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| Number 149 | June 2003 |
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COURT DECISIONS |
| 57 FLRA No. 68 |
| JURISDICTION…CIVILIAN TECHNICIANS |
Major General James H. Lipscomb III, et al. v. FLRA, et al., No. 02-60060 (5th Cir. June 24, 2003). |
| Holding |
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The 5th Circuit held that not only are civilian technicians federal employees by virtue of the National Guard Technicians Act, but "that the AG [Adjutant General]--as an employer of these federal employees--along with the MSNG [Mississippi National Guard] and MSANG [Mississippi Army National Guard], which organizations operate under the AG's authority and direction, are federal executive agencies for the purpose of FSLMRA [Federal Service Labor-Management Relations Act], and consequently are subject to the jurisdiction of the FLRA."
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| Summary |
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In 57 FLRA No. 68, the Agency filed an application for review of a Regional Director's determination that a unit of Mississippi Army National Guard (MSANG) dual-status technicians was appropriate. It contended, among other things, that neither the Mississippi National Guard nor its Adjutant General (AG) were part of the Executive Branch of the Federal Government and therefore not an "agency" as defined by the FSLMRS, and that requiring the AG to recognize and bargain with a labor organization "is patently unconstitutional."
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FLRA noted that the National Guard has both state and federal functions, and that when it administers the technicians program, it acts in its federal capacity. "Federal case law," said FLRA, "makes clear that state National Guard units act as federal agencies in matters concerning the employment of technicians." As for the activity's claim that the FSLMRS isn't constitutional to the extent it applies to guard technicians, FLRA pointed out that "we have no authority to review the constitutionality of the Statute." It went on to reject other activity arguments and denied its application for review.
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When FLRA ordered an election, the AG sought declaratory and injunctive relief from the U.S. District Court for the Southern District of Mississippi, which found that it had jurisdiction over the action for declaratory judgment, and granted summary judgment in favor of FLRA, holding that FLRA had authority to order an election. In the process it found that the AG's constitutional claims lacked merit. The AG appealed this determination to the Fifth Circuit.
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In addressing the issue of whether state national guard entities are "federal executive agencies" for purposes of the FSLMRS, the 5th Circuit said the following:
[I]t appears that no court of appeals has addressed the jurisdictional questions from the perspective raised by [the AG] in this case. All of the decisions . . . apparently have accepted without question the jurisdiction of the FLRA over them and their related entities, but only by virtue of the federal status of the employees, not the status of their employer.
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Although neither we nor other appellate courts have previously addressed the precise arguments presented in this appeal, the resolution of the ultimate jurisdictional question presented is straightforward: Federal employees of federal executive agencies, with the noted statutory exceptions, are entitled to exercise the right provided in the FSLMRA. The civilian technicians are non-excluded federal employees under the Act, and the AG employs those civilian technicians; as the federal employer of these federal employees, with full authority over such federal employees, the AG is -- notwithstanding his dual capacity as a military officer of the State of Mississippi -- an agency of the executive department of the federal government in the context of these proceedings, as are his organizational adjuncts in the exercise of that employer-related authority over federal employees.
The court accordingly affirmed the district court's decision.
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