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Immigration judges union decertified in FLRA ruling

Immigration judges will no longer be eligible for union representation, per a decision made by the Federal Labor Relations Authority (FLRA) on Monday, Nov. 2.

The 2-1 decision vacated precedent to find that immigration judges are management officials, a type of employee not granted union representation under the Federal Service Labor-Management Relations Statute. The law defines management officials as individuals with the duty or responsibility to formulate, determine or influence agency policies.

The Justice Department originally filed a petition seeking to decertify the National Association of Immigration Judges (NAIJ), in August 2019. However, Jessica Bartlett, Regional Director of the Washington Region of the FLRA, found that immigration judges were not management officials and dismissed the petition.

The new decision overrules that finding, as well as a decision made in 2000 that affirmed the immigration judges' ability to form a union. The new decision found that immigration judges do in fact influence agency policy via their decisions, and that they are therefore management officials. It effectively decertifies NAIJ.

NAIJ is pursuing all available legal and other options, including working as a group on the Hill, union chief Ashley Tabaddor wrote in a letter to members on Tuesday, Nov. 3.

"We shall continue to fight," she wrote.

The decision falls in line with "undue interference and influence in our independent decision making authority" as immigration judges, Tabaddor wrote, as well as a larger "all-out assault on labor and unions" from the Trump administration.

Ernest DuBester, the lone member of the FLRA who was originally appointed by President Barack Obama, dissented. He argued that the majority's decision overlooked precedent both on the review of bargaining unit certifications and on the scope of the exclusion of management officials.

DuBester also said that the majority did not show plausible reason for reconsidering the 2000 decision or concluding that it conflicted with precedent.

"This is the antithesis of reasoned decision making," he wrote. "It is abundantly clear that the majority's sole objective is to divest the IJs from their statutory rights."

Reader comments

Tue, Nov 10, 2020 Big Dave

I expect to hear a big flushing sound come Jan 20.

Fri, Nov 6, 2020 Kendall Warren. (Retired) Seattle

Unless there’s been a sea change in OCIJ since I retired in 2003, I agree with the dissent. Individual immigration judges have little or no participation in management of the agency. If any decision ever required action by OCIJ it would be taken by the chief judge, without contact or consultation with the judge who rendered the decision. This is not management in any sense I’ve ever heard of.9Wj6

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