# Ohio Adjutant General's Department v. FLRA/Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
No. 21–1454
THE OHIO ADJUTANT GENERAL’S DEPARTMENT, ET AL., PETITIONERS v. FEDERAL LABOR RELATIONS AUTHORITY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [May 18, 2023]
Justice Thomas delivered the opinion of the Court.
This case requires us to determine whether the Federal Labor Relations Authority (FLRA) properly exercised jurisdiction over an unfair labor practices dispute. On one side were the Ohio National Guard, the Ohio Adjutant General, and the Ohio Adjutant General’s Department (collectively petitioners or the Guard). On the other was the American Federation of Government Employees, Local 3970, AFL–CIO (Union), which represents federal employees known as dual-status technicians who work in both civilian and military roles for the Guard.
The Union petitioned the FLRA to resolve the dispute. But, under the Federal Service Labor-Management Relations Statute (FSLMRS or Statute), the FLRA only has jurisdiction over labor organizations and federal “agencies”—and petitioners insist that they are neither. 5 U. S. C. §7101 et seq. We hold, however, that petitioners act as a federal “agency” when they hire and supervise dual-status technicians serving in their civilian role.
I A
Enacted in 1978, the FSLMRS establishes a comprehensive framework governing labor-management relations in federal agencies. It secures the right of “[e]ach employee” “to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.” §7102. And, it further guarantees that “each employee shall be protected in the exercise of such right.” Ibid. To that end, the FSLMRS provides for collective bargaining between federal agencies and their employees’ unions, and it bars each from committing unfair labor practices. See §§7102(2) and 7116(a)–(b). For example, an agency may not “interfere with, restrain, or coerce any employee in the exercise by the employee of any right under” the Statute; “refuse to consult or negotiate in good faith with a labor organization as required by” the Statute; or “otherwise fail or refuse to comply with any provision of” the Statute. §§7116(a)(1), (5), (8).
The Statute creates the FLRA and tasks it with administering this framework, including by investigating and adjudicating labor disputes. §7105(a)(2)(G); see also §§7104 and 7118(a)(1). It provides that the FLRA’s general counsel “shall investigate” a charge against “any agency or labor organization” and, if warranted, may issue a complaint calling for a hearing before the FLRA. §§7118(a)(1)–(2). The FLRA is then responsible for “conduct[ing] hearings and resolv[ing such] complaints.” §7105(a)(2)(G). If the FLRA determines that an agency or a union has engaged in an unfair labor practice, it “may require” the entity “to cease and desist from violations of [the Statute] and require it to take any remedial action it considers appropriate.” §7105(g)(3).
This case concerns the Statute’s application to a unique category of federal civil-service employees: dual-status technicians working for the State National Guards. These ​“rare bird[s]” occupy both civilian and military roles. Babcock v. Kijakazi, 595 U. S. ___, ___ (2022) (slip op., at 2). They serve as “civilian employee[s]” engaged in “organizing, administering, instructing,” “training,” or “maintenance and repair of supplies” to assist the National Guard. 10 U. S. C. §10216(a)(1)(C); see 32 U. S. C. §§709(a)(1)–(2); Babcock, 595 U. S., at ___ (slip op., at 2). Yet, they must “as a condition of that employment … maintain membership in the [National Guard]” and wear a uniform while working. 10 U. S. C. §10216(a)(1)(B); see 32 U. S. C. §§709(b)(2)–(4). Except when participating as National Guard members in part-time drills, training, or active-duty deployment, see 32 U. S. C. §§502(a) and 709(g)(2), dual-status technicians work full time in a civilian capacity and receive federal civil-service pay. See Babcock, 595 U. S., at ___–___ (slip op., at 2–3); see also 5 U. S. C. §2101(a).
