Page:Ohio Adjutant General's Department v. FLRA.pdf/12

Rh was adopted, “labor-management relations in the federal sector were governed by a program established” by a series of Executive Orders, “under which federal employees had limited rights to engage in” collective bargaining. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91–92 (1983). The Statute’s immediate predecessor, Executive Order No. 11491, established the precursor to the current FLRA and listed prohibited unfair labor practices for both federal agency management and unions. See Exec. Order No. 11491, 3 CFR 861 (1966–1970 Comp.). When Congress later replaced that Executive Order with the FSLMRS, it explicitly continued many aspects of the pre-FSLMRS regime: “Policies, regulations, and procedures established under and decisions issued under Executive Orde[r] 11491 … shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of [the Statute] or by regulations or decisions issued pursuant to [the Statute].” 5 U. S. C. §7135(b). Thus, “decisions issued under Executive Orde[r] 11491” supply critical guidance regarding the FLRA’s jurisdiction today.

One such decision is directly on point. In the 1971 case of Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20 (Thompson Field), the Assistant Secretary of Labor—exercising adjudicative authority under Executive Order No. 11491 analogous to the modern FLRA’s—rejected arguments virtually identical to those petitioners advance here. See id., at 2 (describing the state guard’s argument “that the provisions of Executive Order 11491 did not apply … because the employees involved are under the operational control of the Adjutant General of the State of Mississippi, who is appointed and employed pursuant to State law”). The Assistant Secretary reasoned “that National Guard technicians [were] employees within the meaning of” the Executive Order and “employees of the