FLRA Regional Director Issues Decision Supporting NAIJ Union Rights, Rejects DOJ's Unionbusting Petition
The Federal Labor Relations Authority's D.C. Regional Office has issued a decision in favor of the National Association of Immigration Judges/IFPTE Judicial Council 2 (NAIJ), affirming the statutory union rights of the NAIJ bargaining unit members to form and join a union and bargain with their federal employer.
In late August 2019, the Department of Justice's Executive Office of Immigration Review (EOIR) filed a petition at the FLRA to reclassify NAIJ members as management officials on the grounds that Immigration Judges create or modify policy in the course of their work. The DOJ also argued that immigration judges are "superior officers" based on the 2018 Supreme Court ruling in SEC v. Lucia and therefore should be considered management employees. The FLRA's hearing of the petition was held on the January 7 and 8, 2020 in Washington, D.C.
This week's FLRA decision states that:
At the heart of the Agency' s contention is that the IJs [immigration judges], through their decisions, create or modify immigration policy so as to warrant the conclusion that they are management officials. That theory is inapposite to what the record establishes the IJs actually do. IJs act as judges, gathering facts from witnesses and documents, and applying those facts to existing laws, regulation s and precedential BIA decisions. By following the law, regulations and precedential IJ decisions, the Judges implement immigration policies, they do not create or influence EOIR policies... Indeed, since 2000, several factors diminished the Us' roles, including a reduction in their ability to establish court rules. While not dispositive, it is also noteworthy that the Agency even recently started declining to send the IJs out to speak publicly, based on its assertion that the IJs are not management representatives.
Were the FLRA to rule in favor of EOIR and against NAIJ, the decision would decertify the NAIJ as a union. The DOJ/EOIR decision to unionbust and silence the NAIJ's ability to exist is part of a larger context in which the NAIJ has effectively voiced concerns about DOJ's continuing encroachment on the Immigration Court's independence and adjudication functions and impeding the Court's ability to guarantee due process for all respondents and parties to the Court. For an timeline of events covering the DOJ/EOIR petition filing to the FLRA hearing, see this page.
In this week's decision, the FLRA Regional Director found that the FLRA ruling from 2000 - the previous attempt by DOJ to strip immigration judges of their union rights and decertify NAIJ that resulted in a ruling in favor of NAIJ - still held and was well-reasoned. The decision references the Association of Administrative Law Judges/IFPTE Judicial Council 1 (AALJ) amicus brief which argues that administrative law adjudication is not policy-making and that the SEC v. Lucia Supreme Court decision is irrelevant.
IFPTE congratulates the NAIJ's officers and members and thanks the AALJ for the well-considered support and the numerous stakeholders and organizations that stepped forward and highlighted the absurd basis of the unionbusting attack on the NAIJ. In particular, we're grateful for the support from the American Immigration Lawyers Association, the American Bar Association, and the civil and human rights organizations under the umbrella of the Alliance for Justice for highlighting and voicing concern for the DOJ's attempt to silence the immigration judges' voice, the NAIJ. Additionally, the Federal Workers Alliance and the AFL-CIO provided considerable support.
Read NAIJ's statement below
FOR IMMEDIATE RELEASE August 3, 2020
Immigration Judges Have Full Workplace Rights Says Decision by Federal Labor Relations Authority
Attempt by U.S. Dept. of Justice to Decertify Union Has No Merit; National Association of Immigration Judges Applauds Ruling
WASHINGTON – An attempt by the U.S. Department of Justice (DOJ) to decertify the union representing the nation’s 471 immigration judges, The National Association of Immigration Judges (NAIJ), has been soundly rejected by the U.S. Federal Labor Relations Authority (FLRA).
In a decision released late Fri. July 31, Susan S. Bartlett, Washington, D.C. regional director for the FLRA – the agency charged with protecting workplace rights of federal employees – found no merit in DOJ’s claim that immigration judges are managers who should be denied the right to form a union and bargain collectively with their employer.
Bartlett found that immigration judges are not management officials because they “act as judges, gathering facts from witnesses and documents, and applying those facts to existing laws, regulations and precedential BIA [Board of Immigration Appeals] decisions. . . . [T]hey do not create or influence” policies of the DOJ’s Executive Office of Immigration Review (EOIR).
Bartlett’s ruling upholds a previous FLRA decision from 2000, rejecting an earlier attempt to decertify the union, based on nearly identical claims from the Department of Justice.
NAIJ President Ashley Tabaddor, a U.S. immigration judge in Los Angeles, applauded Bartlett’s ruling. “We are extremely pleased with the regional director’s careful and thorough decision, which recognizes the truth of our daily lives on the bench,” said Tabaddor, who in addition to serving as the union’s president is a federal judge who hears immigration cases in Los Angeles. “With the public facing a health crisis, and desperate for courtroom safety, the Department of Justice and EOIR have focused limited resources on litigating a matter already decided two decades ago. It’s time to drop this decertification action and other efforts to silence judges and instead to focus on the important work of our courts,” she added.
In upholding the judges’ right to form a union, Bartlett thoroughly examined the duties and responsibilities of immigration judges and found that “the day-to-day duties and work of the IJs has not changed” since EOIR’s prior, unsuccessful petition.
According to Tabaddor, “DOJ’s efforts to decertify the union demonstrates, once again, the structural flaw of having the immigration court housed in a law enforcement agency like the DOJ. The only lasting solution is the creation of an independent immigration court.”
To preserve judicial independence and provide fairness to all litigants, NAIJ advocates establishment of U.S. immigration courts under Article 1 of the U.S. Constitution, similar to U.S bankruptcy courts and the tax courts.
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.
Download NAIJ's press statement on FLRA decision upholding Immigration Judges ' union rights