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.