Ryan Chiao, Senior Photographer

The Veterans Legal Services Clinic at Yale Law School has filed a lawsuit against the Department of Justice, asking the court to confirm the right of the Connecticut National Guard to unionize while on state active duty. 

The Veterans Clinic, along with co-counsel at Livingston, Adler, Pulda, Meiklejohn & Kelly PC, filed the lawsuit on Nov. 15 on behalf of four Connecticut state employee unions. They undertook the litigation to clarify the bearing of federal statute 10 U.S.C. 976 on Connecticut National Guard members. The statute makes it a felony for members of the U.S. Armed Forces to unionize, and for any person to support unionization within the Armed Forces. The statute does not apply to members of the National Guard while on state active duty who are under the command of the Governor. The Veterans Clinic asked the federal courts for confirmation that there is no legal obstacle posed to Connecticut National Guard members unionizing. If the lawsuit is decided in their favor, it would permit members to organize and allow other state employee unions to support these efforts. 

“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,” William J. Boucher, secretary-treasurer of the Connecticut Police and Fire Union, said in a press release.

The duties of the National Guard are separated between federal and state statuses. While operating within their federal role, National Guard members are considered part of the armed forces, performing military duties under the command of the president.

However, while operating within their state role, National Guard members are not considered part of the armed forces, as they are under the command of their governor. Due to this distinction, the Veterans Clinic asserts that Connecticut Guard members have the right to organize while on state active duty. 

“There’s a definition in the statute that defines armed forces for purposes of the anti-union statute as members of the federal armed forces, or National Guard members serving on full time duty,” Josh Britt LAW ’22 said. “Then it defines full time duty to be duty that’s funded by the federal government or controlled by the federal government. So we think it’s pretty clear, based on the language, that the statute doesn’t apply to our members when they’re on state active duty.”

State active duty entails a variety of responsibilities, including disaster relief, law enforcement and election support. The Guard is also generally activated in the event of any statewide emergency. 

During the pandemic, Guard members distributed personal protective equipment and assisted with testing. Unlike other state employees, they were unable to bargain over their COVID-19 safety precautions because they were not unionized.

“Members of the Connecticut National Guard transition between federal and state roles frequently,” Christopher Albani, former member of the Connecticut National Guard, said in a press release. “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.”

The Veterans Clinic is representing a group of four unions in the lawsuit. The unions are the Connecticut Police and Fire Union; the American Federation of State, County and Municipal Employees Council 4; the National Association of Government Employees Inc. and the CSEA Service Employees International Union Local 2001.

The Veterans Clinic is representing a cohort of unions in this litigation — rather than an individual or group of individuals — because the statute carries criminal penalties, said Grace Judge LAW ’22, a member of the Veterans Clinic.

“Because this statute carries these really severe penalties, rather than ask individual people to put their name on the case it seemed best to have organizations,” Judge said. 

The criminal repercussions tied to the statute have historically deterred attempts at National Guard organizing, according to a press release published by the Veterans Clinic.

Though the statute’s language does not extend to National Guard members on state active duty, fear of the statute’s penalties and lack of historical and legal precedent have discouraged them from organizing. This is why the Veterans Clinic is seeking a pre-enforcement judgment.

“[T]he statute’s serious criminal penalties… has chilled the speech and associational activity of Guard members in state service, and of unions that they might otherwise seek to join,” the plaintiffs wrote in the complaint. 

If decided in their favor, the lawsuit will confirm that there are no legal barriers to the Connecticut National Guard unionizing, allowing them to begin organizing like other state employees. The opportunity for collective representation would allow them to negotiate their conditions of employment. 

If the district court judge rules in favor of the Connecticut National Guard, the ruling would apply to other states pending state law. This means that the lawsuit would move the issue into state jurisdiction, Judge said. Each state would have the ability to either bar or permit the unionization of their own National Guard. 

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