Federal Manager's Daily Report

Overturning its own longstanding policy and a recent decision by one of its regional directors, the FLRA has ruled that immigration judges are management officials for purposes of federal labor law, paving the way to revoke their union representation rights.

The case arose when the Justice Department requested a review of a 2000 decision finding that the judges do not fall under the law’s definition of management officials as those whose duties “require or authorize the individual to formulate, determine, or influence the policies of an agency.” The department argued that since that time, their rulings have been granted more deference.

However, an FLRA regional director found that decisions by immigration judges still are subject to review by the Board of Immigration Appeals and that they only apply laws and precedents and therefore do not create or influence policy.

On a 2-1 vote the FLRA, though, noted that it has held that members of the immigration appeals board are management officials on grounds that their decisions directly influence agency policy. It said that the immigration judges similarly “influence the policy of the agency by interpreting immigration laws when they apply the law and existing precedent to the unique facts of each case.”

The dissenting member—who has objected in turn to each of a recent series of FLRA rulings in favor of management—said there is a difference between the rules of the immigration judges, who make initial decisions, and the appeals board, which makes final decisions. He said the regional director was correct to find that the judges do not make policy, but only assist in the implementation of policy.

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