Importantly, under the Technicians Act of 1968, each dual-status technician is considered “an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States.” 32 U. S. C. §709(e). While it is state adjutants general who “employ and administer” dual-status technicians working for their respective State National Guard units, they can only do so pursuant to an express “designat[ion]” of authority by the Secretary of the Army or the Secretary of the Air Force. §709(d); see also Dept. of the Army, S. Resor, Delegation of Authority Under the National Guard Technicians Act of 1968 (General Order 85, Dec. 31, 1968) (General Order 85) (current order designating the relevant authority).
B
The parties’ collective-bargaining relationship dates back to 1971, when the Guard recognized the Union as the exclusive representative of its dual-status technicians. They have since negotiated a number of collective-bargaining ​agreements (CBAs), the most recent of which was signed in 2011 and expired in 2014. As the expiration date neared, the Guard and the Union entered into negotiations for a new agreement. During this process, in March 2016, they adopted a memorandum of understanding whereby the Ohio Adjutant General promised to abide by certain practices contained in the expired agreement. But, later that year, the Ohio Adjutant General’s Department reversed course. It asserted that it was not bound by the expired CBA and did not consider itself bound by the FSLMRS when interacting with dual-status technicians. The Guard also sent letters to dual-status technician Union members, asking them to submit the requisite forms to permit the deduction of Union dues from their pay. The letters advised that, if the technicians did not promptly submit the forms, the Guard would cancel dues deductions on their behalf. The Guard ultimately terminated dues withholding for 89 technicians.
The Union subsequently filed unfair labor practice charges with the FLRA. After investigating, the FLRA general counsel issued consolidated complaints against the “U. S. Department of Defense, Ohio National Guard,” alleging that the Guard had refused to negotiate in good faith and interfered with the exercise of employee rights under the Statute through its treatment of technicians’ dues deductions. App. 16. The Ohio Adjutant General and the Ohio Adjutant General’s Department intervened on the side of the Ohio National Guard.
Petitioners argued before the Administrative Law Judge that the Guard was not an “agency” and that dual-status technician bargaining-unit employees were not “employees” for purposes of the Statute. The Administrative Law Judge issued a recommended decision finding that the FLRA had jurisdiction over the Guard, that the dual-status technicians had collective-bargaining rights under the Statute, ​and that the Guard’s actions in repudiating the CBA violated the Statute. It thus ordered petitioners to follow the mandatory terms of the 2011 CBA, bargain in good faith going forward, and reinstate Union dues withholding. A divided panel of the FLRA adopted the Administrative Law Judge’s findings, conclusions, and remedial order.
The Guard petitioned for review in the U. S. Court of Appeals for the Sixth Circuit, which denied the petition. 21 F. 4th 401 (2021). The Sixth Circuit held that the Guard is an agency subject to the Statute when it operates in its capacity as employer of dual-status technicians. The court further found that dual-status technicians are federal civilian employees with collective-bargaining rights under the Statute. Thus, because the FLRA has authority to enforce those collective-bargaining rights, the court concluded that this dispute fell within its jurisdiction.
We granted certiorari to consider whether the FLRA had jurisdiction over this labor dispute under the Statute. 598 U. S. ___ (2022).
II
Under the FSLMRS, it is “an unfair labor practice for an agency” “to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under” the Statute. 5 U. S. C. §7116(a)(1). The FLRA’s jurisdiction over this unfair labor practices dispute thus turns on whether petitioners are an “agency” for purposes of the Statute when they act in their capacities as supervisors of dual-status technicians, a question bounded by a series of defined terms. The Statute defines an “agency” as “an Executive ​agency,” with exceptions not relevant here. §7103(a)(3). Then, the term “ ‘Executive agency,’ ” as used in Title 5, “means an Executive department, a Government corporation, and an independent establishment.” §105. And each of those terms is separately defined: an “Executive departmen[t]” means each of 15 Cabinet-level Departments, including “[t]he Department of Defense,” §101; a “ ‘Government corporation’ means a corporation owned or controlled by the Government of the United States,” §103; and an “ ‘independent establishment’ means” “an establishment in the executive branch,” with exceptions not relevant here, “which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment,” §104(1). It is undisputed that the Guard is neither a “Government corporation” nor an “independent establishment,” leaving only “Executive department” at issue.
