Immigration judge union move likely to fail, some say

Last week's petition by the U.S. Department of Justice to decertify a federal immigration judges' union will most likely fail because of the jurists' inability to formulate policy, legal experts said Tuesday.

The DOJ filed the petition to the Federal Labor Relations Authority last Friday, claiming the National Association of Immigration Judges should be decertified because they are "managerial officials." Under federal law, managers are public employees who can "formulate, determine, or influence the policies of the agency" and are ineligible from unionizing.

"The role and importance of immigration judges in meeting the department's mission and determining or influencing its immigration policies have greatly evolved over the past several years," a DOJ spokesman said Monday. "In recognition of that evolution, including changes in the law, the Department of Justice believes appropriate action is necessary to update [the Executive Order of Immigration Review's] workforce relations in conformity with the law and to continue to further the department's mission."

Glenn Rothner, a union-side labor lawyer with Rothner, Segall & Greenstone in Pasadena, said while the petition may spark an investigation from the labor relations authority, the DOJ will likely run into challenges proving the judges are managers under that federal definition.

"There's no doubt that, in deciding cases, immigration judges are bound by policy adopted by the agency," Rothner said. "But there's nothing in that definition that says just because they implement policy that they're formulating, determining or influencing policy. They're not. They're simply deciding cases where sometimes those policies are the guide for making decisions."

The DOJ tried to make a similar argument during the Clinton administration, claiming the judges' responsibilities had changed from when the union was first certified in 1979, and they "make policy through the issuance of their decisions," court records show.

But a labor relations authority regional director in 2000 rejected that argument, ruling the judges' decisions can be appealed, creating a new outcome that would "influence and determine immigration policy," court records show.

"These judges have been in a bargaining unit for a substantial amount of time," said Robert F. Millman, a shareholder at Littler in Los Angeles who specializes in employer-side labor management relations. "If they were management types, they wouldn't be in a bargaining unit."

That doesn't mean the federal government hasn't been successful in breaking up public employee unions. In 1981, President Ronald Reagan fired more than 11,000 air traffic controllers, and the labor relations authority decertified their union after the federal workers illegally went on strike over what they said were poor working conditions, forcing more than 7,000 flights to be canceled nationwide, according to news reports.

"The air traffic controllers were probably the most extreme example of it, but from time to time, you see an employer afraid of or hostile to transparency try to silence the union," Rothner said. "And the way to do that is to try to decertify the union."

In recent months, the judges' union has been critical of the Trump administration, in particular its mandate to create a quota for judges to individually clear 700 cases per year, said Judge Ashley Tabaddor, a Los Angeles-based immigration judge and the union's president.

Tabaddor said in a statement the DOJ was trying "to pressure judges to process cases faster irrespective of the law and the facts of the cases."

According to the Transactional Records Access Clearinghouse, a research center at Syracuse University, there are more than 945,000 immigration cases awaiting adjudication.

"This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability," Tabaddor said. "We do not set policies and we don't manage staff. We don't even have the authority to order pencils."

But if the DOJ wanted to force the quota system on the judges, decertifying the union would be its best option and the managerial claim is the singular argument, Rothner said.

"They have to find an argument that deprives these particular employees their right to be in a union," he said. "It's the only argument they have."

Millman said the DOJ petition was part of a larger move by the administration to enact its immigration policy across the federal government's executive branch. The petition coincides with Monday's new "public charge" rule that links immigration status to income and use of assistance programs.

"What has changed in terms of their job duties and responsibilities of these immigration judges from a management perspective?" Millman said. "My guess is going to be probably nothing. It's a political play."