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S\Congressional ______
R aesearch S rvice
Supreme Court Holds That Federal Labor
Relations Authority Has Jurisdiction to
Regulate State National Guards
July 11, 2023
On May 18, 2023, the Supreme Court decided Ohio Adjutant General's Department v Federal Labor
Relations Authority, a case on the Federal Labor Relations Authority's (FLRA's) power to regulate the
labor practices of state National Guards. The dispute arose from charges filed with the FLRA against the
Ohio Adjutant General's Department and the Ohio National Guard (collectively, the Guard) alleging that
the Guard violated the collective bargaining rights of its technicians who have dual status as both
federal and state employees. The Guard argued that the Federal Service Labor-Management Relations
Statute (FSLMRS), which governs labor relations between the federal government and its employees,
could not be enforced by the FLRA against the Guard because the Guard is not an executive agency
subject to the FLRA's regulation. The Supreme Court disagreed, holding that the Guard is under the
jurisdiction of the FLRA when it hires and supervises dual-status technicians serving in their civilian role,
as the Guard act[s] as a federal 'agency' in that context.
This Legal Sidebar discusses the background on the underlying dispute between the Guard and the union
representing the technicians, the American Federation of Government Employees, Local 3970 (AFL-
CIO). The Sidebar also provides a synopsis of the Guard's challenge to FLRA's authority and a summary
of the Court's decision. It concludes with a discussion highlighting considerations for Congress. For
general information on the FSLMRS, see Federal Labor Relations Statutes: An Overview.
Background
Article I, Section 8, clause 15, of the U.S. Constitution provides that The Congress shall have Power To
... provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions. Article I, Section 8, clause 16, provides that The Congress shall have Power To ... provide
for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
These clauses, known as the Militia Clauses, grant Congress authority over the Militia, while reserving
other authority to the states. Organized militias have existed in some form since before the Founding.
Congressional Research Service
https://crsreports.congress.gov
LSB11005
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govemem0001&div=1&collection=&method=preview&ext=.png&size=3)
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