Amicus Curiae Brief — The Ohio Adjutant General's Department, et al., Petitioners v. Federal Labor Relations Authority, et al.

Supreme Court briefDec 16, 2022

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No. 21-1454

In the

Supreme

Supreme Court

Court

of the

the United

United States

States

____________________

THE OHIO ADJUTANT GENERAL’S DEPARTMENT, ET AL.,

Petitioners,

FEDERAL LABOR RELATIONS AUTHORITY, ET AL.,

Respondents.

____________________

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

United States Court

of Appeals for the Sixth Circuit

____________________

BRIEF OF AMICI CURIAE AMERICAN

FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS AND

LABORERS’ INTERNATIONAL UNION OF

NORTH AMERICA IN SUPPORT OF

RESPONDENTS

____________________

BRUCE LERNER

HAROLD C. BECKER

BRUCE LERNER

HAROLD C. BECKER

RAMYA RAVINDRAN

General Counsel

RAMYA RAVINDRAN

General Counsel

SEBASTIAN BRADY

ANDREW LYUBARSKY

SEBASTIAN BRADY

ANDREW LYUBARSKY

BREDHOFF & KAISER,

Counsel of Record

BREDHOFF & KAISER,

Counsel of Record

815 Black Lives Matter

P.L.L.C.

815 Black Lives Matter

805 15th Street N.W.

Plaza N.W.

805 15th Street N.W.

Washington, DC 20005 Washington, DC 20006

(202) 637-5115

(202) 842-2600

(202) 637-5115

alyubarsky@aflcio.org

Counsel for LIUNA

Counsel for the AFL-CIO

Counsel for LIUNA

Counsel for the AFL-CIO

Counsel continued on inside cover

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

49261_Ltrhd.indd

6/11/08

12:44:0

THEODORE T. GREEN

General Counsel

905 Black Lives Matter

Plaza N.W.

Washington, DC 20006

(202) 737-8320

Counsel for LIUNA

TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .....................................................1

ARGUMENT ...............................................................3

Congress Provided the FLRA

Jurisdiction Over Petitioners Through

Its Express Codification of Pre-FSLMRS

Jurisprudence ...................................................3

The 1968 Technicians Act Gave

Dual-Status Technicians

Collective Bargaining Rights

Enforceable Against State

National Guards and State

Adjutants General Under PreFSLMRS Executive Orders ...................4

Congress Expressly Codified This

Pre-Existing Jurisprudence in

the FSLMRS...........................................9

Congress’ Contemporaneous

Rejection of Proposals to Strip

Technicians of the Right to

Collectively Bargain and to

Render the Right Unenforceable

Further Confirms that “Agency”

in the FSLMRS Includes State

National Guards and Adjutants

General ................................................. 13

II.

Congress Was Aware that

State National Guards

Were Covered by Executive

Order 11491 and Rejected

a Proposal to Strip Their

Dual-Status Technicians of

the Right to Organize................ 13

Congress Specifically

Rejected a Proposal to

Exclude State National

Guards and their

Adjutants General from

Federal Labor Authorities’

Jurisdiction ................................ 20

Under the Relevant Statutory

Framework, Petitioners Constitute

Executive Agencies as Defined in the

FSLMRS .......................................................... 22

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Cases

Albernaz v. United States, 450 U.S. 333

(1981) .................................................................... 10

Ass’n of Civilian Technicians, Wichita Air

Capitol Chapter v. FLRA, 360 F.3d 195

(D.C. Cir. 2004) .................................................... 14

Babcock v. Kijakazi, 142 S. Ct. 641 (2022) .................5

Bellotti v. Baird, 428 U.S. 132 (1976) ....................... 12

Bond v. United States, 572 U.S. 844 (2014) ............. 29

Bureau of Alcohol, Tobacco & Firearms v.

FLRA, 464 U.S. 89 (1983) .............................. 11, 23

Cannon v. Univ. of Chicago, 441 U.S. 677

(1979) .................................................................... 10

Carey v. Donohue, 240 U.S. 430 (1916) .................... 22

Chaudoin v. Atkinson, 494 F.2d 1323 (3d

Cir. 1974) ................................................................2

Comm’r of Internal Revenue v. Keystone

Consol. Indus., Inc., 508 U.S. 152 (1993) ............ 10

Dyer v. Dep’t of the Air Force, 971 F.3d

1377 (Fed. Cir. 2020) .............................................4

Fed./Postal/Retiree Coal., Am. Fed’n of

Gov’t Emps. v. Devine, 751 F.2d 1424

(D.C. Cir. 1985) .................................................... 12

FLRA v. Mich. Army Nat’l Guard, 878 F.3d

171 (6th Cir. 2017) .................................................2

Fort Stewart Schools v. FLRA, 495 U.S. 641

(1990). ................................................................... 23

Gilliam v. Miller, 973 F.2d 760 (9th Cir.

1992) .......................................................................2

Ind. Air Nat’l Guard, Hulman Field, Terre

Haute, Ind. v. FLRA, 712 F.2d 1187 (7th

Cir. 1983) ................................................................2

Lipscomb v. FLRA, 333 F.3d 611 (5th Cir.

2003) ................................................................. 2, 12

Maryland ex rel. Levin v. United States,

381 U.S. 41 (1965) ..................................................4

Menominee Tribe of Indians v. United

States, 391 U.S. 404 (1968) .................................. 19

N.J. Air Nat’l Guard v. FLRA, 677 F.2d

276 (3d Cir. 1982)...................................................2

N.Y. Tel. Co. v. N.Y. State Dep’t of Lab.,

440 U.S. 519 (1979) .............................................. 19

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) .................... 10

Nelson v. Geringer, 295 F.3d 1082 (10th

Cir. 2002) .............................................................. 26

NeSmith v. Fulton, 615 F.2d 196 (5th Cir.

1980) ..................................................................... 28

Old Dominion Branch No. 496, Nat’l Ass’n

of Letter Carriers, AFL-CIO v. Austin,

418 U.S. 264 (1974) ................................................5

Perpich v. Dep’t of Defense, 496 U.S. 334

(1990) ........................................................ 25, 27, 29

State of Neb., Military Dep’t, Office of

Adjutant Gen. v. FLRA, 705 F.2d 945

(8th Cir. 1983) ........................................................2

United States v. Stewart, 311 U.S. 60

(1940) .................................................................... 19

Administrative Cases

Adjutant Gen. Dep’t, State of Ohio, Air

Nat’l Guard, A/SLMR No. 44, Case No.

53-2974 (May 20, 1971)..........................................7

Ala. Air Nat’l Guard, A/SLMR No. 67, Case

No. 40-1943 (June 30, 1971) ..................................7

Ark. Army Nat’l Guard & Nat’l Fed’n of

Fed. Emps., Loc. 1671, 1 FLRA 876

(1979) .................................................................... 12

Cal. Army Nat’l Guard 1st Battalion, 250th

Artillery Air Def., A/SLMR No. 47, Case

No. 70-1532 (June 1, 1971) ....................................7

Dep’t of Def., Ark. Nat’l Guard, A/SLMR

No. 53, Case No. 64-1136 (CA) (June 8,

1971) .......................................................................7

Dep’t of Def., Nat’l Guard Bureau, Adjutant

Gen., State of Ga., A/SLMR No. 74, Case

No. 40-1994 (July 12, 1971) ..................................7

Dep’t of Def., Nat’l Guard Bureau, Fla.

