Immigration Judges Say the FLRA Made Up Rules to Decertify Union

A technically defunct union representing federal immigration judges accused the then-Republican majority of the Federal Labor Relations Authority of having planned to decertify the union before considering the facts or arguments raised during the case. The body was also accused of disregarding legal precedent and making up new rules to reach that goal.

In November 2020, the FLRA by a 2-1 vote overturned the conclusions of its regional director and moved to decertify the National Association of Immigration Judges, a union representing immigration judges at the Justice Department’s Executive Office of Immigration Review, acting upon a request to review whether immigration judges were management officials. The FLRA reaffirmed that decision in January, despite the fact that the Justice Department withdrew its request to bust the union, rendering the case moot.

Since its decertification, the union appealed the FLRA’s decision before the D.C. Circuit Court, and it filed a new representation petition with the FLRA, seeking the new Democratic majority’s assent to conduct a new unionization election. Oral arguments have not yet been scheduled in the case.

In legal briefs, the judges union argued that the FLRA’s practice of accepting the factual conclusions of the regional director, only to determine that a 2000 case affirming immigration judges’ status as non-management officials was wrongly decided, constituted a “collateral attack” on the union’s status that is expressly prohibited under FLRA rules. But they were prohibited from raising this point before the authority because they had not challenged the regional director’s decision finding that changes to immigration judges’ job responsibilities were “substantial” enough to warrant a review of their status.

In doing so, the FLRA essentially created a new rule that those who prevail before the regional director must proactively appeal decisions, but failed to tell anyone about it in advance, the union wrote.

“The authority cites just one case for its position that the union had to file a prophylactic cross appeal, but the case is entirely irrelevant and does not in any way hint that the union would be barred from raising the collateral attack bar," attorneys for the union wrote. “And the union has failed to find any authority precedent, rules or support that a prevailing party must bring a prophylactic cross-appeal to preserve a single legal issue in a case it has otherwise won.”

In its response, the FLRA simply stated that because the regional director found that there was a change to the job responsibilities of immigration judges, that alone allows the FLRA, per federal law, to review the regional director’s decision “’when established law or policy warrants reconsideration’ of authority precedent.”

The union also cited a number of allegations made by now-FLRA Chairman Ernest DuBester in his dissents on the case that his Republican colleagues had worked backward from a decision to decertify the union, as well as claims that the Republicans on the authority had secretly created rules to force DuBester to finalize his opinions prematurely to rush out the January decision before Susan Tsui Grundmann could receive Senate confirmation to the FLRA, flipping control of the agency to Democrats. The union also suggested the original decision, which was decided two days before the 2020 presidential election and published on Election Day, was similarly rushed.

“The authority states that the union fails to allege any probative facts showing that authority members demonstrably made up their minds,” the union wrote. “But the union’s brief is filled with probative facts, laying out specific allegations that were first stated by Member DuBester in [the 2020 decision] and then further expanded upon in [the January decision] . . . These decisions were drawn up, in the words of then-Member DuBester, in ‘haste to deprive immigration judges of their right to belong to a union.’ This was the last-gasp manifestation of the previous administration’s hostility to both immigration and to the concept of unions.”

The FLRA also argued that the union’s appeal to circuit court is premature. It noted that the union still had a pending motion asking the body to reconsider its decision earlier this year finalizing the decertification, although that has since also been denied, and the union has submitted a new petition for representation. Still, the agency argued that the union must first seek further FLRA review of its claims through the unfair labor practice process.

“The union may not bypass the statute’s procedures by seeking something that the statute bars—direct review of an FLRA appropriate-unit determination,” the FLRA wrote. “Instead, the appropriate forum for the union’s constitutional claims—just like any of the union’s other claims stemming from the authority’s unit determination—is an unfair labor practice proceeding before the authority, with judicial review to follow (if necessary) before a federal court of appeals.”

But the union pointed out that, since the FLRA no longer recognizes the National Association of Immigration Judges as a union, it is not capable of filing unfair labor practice complaints.

“A [unfair labor practice] charge alleging, for instance, a failure to bargain would necessarily be dismissed by the regional director because there is no certified representative to which an agency has a bargaining obligation,” the union wrote. “Once the [regional director] dismisses the [unfair labor practice] charge, there is no recourse to the authority.”