FLRA to decertify union representing DOJ immigration judges

The Federal Labor Relations Authority this week voted along party lines to decertify the union representing certain immigration judges at the Justice Department.

In a 2-1 decision, the FLRA said a group of immigration judges at the department should lose their collective bargaining rights because the authority considers them “management officials.” The move effectively busts the National Association of Immigration Judges, the union that represents more than 400 people at Justice’s Executive Office for Immigration Review (EOIR).

The authority’s decision stems from a debate that began last summer, when DOJ petitioned FLRA Regional Director Jessica Bartlett to strip collective bargaining rights from its judges in EOIR.

DOJ asked the authority to revisit a decision from 2000, which had originally determined immigration judges at the department to unionize. In making its case before Bartlett, DOJ said immigration judges had managerial duties now that they didn’t have in 2000, meaning the FLRA should revisit their bargaining status.

But Bartlett denied DOJ’s petition in July, arguing immigration judges within the department were not “management officials,” and therefore, could participate in a union under the Federal Service Labor-Management Relations Statute.

The labor-management statute prohibits managers from forming a union.

Yet the FLRA agreed with Justice and chose to revisit Bartlett’s July decision. The authority drew on a previous decision it made involving DOJ’s Board of Immigration Appeals (BIA), where it found that board members influenced agency policy and, therefore, are considered “management officials.”

“Immigration judge decisions influence the policy of the agency for similar reasons that board member decisions influence the policy of the agency,” FLRA Chairman Colleen Duffy Kiko and member James Abbott wrote in their decision. “Just like BIA where the authority found that board members influence the policy of the agency by interpreting immigration laws and making decisions, immigration judges also influence the policy of the agency by interpreting immigration laws when they apply the law and existing precedent to the unique facts of each case.”

Ultimately, the authority vacated Bartlett’s original decision and ordered the exclusion of immigration judges from their bargaining unit.

In a statement posted to its website, the National Association of Immigration Judges said it wasn’t surprised by the FLRA’s decision. It cited the president’s three 2018 executive orders, which have cut official time and limited collective bargaining, as an example of what it described as a recent “assault” on labor unions.

“We have lost this battle, but we will win the war,” the association’s president, Ashley Tabbador, said in a statement to her members. “The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.”

Ernest DuBester, the lone Democrat on the FLRA, described the authority’s decision as “sophistry.”

“This is the antithesis of reasoned decision making,” DuBest wrote in his dissent. “Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the immigration judges of their statutory rights. Once again, I refuse to join a decision ‘so fundamentally adverse to the principles and purposes of our statute.'”

This isn’t the first time the FLRA has delivered a blow to federal unions in recent years.

The authority, for example, finalized a new rule earlier this year that allows dues-paying employees to cancel automatic payments to federal unions at any time. Dues-paying members had a once-annual window to cancel those payments in the past, and unions have argued the new rule will impact them financially.

FLRA also issued three new decisions earlier this fall. One limits the kinds of policy changes federal employee unions can bargain over. All told, the decisions will likely give agencies more authority at the bargaining table.

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