Army Nat’l Guard, and Fla. Air Nat’l

Guard, A/SLMR No. 37, Case No. 421244 (May 11, 1971) ..............................................7

Fed. Corr. Complex, Yazoo City, Miss., 73

FLRA 114 (2022) .................................................. 24

Immigr. & Customs Enforcement, 70 FLRA

208 (2017) ............................................................. 24

Minn. Army Nat’l Guard, A/SLMR No. 14,

Case No. 51-1243 (Feb. 22, 1971) .........................7

Miss. Army Nat’l Guard Jackson, Miss., 57

FLRA 337 (2001) .................................................. 12

Miss. Nat’l Guard, 172 Military Airlift Grp.

(Thompson Field) & Int’l Union of Elec.,

Radio, and Mach. Workers, AFL-CIO,

Case No. 41-1723, A/SLMR No. 20

(April 2, 1971) ...................................... 8, 11, 12, 16

Nat’l Park Serv., 73 FLRA 220 (2022) ...................... 24

Penn. Army & Air Nat’l Guard & Ass’n of

Civilian Technicians, 1 FLRA 310 (May

9, 1979) ................................................................. 12

Penn. Nat’l Guard, A/SLMR No. 9, Case

No. 21-1876 (Jan. 25, 1971) ...................................7

Va. Nat’l Guard Headquarters, 4th

Battalion, 111th Artillery, A/SLMR No.

69, Case No. 46-1611 (June 30, 1971) ...................7

Statutes

5 U.S.C. § 101 ............................................................ 23

5 U.S.C. § 105 ................................................ 10, 23, 24

5 U.S.C. § 7103 .................................................... 10, 22

5 U.S.C. § 7104 .......................................................... 11

5 U.S.C. § 7105 ................................................ 2, 10, 11

5 U.S.C. § 7135 .................................................... 12, 19

10 U.S.C. § 111 .......................................................... 24

10 U.S.C. § 7062 .................................................. 24, 25

10 U.S.C. § 9062 ........................................................ 25

10 U.S.C. § 10105 ...................................................... 25

vii

10 U.S.C. § 10111 ...................................................... 25

32 U.S.C. § 101 .................................................... 25, 26

32 U.S.C. § 109 .......................................................... 29

32 U.S.C. § 312 .......................................................... 28

32 U.S.C. § 314 .......................................................... 28

32 U.S.C. § 709 .................................................. 2, 4, 28

Nat’l Guard Technicians Act of 1968, Pub.

L. No. 90-486 ..........................................................4

Ohio Rev. Code Ann. § 5913.01 ................................. 27

Ohio Rev. Code Ann. § 5913.021 ............................... 28

Ohio Rev. Code Ann. § 5919.01 ........................... 26, 27

Ohio Rev. Code Ann. § 5923.01 ................................. 24

Pub. L. No. 95-610 (1978), codified as

amended at 10 U.S.C. § 976(b)(1)-(2). ........... 14, 18

Pub. L. No. 98-525 (1984).......................................... 14

Other Authorities

95 Cong. Rec. H10,709 (daily ed. Sept. 26,

1978) (statement of Rep. Stratton) ...................... 18

95 Cong. Rec. S15,061 (daily ed. Sept. 16,

1977) ......................................................... 14, 15, 16

95 Cong. Rec. S19,034 (daily ed. Oct. 14,

1978) (statement of Sen. Stennis) ....................... 18

Exec. Order No. 10988, 27 Fed. Reg. 551

(Jan. 17, 1962) ........................................................5

Exec. Order No. 11491, 34 Fed. Reg. 17605

(Oct. 29, 1969) ........................................ 5, 6, 10, 12

viii

H.R. Rep. No. 90-1823 (1968), reprinted in

1968 U.S.C.C.A.N. 3318.........................................4

H.R. Rep. No. 95-894(I) (1978) .................................. 18

H.R. Rep. No. 95-894(II) (1978) .......................... 18, 22

Prohibition on Union Organization of the

Armed Forces: Hearing on S. 274 Before

the H. Subcomm. On Civil Serv. Of the

H. Comm. On Post Office and Civil

Serv., 95th Cong. (1978)................................. 17, 21

S. Rep. No. 95-411 (1977) .......................................... 15

Unionization of Military Personnel:

Hearing on S. 274 Before the

Investigations Subcomm. of the H.

Comm. on Armed Servs., 95th Cong.

(1977) .................................................. 16, 20, 21, 22

INTEREST OF AMICI CURIAE

The American Federation of Labor and

Congress of Industrial Organizations (AFL-CIO) is a

federation of 58 national and international labor

organizations with a total membership of over 12.5

million working men and women. 1 Many of the AFLCIO’s affiliated unions represent employees of the

federal government, including several that represent

the civilian technicians at issue here. The Laborers’

International Union of North America (LIUNA) is an

international union representing roughly 500,000

members throughout the United States and Canada

across multiple industries in the private sector, from

construction to energy to manufacturing, and in the

public sector. LIUNA represents approximately 5,000

National Guard technicians in 11 states and

territories. Amici have a strong interest in ensuring

that their members’ collective bargaining rights are

protected and enforceable against their employers.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Every court to consider the question has

concluded that the Federal Labor Relations Authority

(FLRA) has jurisdiction over Petitioners and their

1 Counsel for Petitioners, counsel for Respondent, and counsel for

Intervenor-Respondent have each consented to the filing of this

amicus brief. No counsel for a party authored this brief in whole

or in part, and no person or entity, other than the amici curiae,

made a monetary contribution to the preparation or submission

of this brief.

counterparts in other states. 2 That this unbroken line

of cases exists is unsurprising. As set forth in the

briefs of the Federal Labor Relations Authority and

American Federation of Government Employees,

Local 3970, AFL-CIO, the FLRA’s jurisdiction over

Petitioners follows directly from the statutory scheme

governing the employment of dual-status technicians.

This conclusion is only bolstered by the additional

points amici make below.

First, contrary to Petitioners’ ahistorical

presentation, the Federal Service Labor-Management

Relations Statute (FSLMRS) was not enacted in a

vacuum. Rather, the definition of the very term at

issue in this case—the term “agency” in 5 U.S.C.

§ 7105(g)—was lifted verbatim from Executive Order

No. 11491. In enacting the FSLMRS, Congress—

which was well aware that many of the dual-status

technicians at issue in this case were represented in

collective bargaining with state national guards and

adjutants general under the Executive Order—not

2 See, e.g., Pet. App. at 14a; FLRA v. Mich. Army Nat’l Guard,

878 F.3d 171, 174 (6th Cir. 2017); Lipscomb v. FLRA, 333 F.3d

611, 613 (5th Cir. 2003); State of Neb., Military Dep’t, Office of

Adjutant Gen. v. FLRA, 705 F.2d 945, 952-53 (8th Cir. 1983); Ind.

Air Nat’l Guard, Hulman Field, Terre Haute, Ind. v. FLRA, 712

F.2d 1187, 1190 n.3 (7th Cir. 1983); N.J. Air Nat’l Guard v.

