On May 17, the U.S. Department of Justice settled a lawsuit four unions filed asking a federal court to declare that a federal law prohibiting members of the armed forces from unionizing did not apply to members of the National Guard on state active duty. 

About the case

Four unions representing workers in Connecticut—American Federation of State, County and Municipal Employees Council 4, the Connecticut Police and Fire Union, the National Association of Government Employees, and Civil Service Employees International Union Local 2001—filed a lawsuit on Nov. 15, 2021, in the U.S. District Court for the District of Connecticut against U.S. Attorney General Merrick Garland and the U.S. Department of Justice (DOJ). Attorneys from Yale Law School’s Veterans Legal Services Clinic and Livingston, Adler, Pulda, Meiklejohn & Kelly represented the unions. 

A union representative said at the time, “We are bringing this lawsuit because Guard members on state orders should have the same opportunity to have a voice in their state workplace as the public employees with whom they work shoulder to shoulder.”

The unions’ lawsuit said: 

“While serving under the command of the Governor and pursuant to state law, Guard members work alongside other state and local employees. Yet unlike firefighters, healthcare workers, law enforcement, emergency medical technicians, and other state and local employees, members of the Connecticut National Guard have no labor organization that can represent them or advocate for their interests when in state status.

“Section 976 of Title 10 of the U.S. Code makes it a felony for members of the armed forces—including members of the National Guard when activated to federal status—to join or attempt to form a labor organization. The same federal statute makes it a felony for unions such as Plaintiffs to support labor organizing in the armed forces, including by Guard members when activated to federal status.

“The plain language of this federal criminal statute, confirmed by its legislative

history, does not apply to members of the National Guard when they are mobilized by state governors under state law. 

“However, the statute’s serious criminal penalties—combined with the lack of

historical and legal precedent confirming that a Guard member in state service who joins or forms a labor organization will not be subjected to federal prosecution—has chilled the speech and associational activity of Guard members in state service, and of unions that they might otherwise seek to join.”

The unions asked the court to either declare the statute did not apply to Connecticut National Guard members attempting to organize while serving on state active duty, or to block the statute from being enforced against National Guard members on state active duty as a violation of the First and Tenth Amendments.

In January 2022, Garland and the DOJ sought to dismiss the case. Justice Department lawyers said, “Plaintiffs seek a declaration that ‘members of the armed forces’ does not include members of the Connecticut National Guard on state active duty or in the Inactive National Guard. But by its own terms, § 976 does not apply to Guard members on state active duty or in the Inactive National Guard. Indeed, at no point in the history of § 976 has any government entity ever interpreted the statute as such. Plaintiffs’ suit is thus not a case or controversy within the meaning of Article III of the United States Constitution.” 

Two settlement conferences were held in March, and Garland and the DOJ reached a settlement with the unions on May 17. According to a news release from Yale Law School, “As part of the settlement … the Department of Justice’s position on the ability of National Guard members on state orders to organize has been distributed to all 54 National Guard Human Resources departments.”

The case name and number are AFSCME Council 4 et al. v. Garland et al. (3:21-cv-01524).

What happens now

According to the Associated Press’s Dave Collins, “Connecticut Guard members were waiting for the agreement to be finalized before beginning unionizing efforts,” and National Guard officials said they were reviewing the case. 

However, Collins said, the DOJ’s statement in January encouraged a group of Texas National Guard members to join the Texas State Employees Union months before the case was settled. Jacobin’s Steve Early and Suzanne Gordon wrote, “Union goals include a guaranteed end date for all Guard members on state active duty, full restoration of tuition assistance slashed by [Gov. Greg Abbott (R)], and immediate access to the same health care coverage as other state employees, along with state subsidized coverage ‘for our families while on Texas Military state mobilization.’”  

According to Collins, “[A Connecticut National Guard spokesman] said he did not think the lawsuit settlement would have a major impact on the state Guard, because active duty state deployments are not common. But it could have a significant effect on other state Guards with ongoing state deployments, including Texas …” 

Perspectives

Support

A news release from Yale Law School said, “[U]nions around the country can now support National Guard members on state orders in organizing for better conditions of employment without fear of prosecution under federal law.” 

Opposition

The Freedom Foundation, which calls itself a “battle tank that’s battering the entrenched power of left-wing government union bosses,” said, “Unionization is fundamentally incompatible with military service of any kind. Unionizing National Guard units could erode discipline, dilute the chain of command, and undermine unit readiness.” 

What we’re reading

• Fulton Sun, “Missouri Supreme Court weighs impact of merit system changes on labor contracts,” May 26, 2022 
• The Sacramento Bee, “A new California state worker union? Legislative staff could organize under new bill,” May 25, 2022
• On Labor, “Massachusetts’s Prohibition on Public Employee Strikes Warrants Repeal,” May 25, 2022
• Government Executive, “NTEU Calls on FLRA and the Supreme Court to Clarify Policies that Hurt Unions Under Trump,” May 24, 2022
• St. Louis Post-Dispatch, “Missouri’s high court to hear Greitens-era labor union dispute,” May 23, 2022
• Daily Pilot, “Lifeguards across O.C. state beaches willing to take union dues lawsuit to Supreme Court,” May 21, 2022
• The Philadelphia Inquirer, “Wisconsin’s union law worked. Now it’s Pennsylvania’s turn.,” May 20, 2022

The big picture

Number of relevant bills by state

We are currently tracking 143 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

• California AB1577: This bill would allow state legislative employees to organize and bargain collectively.
  • Bipartisan sponsorship.
  • Senate read second time, amended, and sent back to Senate Appropriations Committee May 24. Sent to Senate Rules Committee May 25.
• California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
  • Democratic sponsorship.
  • Senate read third time, passed, ordered to the Assembly May 24. Assembly read first time, held at desk May 25.
• California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
  • Democratic sponsorship.
  • Senate read third time, passed, ordered to the Assembly May 24. Assembly read first time, held at desk May 25.
• California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
  • Democratic sponsorship.
  • Senate read third time, passed, ordered to the Assembly May 25.
• Pennsylvania HB844: This bill would ban public employee social security numbers and personal contact information as subjects of collective bargaining.
  • Republican sponsorship.
  • Removed from the table May 24, laid on the table again.
• Pennsylvania HB845: This bill would require any proposed public employee collective bargaining agreement to be published on the public employer’s website at least 14 days before the agreement is accepted. It would also make documents from the collective bargaining process into public records subject to the state’s right-to-know law.
  • Republican sponsorship.
  • Removed from the table May 24, laid on the table again.
• Pennsylvania HB2042: This bill would require public employers to provide non-union members with an annual notification that they are not required to make payments to a union and to provide new and returning employees with a notification that they do not have to join a union.
  • Republican sponsorship.
  • Removed from the table May 24, laid on the table again.
• Pennsylvania HB2048: This bill would prohibit collective bargaining agreements from authorizing the deduction of political contributions from public employee wages.
  • Republican sponsorship.
  • Removed from the table May 24, laid on the table again.