Labor Authority Continues Effort to Bust Immigration Judges Union, Without Management Support

The Republican majority on the Federal Labor Relations Authority last week issued an “unprecedented” decision to move forward with busting a union of immigration judges, despite the fact that both the union and management at the Justice Department have asked the decision to be withdrawn.

In a 2-1 decision, the FLRA rejected requests by both the Justice Department’s Executive Office of Immigration Review and the National Association of Immigration Judges to throw out its controversial November 2020 decision decertifying the union.

In that decision, FLRA members appointed by then-President Trump overruled the agency’s regional director and found that immigration judges are management officials and ordered the union’s decertification. The union quickly filed a motion for the FLRA to reconsider the decision, which eventually was endorsed by the Justice Department last December after management resumed voluntarily recognizing the nearly 50-year-old labor organization.

In Friday’s decision, FLRA members Colleen Duffy Kiko and James Abbott accused the union of simply trying to “relitigate” the original decision and publicly criticized the FLRA regional director and acting general counsel for not fully implementing the decision despite the union’s request for reconsideration and a stay in the matter.

“Instead of implementing [the 2020 decision], the regional office took specific actions that not only stymied implementation but also appeared to penalize the agency for its attempt to comply,” they wrote. “Specifically, when the agency refused to negotiate with the union because the bargaining unit consisted of management officials, the regional office, with the approval of the [acting general counsel], filed a consolidated unfair labor practice complaint against the agency . . . Unfortunately, the troubling series of events has allowed the union to continue to act as an exclusive representative for more than a year in contravention of the statute—all while ironically assisted by the statute’s machinery for ensuring compliance with the law.”

Chairman Ernest DuBester, who remains the lone Democrat atop the FLRA while his renomination and that of former Merit Systems Protection Board Chairwoman Susan Tsui Grundmann, who would replace Abbott, have sat idle since being voted out of the Senate Homeland Security and Governmental Affairs Committee in November, issued a dissent under duress after the GOP-appointed members threatened to issue the decision without his participation.

“Although the agency initially filed the underlying petition and opposed the union’s motion for reconsideration of that decision, it has since changed its position—withdrawing its opposition to this motion for reconsideration and seeking to withdraw the very petition that provided the vehicle for the majority to issue its underlying decision,” he wrote. “Of course, my colleagues’ approach should come as no surprise. Over the last four years, they have repeatedly taken action without regard for—or, indeed, even contrary to—the parties’ positions or arguments.”

Mimi Tsankov, president of the National Association of Immigration Judges, said she was outraged at the decision, specifically because it overrules not only labor law precedent, but the wishes of all parties involved in the case. She said the union will continue to fight to overturn the ruling and is deliberating over their next steps in the matter.

“It’s just against the wishes of the parties,” she said. “DOJ and the union of judges have been working together closely since Dec. 7, when we signed a settlement agreement, and even moreover, the DOJ has specifically petitioned the court to withdraw the petition . . . It’s a decision that was issued and we look at it as a decision that is poorly reasoned and fails to consider many of the arguments that we made. It’s against the will of the parties, and that will has been set forth in writing before the FLRA.”

Robert Tobias, distinguished practitioner in residence at American University’s Key Leadership Program and a former president of the National Treasury Employees Union, said he has never seen a case like this in federal labor law.

“It makes no sense from every single perspective that I look at it,” he said. “It should be moot. It should have been moot. But the regional director also should have followed the decision. But the decision itself says nothing and provides no explanation of [members’] reasoning. It’s never happened before, to my knowledge.”

Tobias said that theoretically, the parties involved in the case could continue their relationship and effectively ignore the decision. But any manager, present or under a future administration, could cite the decision and refuse to acknowledge the union as judges’ exclusive representative.

“I think they’re going to have to get a court to decide, although in a bargaining unit case, they ordinarily are not appealable,” he said.

The FLRA declined to comment following multiple requests for information about how the agency plans to decertify a union that is currently being voluntarily recognized by management.

Matt Biggs, national president of the International Federation of Technical and Professional Employees, whose federation includes the judges’ union, said Senate Majority Leader Chuck Schumer shares some blame for the decision, which he argued would not have been issued had Schumer scheduled DuBester and Grundmann’s nominations, as well as the nomination of Kurt Rumsfeld to serve as general counsel, for floor votes.

“It’s outrageous, and it was completely avoidable,” Biggs said. “[There’s] no hold on the nominations, but it’s clear that because the nominations came out of committee on a party-line vote, it was pretty clear that it would require floor time to confirm them. I guess Schumer didn’t want to prioritize this and commit to floor time to getting these nominees through, and that’s a shame. The FLRA is as important to federal employees—and there’s more than 2 million of them—as the [National Labor Relations Board] is to the private sector. Credit to Schumer for moving the NLRB folks, but allowing the FLRA to continue to have a Trump majority has led to the ability of those two Trump appointees to put out a decision based not on the law, but their ideology and disdain for the unions in the federal sector.”

Schumer’s office and the Justice Department did not respond to requests for comment.