Attorney General Lynn Fitch Thursday led a 11-state coalition to protect the Constitution’s checks and balances on national military might and to stop further federal encroachment on state National Guard units. The states filed an amicus brief in support of the Ohio Adjutant General’s Department’s petition for certiorari.
The Ohio National Guard is challenging a Federal Labor Relations Authority (FLRA) order enforcing collective bargaining for its Guard technicians.
“The Constitution established a delicate balance between federal and state military power,” said Fitch, “in order to maximize both the security and liberty of the people. But, particularly in the last century, that balance has been increasingly disturbed in favor of federal authority. When a federal agency seeks to force a state National Guard to negotiate a collective bargaining agreement and collect union dues, it can hardly be said that there remains any balance to this vital structure at all.”
In The Ohio Adjutant General’s Department v Federal Labor Relations Authority, the Ohio National Guard claimed that it was not bound by an expired collective bargaining agreement with the American Federation of Government Employees Local 3970, AFL-CIO, which had represented National Guard technicians. The FLRA asserted jurisdiction over the dispute, concluding that the National Guard is an executive agency and that dual status technicians employed by the Guard are federal civilian employees.
On appeal of the FLRA order, a panel of the Sixth Circuit Court of Appeals affirmed the FLRA’s determinations that the Guard and its technicians were bound by federal labor relations law.
Detailing the historical trend eroding state control over state National Guard units in favor of greater federal authority, even for no legitimate military purpose, the Attorneys General note that the decision of the Sixth Circuit Court of Appeals, “restrains an Adjutant General from managing his Guard members. Controlling how the Adjutant General negotiates with unions or determines when to promote his members has no battlefield connection that might justify wresting control from the States.”
The Attorneys General of Alabama, Alaska, Arkansas, Idaho, Louisiana, Oklahoma, South Dakota, Texas, Utah, and West Virginia joined General Fitch in filing this amicus brief. A copy of the brief can be found here.