DOJ argues that Guard troops on state orders can unionize

| January 26, 2022

The military can unionize? Apparently when under state orders the federal Department of Justice agrees! This is baffling.

Jeff LPH 3 sends in this Army Times report on it;

National Guard troops can legally organize and form unions while serving on state active duty orders, the Justice Department said in a court filing last week.

DoJ lawyers asked a federal judge to dismiss a lawsuit brought by state employee unions in Connecticut, saying that “the Government agrees” with them. A federal law prohibiting members of the military from organizing unions “does not apply to Guard members on state active duty or in the Inactive National Guard,” DoJ lawyers wrote in their filing.

“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, said Josh Lefkow, a legal intern for the Yale Law School Veterans Legal Services Clinic and Marine veteran, in a phone interview.

The apparent green-light to organize hinges upon the troops’ legal status as state employees — not military members — when they are on state active duty. The same legal principle is what allows Guard troops on state active duty to conduct law enforcement, which is virtually prohibited for troops who are being paid as military members.

The unions brought the case on behalf of Connecticut Guard members who they say deserved a voice alongside state employees in advocating for workplace protections when on state active duty responding to 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,” said Jody Barr in a November press release announcing the lawsuit. Barr is a former Guard member who leads American Federation of State, County and Municipal Employees Council 4 — one of the unions who sued.

“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 added in the release.

Usually, Guard troops only go on state active duty for short periods of time — common missions include disaster or civil disturbance response. That could make organizing more difficult for them.

A notable ongoing exception is the Texas National Guard’s Operation Lone Star, which includes up to 10,000 members of the Texas Military Department who are mobilized on year-long orders, according to comments made by a senior Guard official in a recent town hall. While each state has different laws that govern public sector unions, including some like Texas that ban strikes and collective bargaining for state employees, organizing advocates say that a union can help offer a voice even if their power is limited.

The troops on Operation Lone Star have suffered from problems with pay, mental health and living conditions, in addition to shortages of critical equipment like first aid kits and cold weather gear. They also recently had their state education benefits cut.

One junior medic on the border mission welcomed the DoJ filing when reached by Army Times.

“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 specialist said.

Other soldiers told Army Times they would support an organizing push among Operation Lone Star’s troops as well.

It’s not clear, though, how long organizing would take, nor is it clear whether state authorities would try to block the move.

Read the statute here; It does seem as if the law only pertains to those in federal status. Are we going to see National Guard units activated by the state and then going on strike?

Category: Army, DC Government, National Guard

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A Terminal Lance Coolie

Wut? How the hell is this supposed to work?

Pretty sure a union doesn’t trump the orders said Guardsmen are oathbound to follow.


Progressive socialist control, comrade!


Yet another STUPID ruling by Biden’s DOJ. But, the Democrats love unions because they are basically an ATM for the party.


Yep, a power grab by the union. Gotta build up them coffers, time to make some more donations for the upcoming political campaigns. Those Dominion Machines and extry mail in ballots don’t come cheap.

Confederate State Troops were definitely NON-UNION.


Most of the full times couldn’t work any less that they do now.


Well to be fair….we did at one time have a Union Army….


This is a reaction to using the guard as a catch all forced labor.

I don’t agree with the idea of unionizing but the use of the NG seems to be out of control lately. Right now using them to backfill hospitals, teachers, and the like is just….well over the top. With NG being used to staff hospitals no one is thinking. Most NG members in a medical profession most likely do that in the NG. So pulling them out of the their civilian career only hurts and is most likely not a net gain of employees. Making a Doc change his/her uniform doesn’t really help any one.

Under this move the ones that hurt the most is EMS. Where paramedics are being pulled out of their communities to go be a medic or lab tech in another state or in a local hospital. My volunteer firefighter force just lost 5 medics who are now on a local hospital staff.

The whole thing is jacked up from top to bottom.

President Elect Toxic Deplorable Racist SAH Neande

Reminds me of the argument from Starship Troopers, talking about the active troops not being allowed to vote while on active duty status.
(don’t have the book in front of me, so paraphrasing)
“What?! Allow troops to vote?! Next thing you know, they’ll vote to NOT drop into a combat zone!”


Yeah, I can imagine part time soldier, LT Clinton Morgan, organizing a strike. 😁


Gee, this isn’t the first time this has been tried in the USA! It’s the commies at it again!

And there are unionized militaries in Europe. I’m sure that increased their combat effectiveness immensely. /sarc off


And based on a superficial search, it seems that the DOJ needs to look in their own records!


I don’t know. Seems to me the statute is clear and applies here.


MC, ol’ Poe’s thinking that reference to “full time” may be problematic…


If they can flat disobey orders from the DoD for entirely partisan political reasons, they might as well be able to unionize.

Hell, states should have to pay their entire salaries and all training and equipment at this point.

They are essentially state militias now.

Green Thumb

Curious if New Mexico’s governor is following this with her substitute teacher push?


There just doesn’t seem to be anything working sufficiently enough that Democrats won’t come along and try to “fix” it. Public sector unions suck no mater what the subject is. They are there to negotiate against the public – i.e. taxpaying public. Maybe if they want to strike and carry on with all that sort of Unniony stuff, they should go to work for an actual business and strike against their evil management.
Unions may have served a purpose at one time, but their time has come and gone.

Name withheld by request

I was a Teamster for 10 years, and I know how all this works. First has to a collective bargaining agreement on work rules which ain’t going to be compatible the military and the way it does business. Plus, you are NOT going to get a majority of NG members wanting to pay dues when they’re activated. Its just not going to work.

Veritas Omnia Vincit

There is nothing unionizing the NG will do to change how they are used and what conditions their state deployments will have. All this will do is line the pockets of some bullshit union organizers and increase the political clout of State Employee Unions…

They won’t be allowed to strike or dictate the terms of their deployment…this is a gift to state employee unions at the expense of the military personnel…their pay won’t increase so they will simply lose money in the form of union dues…


Well said Sir!


This is not going to work out at ALL!!! You are a soldier, 24/7 X 365 and there is no discussion about orders. If this goes through, think E-4 Mafia on steroids and as the shop stewards.


The unions brought the case on behalf of….

Ahhhhhh, yes, say no more.

Last edited 3 months ago by JustALurkinAround

Unions destroy everything they touch – beginning with pulling kids out of coal mines.


You coud do what they did in Wisconsin and just have the govenor elimanate collective barganing for state workers.

19D3O - Smitty

I can see the history and reasoning behind private sector unions. I think they have mostly outlived their usefulness for the most part, but I get it. I only really disagree with them when you ‘have’ to join one to do your job instead of just being allowed the right to work.

However, I have never understood how or why public sector unions are legal. Just seems ass backwards.