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Daily Beast

Immigration Judges have Right to Bargain

Judges won important case vs. Trump that upholds their right to organize

Brian Young's picture
Aug 05, 2020

Over the last four years, federal unions have taken many hits. Trump has declared war on them and has used his executive power to institute numerous new policies, including kicking them out of their offices, restricting union time, and forcing one-sided contracts on certain departments. With all these challenges, one federal union has come out on top and beat back an attempt to decertify their union.

The National Association of Immigration Judges announced that they were victorious in stopping an attempt by the Department of Justice (DOJ) to decertify their union. The case stemmed from a decision made by Trump’s DOJ to reclassify them as managers, even though their jobs had not changed. This would make them ineligible to organize. At a hearing before the Federal Labor Relations Authority (FLRA) in January, the DOJ said: “that although immigration judges’ duties remain entirely nonsupervisory in nature, changes to how the Board of Immigration Appeals may review the judges’ decisions elevate their work to influencing agency policy, making them management and thus ineligible to unionize.”

The Regional Director for the FLRA, Jessica Bartlett, disagreed. In her decision, she wrote “The deference granted to [immigration judges'] factual findings [does] not turn judges into management officials. The facts exist, are presented to the judges in the form of evidence, and can later be superseded by new or previously unknown evidence, or can be subject to re-examination by order of the [Bureau of Immigration Appeals] . . . Even in the unusual circumstances where the facts may influence a future decision, they remain subject to review, and as such, the added deference now granted to the [immigration judges'] finding of facts does not create a scenario where the [judges] are creating or influencing agency policy.”

The DOJ will now have 60 days to request a trial before the full FLRA. This almost ensures that no action would be taken until after the election in November, making it unlikely that Trump and Attorney General Bill Barr will get the chance to take away these administrative judges right to join a union unless he wins a second term.

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