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.”

By Erich Wagner for Government Executive
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