The Supreme Court has declared that for the purpose of bestowing collective bargaining rights on certain employees, National Guard units must act like other federal agencies and follow civil service requirements.
State national guards comprised of military reservists are not federal agencies. However, they do employ “dual-status” technicians who maintain military membership but are simultaneously civilian employees of the Pentagon. This unique employment status became the central issue of a 2016 case in which the Ohio National Guard ended its collective bargaining agreement with the American Federation of Government Employees, a union representing more than 32,000 dual-status Guard technicians in every state except Mississippi.
The Guard claimed at the time that as a military organization, it was like an executive branch agency and did not have to honor worker rights afforded by the Federal Service Labor-Management Relations Statute. The Supreme Court’s majority opinion authored by Justice Clarence Thomas repudiated that argument and thereby restored labor protections for this relatively small class of workers, referred to as ‘rare birds’ in court filings, earlier this month.
“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,” Thomas wrote in his opinion for the case Babcock v. Kijakazi.
In a statement to Federal Times, Mike Ferguson, who chairs the National Guard Caucus within AFGE’s Defense Conference, called the ruling a “tremendous win” that confirms the employment and labor rights of technicians are protected. Perhaps even more importantly, these rights are enforceable by the FLRA, he said.
“It will have a resounding impact on civilian technicians because it confirms that when technicians do civilian work, they are federal, civilian employees who work for a federal employer,” he said.
Normally, federal law makes it a crime for service members to organize, though another court case from 2022 allowed National Guard members on active duty for their states to join labor unions, Army times previously reported.
A federal law prohibiting members of the military from organizing unions “does not apply to Guard members on state active duty or in the Inactive National Guard,” DoJ lawyers wrote in a court filing last month.
This case, besides dealing with some “rare birds” of the federal workforce, is also unique in that about eight years have passed and union leadership has changed since the initial conflict arose between the guard and its employees. At the time, parties were in negotiations because the bargaining agreement was nearing expiration. In the midst of talks, the Guard backed out and the case has been through a cycle of appeals ever since.
The next step is for the general counsel of the FLRA to enforce good faith bargaining going forward, as first decided by an administrative law judge in 2020.
“On the ground, these people are federal employees. They think of themselves as federal employees” said AFGE Deputy General Counsel Andy Grajales. “And now they have validation of that.”
The Ohio National Guard did not respond to an emailed request for comment.
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.