FLRA, 677 F.2d 276, 286 (3d Cir. 1982); see also Gilliam v. Miller,

973 F.2d 760, 762 (9th Cir. 1992) (“[Oregon Adjutant General’s]

personnel actions as supervisor over the federal civilian

technicians are taken in the capacity of a federal agency.”);

Chaudoin v. Atkinson, 494 F.2d 1323, 1329 (3d Cir. 1974)

(adjutant general was federal “agency or agent” for purpose of

mandamus statute because “32 U.S.C. § 709 charges the

adjutant generals with employment and administration of the

civilian technicians who are federal employees”).

only incorporated the same definition of “agency,” but

also expressly codified in the text of the statute the

pre-existing state of labor law for federal employees.

That pre-existing law clearly vested jurisdiction over

state national guards and adjutants general in the

federal entities charged with enforcing the federal

labor rights enjoyed by dual-status technicians.

Second, under the detailed statutory scheme

governing state national guards, these entities are

components of a federal agency, the Department of

Defense, that is undoubtedly covered by the FSLMRS.

This Court should therefore affirm the judgment

below.

ARGUMENT

I. Congress Provided the FLRA Jurisdiction

Over Petitioners Through Its Express

Codification of Pre-FSLMRS Jurisprudence

The Federal Service Labor-Management

Relations Statute (FSLMRS), which is part of the

Civil Service Reform Act of 1978, was not written on

a clean slate. Before the statute’s enactment, federal

employees, including dual-status technicians, had

been granted collective bargaining rights by executive

order. Dual-status technicians made frequent use of

these rights, and by 1978 it was well-settled that state

adjutants general and state national guards could be

ordered by the relevant federal bodies to respect these

rights. In 1978, Congress, acting against this

backdrop, expressly codified that state of affairs. This

codification dooms Petitioners’ arguments—all the

more so because, as contemporaneous evidence of

congressional intent shows, in endorsing the practice

under the executive order, Congress was acting with

full knowledge of the unionization of dual-status

technicians and the fact that state adjutants general

and state national guards were their counterparts in

bargaining and unfair labor practice proceedings.

A. The 1968 Technicians Act Gave DualStatus Technicians Collective Bargaining

Rights Enforceable Against State National

Guards and State Adjutants General

Under Pre-FSLMRS Executive Orders

The class of workers at issue in this case—dualstatus technicians—has existed in some form for over

a century. See Maryland ex rel. Levin v. United States,

381 U.S. 41, reh’g granted, judgment vacated on other

grounds, 382 U.S. 159 (1965). Their status today,

however, turns largely on a 1968 federal law, the

National Guard Technicians Act of 1968 (Technicians

Act), Pub. L. No. 90-486.

Before the enactment of the Technicians Act,

dual-status technicians—though they were “paid with

federal funds”—”were state employees.” Dyer v. Dep’t

of the Air Force, 971 F.3d 1377, 1380 (Fed. Cir. 2020).

That changed with the enactment of the Technicians

Act. Under the Technicians Act, these technicians

were expressly classified as federal employees. See id.;

see also H.R. Rep. No. 90-1823 (1968), reprinted in

1968 U.S.C.C.A.N. 3318, 3324 (“[A]ll technicians on

the effective date of the Act and those to be employed

in the future will become Federal employees as a

matter of law.”). Technicians are employed by the

Department of the Army or the Department of the Air

Force, but are, either way, “employee[s] of the United

States.” 32 U.S.C. § 709(e); see also Babcock v.

Kijakazi, 142 S. Ct. 641, 643 (2022) (describing dualstatus technicians as “federal civilian employee[s]”).

By becoming federal employees, technicians

gained collective bargaining rights. At the time of the

Technicians Act, those rights were granted to federal

employees by Executive Order No. 10988, which

provided that “[e]mployees of the Federal Government

shall have . . . the right, freely and without fear of

penalty or reprisal, to form, join and assist any

employee organization,” Exec. Order No. 10988, § 1(a),

27 Fed. Reg. 551 (Jan. 17, 1962), which the order

defined as “any lawful association, labor organization,

federation, council, or brotherhood having as a

primary purpose the improvement of working

conditions among Federal employees, or any craft,

trade or industrial union whose membership includes

both Federal employees and employees of private

organizations,” id. § 2.

Less than two years after dual-status

technicians became federal employees, President

Nixon issued Executive Order No. 11491 (EO 11491),

replacing Executive Order No. 10988, see Exec. Order

No. 11491, § 26, 34 Fed. Reg. 17605 (Oct. 29, 1969),

and “establish[ing] a labor-management relations

system for federal employment which is remarkably

similar to the scheme of the National Labor Relations

Act,” Old Dominion Branch No. 496, Nat’l Ass’n of

Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 27374 (1974). Similar to its predecessor, EO 11491

granted “[e]ach employee of the executive branch of

the Federal Government . . . the right, freely and

without fear of penalty or reprisal, to form, join, and

assist a labor organization or to refrain from any such

activity,” and guaranteed that “each employee shall be

protected in the exercise of this right.” EO 11491,

§ 1(a). This order went further, however, and also

created a set of procedures and remedies to effectuate

and protect that right. It defined a set of unfair labor

practices that agencies and labor organizations were

prohibited from committing, see id. § 19(a)-(b), and

required agencies to grant exclusive recognition to

labor organizations when those organizations were

elected as representatives of “appropriate unit[s]” of

agency employees, id. § 10(a).

EO 11491 also provided a mechanism for

resolving disputes relating to these employees’

exercise of their collective bargaining rights. It

provided that the Assistant Secretary of Labor for

Labor-Management

Relations

would

“decide

complaints of alleged unfair labor practices and

alleged violations of the standards of conduct for labor

organizations” and “decide questions as to the

appropriate unit for the purpose of exclusive

recognition and related issues submitted for his

consideration.” Id. § 6(a)(1),(4). It further provided

that in such cases, “the Assistant Secretary may

require an agency or a labor organization to cease and

desist from violations of this Order and require it to

take such affirmative action as he considers

appropriate to effectuate the policies of this Order.”

Id. § 6(b). Notably, “agency” was defined by the Order

as “an executive department, a Government

corporation, and an independent establishment as

defined in section 104 of title 5, United States Code,

except the General Accounting Office.” Id. § 2(a).

The newly-federalized technicians did not wait

long to avail themselves of the Executive Order’s

protections and procedures. During the first year

following the activation of EO 11491’s disputeresolution mechanisms, dual-status technicians in at

least ten states—including Ohio—brought cases

before the Assistant Secretary. 3 Nor were the

3 See Penn. Nat’l Guard, A/SLMR No. 9, Case No. 21-1876 (Jan.

25, 1971) (directing representation election in statewide unit of

Pennsylvania National Guard); Minn. Army Nat’l Guard,

A/SLMR No. 14, Case No. 51-1243 (Feb. 22, 1971) (directing

representation election in statewide unit of Minnesota National

Guard); Dep’t of Def., Nat’l Guard Bureau, Fla. Army Nat’l

Guard, and Fla. Air Nat’l Guard, A/SLMR No. 37, Case No. 421244 (May 11, 1971) (directing separate representation elections

in Florida Air and Army National Guards); Adjutant Gen. Dep’t,

State of Ohio, Air Nat’l Guard, A/SLMR No. 44, Case No. 53-2974

(May 20, 1971) (directing representation election in statewide

unit of Ohio Air National Guard); Cal. Army Nat’l Guard 1st

Battalion, 250th Artillery Air Def., A/SLMR No. 47, Case No. 701532 (June 1, 1971) (dismissing ULP charges stemming from

alleged anti-union activities within the California Army

National Guard); Dep’t of Def., Ark. Nat’l Guard, A/SLMR No. 53,

Case No. 64-1136 (CA) (June 8, 1971) (finding that Arkansas

National Guard had committed ULP by disparaging employee

who had initiated grievance, and ordering adjutant general to

sign and post notice of such); Ala. Air Nat’l Guard, A/SLMR No.

