In what could be a last stab at federal unions by an administration on the verge of ouster, the three-member FLRA with one dissent said the judges “are management officials, and, therefore, [we] exclude them from the bargaining unit.”
The approximately 470 immigration judges are part of the Justice Department and decide whether people charged with violating immigration laws should be deported. The union has vigorously complained in recent years about heavy pressure from the administration to meet tough annual quotas on the number of cases each judge should complete.
Decertifying or busting a federal union is “a very rare thing,” said Ernest DuBester, an authority member since 2009 and the only one supporting the union. The best-known case is the FLRA busting of the Professional Air Traffic Controllers Organization in October 1981, after President Ronald Reagan fired union members who participated in an illegal strike.
In his dissent, DuBester said the authority’s “facetious” ruling was based on “sophistry” and concluded that “it is abundantly clear that the majority’s sole objective is to divest the [immigration judges] of their statutory rights.”
In the opinion released Monday, FLRA members Colleen Duffy Kiko, the chair, and James T. Abbott, both Trump appointees, agreed with administration arguments and said the judges “influence the policy of the Agency by interpreting immigration laws when they apply the law.”
That notion links the authority’s action with Trump’s rationale in his executive order last month. The order could reclassify thousands of federal staffers as “policy-determining, policy-making, or policy-advocating” employees, leaving them without civil service protections and union representation. Having no civil service protections effectively would make them “at-will” employees who could be suspended or fired at the whim of managers, including for partisan reasons, with no avenues of appeal.
“The implications are huge,” DuBester, who was appointed by President Barack Obama, said of the authority’s decision. He noted that the authority’s reach extends across the federal workforce of 2.1 million employees. Though the ruling directly affects only immigration judges, it could be used by administration officials, DuBester said by phone, to suddenly review the status of federal employees and “have them deemed . . . a management official, a policy-making official, and thereby not entitled to representation by a union.”
That is similar to what Trump’s executive order would do.
The president’s directive is “merely a pretense for converting vast swaths of the career federal bureaucracy into politically appointed spoils positions,” said a statement from Bob Corsi, interim president of the Senior Executives Association. The association is not a union but does represent the government’s top echelon of civil servants. “With this order, there is no longer an independent civil service. This is how the party-run governments of authoritarian-led countries are organized and staffed — by political leadership who historically succeed by serving an elite political class, rather than service to all citizens equitably.”
Other than DuBester, officials of the authority, the Office of Management and Budget (OMB) and the Office of Personnel Management did not respond to questions submitted by email. The White House previously defended Trump’s order with a statement from OMB Director Russell Vought that said “this much-needed reform will increase accountability in essential policy-making positions within the government.”
A. Ashley Tabaddor, president of the judges union, said it would pursue all legal remedies to reverse the authority’s decision. That starts with asking the authority to reconsider its finding, an exercise not likely to change anything. Calling the ruling “an outrageous decision,” she said the union remains standing for now, “but obviously with a very bleak position at this point.”
Over the years, the union has clashed with administration officials over policies by the Justice Department’s Executive Office for Immigration Review that would, Tabaddor complained, “insert itself into the judges’ decision-making authority. . . . The most glaring one, is the imposition of quotas and deadlines.” If judges don’t complete 700 cases annually, they risk termination, according to Tabaddor. That results in about 2½ hours per case, from beginning to end, and forces the judges to push their decision-making into artificial constraints.
The union could negotiate with the agency over the impact of quotas. Without a union, the judges’ avenues for lodging complaints would largely be blocked.
Her union, Tabaddor added by phone, is the “number one . . . example of the targeted effort to decimate the federal union.” Combining the authority’s ruling with the executive order means the immigration judges could be placed in the executive order’s new “Schedule F” workforce category for employees who then could be fired at will.
“That’s the road map,” Tabaddor said.
If the authority’s ruling is implemented, then unions and employees throughout the government are threatened, she warned. “They are not going to stop with us.”