FLRA Overturns Its Own Regional Director, Busts Immigration Judges’ Union

The Federal Labor Relations Authority this week overruled the findings of its regional director and concluded that immigration judges in the Justice Department’s Executive Office of Immigration Review are management officials, stripping more than 450 federal employees of their collective bargaining rights.

Last year, the Justice Department announced that it would seek to decertify the vocal National Association of Immigration Judges, arguing that circumstances had changed since the FLRA last reviewed—and affirmed—that the judges are eligible to form a union in 2000. The agency argued that although immigration judges’ duties remain entirely nonsupervisory in nature, changes to how the Board of Immigration Appeals may review their decisions elevate their work to influencing agency policy, making them management officials.

FLRA D.C. Regional Director Jessica Bartlett rejected those arguments in August, finding that the recent increase in deference in terms of immigration judges’ factual findings does not rise to the level of converting judges into management officials.

But after the Justice Department asked the FLRA board to review the decision, its Republican majority chose to overrule the regional director, despite finding little fault in her reasoning. In a decision dated Nov. 2 but published to the labor agency’s website on Tuesday, FLRA Chairwoman Colleen Kiko Duffy and Member James Abbott instead “reevaluated” the FLRA’s 2000 decision that first affirmed immigration judges’ right to bargain collectively.

“The agency argues that EOIR 2000 needs to be reconsidered because it is in conflict with U.S. DOJ, Board of Immigration Appeals. We agree,” the majority wrote. “[The] authority in EOIR 2000 failed to recognize the significance of IJ decisions and how those decisions influence agency policy. IJ decisions influence the policy of the agency for similar reasons that [Board of Immigration Appeals] member decisions influence the policy of the agency.”

Although the FLRA admitted that it effectively re-evaluating its 2000 decision allowing immigration judges to unionize, it argued that it was not breaking its own rules against so-called “collateral attacks” against a bargaining unit’s certification because the union did not appeal the regional director’s initial decision that the recent changes to how the Board of Immigration Appeals may review their decisions constitutes as “substantial change” to their duties.

“Initially, we note that the RD found that a substantial change existed in this case, and that the existence of a substantial change required a ‘thorough reassessment’ of the IJ’s status as management officials,” the FLRA wrote. “Further, the union did not file an application for review to challenge either of those findings. Therefore, we may evaluate the merits of the agency’s arguments regarding the appropriateness of the unit without running afoul of the bar on collaterally attacking a previous unit certification.”

In an email to members Tuesday, National Association of Immigration Judges President Ashley Tabaddor vowed to fight the decision using all available legal avenues. Decisions by the FLRA may be appealed to federal circuit courts.

"We are outraged, though not surprised by the lack of legal analysis [in the decision]," she wrote. "This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions and the most recent executive order designed to transform the federal workforce into an 'at-will' and deeply politicized body . . . We have lost this battle, but we will win the war."

Ernest DuBester, the lone Democratic member of the FLRA, issued a scathing dissent to the ruling, accusing his colleagues of engaging in “sophistry” to justify decertifying a union.

“In an act of legal gymnastics, the majority decides it may reconsider our decision in [EOIR 2000]—the very decision in which the authority determined that the IJs were not management officials—because the union did not file an application for review to challenge the RD’s findings regarding the substantial change,” DuBester wrote. “Leaving aside the question of why the union would seek review of a decision denying the agency’s petition, it is entirely unclear how its failure in this regard opens the door to what is essentially a collateral attack on our decision in EOIR.”

DuBester argued that the majority’s reasoning—that both immigration judges and Board of Immigration Appeals members “influence” policy through their decision making—falls short because it fails to take into account the actual differences between the two positions.

“The majority is simply incorrect that we failed to recognize the significance of the IJs’ decisions in [EOIR 2000],” he wrote. “But more fundamentally, the majority does not even attempt to reconcile its conclusion with longstanding authority precedent applying the management-official exclusion, including the decisions upon which the RD relied and the decisions upon which we relied in [previous cases]. And the majority’s analysis entirely ignores the critical distinctions the authority carefully drew between the authority possessed by the IJs and the board members to bind the agency with respect to its policies.”

Returning to a theme of his most recent dissents, DuBester went so far as to accuse his colleagues of twisting the law and FLRA rules to meet their predetermined conclusion.

“This is the antithesis of reasoned decision making,” he wrote. “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 IJs of their statutory rights. Once again, I refuse to join a decision ‘so fundamentally adverse to the principles and purposes of our statute.”