67, Case No. 40-1943 (June 30, 1971) (finding inappropriate

proposed bargaining unit including only certain technicians

employed by the Alabama Air National Guard and dismissing

election petition); Va. Nat’l Guard Headquarters, 4th Battalion,

111th Artillery, A/SLMR No. 69, Case No. 46-1611 (June 30,

1971) (resolving questions of scope of bargaining unit and

ordering election among Virginia National Guard technicians);

Dep’t of Def., Nat’l Guard Bureau, Adjutant Gen., State of Ga.,

A/SLMR No. 74, Case No. 40-1994 (July 12, 1971) (directing

elections among Georgia Air and Army National Guards). The

Assistant Secretary of Labor’s decisions can be found on the

jurisdictional questions that Petitioners raise before

this Court ignored or overlooked during this period. In

fact, in only the third case involving dual-status

technicians decided by the Assistant Secretary, the

Mississippi National Guard claimed that the federal

institutions empowered by EO 11491 to resolve labor

disputes lacked jurisdiction to issue orders enforcing

its provisions in relation to dual-status technicians,

raising arguments that are nearly identical to those

that Petitioners press before this Court. 4 The

Assistant Secretary rejected these arguments and

ruled that state National Guard units and their

adjutants general each constituted an “agency” under

the definitions of EO 11491. See Miss. Nat’l Guard,

172 Military Airlift Grp. (Thompson Field) and Int’l

Union of Elec., Radio, and Mach. Workers, AFL-CIO

(“Thompson Field”), Case No. 41-1723, A/SLMR No.

20 (April 2, 1971). Rejecting the proposition that he

lacked jurisdiction to enforce orders under EO 11491

FLRA’s website at https://www.flra.gov/system/files/webfm/

Authority/Archival%20Decisions%20&%20Leg%20Hist/ASLLM

R%20Decisions%20&%20Reports%20on%20Rulings%20VOL%2

01.pdf.

4 Specifically, the Mississippi National Guard contended that (1)

“the Executive Order is neither binding upon nor applicable to

employees of the state of Mississippi”; (2) the Technicians Act

“was, in fact, enacted solely for the purpose of granting

retirement benefits and protection under the [FTCA] to excepted

National Guard technicians”; (3) EO 11491 was “not binding

upon nor applicable to the sovereign state of Mississippi”; and (4)

Mississippi law did “not grant the Adjutant General any

authority to negotiate or enter into contracts with labor

organizations.” Miss. Nat’l Guard, 172 Military Airlift Grp.

(Thompson Field) & Int’l Union of Elec., Radio, and Mach.

Workers, AFL-CIO (“Thompson Field”), Case No. 41-1723,

A/SLMR No. 20 (April 2, 1971).

“because the employees involved are under the

operational control of the Adjutant General of the

State of Mississippi, who is appointed and employed

pursuant to State law,” the Assistant Secretary held

that the state adjutant general was “acting as an

agent of the Secretaries of the Army and the Air

Force” and that “the provisions of the Executive Order

are applicable to the [Mississippi National Guard].”

Id. at 2, 7.

This authoritative decision paved the way for a

decade of union representation of dual-status

technicians, during which the technicians made heavy

use of EO 11491’s dispute-resolution mechanisms.

Time and again, the Assistant Secretary asserted

jurisdiction over state National Guard organizations

and their adjutants general to delineate appropriate

bargaining units and supervise elections, order the

certification of exclusive bargaining representatives,

and remedy unfair labor practices. Two other bodies

created by EO 11491, the Federal Labor Relations

Council and the Federal Service Impasses Panel,

resolved various appeals of the Assistant Secretary’s

decisions and addressed numerous impasses in

collective bargaining, respectively.

B. Congress Expressly Codified This PreExisting Jurisprudence in the FSLMRS

Thus, when Congress enacted the FSLMRS, it

was settled law that state national guards and state

adjutants general were covered by EO 11491’s

definition of “agency.” That definition specifically

provided that an “agency” included “an executive

department, a Government corporation, and an

independent establishment as defined in section 104

of title 5, United States Code, except the General

Accounting Office.” EO 11491, § 2(a). And Congress,

in enacting the FSLMRS and delineating the FLRA’s

authority, adopted precisely this same definition: it

gave the FLRA authority to require affirmative action

by “agenc[ies],” 5 U.S.C. § 7105(g), which it defined, as

relevant here, as “an Executive agency,” id.

§ 7103(a)(3)—a term which, at that time and today,

means “an Executive department, a Government

corporation, and an independent establishment,” id.

§ 105; see also 5 U.S.C. § 105 (1976).

This Court has repeatedly stated that it is

appropriate

“to

assume

that

our

elected

representatives . . . know the law.” Albernaz v. United

States, 450 U.S. 333, 341 (1981) (quoting Cannon v.

Univ. of Chicago, 441 U.S. 677, 696-97 (1979)).

Accordingly, when Congress enacts into law a phrase

that has “acquired a settled judicial and

administrative interpretation,” it “presumptively [i]s

aware” of this settled interpretation and, in

construing the statute including that phrase, “it is

proper to accept the already settled meaning” of that

phrase. Comm’r of Internal Revenue v. Keystone

Consol. Indus., Inc., 508 U.S. 152, 159 (1993); see also,

e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 992 (2005) (“Congress

passed the definitions in the Communications Act

against the background of this regulatory history, and

we may assume that the parallel terms

‘telecommunications service’ and ‘information service’

substantially incorporated their meaning . . . .”).

Applying this longstanding principle here, it is clear

that the term “agency” in the FSLMRS was to have

the same meaning and scope as that term was used in

EO 11491. And there is no question that the term

“agency” under EO 11491 included state national

guards and adjutants general.

This alone should resolve this case. But even if

there remained any doubt as to the meaning of the

term “agency” in the FSLMRS, Congress went further

in the text of the statute and expressly incorporated

pre-existing decisions under EO 11491, including

Thompson Field, into the statute. That decision,

which held that entities such as Petitioners were

covered agencies under EO 11491, was adopted by

Congress,

further

confirming

the

proper

interpretation of the same term in the FSLMRS.

In the FSLMRS, Congress replaced the

adjudicatory bodies designated in EO 11491 with the

Federal Labor Relations Authority. See 5 U.S.C.

