In the federal labor relations program, a bargaining unit is a group of federal employees with common interests and who can be represented by a union after an election by unit members. The Federal Labor Relations Authority (FLRA) determines which employees are appropriate for representation and which employees will be in an appropriate bargaining unit.
How the Case Went to the FLRA
In 2000 in a decision concerning the Department of Justice, the Authority denied a petition by the Agency to clarify a bargaining unit by excluding IJs on the grounds that immigration judges are management officials. In effect, IJs were included in a Justice Department bargaining unit within the Executive Office of Immigration Review.
The FLRA Regional Director and the FLRA noted that the duties of the IJs have changed over time and that a re-examination of the issue was appropriate.
Despite the changed circumstances of the duties performed by the IJs, the FLRA Regional Director concluded that the bargaining unit was still appropriate after concluding that IJs are still not management officials.
The agency requested a reconsideration of the Regional Director’s conclusion. The FLRA agreed that the existing case law warranted reconsideration and accepted the case.
The decision turned on defining what duties constitute defining a position as being a “management official”.
Who is a “Management Official”?
A management official is defined in law as “an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of an agency.” This is significant because a management official cannot be included in a bargaining unit represented by a union.
Immigration Judges are Management Officials
In its latest decision (below), the FLRA concluded immigration judges are similar to members of the Board of Immigration Appeals. The FLRA reached this conclusion as “IJs influence the policy of the Agency in the decisions they render, just as Board (of Immigration Appeals) Members influence the Agency’s policy in the decisions they render….IJs also 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 FLRA majority concluded that making a distinction between the influence of Board of Immigration Appeals members and Immigration Judges, “based on what appears to be solely the reviewability of decisions, is nonsensical.”
In short, immigration judges were found to be management officials and therefore excluded from the bargaining unit.
As is often the case, there was a dissenting opinion from FLRA Member Ernest DuBester. He disagreed with the majority—and the controlling opinion—of the two other FLRA Members, Chairman Colleen Duffy Kiko and James T. Abbott.
Also, as is often the case, we can anticipate the union will seek further review of the FLRA decision in court.