Petitioners work backwards through the links in the statutory chain. They argue that they are not an Executive department because they are not listed among the 15 Cabinet-level Departments specified in §101. Thus, they claim, they are not an “Executive agency” under §105 and, accordingly, do not qualify as an “agency” under the Statute. Respondents counter that the components, representatives, and agents of an agency may be required to comply with the Statute. And they emphasize that petitioners exercise federal authority in employing dual-status technicians and must therefore comply with applicable federal law. Respondents have the better of the argument.
A
The Guard, when employing dual-status technicians, functions as an agency covered by the Statute. The Statute defines “ ‘agency’ ” to include the Department of Defense, one of the enumerated executive Departments in §101. §7103(a)(3); see §§101 and 105. And, each dual-status ​“technician … is an employee of the Department of the Army or the Department of the Air Force,” 32 U. S. C. §709(e); see also 10 U. S. C. §10216(a)(1)(A). Those Departments, in turn, are components of the Department of Defense. 10 U. S. C. §§111(b)(6) and (8). And, components of covered agencies plainly fall within the Statute’s reach. 5 U. S. C. §§7103(a)(12) (contemplating collective bargaining between “the representative of an agency” and “the exclusive representative of employees in an appropriate unit in the agency”) and 7112(a) (contemplating the establishment of “appropriate” bargaining units “on an agency, plant, installation, functional, or other basis”). Accordingly, when petitioners employ and supervise dual-status technicians, they—like components of an agency—exercise the authority of the Department of Defense, a covered agency.
The statutory authority permitting the Adjutant General to employ dual-status technicians reinforces this point. Adjutants general appoint dual-status technicians as civilian employees in the federal civil service. See 5 U. S. C. §2105(a)(1)(F) (providing that the term “ ‘employee,’ ” for purposes of Title 5, ordinarily includes “an individual … appointed in the [federal] civil service by … an adjutant general designated by the Secretary [of the Army or of the Air Force] under section 709[(d)] of title 32”). And, Congress has required the Secretaries of the Army and Air Force to “designate” adjutants general “to employ and administer” technicians. 32 U. S. C. §709(d). That designation is the sole basis for petitioners’ authority to employ technicians performing work in their federal civilian roles, confirming that petitioners act on behalf of—and exercise the authority of—a covered federal agency when they supervise dual-status technicians.
Here, for example, a 1968 order of the Secretary of the Army “designate[s]” and “empower[s]” each adjutant general “to employ and administer the Army National Guard technicians authorized for his State … as the case may be.” ​General Order 85, ¶3. Accordingly, dual-status technicians are ultimately employees of the Secretaries of the Army and the Air Force, and petitioners are the Secretaries’ designees for purposes of dual-status technician employment. Should a state adjutant general wish to employ federal dual-status technicians, he must do so pursuant to delegated federal authority and subject to federal civil-service requirements. See 5 U. S. C. §2105(a)(1)(F). Indeed, 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. §§7102 (providing that “each employee shall be protected in the exercise of” his right to join or refrain from joining a labor association) and 7103(a)(2)(A) (defining an “ ‘employee’ ” as “an individual … employed in an agency”). The case caption in this matter reflects the Guard’s federal function with respect to hiring dual-status technicians; before the FLRA, the case proceeded against the “U. S. Department of Defense, Ohio National Guard,” with the Adjutant General and the Adjutant General’s Department joining the suit later as intervenors. App. 16.
Petitioners contend that federalism concerns require us to read the Statute to exempt them from the FLRA’s jurisdiction. But, the FLRA enforces the rights and obligations of federal civilian employees and their agency employers. Because adjutants general act on behalf of an agency of the Federal Government with respect to their supervision of civilian technicians, their actions in that capacity do not implicate the balance between federal and state powers. See 10 U. S. C. §10216(a); 32 U. S. C. §709(e).
