Federal Manager's Daily Report

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The FLRA has cleared the way for decertifying the National Association of Immigration Judges, by rejecting what appears to be the last possible appeal there after two years of legal back-and-forth.

The ruling is the latest in a string that began in 2020, when at the request of the Trump administration, the FLRA held on a 2-1 vote—with both Republican members in favor and the lone Democrat against—that immigration judges are management officials because their decisions influence agency policy, and therefore they are ineligible for union representation.

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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. However, earlier this year 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 had reached.

The latest ruling, on a request that the FLRA reconsider that decision, was presented as the final word from the FLRA, which issued an order to immediately carry out the decertification. The board’s lone Democrat, Ernest DuBester—whom the Biden administration made the chairman—had dissented from the earlier rulings but concurred with the most recent one, saying it met the standards under the narrow legal issue that challenged raised.

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.

A nomination for a second Democrat for the board—which would change the party control by replacing a Republican serving on an extension of an expired term—has been pending before the Senate since last summer.

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