§§ 7104, 7105; see also Bureau of Alcohol, Tobacco &

Firearms v. FLRA, 464 U.S. 89, 92 (1983). But far

from wiping out the jurisprudence that had

accumulated under EO 11491, Congress expressly

provided that

[p]olicies, regulations, and procedures

established under and decisions issued

under Executive Orders 11491, 11616,

11636, 11787, and 11838, or under any

other Executive order, as in effect on the

effective date of this chapter, shall

remain in full force and effect until

revised or revoked by the President, or

unless superseded by specific provisions

of this chapter or by regulations or

decisions issued pursuant to this

chapter.

5 U.S.C. § 7135(b); see Fed./Postal/Retiree Coal., Am.

Fed’n of Gov’t Emps. v. Devine, 751 F.2d 1424, 1426

(D.C. Cir. 1985) (holding that § 7135(b) “in the

clearest of terms kept alive en toto the pre-CSRA

regime”).

Thompson Field is a “decision[] issued under

Executive Order[] 11491.” See EO 11491 § 6(a)(2)

(granting Assistant Secretary authority to “decide

questions as to the appropriate unit for the purpose of

exclusive recognition and related issues submitted for

his consideration”); id. § 6(b) (granting Assistant

Secretary authority to “require an agency . . . to take

such affirmative action as he considers appropriate to

effectuate the policies of this Order”). 5 By expressly

providing in § 7135(b) that existing decisions such as

Thompson Field, which specifically rejected the

interpretation of “agency” that Petitioners seek here,

Thompson Field has never been “revised or revoked by the

President,” nor has it been “superseded by . . . regulations or

decisions issued pursuant to this chapter [by the FLRA].” 5

U.S.C. § 7135(b). Indeed, the newly-constituted FLRA continued

exercising jurisdiction over state national guards and adjutants

general promptly upon its formation. See, e.g., Ark. Army Nat’l

Guard & Nat’l Fed’n of Fed. Emps., Loc. 1671, 1 FLRA 876, 878

(Aug. 15, 1979); Penn. Army & Air Nat’l Guard & Ass’n of

Civilian Technicians, 1 FLRA 310, 312 (May 9, 1979); see also

Bellotti v. Baird, 428 U.S. 132, 143 (1976) (noting that statutory

interpretation by “the officials charged with enforcement of the

statute” is “of some importance and merits attention”). The

FLRA has since repeatedly and consistently reaffirmed the

Assistant Secretary’s jurisdictional holding. See Pet. App. 17a167a (FLRA decision in this case); Miss. Army Nat’l Guard

Jackson, Miss., 57 FLRA 337, 339 (2001) (“When the state

National Guards administer the technicians program, they act in

their federal capacity.”), aff’d sub nom. Lipscomb v. FLRA, 333

F.3d 611 (5th Cir. 2003).

were to be carried forward under the FSLMRS, there

is no doubt that the term “agency” in the FSLMRS

includes, and was intended to include, the state

National Guards and adjutants general.

C. Congress’ Contemporaneous Rejection of

Proposals to Strip Technicians of the

Right to Collectively Bargain and to

Render the Right Unenforceable Further

Confirms that “Agency” in the FSLMRS

Includes State National Guards and

Adjutants General

The foregoing establishes that, under the text

of the FSLMRS, Petitioners are subject to the

authority of the FLRA. The contemporaneous

legislative history surrounding the passage of the

FSLMRS further confirms this interpretation. At the

moment it adopted the FSLMRS, Congress was not

only aware that state National Guard organizations

were covered by EO 11491, and that decisions of the

governing agencies had confirmed this coverage, but

Congress also expressly approved of this coverage by

rejecting proposals that sought to strip the

technicians of the right to organize and divest the

federal government of authority to enforce

technicians’ collective bargaining rights.

1. Congress Was Aware that State

National Guards Were Covered by

Executive Order 11491 and Rejected a

Proposal to Strip Their Dual-Status

Technicians of the Right to Organize

In 1978, a month after enacting the FSLMRS

as part of the Civil Service Reform Act of 1978,

Congress made it “unlawful for a member of the

armed forces, knowing of the activities or objectives of

a particular military labor organization,” to engage in

any union activities, including to “join or maintain

membership” or “attempt to enroll any other member

of the armed forces” in such an organization. Pub. L.

No. 95-610, § 2 (1978), codified as amended at 10

U.S.C. § 976(b)(1)-(2). Congress limited its definition

of the term “member of the armed forces” to “(A) a

member of the armed forces who is serving on active

duty, or (B) a member of a Reserve component while

performing inactive-duty training,” id., codified as

amended at 10 U.S.C. § 976(a)(1), thereby excluding

dual-status technicians from the scope of its

prohibition. 6

Excluding technicians from the scope of § 976

was a conscious decision reached after more than a

year of congressional debate. In fact, the original

version of the bill passed by the Senate expressly

barred dual-status technicians from unionizing. See S.

274, 95th Cong. § 2(a) (as passed by Senate), 95 Cong.

Rec. S15,061 (daily ed. Sept. 16, 1977) (making it

unlawful for any “member of the armed forces” to “join

or to maintain membership in [a labor] organization”

and including “any person employed as a civilian

technician by a Reserve component and who is also a

member of a Reserve component” as a member of the

armed forces for purposes of the act); see also S. Rep.

6 Section 976’s current inclusion of “a member of the National

Guard who is serving on full-time National Guard duty,” which

itself does not cover dual-status technicians qua dual-status

technicians, was not added until 1984. Pub. L. No. 98-525,

§ 414(a)(6) (1984); see Ass’n of Civilian Technicians, Wichita Air

Capitol Chapter v. FLRA, 360 F.3d 195, 197-98 (D.C. Cir. 2004).

No. 95-411, at 7 (1977) (Senate bill contained “a

provision which would specifically include within its

coverage civilian technicians employed by Reserve

and Guard units who are also military members of

these units,” with an intent to “prohibit such

employees from being represented whether in their

military or their civilian capacities”). The Senate

Committee on Armed Services recognized that this

amendment would require “effectively withdrawing

[civilian technicians] from the coverage of the current

Executive order regulating labor relations in the

Federal sector.” Id. Indeed, the Senate rejected an

amendment to this original version that would have

expressly excluded technicians from its scope. See 95

Cong. Rec. S15,067, S15,084-85 (daily ed. Sept. 16,

1977).

Supporters of the Senate bill justified the

inclusion of dual-status technicians within the scope

of the bill by arguing specifically that these

technicians’ use of EO 11491’s dispute-resolution

mechanisms was burdening the state officials

overseeing them. On the Senate floor, the bill’s

sponsor asserted that “[o]ver 40 unfair labor practice

charges [involving dual-status technician unions]

have been filed [with the Assistant Secretary] so far

this year” while “[a] number of these complaints have

reached the Federal Services Impasses Panel,” and

“hundreds of thousands of man-hours [have been]

expended . . . in union matters [rather than] mission

accomplishment.” 95 Cong. Rec. S15,071 (daily ed.

Sept. 16, 1977) (statement of Sen. Thurmond).

Opponents of the bill shared the understanding that

dual-status technicians could seek enforceable

remedies under EO 11491, but disagreed that this was

a problem in need of fixing. See, e.g., id. at S15,068

(statement of Sen. Williams) (opposing the bill and

objecting that “[c]ivilian technicians were made

Federal employees by an act of Congress in 1968” and

had “enjoyed collective bargaining rights under the

Federal employees labor relations program” since that

time). No Senator, whether supporting or opposing

the proposed bill, opined that state National Guard

organizations were not covered by EO 11491’s

definition of “agency,” or that the Assistant Secretary

had erred in concluding as much.

