An Air Force Master Sgt., a vehicle maintenance specialist with the Illinois Air National Guard, applies lubricant to a wheel bearing during maintenance on a trailer. The dual-status federal technician also serves as the 182nd Mission Support Group’s first sergeant. Image: Air National Guard photo by Tech. Sgt. Lealan Buehrer
By: FEDweek StaffThe U.S. Supreme Court has upheld bargaining rights for “dual status” technicians, saying that federal employee labor law applies to them because a state “acts as a federal agency when it hires and supervises dual-status technicians serving in their civilian role.”
Dual status technicians–civilian DoD employees who also must hold positions in the National Guard or Reserves to maintain their federal employment—”are ultimately employees of the Secretaries of the Army and the Air Force” and that state Guard units act under a designation of authority from DoD, the court said in a 7-2 opinion. “Should a state adjutant general wish to employ federal dual-status technicians, the adjutant general must do so pursuant to delegated federal authority and subject to federal civil-service requirements.”
The issue arose when the Ohio National Guard refused to bargain with the AFGE union on the expiration of a contract in 2016. The AFGE then filed an unfair labor practice complaint with the FLRA, saying that action repudiated decades-long precedent in favor of union representation.
The FLRA agreed, rejecting the Ohio National Guard’s argument that it was not subject to federal employee labor relations law because it is not a federal agency and the technicians are not its employees. An appeal to the Supreme Court followed when a federal circuit court let that ruling stand.
The high court in case No. 21-1454 said that a under the designation of authority from the Army and Air Force, states “act on behalf of—and exercise the authority of—a covered federal agency when they supervise dual-status technicians . . . 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.”
The dissenting justices, though, said that “the question on which this case turns is not whether the technicians are federal employees or whether they have civil service or bargaining rights. It is not even whether petitioners are obligated to “safeguard” the technicians’ bargaining rights. The question is whether any such obligations can be enforced by means of an order from the FLRA.”
The dissenters—Justices Samuel A. Alito and Neil M. Gorsuch—answered that question in the negative, saying the FLRA would have that authority only if Congress directly granted it, and that Congress had not.
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