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Immigration Law

Immigration Judges Say the FLRA Made Up Rules to Decertify Union

Erich Wagner, Government Executive, Sept. 9, 2022

"A technically defunct union representing federal immigration judges accused the then-Republican majority of the Federal Labor Relations Authority of having planned to decertify the union before considering the facts or arguments raised during the case. The body was also accused of disregarding legal precedent and making up new rules to reach that goal. ... In legal briefs, the judges union argued that the FLRA’s practice of accepting the factual conclusions of the regional director, only to determine that a 2000 case affirming immigration judges’ status as non-management officials was wrongly decided, constituted a “collateral attack” on the union’s status that is expressly prohibited under FLRA rules. But they were prohibited from raising this point before the authority because they had not challenged the regional director’s decision finding that changes to immigration judges’ job responsibilities were “substantial” enough to warrant a review of their status. In doing so, the FLRA essentially created a new rule that those who prevail before the regional director must proactively appeal decisions, but failed to tell anyone about it in advance, the union wrote. ... The union also cited a number of allegations made by now-FLRA Chairman Ernest DuBester in his dissents on the case that his Republican colleagues had worked backward from a decision to decertify the union, as well as claims that the Republicans on the authority had secretly created rules to force DuBester to finalize his opinions prematurely to rush out the January decision before Susan Tsui Grundmann could receive Senate confirmation to the FLRA, flipping control of the agency to Democrats. The union also suggested the original decision, which was decided two days before the 2020 presidential election and published on Election Day, was similarly rushed. “The authority states that the union fails to allege any probative facts showing that authority members demonstrably made up their minds,” the union wrote. “But the union’s brief is filled with probative facts, laying out specific allegations that were first stated by Member DuBester in [the 2020 decision] and then further expanded upon in [the January decision] . . . These decisions were drawn up, in the words of then-Member DuBester, in ‘haste to deprive immigration judges of their right to belong to a union.’ This was the last-gasp manifestation of the previous administration’s hostility to both immigration and to the concept of unions.”