Featured Issue: FLRA Strips Immigration Judges of Collective Bargaining Rights

On August 9, 2019, DOJ petitioned the Federal Labor Relations Authority (FLRA) in an attempt to strip immigration judges of their right to unionize. DOJ claims that the National Association of Immigration Judges (NAIJ) is no longer a valid union because the judges are managers who can’t form unions under the Federal Service labor-Management Relations statute. DOJ cited a series of "factual and legal developments" it says have added managerial weight to the judges' authority and rendered moot the FLRA's 2000 ruling rejecting the Executive Office for Immigration Review's bid to break up the union.

On July 31, 2020, the FLRA issued a decision rejecting EOIR’s petition to decertify the NAIJ - “IJs are not management officials within the meaning of section 7103(a)(11) of the Statute and EOIR’s petition is dismissed.”

On November 2, 2020, the Federal Labor Relations Authority issued a decision and order on review, and overruled the July 31, 2020, regional director’s decision and concluded that EOIR immigration judges are management officials, and stripped more than 450 federal employees of their collective bargaining rights.

The decision stated that:

“…Federal Labor Relations Authority Regional Director Jessica S. Bartlett (the RD) denied the Agency’s petition to clarify the bargaining unit (the unit) to exclude all immigration judges (IJs) on the grounds that they are management officials and therefore not appropriate unit members under § 7112(b)(1) of the Federal Service Labor-Management Relations Statute (Statute). The RD found that changed circumstances existed to support a re-examination of the Authority’s finding that the unit could include IJs. Despite the changed circumstances, the RD found that the unit was still appropriate because IJs are not management officials. The Agency filed an application for review of the RD’s decision. After a thorough review of the record, including the Union’s opposition and the amicus curiae from the Association of Administrative Law Judges, the Authority finds that existing case law warrants reconsideration. As such, we grant the application for review, find that IJs are management officials, and, therefore, exclude them from the bargaining unit.”

On November 3, 2020, NAIJ issued the following statement, writing:

“Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure ‘sophistry.’”

For more information, check out this article in Government Executive: FLRA Overturns Its Own Regional Director, Busts Immigration Judges’ Union

This featured issue page provides additional updates and other resources.

Statements

• NAIJ Press Statement: Immigration Judges Have Full Workplace Rights Says Decision by Federal Labor Relations Authority – August 3, 2020
• IFPTE Union Sends Letter to Congress Asking for Hearing on Immigration Courts – October 28, 2019
• AILA Press Statement: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independence – August 15, 2019
• Nadler and Lofgren Issue Statement on DOJ Petition to Decertify the National Association of Immigration Judges - August 13, 2019
  • “In the coming months, the Judiciary Committee will hold hearings to explore the current state of the U.S. immigration court system and develop a foundation for legislation to create an independent immigration court.”
• NAIJ Press Statement: Trump Administration Seeks to Silence Federal Immigration Judges’ Union DOJ Files Legal Documents to End the Labor Rights of Judges Retribution for Speaking Out and Exposing Problems in the Courts – August 12, 2019

Congressional Efforts

• Eighty House Democrats Call on DOJ to Withdraw Petition to Decertify NAIJ - October 16, 2019

Media Articles

• Jeffrey S. Chase: The Outrageous Decision to Decertify the IJ's Union – November 6, 2020
• Government Executive: FLRA Overturns Its Own Regional Director, Busts Immigration Judges’ Union – November 3, 2020
• Law 360: Trump DOJ Loses Push To Bust Up Immigration Judges Union – July 31, 2020
• The Washington Post (Opinion): Trump has attacked federal unions. Now, for the first time, he’s trying to bust one. – January 18, 2020
• Government Executive: Trump Administration Makes Its Case to Break Up Immigration Judges' Union – January 7, 2020
• Government Executive: Dozens of Lawmakers to Ask DOJ to Reverse Course on Immigration Judge Union Decertification – October 15, 2019
• CNN: Immigration judges accuse Justice Department of unfair labor practices – September 27, 2019
• The New York Times: Immigration Judges’ Union Lodges Labor Complaints Against Trump Administration – September 27, 2019
• NPR: Justice Department Moves to Decertify Union that Represents U.S. Immigration Judges - August 13, 2019
• Government Executive: Trump Administration Looks to Decertify Vocal Federal Employee Union - August 12, 2019
• The Washington Post: Justice Department moves to potentially decertify immigration judges’ union – August 9, 2019
• New York Times: Trump Administration Moves to Decertify Outspoken Immigration Judges’ Union – August 9, 2019

Litigation

• On July 31, 2020, the FLRA issued a decision rejecting EOIR’s petition to decertify the NAIJ.
• On January 7, 2020, DOJ’s petition to decertify the NAIJ as the Immigration Judges’ union will be heard by the FLRA.
• NAIJ Complaints to the Federal Labor Relations Authority
  • Complaint #1 filed on September 27, 2019
    ln and around August 2019, the Agency distributed to all EOIR employees in its daily briefing a prominently displayed summary and link to a white nationalist blog post singling out the Union President and Union Executive Vice President for their actions as both Immigration Judges and as union officials, and in which - among other things - the Union officials were labeled "kritarchs". "Kritarch" is a term used by white nationalists in espousing their noxious conspiracy theories and anti-Semitic beliefs. The distributed article opined that NAIJ should be decertified as a Union. This article was sent shortly after the Agency filing of a unit clarification petition seeking th decertification of the union. The Union officials identified in the article received vicious and threatening voice mails shortly after its publication. Moreover, shortly after the Agency distributed the blog post, it announced that it was ceasing its daily briefing - despite the fact that it is popular and widely read among EOIR employees. The intentional publication of this blog post has the effect of interfering with, restraining, and coercing employees in the exercise of their rights, discouraging membership by discrimination in connection with their conditions of employment, and discrimination in connection with opposition to an Agency petition. Therefore, the Agency's actions constitute a violation of 5 USC Section 7116(aX1),(2), and (4).
  • Complaint #2 filed on September 27, 2019
    On or around April 9, 2019, the Union submitted an information request pursuant to 5 U.S.C. 7114(bX4), requesting a variety of documents concerning whether, and to what effect, members of the bargaining unit were considered inferior officers. The information request was submitted in the course of collective bargaining, and for the purpose of continuing negotiations. Although unknown at the time, the information is directly relevant to a claim made in the Agency's subsequent petition to decertify the union. The Agency has failed to respond to the request and refused to furnish the information, an unfair labor practice under 5 U.S.C. 7116(aX1X5) and (8).
• DOJ’s Petition with the Federal Labor Relations Authority (FLRA) requesting a clarification of unit for an EOIR bargaining unit – Filed August 9, 2019
  • Prior FLRA Decision - WA-RP-90056, Order Denying Application for Review - September 1, 2000

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Cite as AILA Doc. No. 19081303.