A ruling by a largely obscure yet potent federal agency demonstrates how the lingering influence of former president Donald Trump can frustrate President Biden’s union-friendly administration.
The two Trump holdovers who continue to dominate the three-member authority displayed their power last month when the FLRA refused to reconsider a 2020 ruling to decertify — that is, bust — the judges union, an affiliate of the International Federation of Professional and Technical Engineers. In January, almost exactly one 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-line decision that said immigration judges “are management officials, and, therefore, excluded from the bargaining unit.” A third authority member, nominated by President Barack Obama, dissented.
The authority’s actions carry potential consequences beyond the confines of the union’s certification status. For one thing, breaking NAIJ would reinforce a precedent set by President Ronald Reagan. The authority busted the Professional Air Traffic Controllers Organization in October 1981 after Reagan fired union members for participating in an illegal strike. The judges union also has advocated for judicial independence from the Justice Department, which houses immigration courts, and against mandatory case completion quotas — issues that could affect the public perception of fairness. The Trump administration’s quota system has been suspended under Biden.
Authority members generally act on requests from involved parties, agency management and unions, much like civil court judges do. But in this case, the union-busting 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 though the Trump policy remained in effect.
The dissent by authority Chairman Ernest DuBester noted that current Justice Department officials tried “to withdraw the very petition that provided the vehicle for the majority to issue its underlying decision. Of course, my colleagues’ approach should come as no surprise. Over the last four years, they have repeatedly taken action without regard for — or, indeed, even contrary to — the parties’ positions or arguments.”
FLRA officials did not respond to requests for interviews made through the agency’s public affairs office. The Justice Department said it withdrew its decertification petition and opposition to having the authority’s decision reconsidered because it “supports employees’ rights to organize but is bound by orders issued by agencies and courts.”
Although the labor organization is still analyzing the decision, it is “very likely” to launch a federal court appeal, according to union President Mimi Tsankov. “The FLRA’s order is poorly reasoned and ignores the will of the parties,” she said. “It represents the last vestiges of the Trump administration’s union-busting efforts.”
Where Trump repeatedly took aim at federal labor organizations, notably in 2018 with three executive orders that weakened the ability of union officials to represent federal employees, Biden has repeatedly proclaimed his pro-union credentials. He revoked Trump’s directives and issued his own order in April that said, “It is the policy of my Administration to encourage worker organizing and collective bargaining.”
That policy would be easier to implement within the government if Biden had another Democratic nominee on the FLRA. He moved a step closer to that Wednesday when Susan T. Grundmann’s nomination was advanced by the Senate Homeland Security and Governmental Affairs Committee. She and other Biden nominees for the agency also were committee-approved last year, but then their nominations were not considered by the full Senate.
Had Grunddmann been in office last month, it is likely that the authority would have reconsidered and perhaps reversed its order to decertify the judges union. Although that decision was never fully implemented as the appeal process unfolded, Tsankov said the decision did limit the union’s ability to represent its members in discussions with management, including grievance procedures.
From the day of the initial decision to decertify in November 2020, “the agency failed to recognize us. It didn’t engage in any of the liaison activities that they are supposed to engage in from a collective bargaining standpoint. And that continued even after the Biden administration came into office,” Tsankov said in an interview. “It continued to be a period where there was no communication, no collective bargaining, no grievance activity, really just ignoring the immigration judges union,” until the labor organization’s unfair labor practice complaint was settled in December.
If the union disappeared, the ramifications would hit more than the 580 immigration judges.
The union’s role “is important not just for the people appearing before immigration courts and their attorneys but also for the public to have insight and transparency into the courts,” said Greg Chen, the senior director of government relations for the American Immigration Lawyers Association.
The lawyers association supported the judges association in a call for immigration courts to be independent of the Justice Department. Immigration judges are department employees, without the insulating protections of criminal and civil court judges. That places the department in the conflicted position of being both prosecutor and judge in immigration cases.
Legislation introduced Thursday by Rep. Zoe Lofgren (D-Calif.) would transform the immigration courts into an independent judiciary.
A lack of judicial “independence not only undermines the integrity of the system as a whole, but adversely impacts due process for individuals in the system as well,” said an American Bar Association statement to the House Judiciary Committee last month. 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 due process.”
Those principles also are threatened when political appointees attempt to bust a judges union.