Legislation

The last attempt by a NG state to deny technicians of their rights was in 2016 when the Ohio Adjutant General tried to dissolve the Union in that state by unilaterally cancelling payroll deductions and refusing to recognize the collective bargaining agreement. The Union filed an unfair labor practice, but the Ohio National Guard (OHNG) claimed that the Federal Labor Relations Authority (FLRA) has no enforcement authority because the OHNG is not a federal agency and because the adjutant general is a state employee. Various NG states had made the same argument since 1968, each one defeated at the circuit court level. This was also in spite of the fact that Ohio and AFGE Local 3970 had enjoyed a 45-year collective bargaining relationship. The FLRA quickly ruled in the Union's favor, but Ohio challenged the FLRA's decision. 

In 2022, the 6th Circuit ruled in favor of the FLRA, prompting Ohio to appeal to the Supreme Court. In spite of there being no conflicts in the lower courts, SCOTUS took the case and the judges ruled, almost unanimously, that technicians are indeed federal employees for the purposes of employment law, settling the matter for good. SCOTUS appropriately found that the Civil Service Reform Act of 1978 (CSRA) empowers the FLRA to regulate the labor practices of state militias. The Merit Systems Protection Board (MSPB) has also embraced the SCOTUS ruling pertaining to technician appeals. 

Ohio AG v. FLRA No. 21-1454 (2023)

LIUNA Legislative Priorities FY25 NDAA

As SCOTUS found, technicians are indeed federal civil servants and should be treated as such. During the 113th Congress Senator Jack Reed introduced S 2312, a comprehensive bill that sought to address certain inequities in law that negatively impact the rights and continued employment of DSTs. Some of the provisions of that bill, like MSPB rights, were enacted in the FY17 NDAA, but others were not. 

The NGTA still needs modernization in order to allow for the recruitment and retention of an experienced FTS workforce that allows the NG to compete with the private-sector. We are asking to re-introduce a slightly modified version of the portions of Sen. Reed’s bill that did not become law in 2017. This legislation ensures the NG has the personnel they to accomplish their mission well into the 21st Century, as follows:

• Allows DSTs to be retained in the military until reaching FERS annuity eligibility.

• Permits the conversion of DSTs to T5 status upon reaching 20 years of creditable service. 

• Provides payment of overtime just like their federal and private sector counterparts. 

• Protects employee appeal rights. 

When TRICARE Reserve Select (TRS) was enacted into law in the late 2000s, it included a provision that prevent federal employees who were eligible for the Federal Employee Health Benefit (FEHB) from enrolling in TRS. Since National Guard (NG) Dual Status Technicians (DSTs) are federal employees eleigble for FEHB, they were legally barred from taking advantage of one of the key benefits available to all Guardsmen and women. 

Since the late 2000s, LIUNA has been lobbying to lift the ban on purchase of TRS by NG DSTs. The challenge for more than a decade was the astronomical cost estimates of lifting that ban since Congress insisted that they would want to lift the ban as it applied to any federal employee that was also a Reservist and not just NG DSTs. Some studies put the bill at over a $1 billion. Eventually, Congress did pass legislation to lift the ban in the late 2010s, but deferred implementation for more than 10 years, until January 1, 2030, in order to avoid having to deal with the estimated increases in manadatory defense spending. 

Our goal is to bring that implementation date closer to today. As or March 2024, there is an effort underway to do just that, and open acces to TRS by federal employee reservists as early as 2025.  With the passage of time, cost estimates have been revised to a more palatable $40 million, however an ofset must still be identified. We urge Congress to take the necessary steps to achive immediate implementation. Allowing NG DSTs to purchase TRS would save employees and their families literally thousands of dollars annually.