Federal Manager's Daily Report

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The back and forth regarding the status of a union for Justice Department immigration judges is continuing, with a new ruling by the FLRA running counter to a position the department recently took, and again raising the prospect of the union being decertified.

In 2020 at the request of the Trump administration, the FLRA on a 2-1 vote—with both Republican members in favor and the lone Democrat against—had held that immigration judges are management officials because their decisions influence agency policy, and therefore are ineligible for union representation. That paved the way for potentially decertifying the union, the National Association of Immigration Judges.


However, late last year the Justice Department under the Biden administration agreed to recognize the union, while the union agreed to withdraw unfair labor practice charges it had filed against the department.

Most recently, the FLRA—with the same makeup as in 2020, since a Biden administration nominee who would change the board to a 2-1 Democratic majority has been held up in the Senate—rejected the union’s request to reconsider its earlier ruling.

The board majority called the union’s arguments that they are not management officials, and by extension the Biden administration’s recognition of the union, “simply attempts to relitigate conclusions” the FLRA already reached. They further criticized the agency’s own officials for not enforcing the original decision over the more than a year since it was issued.

The dissenter—Democrat Ernest DuBester, whom the Biden administration made the chairman—said the ruling “compounds the mistake” of the original.

While the case directly involves only that union and its about 500 members, it has been seen as potentially setting a precedent for determining union representation rights of all federal employees in professional occupations.

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