FLRA (2-1) Busts IJ Union; Dissent Decries "Sophistry"

71 FLRA No. 207, Nov. 2, 2020

"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."

Member Ernest DuBester, dissenting: "In a recent decision, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) reminded the Authority that “[a] fundamental norm of administrative procedure requires an agency to treat like cases alike.” On this point, the court explained that “‘[r]easoned decision making . . . necessarily requires the agency to acknowledge and provide an adequate explanation for its departure from established precedent,’ and an agency that neglects to do so acts arbitrarily and capriciously.’” And, applying this standard to a previous Authority decision, the D.C. Circuit soundly rejected the Authority’s analysis because it was based upon nothing more than “sophistry.” That term aptly describes the majority’s decision rendered today. Acting in haste to deprive immigration judges (IJs) of their right to belong to a union, the majority has cobbled together a decision that ignores Authority precedent governing both the review of unit certifications and the scope of the “management official” exclusion, as defined in § 7103(a)(11) of the Federal Service Labor‑Management Relations Statute (the Statute)."