Page:Ohio Adjutant General's Department v. FLRA.pdf/7

4 agreements (CBAs), the most recent of which was signed in 2011 and expired in 2014. As the expiration date neared, the Guard and the Union entered into negotiations for a new agreement. During this process, in March 2016, they adopted a memorandum of understanding whereby the Ohio Adjutant General promised to abide by certain practices contained in the expired agreement. But, later that year, the Ohio Adjutant General’s Department reversed course. It asserted that it was not bound by the expired CBA and did not consider itself bound by the FSLMRS when interacting with dual-status technicians. The Guard also sent letters to dual-status technician Union members, asking them to submit the requisite forms to permit the deduction of Union dues from their pay. The letters advised that, if the technicians did not promptly submit the forms, the Guard would cancel dues deductions on their behalf. The Guard ultimately terminated dues withholding for 89 technicians.

The Union subsequently filed unfair labor practice charges with the FLRA. After investigating, the FLRA general counsel issued consolidated complaints against the “U. S. Department of Defense, Ohio National Guard,” alleging that the Guard had refused to negotiate in good faith and interfered with the exercise of employee rights under the Statute through its treatment of technicians’ dues deductions. App. 16. The Ohio Adjutant General and the Ohio Adjutant General’s Department intervened on the side of the Ohio National Guard.

Petitioners argued before the Administrative Law Judge that the Guard was not an “agency” and that dual-status technician bargaining-unit employees were not “employees” for purposes of the Statute. The Administrative Law Judge issued a recommended decision finding that the FLRA had jurisdiction over the Guard, that the dual-status technicians had collective-bargaining rights under the Statute,