An Immigration Judges Union That Was Busted by the Trump Administration Is Seeking A New Election
The National Association of Immigration Judges is pursuing two tracks to becoming recertified as a federal employee union and recognized by management at the Justice Department.
An erstwhile union representing immigration judges is hoping recent changes in the leadership at the Federal Labor Relations Authority will enable it to return to the bargaining table with the Justice Department.
In November 2020, the FRLA voted 2-1 to overrule the findings of the agency’s regional director and conclude that the nation’s corps of immigration judges are management officials within the Executive Office of Immigration Review, stripping them of their collective bargaining rights and effectively busting the union.
Shortly thereafter, the union requested that the FLRA reconsider its decision, and the order decertifying the union was stayed for those proceedings. In the meantime, President Biden was sworn into office, and by December 2021, the Justice Department began voluntarily recognizing the labor organization and tried to withdraw the petition to decertify the union.
But in January the FLRA, still under Republican control as Biden’s nominees to the agency board languished in the Senate, took the unprecedented step of reiterating its decision and decertified the union, despite all parties involved requesting the decertification petition be withdrawn. National Association of Immigration Judges President Mimi Tsankov said it was as if the FLRA had simply flipped a switch.
“It took [the Justice Department] time to get things moving, but we had bargaining scheduled through April,” she said. “We were in the middle of bargaining new performance metrics when the decision decertifying us came out . . . We were in the middle of bargaining performance metrics and it was looking good, and we were on a lunch break, but then the decision came out and we never had another meeting. That was it.”
Tsankov said that since that decision, the union has started to pursue two tracks to regain collective bargaining rights: challenge the FLRA’s decision in a federal appeals court, and stage a new organization drive, hoping that with Democrat Susan Tsui Grundmann’s confirmation to the FLRA in May, the agency will again reconsider its decision.
“We’re going to continue with the appeal, but at the same time we decided, let’s not take any chances,” she said. “Let’s refile a new petition like we did 51 years ago when we initially got certification.”
The union obtained 300 signatures from the around 550 immigration judges across the country and last week filed a new petition seeking union representation. That is well over the 30% required to send the organization drive to a vote by the whole potential bargaining unit and more than the 50% required to win a union election.
Matt Biggs, president of the International Federation of Professional and Technical Employees, whose federation includes the judges union, said his union never stopped supporting the immigration judges, despite the government no longer recognizing them.
“The FLRA, with these two rogue members appointed by the former president, took it upon themselves to push through this decision, and it makes it even worse that it was [implemented] during the Biden administration,” he said. “[If they win their election, it would be as if a newly formed union was being formed. And for our part, they never left IFPTE. They were always with IFPTE, regardless of what a rogue FLRA did.”
Although labor officials said they were optimistic that the union can be reconstituted through a new union election, Tsankov stressed the importance of the union winning its appeal in court. She said that if the FLRA’s decision to decertify the judges’ union isn’t thrown out, it could open the door to future Republican administrations using similar tactics to reduce or eliminate bargaining units at other agencies.
“[The decision] is problematic for us, because we [may] have to argue against what was decided there, but it’s problematic for all federal employee unions,” she said. “All federal employee unions could be subject to the same broad, sweeping decision making that doesn’t go into the analytic requirements needed for such a decision. It’s a politicization of the process to overturn 51 years of a union being in place.”