B
The evolution of federal agency-employee relations law and the text of 5 U. S. C. §7135(b), which functions as the Statute’s saving clause, lend further support to the FLRA’s exercise of authority over the Guard. Before the FSLMRS ​was adopted, “labor-management relations in the federal sector were governed by a program established” by a series of Executive Orders, “under which federal employees had limited rights to engage in” collective bargaining. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91–92 (1983). The Statute’s immediate predecessor, Executive Order No. 11491, established the precursor to the current FLRA and listed prohibited unfair labor practices for both federal agency management and unions. See Exec. Order No. 11491, 3 CFR 861 (1966–1970 Comp.). When Congress later replaced that Executive Order with the FSLMRS, it explicitly continued many aspects of the pre-FSLMRS regime: “Policies, regulations, and procedures established under and decisions issued under Executive Orde[r] 11491 … shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of [the Statute] or by regulations or decisions issued pursuant to [the Statute].” 5 U. S. C. §7135(b). Thus, “decisions issued under Executive Orde[r] 11491” supply critical guidance regarding the FLRA’s jurisdiction today.
One such decision is directly on point. In the 1971 case of Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20 (Thompson Field), the Assistant Secretary of Labor—exercising adjudicative authority under Executive Order No. 11491 analogous to the modern FLRA’s—rejected arguments virtually identical to those petitioners advance here. See id., at 2 (describing the state guard’s argument “that the provisions of Executive Order 11491 did not apply … 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 reasoned “that National Guard technicians [were] employees within the meaning of” the Executive Order and “employees of the ​Federal government” under the Technicians Act. Id., at 6. The Assistant Secretary then concluded that the adjutant general had “been designated as an agent of the Secretaries of the Army and the Air Force” in employing and administering dual-status technicians and that this agency relationship created the obligation to comply with Executive Order No. 11491. Id., at 7.
The definitions of “employee” and “agency” that Thompson Field examined under Executive Order No. 11491 were materially identical to those that Congress ultimately adopted in the FSLMRS. Compare 5 U. S. C. §§7103(a)(2)–(3) (defining “ ‘employee’ ” as “an individual … employed in an agency,” and defining “ ‘agency’ ” as “an Executive agency,” which §105 in turn defines as an executive department, a Government corporation, and an independent establishment) with Exec. Order No. 11491, §§2(a)–(b) (defining “ ‘[e]mployee’ ” primarily as “an employee of an agency,” and defining “ ‘[a]gency’ ” as “an executive department, a Government corporation, and an independent establishment”). We would, therefore, ordinarily presume that the FSLMRS maintained the same coverage that existed under the prior regime. See, e.g., George v. McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5); Taggart v. Lorenzen, 587 U. S. ___, ___–___ (2019) (slip op., at 5–6). We see nothing to weaken the force of that presumption here. On the contrary, §7135(b) specifically demonstrates Congress’ intent to leave the prior regime in place except where it was specifically altered. And, because the President has not revoked it and neither the FSLMRS nor associated regulations have repudiated it, the decision in Thompson Field “remain[s] in full force and effect.” §7135(b). *** We conclude that petitioners are subject to the authority of the FLRA when acting in their capacities as supervisors of dual-status technicians. Each dual-status technician is ​an employee of the Department of the Army or the Department of the Air Force; those Departments are, in turn, components of the Department of Defense; and the Department of Defense is a covered agency under the Statute. Further, a designation from the Department of the Army is the sole basis for petitioners’ authority to employ dual-status technicians. Accordingly, petitioners employ federal dual-status technicians pursuant to delegated federal authority and subject to federal civil-service requirements. The Statute also explicitly incorporates prior practice, including the decision in Thompson Field, which further reinforces our conclusion.
The judgment of the Sixth Circuit is affirmed.
It is so ordered.