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Nat’l Guard troops can unionize while on state-level duty, DOJ now says

About 200 members of the Connecticut Army National Guard prepare to deploy. (Brad Horrigan/Hartford Courant/TNS)
January 31, 2022

National Guard troops can unionize while on state-level or inactive duty status, according to an opinion shared by the U.S. Department of Justice.

In a filing last week, DOJ lawyers wrote that a federal law prohibiting military members from unionizing “does not apply to Guard members on state active duty or in the Inactive National Guard.” Army Times reported the DOJ lawyers submitted the court filing along with a request to dismiss a lawsuit brought by Connecticut state employee unions to allow state National Guard troops to unionize.

The Connecticut unions sued back in November, arguing National Guard troops should be allowed to seek union representation alongside state employees in advocating for workplace protections against the COVID-19 pandemic.

“Connecticut National Guard members on state orders have worked alongside the public service workers we represent to distribute protective equipment and assist with testing at the height of the COVID-19 pandemic,” Jody Barr, Executive Director of Council 4 for the American Federation of State, County and Municipal Employees (AFSCME), said in November. “Yet 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.”

Barr previously served as a member of the National Guard, and the AFSCME is one of the unions that sued to allow National Guard troops to unionize while on state-level duty.

“We’re excited about what appears to be a straightforward agreement with our position that National Guard members on State Active Duty are not subject to” that federal law, Josh Lefkow, a legal intern for the Yale Law School Veterans Legal Services Clinic and Marine veteran told Army Times.

The DOJ’s opinion suggests National Guard troops can unionize during their inactive duty time and during state active duty, but not during federal active duty.

Unionizing during state active duty might not be without its challenges. National Guard troops are typically called on for state active duty for only a few days at a time, usually for disaster relief or responses to civil disturbances. In recent months, National Guard troops have been called up for more long-term state active duty assignments.

The Texas National Guard has seen a particularly long period of state-level activation throughout Operation Lone Star, a joint operation between the Texas Department of Public Safety and the Texas National Guard. The operation has been going since March of 2021 and, at times, has seen up to 10,000 personnel participating.

Troops involved in Operation Lone Star have complained about problems with pay and benefits, as well as poor working conditions. One specialist working on the Texas state-level operation reportedly told Army Times he welcomes the DOJ’s opinion on unionizing.

“My hope with a union would be that we could organize a coherent way to get [our grievances] to [Texas Military Department] leadership and demand substantive answers on these issues, instead of just casually grumbling about it,” the unnamed specialist said.