The same was true in the House Committees

that analyzed the bill following its approval in the

Senate. The Investigations Subcommittee of the

House Committee on Armed Services entered into the

record the Assistant Secretary’s Thompson Field

decision holding that state adjutants general and

National Guard organizations were “agencies” for the

purposes of EO 11491. Unionization of Military

Personnel: Hearing on S. 274 Before the Investigations

Subcomm. of the H. Comm. on Armed Servs., 95th

Cong. 148-53 (1977) (materials entered into the record

following statement of Kenneth T. Blaylock, National

President, American Federation of Government

Employees) (hereinafter, “House Investigations

Subcommittee Hearing”). The Subcommittee then

heard detailed testimony about the impact of the

unionization of the technicians on the state national

guards. For example, the Executive Vice President of

the National Guard Association of the United States

(“NGA”), which opposed technicians’ unionization,

testified that under EO 11491 “[t]he processes of

collective bargaining and negotiation consume untold

thousands of hours of the limited time available to

State military authorities and National Guard

technicians.” Id. at 83; see also id. (“The almost

continuous involvement in labor relations matters

seriously diverts State military authorities from their

principal task of producing the readiness required by

national war plans.”). He stated his view clearly: “If

National Guard Technicians were excluded from

Executive Order 11491, the requirement for collective

bargaining and negotiation would be eliminated.” Id.

at 89. 7

During these hearings, no Member of Congress

or testifying witness opined that the federal entities

charged with administering EO 11491 lacked

jurisdiction to enforce their orders against National

Guard organizations and their adjutants general, or

that the Assistant Secretary had erred in determining

as much. Instead, all proceeded from the premise that

the state National Guards and adjutants general were

covered agencies under EO 11491, and debated

vigorously whether their responsibilities under that

Order should be eliminated by the criminalization of

dual-status technician unionization.

Ultimately, both House Committees that

addressed the bill removed the provisions that would

have eliminated dual-status technicians’ collective

7 The NGA’s executive vice president provided similar testimony

to the Subcommittee on Civil Service of the House Committee on

Post Office and Civil Service. Prohibition on Union Organization

of the Armed Forces: Hearing on S. 274 Before the H. Subcomm.

On Civil Serv. Of the H. Comm. On Post Office and Civil Serv.,

95th Cong. 71-72 (1978) (statement of Major Gen. Francis S.

Greenlief) (hereinafter “House Civil Service Subcommittee

Hearing”).

bargaining rights under EO 11491. The House

Committee on Armed Services concluded that the bill

“should not be burdened with the civilian technician

provisions, particularly since that language could

possibly endanger the entire bill” on constitutional

grounds as an infringement on freedom of association.

See H.R. Rep. No. 95-894(I), at 5 (1978). The House

Committee on Post Office and Civil Service, for its

part, deemed it inappropriate to “deny to civilian

technicians the right to representation in collective

bargaining,” which “has been available to such

employees since 1968 under Executive Order 11491.”

H.R. Rep. No. 95-894(II), at 6 (1978).

This was no ministerial change. The bill’s

sponsor in the House declared that the provision’s

deletion was “the principal distinction between [the

bill] as amended and the bill passed by the Senate a

year ago.” 95 Cong. Rec. H10,709 (daily ed. Sept. 26,

1978) (statement of Rep. Stratton). Following passage

of the amended bill in the House, the Senate acceded

to the amendment, despite the misgivings of some. See

95 Cong. Rec. S19,034 (daily ed. Oct. 14, 1978)

(statement of Sen. Stennis) (“[T]he House has made it

clear that a bill that includes these technicians will

not be acceptable to them, and I feel we have no choice

but to accede to this position.”). The bill leaving dualstatus technicians’ union rights unaffected was signed

into law by President Carter the following month. See

Pub. L. No. 95-610, 92 Stat. 3085 (Nov. 8, 1978).

Accordingly, the legislative history of Public

Law No. 95-610 clearly demonstrates that the 95th

Congress was fully aware that, under EO 11491, the

federal government had jurisdiction to enforce its

orders against state national guards and adjutants

general. While the Senate initially resolved to strip

the federal government of this authority, the House

rejected this proposal and the law that ultimately

passed maintained the bargaining rights of

technicians as Congress understood them.

One month earlier, this same Congress had

passed the FSLMRS, with its crucial provision

maintaining in place all “[p]olicies, regulations, and

procedures established under and decisions issued

under Executive Order[] 11491.” 5 U.S.C. § 7135(b).

Given that Congress clearly understood that the

federal agencies enforcing federal-sector labor

relations policy had jurisdiction over state National

Guards, as described above, the conclusion that

Congress intended the FLRA to maintain the same

authority is inescapable. See, e.g., N.Y. Tel. Co. v. N.Y.

State Dep’t of Lab., 440 U.S. 519, 541 (1979) (finding

legislative history of Social Security Act decisive in

interpreting National Labor Relations Act where the

“two statutes were considered in Congress

simultaneously and enacted into law within five

weeks of one another”); Menominee Tribe of Indians v.

United States, 391 U.S. 404, 410 (1968) (interpreting

Termination Act of 1954 in light of separate law that

was passed by “the same Congress” and “amended . . .

only two months after the Termination Act became

law”); United States v. Stewart, 311 U.S. 60, 64 (1940)

(finding it plain that two acts enacted “by the same

Congress and at the same session” should be

interpreted in pari materia).

2. Congress Specifically Rejected a

Proposal to Exclude State National

Guards and their Adjutants General

from Federal Labor Authorities’

Jurisdiction

If Congress’ awareness of EO 11491’s provision

of jurisdiction over state National Guard

organizations coupled with its adoption of EO 11491’s

policies and decisions in § 7135(b) were not sufficient

to affirm the Court of Appeals in this case, the same

Congress that enacted § 7135(b) as part of the

FSLMRS also rejected a proposal that would have

done exactly what Petitioners seek to do in this case:

leave technicians with the theoretical right to

organize but strip them of the means of enforcing their

rights against their day-to-day employers.

When considering the aforementioned Senate

bill criminalizing technician unionization, a

subcommittee of the House Committee on Armed

Services heard testimony from former Solicitor

General Erwin Griswold that the proposed ban on

technician unionization “present[ed] very serious

constitutional problems.” House Investigations

Subcommittee Hearing at 230. He testified that “the

courts would have great difficulty in sustaining”

against constitutional challenge a statute like that

passed by the Senate criminalizing someone

“belong[ing] to a union which represents him in his

civilian capacity and . . . makes no effort . . . to

represent him with respect to the terms and

conditions of his military employment.” Id. at 231; see

also id. at 230 (opining that courts would likely “hold

it was invalid as applied to the membership in a

civilian union which does not undertake to bargain or

to represent in any way with respect to the military”).

Following Griswold’s testimony, opponents of

dual-status technician unions changed their position

before the Civil Service Subcommittee of the House

Committee on Post Office and Civil Service.

Responding to the subcommittee’s concern about the

constitutionality of the bill as applied to technicians,

the Executive Vice President of the NGA testified that

he now believed that the original ban “probably is

unconstitutional” and should be deleted from the bill.

