The National Association of Immigration Judges argued to be re-certified as a union before the Federal Labor Relations Authority this week.

The National Association of Immigration Judges argued to be re-certified as a union before the Federal Labor Relations Authority this week. SimpleImages / Getty Images

Immigration judges seek renewed union recognition

In a controversial November 2020 decision, the Federal Labor Relations Authority overruled its regional director and decertified the National Association of Immigration Judges.

A union representing the nation’s cadre of immigration judges argued this week that it should regain its status as the judges’ bargaining representative after the Federal Labor Relations Authority controversially decertified the organization in 2020.

The FLRA in November 2020 overruled the findings of its regional director and ruled immigration judges in the Justice Department’s Executive Office for Immigration Review are management officials, stripping the more than 700 federal workers of their collective bargaining rights.

In the intervening years, the National Association of Immigration Judges has maintained a lesser “meet and confer” relationship with EOIR management, in which they are able to ask questions and offer comments on agency initiatives. But earlier this year, management issued a much-criticized—and since rescinded—gag order barring immigration judges from speaking publicly even in their personal capacities.

At this week’s hearing at the FLRA headquarters, the union presented a two-fold argument: first, that the 2020 decision to decertify the union was wrong, and second, that a series of regulatory changes governing the asylum and immigration systems further establishes immigration judges as frontline workers, not managers. Meanwhile, the Justice Department sought to argue that there have not been substantial changes to immigration judges’ working conditions since 2020.

FLRA Assistant General Counsel Bill Kirsner presided over the hearing, frequently asking witnesses whether a variety of policy or workplace changes affecting immigration judges occurred because of input from the judges. Invariably, they said the changes were made without the judges’ involvement.

Mimi Tsankov, the union’s president, told Government Executive Thursday that she felt optimistic that the agency will find in favor of the union’s recertification. Both parties have 30 days to submit written briefs in the case, after which the FLRA regional director will have 30 days to issue a decision. Either party would then have the opportunity to appeal the decision to the FLRA’s three-member board.

Tsankov said her organization’s current informal status is no substitute for the ability to negotiate over workplace policies and their implementation.

“One thing that was very well developed in the [case] record and is emblematic of the experience that we had is we’ve had opportunities to engage with management, by providing some information about what our areas of concerns are, but an opportunity to provide input in the form of asking questions and seeking answers from management in no way can suffice and replace a robust labor-management relationship where we’re equals sitting at a table,” Tsankov said. “We need the strength of the union behind us and the formality of that union role so that the comments we make have much greater impact.”