Trump appointees uphold anti-union ruling against National Association of Immigration Judges

The two Trump survivors who continue to dominate the three-member authority showed their power last month when the FLRA refused to reconsider a 2020 decision to decertify — that is, go bankrupt — the union of Judges, affiliated with the International Federation of Professional and Technical Engineers. . In January, almost exactly a year after Trump left town and Biden took office, Authority members Colleen Duffy Kiko and James T. Abbott flexed their GOP majority in a party decision that said that immigration judges “are executive officials and, therefore, excluded from the bargaining unit. A third member of the authority, appointed by President Barack Obama, dissented.

The authority’s actions have potential consequences beyond the limits of the union’s certification status. On the one hand, breaking the NAIJ would reinforce a precedent set by President Ronald Reagan. The authority disbanded the Professional Air Traffic Controllers Organization in October 1981 after Reagan fired union members for participating in an illegal strike. The judges’ union has also argued for judicial independence from the Justice Department, which houses the immigration courts, and against mandatory case completion quotas – issues that could affect public perceptions of fairness. . The Trump administration’s quota system has been suspended under Biden.

Authority members generally act at the behest of affected parties, agency management, and unions, much like civil court judges do. But in this case, the anti-union request made by the Justice Department under Trump no longer represented the department’s position under Biden when the decertification decision was presented for reconsideration in January. Nonetheless, the two authority members acted as if Trump’s policy remained in effect.

Authority’s Dissent President Ernest DuBester noted that current Justice Department officials have attempted to “remove the very petition which allowed the majority to render its underlying decision. Of course, my colleagues’ approach should come as no surprise. Over the past four years, they have repeatedly taken action without taking into account the positions or arguments of the parties, or even against them. »

FLRA officials did not respond to requests for interviews made through the agency’s public affairs office. The Justice Department said it had withdrawn its motion to revoke and object to reconsideration of the authority’s decision because it “supports the rights of employees to organize but is bound by orders issued by the agencies and courts”.

Although the union organization is still analyzing the decision, it is “very likely” to appeal to the Federal Court, according to union president Mimi Tsankov. “The FLRA order is poorly reasoned and ignores the will of the parties,” she said. “He represents the last vestiges of the Trump administration’s union-busting efforts.”

As Trump repeatedly took aim at federal labor organizations, including in 2018 with three executive orders that weakened union officials’ ability to represent federal employees, Biden repeatedly proclaimed his pro-union credentials. He revoked Trump’s guidelines and issued his own order in April that read, “It is my administration’s policy to encourage worker organizing and collective bargaining.”

This policy would be easier to implement in government if Biden had another Democratic nominee in the FLRA. It got closer this Wednesday when the nomination of Susan T. Grundmann was brought forward by the Senate Homeland Security and Governmental Affairs Committee. She and other Biden nominees for the agency were also endorsed by the committee last year, but their nominations have not been considered by the full Senate.

If Grunddmann had been in office last month, it is likely the authority would have reconsidered and possibly rescinded its order to decertify the judges’ union. Although the decision was never fully implemented during the appeals process, Tsankov said the decision limits the union’s ability to represent its members in discussions with management, including settlement procedures. grievances.

Since the day of the initial decertification decision in November 2020, “the agency has failed to recognize us. He did not engage in any of the liaison activities that he is expected to undertake from a collective bargaining perspective. And it continued even after the Biden administration took office,” Tsankov said in an interview. “It continued to be a period of no communication, no collective bargaining, no grievance activity, really ignoring the Immigration Judges Union,” until the complaint labor organization’s unfair labor practice be resolved in December.

If the union disappeared, the ramifications would affect more than the 580 immigration judges.

The union’s role “is important not only for people who appear in immigration court and their attorneys, but also for the public to have insight and transparency into the courts,” said Greg Chen, senior director of relations. American Immigration Lawyers Association.

The lawyers’ association supported the judges’ association in a call for immigration courts to be independent of the Department of Justice. Immigration judges are departmental employees, without the insulating protections of criminal and civil court judges. This puts the department in the conflicting position of being both prosecutor and judge in immigration cases.

A lack of judicial independence “not only undermines the integrity of the system as a whole, but also negatively impacts due process for individuals in the system,” a statement from the American Bar Association said last month. to the House Judiciary Committee. The current structure, with immigration courts and judges “subject to the direct control of the Attorney General”, the statement added, “represents an inherent conflict with the principles of independence and fair and impartial courts necessary to satisfy a process regular”.

These principles are also threatened when political figures try to dismantle a union of judges.

Andrew B. Reiter