House Civil Service Subcommittee Hearing at 87

(statement of Major Gen. Francis S. Greenlief).

Instead, NGA proposed that technicians “should be

treated as a unique group—as are the members of the

FBI, the CIA, and the Tennessee Valley Authority and

other agencies excluded from Executive Order 11491,

who are permitted to belong to unions and participate

in union activities, but not to be represented by them

in matters relating to the conditions of employment.”

Id. at 69-70. 8 NGA noted that they were “asking for

legislation that would, in effect, remove the National

Guard technicians from the Executive Order,” adding

that “we have asked that administratively within the

Specifically, NGA proposed that the Technicians Act be

amended to prohibit any “civilian officer or employee of the

Department of Defense, adjutant general designated under [the

Act], or member of the armed forces” from entering into CBAs or

according recognition to any technicians’ union. House Civil

Service Subcommittee Hearing at 73 (statement of Major Gen.

Francis S. Greenlief). It should be noted that, while this would

have prohibited rather than required bargaining, even that

formulation was premised on the federal Government’s authority

to regulate the actions of state adjutants general.

administration [and] it has not been provided.” Id. at

74.

As noted above, Congress did not adopt this

proposal either. Instead, the House Committee

concluded that “it was in the national interest for

these dual-status employee to enjoy representation in

their civilian capacities.” H.R. Rep. No. 95-894(II), at

6 (1978). Given that Congress expressly refused to

alter federal jurisdiction over state National Guards

under EO 11491 when directly requested to do so, it is

wholly implausible that the same Congress intended

to do so sub silentio in the contemporaneously-passed

FSLMRS, especially when it carried forward the very

same definition of “agency” that existed under the

Executive Order. See Carey v. Donohue, 240 U.S. 430,

437 (1916) (“[W]e are not at liberty to supply by

construction what Congress has clearly shown its

intention to omit.”).

II. Under the Relevant Statutory Framework,

Petitioners Constitute Executive Agencies as

Defined in the FSLMRS

As the foregoing makes clear, Congress’ express

incorporation in the FSLMRS of EO 11491’s definition

of agency and the pre-existing decisional authority

interpreting that term is sufficient to end this case.

But even if one were to take Petitioners’ approach and

assume Congress was writing on a blank slate when

enacting the FSLMRS, their contention that they are

not covered agencies under § 7105 would still be

erroneous.

The FSLMRS defines “agency” as an “Executive

agency,” 5 U.S.C. § 7103(a)(3), which is elsewhere

itself defined as “an Executive department, a

Government corporation, and an independent

establishment,”

U.S.C.

§ 105.

“Executive

department” comprises the fifteen departments listed

in 5 U.S.C. § 101—including, as relevant here, the

Department of Defense. According to Petitioners,

because they are not themselves “among the fifteen

departments identified in the definition of [Executive

department],” they cannot be an “Executive agency”

covered by the FSLMRS. Pet. Br. 23. But whatever

superficial appeal this argument may have, it

immediately collapses upon scrutiny.

The FLRA’s jurisdiction over “Executive

departments” necessarily extends to all constituent

parts of those Executive departments, including any

subordinate agencies or entities that compose them.

To hold otherwise would fly in the face of this Court’s

prior FLRA decisions. In Bureau of Alcohol, Tobacco

& Firearms v. FLRA, for example, the Court reviewed

the merits of an FLRA order directed at the Bureau of

Alcohol, Tobacco & Firearms even though the Bureau

is not listed in 5 U.S.C. § 101 but was instead “an

agency within the Department of the Treasury.” 464

U.S. 89, 93 (1983). And in Fort Stewart Schools v.

FLRA, this Court reviewed the merits of an FLRA

order directed to respondents even further removed

from the list of agencies in 5 U.S.C. § 101—because

they were schools “owned and operated by the United

States Army,” itself a component of the Department of

Defense. 495 U.S. 641, 643 (1990).

Thus, contrary to Petitioners’ contention, the

FLRA need not prove that Petitioners are the

Department of Defense any more than it need prove

that the National Park Service is the Department of

the Interior, 9 U.S. Immigration and Customs

Enforcement is the Department of Homeland

Security, 10 or a prison under the Bureau of Prisons’

authority is the Department of Justice. 11 The FLRA

can assert and establish jurisdiction over Petitioners

by showing that these entities constitute part of an

agency listed in 5 U.S.C. § 105. Here, the statutes

describing the structure of the Department of Defense

and the state National Guard plainly establish that

the Ohio National Guard—itself composed of the Ohio

Army National Guard and Ohio Air National Guard,

see Ohio Rev. Code Ann. § 5923.01(B)—is a

constituent part of that Department.

The Department of Defense is composed of,

inter alia, the Department of the Army and the

Department of the Air Force. 10 U.S.C. § 111(b)(6),

(8). The Department of the Army—through the

intermediary of “the Army,” id. § 7062(b)—consists of

four parts: “the Regular Army, the Army National

Guard of the United States, the Army National Guard

while in the service of the United States and the Army

Reserve.” 12 Id. § 7062(c)(1).

9 See, e.g., Nat’l Park Serv., 73 FLRA 220 (2022).

10 See, e.g., Immigr. & Customs Enforcement, 70 FLRA 208

(2017).

11 See, e.g., Fed. Corr. Complex, Yazoo City, Miss., 73 FLRA 114

(2022).

12 The Army National Guard of the United States and the Army

National Guard are “two overlapping but distinct organizations,”

organized by Congress in 1933 to resolve difficulties created by

“[t]he draft of individual members of the National Guard into the

The second of these parts, the “Army National

Guard of the United States,” is “the reserve

component of the Army that consists of -- federally

recognized units and organizations of the Army

National Guard.” 10 U.S.C. § 10105. And the Army

National Guard is defined as “that part of the

organized militia of the several States and Territories,

Puerto Rico, and the District of Columbia, active and

inactive, that-- (A) is a land force; (B) is trained, and

has its officers appointed, under the sixteenth clause

of section 8, article I, of the Constitution; (C) is

organized, armed, and equipped wholly or partly at

Federal expense; and (D) is federally recognized.” 32

U.S.C. § 101(4) (emphasis added).

The Ohio Army National Guard satisfies each

of these prerequisites and is therefore a federally

recognized “unit[ or] organization[]” of the “Army

National Guard,” which in turn makes it part and

parcel of the “Army National Guard of the United

States,” the Department of the Army, and ultimately

the Department of Defense under 10 U.S.C. § 7062. 13

Army during World War I.” Perpich v. Dep’t of Defense, 496 U.S.

334, 345 (1990) (internal quotation marks omitted). Since 1933,

everyone who enlists in a state National Guard simultaneously

enlists in the National Guard of the United States; when

individuals are “ordered into federal service with the National

Guard of the United States,” they temporarily lose their status

as members of the state militia “during their period of active

duty” with the federal government. Id. at 347.

13 The same analysis holds true for the Ohio Air National Guard

as well. See 10 U.S.C. § 9062(d)(1) (“The Air Force consists of . . .

“the Regular Air Force, the Air National Guard of the United

States, the Air National Guard while in the service of the United

States, and the Air Force Reserve”); id. at § 10111 (“The Air

See In re Sealed Case, 551 F.3d 1047, 1051 (D.C. Cir.

