HARTFORD, Conn. — The Department of Justice has given the green light to National Guard members on active duty for their states to join labor unions, despite a U.S. law that makes it a felony for military personnel on active federal duty to unionize.

The department on Tuesday settled a federal lawsuit filed in Connecticut by labor unions, having conceded the federal ban does not stop Connecticut National Guard members on state duty ordered by the governor from seeking collective bargaining rights. Both sides agreed to a dismissal of the case.

Already, the case has prompted some National Guard members in Texas to unionize.

A 1978 federal law makes it a criminal felony for members of the armed forces, including the National Guard, to join or attempt to form a labor organization.

But the statute only applies to service members when they are on active federal duty ordered by U.S. military officials, according to the Veterans Legal Services Clinic at Yale Law School, which represented the unions in the lawsuit, filed in November.

“Before this case, unions were understandably deterred from organizing state active duty National Guard members due to the potential for criminal penalties,” Rekha Kennedy, a Yale law student working for the clinic, said in statement.


“With this reassurance from the DOJ, unions nationwide can begin the process of building relationships with Guard members without fear of prosecution,” Kennedy said.

If Guard members do unionize, they will be in a better position to negotiate pay, benefits, working conditions, living conditions and other arrangements for active duty state deployments, members said.

Connecticut Guard members were waiting for the agreement to be finalized before beginning unionizing efforts, but some Texas National Guard members already have moved ahead with their plans, joining the Texas State Employees Union starting in February.

Texas members said they were encouraged by a January court filing in the Connecticut case where the Justice Department acknowledged the federal ban did not apply to National Guard members on state duty.

Some Texas National Guard members have criticized their working and living conditions at the U.S.-Mexico border, where Gov. Greg Abbott has sent them to help in efforts to arrest migrants crossing the border.

“We’ve been rapidly activated with no notice, often working long shifts on irregular schedules, and living in poor conditions far from our families and homes,” Texas National Guard member Hunter Schuler said in a statement Wednesday in response to the Connecticut lawsuit settlement.


“Meanwhile, our education benefits have been cut, we’re subjected to inconsistent and unclear leave policies, and we lack benefits comparable to those received on federal service such as health insurance,” he said. “DOJ’s position confirms that we are free to organize and fight for changes that every service member deserves.”

National Guard officials were reviewing the Connecticut court case, a national spokesperson said. Another Guard spokesperson, Air Force Maj. Matt Murphy, said a previous legal analysis by the Guard came to the same conclusion as the Justice Department, that members on active state duty can unionize.

Connecticut Gov. Ned Lamont’s office did not respond to messages seeking comment Wednesday.

“Members of the Connecticut National Guard now have additional reassurances that our rights will be upheld through union advocacy,” Walter Morton, a Connecticut National Guard member, said in a statement.

The Connecticut National Guard has been called to state duty several times in recent years. Members have helped with cleanup efforts after major storms, aided police in response to protests and served during the state’s response to the coronavirus, including setting up field hospitals and distributing supplies during the early days of the pandemic.

Maj. David Pytlik, a spokesperson for the Connecticut National Guard, 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, he said.

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