’m having some difficulty with.”

But Justice Ketanji Brown Jackson focused on the congressional intent behind federal employee designation of the technicians — who are state employees for some purposes, and federal employees when engaged in other functions: organizing, administering, instructing, or training of the National Guard; and the maintenance and repair of supplies issued to the National Guard. Jackson asked, respecting the delegation of federal employee status to technicians, “Surely you’re not saying that we can just decide whatever we want about this policy without reference to what Congress intended.” Flowers responded: “As long as congressional intent is interpreted with respect to the statute.”

So, the textualist arguments were framed as Ohio might have liked. But the fly in the ointment continues to be that Ohio has acquiesced to the dual-employment arrangement — and benefitted from it — since the 1970s. The important factual context here is that when workers are engaged in federal employment they receive federal employment benefits (including the right to collectively bargain) and those benefits help the Guard recruit highly qualified individuals. Still, as Justice Neil Gorsuch hypothesized, the arrangement might trigger constitutional notions of federal commandeering were it not for broad state consent to this model of collective bargaining over the preceding half-century. Though — as developed during the argument — there were legislative efforts decades ago to upset the model, those efforts failed. Congress appears to have accepted the arrangement, even though it has not attempted to include the local Guard, or the state adjutant generals who act as the commanders of each state’s Guard, under the definition of “agency.” And Justice Sonia Sotomayor invoked what she called Justice Elena Kagan’s “venerable rule” (though she was actually quoting Kagan from the first case argued on Monday): “If it ain’t broke, don’t fix it.” 

Kagan pressed Flowers on the question of what it meant for the dual-status technicians — federal employees — to have collective-bargaining rights if the FLRA could not enforce them through orders against the Ohio Guard. “What does that mean to you?” Kagan asked. “Because the idea of collective bargaining rights is that there’s somebody else on the other side that has to sit down and collectively bargain with you.” Flowers answered that the “somebody else” should be “the Department of Defense, who could ask us to serve as the representative, might be bound by what we enter into, but it would be forced through and against them.”

The Department of Defense is obviously “an agency,” which “solves” the FLRA authority problem, provided we are not talking about military employees, for purely “military” unions are forbidden under federal law. But as Nicole Reaves, assistant to the U.S. solicitor general, arguing on behalf of the FLRA, made clear, substituting the DOD as the bargaining party-in-interest would “upend 50 years of uninterrupted collective bargaining between technicians and state adjutants general” and “negate the right that the [Reform] Act actually gives to technicians, a right to bargain with their direct supervisors subject to the FLRA’s enforcement authority.”

This line of discussion at the argument deserves fleshing out. Ohio essentially argues that, even if Congress may instruct the Ohio adjutant general to function as the DOD’s agent or representative in collective bargaining over the technicians’ employment (the DOD “approves” collective-bargaining agreements between state adjutants general), the breach of resulting agreements or violations of federal collective-bargaining law are not “chargeable” against the Ohio Guard. So what is the remedy if the Ohio adjutant general fails to comply with a collective-bargaining agreement governing dual status technicians? The federal government could in theory withhold funding from a state Guard, or cease to “recognize” it. Reaves argued, however, that “it makes no sense to require DOD to threaten the nuclear option of withholding federal funding or recognition to state National Guards to enforce routine FLRA orders. Because petitioners have decided to accept the benefits that come with employing technicians, they must also accept the limited bargaining obligations that come along with those benefits.” As Reaves put it, “I don’t think that’s any way to run a railroad.” Andres Grajales, counsel for the union representing the dual-status technicians, provided additional insights into why a collective-bargaining landscape with DOD bargaining units might be intensely cumbersome.

Throughout the argument, Sotomayor emphasized the so-called savings clause of the Reform Act, which says: “Nothing contained in [the statute] shall preclude … the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of [the statute].” Sotomayor asked Flowers, “Doesn’t the savings clause just defeat all your arguments?” Read generously, this clause seems to incorporate, for example, prior decisions of the FLRA (going back to the early 1970s) upholding bargaining between unions and state National Guards over certified bargaining units.

Flowers rejected this argument — both because (he claimed) the precise question presented in the present litigation had not been fully considered there, and because the courts owe no special deference to prior decisions of the FLRA on such questions (he cited INS v. FLRA, a 1988 decision of the U.S. Court of Appeals for the 9th Circuit). But Sotomayor’s approach might provide textual support for more conservative justices to endorse the substantial and obvious past practice of the collective bargaining under discussion. It is, of course, true that agencies possess only the authority that Congress confers. Ordinarily, that authority is located in the agency’s “organic” statute. But there seems no reason to think that authority for a practice may not be located in other (if more cryptic) statutory sources.