(CN) — National Guard members on state duty should be able to unionize for better working conditions, a group of labor unions argued in a federal lawsuit filed on Monday, asking a district court to affirm Guard members’ organizing rights.
The National Guard is unique in its dual responsibility to federal and state governments; it can be deployed by the president or by governors.
While on federal duty, it’s a crime for members of the armed forces to organize. But while working for states, they should have the right to form a union — same as state municipal employees — four labor unions argued in their lawsuit filed in the District of Connecticut.
The pre-enforcement declaratory judgment action, seeks “to end the chilling of [the plaintiffs’] constitutionally protected speech and associational activities” by confirming that the law criminalizing military organizing does not apply while Guard members are working for states.
“In the alternative, if the statute must be interpreted otherwise, Plaintiffs seek to enjoin the federal statute as applied to Guard members on state active duty and those who would seek to enroll them in a labor organization or represent their interests in bargaining or negotiation,” reads the 20-page complaint, backed by attorneys from the Yale Law School Veterans Legal Services Clinic and the firm Livingston, Adler, Pulda, Meiklejohn & Kelly.
Guard members work in combat roles and perform other duties in the armed forces while their “federal status” is activated. While on state active duty, the role is focused on reinforcing civilian state employees, including responding to natural disasters, public health crises and labor shortages.
On duty for the state of Connecticut during the Covid-19 pandemic, members of the 4,500-strong Connecticut National Guard worked alongside healthcare workers, including distributing vaccines and supplies, and setting up a field hospital.
But when it came to their own virus prevention protocols, they had little power:
“Guard members were not able to bargain over Covid-19 safety precautions, even though the state employees they worked directly alongside were able to have a voice in Covid-19 testing, shift safety, and other necessary precautions,” said Jody Barr, a former National Guard member and the executive director of one of the plaintiff unions, the American Federation of State County and Municipal Employees Council 4.
Some Guard members are full-time soldiers, but most are “citizen-soldiers,” who work civilian jobs while not on duty. In fact, many members of the Connecticut National Guard already belong to labor unions outside of their military service, according to the lawsuit, which names the U.S. Department of Justice and Attorney General Merrick Garland.
Connecticut National Guard members on state active duty are subject only to the governor, and paid by the state.
“Members of the Connecticut National Guard transition between federal and state roles frequently,” said Christopher Albani, a former member of the 103rd Civil Engineer Squadron in East Granby, Connecticut, in a statement emailed to Courthouse News.
“When we’re on state active duty, we are proud to help our home state respond to natural disasters, public health crises, and other emergencies – we just wish we had the same opportunity to join together as do the civilian state employees alongside whom we work.”
Three groups of members of the armed forces are forbidden from organizing: those on active duty, members of the National Guard who are “serving on full-time National Guard duty, and reserve members performing inactive-duty training, according to the controlling law, 10 U.S. Code § 976.
That law, enacted in 1987 “in response to an exploratory effort to organize federal forces by members of the Vietnam War generation and a federal employee union,” does not apply to those on state active duty, the unions say.
“Nevertheless, fear of prosecution has chilled protected speech and associational activity by Plaintiffs, and by members of the Connecticut National Guard on state active duty whom Plaintiffs seek to represent,” the complaint reads.
The American Federation of State County and Municipal Employees Council 4; Connecticut Police and Fire Union; National Association of Government Employees Inc.; and CSEA Service Service Employees International Union Local 2001 filed the complaint.
A representative from the Department of Justice declined to comment on the lawsuit.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.