2009) (noting the “continuous status” of the Army

National Guard “as part of the Army National Guard

of the United States”); id at 1055 n.* (Kavanaugh, J.,

concurring in judgment) (“Under the statutory

scheme, a federally recognized unit or organization of

the Army National Guard of the United States is

always part of the Army National Guard of the United

States.”) 14; see also Nelson v. Geringer, 295 F.3d 1082,

1093 (10th Cir. 2002) (“[T]he Wyoming Air and Army

National Guard units remain reserve components of

the United States Air Force and Army respectively.”).

Ohio law buttresses this conclusion, defining the Ohio

National Guard of the United States” consists of “federally

recognized units and organizations of the Air National Guard”);

32 U.S.C. § 101(6) (Air National Guard is defined as “that part of

the organized militia of the several States and Territories,

Puerto Rico, and the District of Columbia, active and inactive,

that-- (A) is an air force; (B) is trained, and has its officers

appointed, under the sixteenth clause of section 8, article I of the

Constitution; (C) is organized, armed, and equipped wholly or

partly at Federal expense; and (D) is federally recognized”).

In his opinion concurring in the judgment, then-Judge

Kavanaugh noted that depending on the circumstances of the

state National Guard at issue, there may be “federal recognition

of units and organizations within a state’s Guard, but not of the

entire state Guard as an entity.” Id. In either case, the FLRA

would have jurisdiction over each and every federally-recognized

unit composing the Ohio National Guard, all of which are

directed by Ohio’s Adjutant General. See 32 U.S.C. § 101(4), (6)

(requiring, as a matter of federal law, that a state National

Guard be “federally recognized”); Ohio Rev. Code Ann. § 5919.01

(defining membership in Ohio National Guard as extending only

to recognized units of the Army and Air National Guards of the

United States). The only question would be whether the sub-unit

or the larger Ohio National Guard would be the respondent to an

FLRA complaint.

National Guard as consisting of “those organizations

and units that are, under the laws of the United

States and the regulations promulgated under them,

prescribed as the portion of the army or air national

guard of the United States located and organized

within this state.” Ohio Rev. Code Ann. § 5919.01(A)

(emphasis added).

In their briefing, Petitioners contend that “[t]he

Ohio National Guard is never a federal entity,”

claiming that only the Guard’s “members switch from

state to federal service when called into active duty.”

Pet. Br. 35 (citing Perpich, 496 U.S. at 347).

Petitioners misread Perpich’s account of the structure

of the National Guard of the United States. While

Perpich indeed “stands for the proposition that

federally activated guardsmen temporarily lose their

State National Guard status,” this does not “sever[]

the continuous link between the Army National

Guard of the United States and federally recognized

units of the Army National Guard when not on active

federal service.” In re Sealed Case, 551 F.3d at 1052.

Instead, as then-Judge Kavanaugh observed,

federally recognized state National Guard units and

organizations are “always part of the Army National

Guard of the United States” regardless of whether

they have been federally activated and, therefore, are

always federal entities. Id. at 1055 n.* (Kavanaugh,

J., concurring in the judgment).

The same conclusion applies to the Ohio

Adjutant General as the head of the Ohio National

Guard. See Ohio Rev. Code Ann. § 5913.01(A); id. §

5923.01(A)(1). This conclusion is bolstered by the fact

that adjutants general occupy a special status under

federal law and are not purely state officials. Their

very existence is mandated by federal law, and they

must “make such returns and reports as the Secretary

of the Army or Secretary of the Air Force may

prescribe.” 32 U.S.C. § 314(a), (d). They must also

swear an oath to obey orders from the President. Id. §

312. As to Petitioners specifically, Ohio law provides

that the Ohio Adjutant General must be “a federally

recognized officer in the Ohio national guard”

throughout his tenure. Ohio Rev. Code Ann. §

5913.021(A), (E). And, as most relevant here, in that

federal role, they act on behalf of the Secretary of the

Army (or Secretary of the Air Force as the case may

be) as the “employ[er] and administ[rator]” of the

dual-status technician federal employees at issue in

this case. 32 U.S.C. § 709(d). So the FLRA’s

jurisdiction over the Ohio National Guard naturally

extends over the Ohio Adjutant General and Adjutant

General’s Department as well. See NeSmith v. Fulton,

615 F.2d 196, 199 (5th Cir. 1980) (“The conclusion that

an adjutant general is a federal agency as well as a

state officer reflects the hybrid state-federal character

of the National Guard and the role of adjutants

general in administering it.”). 15

15 As set forth in the FLRA’s brief, there is a separate and

independent basis for jurisdiction over the Ohio Adjutant

General because he exercises the authority of the Department of

Defense when he acts as the statutorily-designated employer of

dual-status technicians. See FLRA Br. 20-22, 27-32. Indeed, the

language used in the statutory command that “the Secretary

concerned shall designate the adjutants general … to employ and

administer the technicians authorized by this section” connotes

Congress’ understanding that what it was requiring concerning

the employment of technicians was an internal allocation of

authority within the Departments. 32 U.S.C. § 709(d).

Under the relevant statutory framework,

Petitioners are components of the National Guard of

the United States, and thus ultimately components of

the Department of Defense—one of the fifteen

“Executive departments” over which the FLRA

unquestionably has jurisdiction under the FSLMRS.

As such, the FLRA’s jurisdiction extends over

Petitioners as well. 16

The federalism canon Petitioners invoke cannot alter the

conclusion compelled by the plain text. As Petitioners

acknowledge, this canon only applies in cases of statutory

ambiguity. See, e.g., Bond v. United States, 572 U.S. 844, 859

(2014) (invoking federalism canon “to resolve ambiguity in a

federal statute”). The statutory scheme described here, while

certainly complex, is not ambiguous. In any event, the conclusion

that the statutory text compels—that state national guards and

their directors are components of a federal agency—is entirely

consistent with the constitutional plan. See, e.g., Perpich, 496

U.S. at 351-52 (noting that, while “[t]he Federal Government

provides virtually all of the funding, the materiel, and the

leadership for the State Guard units,” a state wishing to

disentangle itself from the federal armed forces may eschew this

arrangement and “may provide and maintain at its own expense

a defense force”) (citing 32 U.S.C. § 109(c)). Moreover,

Petitioners’ concession that the federal National Guard Bureau

“can impose its view of union-management relations on the Ohio

National Guard” itself undermines any possible federalism

concerns regarding the FLRA’s assertion of jurisdiction. Pet. Br.

33-34.

CONCLUSION

This Court should affirm the judgment below.

Respectfully submitted,

Harold C. Becker

General Counsel

Andrew Lyubarsky

Counsel of Record

815 Black Lives Matter Plaza N.W.

Washington, DC 20006

(202) 637-5115

alyubarsky@aflcio.org

Counsel for the American Federation

of Labor and Congress of Industrial

Organizations

Bruce Lerner

Ramya Ravindran

Sebastian Brady

Bredhoff & Kaiser, P.L.L.C

805 15th Street N.W.

Washington, DC 20005

(202) 842-2600

Theodore T. Green

General Counsel

905 Black Lives Matter Plaza N.W.

Washington, DC 20006

(202) 737-8320

Counsel for Laborers’ International

Union of North America

December 16, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.