47:0505(44)CU - - Justice, Board of Immigration Appeals and AFGE Local 3525 - - 1993 FLRAdec CU - - v47 p505



[ v47 p505 ]
47:0505(44)CU
The decision of the Authority follows:


47 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3525

(Labor Organization/Petitioner)

WA-CU-20787

_____

DECISION AND ORDER ON APPLICATION FOR REVIEW

April 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Petitioner (Union) under section 2422.17(c) of the Authority's Rules and Regulations. The Union seeks review of the Regional Director's decision and order on Petition for Clarification of Unit. The Regional Director (RD) found that an employee encumbering the position of Attorney Examiner/Board Member of the Board of Immigration Appeals was a management official within the meaning of section 7103(a)(11) of the Federal Service Labor-Management Relations Statute (the Statute) and should not be included in the existing bargaining unit. The Activity filed an opposition to the application for review.

For the reasons set forth below, we grant the Union's application for review of the RD's decision on the ground that a substantial question of law or policy is raised due to the absence of Authority precedent on the issue of whether an individual who issues administrative case decisions is a management official. With respect to this claim, we agree with the RD's determination that the incumbent is a management official because he influences and determines agency policy through his participation in the issuance of administrative decisions. We deny the Union's application insofar as it alleges that the RD's findings on substantial factual issues are clearly erroneous and such errors prejudicially affect the rights of the incumbent.

II. Background and Regional Director's Decision

The Union is the exclusive representative of a unit of professional and nonprofessional employees of the Activity in Washington, D.C. The Union filed a petition with the RD under section 7111(b)(2) of the Statute seeking to clarify the existing unit to include the position of Attorney-Examiner/ Board Member encumbered by Frank Vacca on the basis that the incumbent is not a management official within the meaning of section 7103(a)(11) of the Statute.

According to the RD, the Board of Immigration Appeals (Board) is a "quasi-judicial organization" which "function[s] as an administrative appellate body on behalf of the Attorney General . . . review[ing] administrative decisions of Immigration Judges and . . . District Directors of the Immigration and Naturalization Service [INS]." RD's Decision at 2-3. In this regard, the RD found that the Board issues binding "administrative decisions which interpret the immigration laws and establish precedent in the area of immigration law." Id. at 3. The RD also found that, as a member of the Board, the incumbent's duties are "performed with a considerable degree of discretion[,]" and that his "vote on cases before the Board is neither supervised nor subject to change by any other authority or official within or outside the Board." Id. at 5. The RD further found that the "decision of the Board is essentially the final administrative ruling on the case[,]" and "[a]though the Board decisions may be reviewed by the Attorney General, it is infrequently done." Id.

The RD noted that a management official is defined in section 7103(a)(11) of the Statute 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 the agency[.]" The RD noted further that, in Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 177 (1981) (Navy/ADP), the Authority held that management officials are individuals who: (1) create, establish or prescribe general principles, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agency; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency. Applying the criteria set forth in Navy/ADP, the RD determined that the incumbent is responsible for "interpreting [Board] policies as they apply to immigration case law[,]" and that "[h]is judgments and decisions[] in these cases directly influence and determine the Board's policies[.]" RD's Decision at 6. Based on the foregoing, the RD concluded that the incumbent "is a management official within the meaning of the section 7103(a)(11) of the Statute[.]" Id.

III. Application for Review

The Union contends that compelling reasons within the meaning of section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations exist for granting its application for review. The Union claims that: (1) the RD's decision raises a substantial question of law because of the absence of Authority precedent; and (2) the RD's decision on substantial factual issues is clearly erroneous and such error prejudicially affects the incumbent's rights.

According to the Union, "the [RD] has effectively equated policy with the legal decisions" issued by the Board. Application at 3. In this regard, the Union argues that "the issue of whether administrative case law can be equated with policy presents a substantial question of law that has not been previously addressed by the [Authority]." Id. The Union contends that "administrative case law is distinct from policy and, therefore, the adjudicators of that case law are not management officials." Id. at 5.

In addition, the Union contends that it was a "factual error [for the RD] to characterize . . . legal decisions issued by the Board . . . as policies, procedures and standards." Id. at 3. According to the Union, "no such [Board] policies exist[.]" Id. at 4. The Union argues that the incumbent has been prejudicially affected, insofar as the RD concluded, based on these erroneous findings, that the incumbent is a management official.

The Union also challenges the RD's finding that the incumbent's decisions are independent and unreviewed. In this respect, the Union contends that the Board's decisions are reviewable by Federal courts and the Attorney General. The Union also contends that "given the collective nature of th[e] [Board's] decisions, . . . an individual Board Member cannot be responsible for the decisions," and therefore, cannot be considered a management official. Id. at 5.

IV. Opposition

The Activity contends that the Union has not established compelling reasons within section 2422.17(c) of the Authority's Rules and Regulations for the Authority to grant the application for review.

V. Analysis and Conclusions

We find that compelling reasons exist to grant the application for review insofar as it alleges that there is an absence of Authority precedent on the issue of whether policy, within the meaning of section 7103(a)(11) of the Statute, may be established through the issuance of administrative decisions, and whether an individual who issues such decisions is a management official. In this connection, in agreement with the Union, we conclude that there is an absence of Authority precedent on this issue. We conclude, in this regard, that Board decisions establish the Activity's immigration policies and that the incumbent Board Member is a management official because he influences those policies through his participation in Board decisions. We find that no compelling reasons exist to grant the application for review insofar as it alleges that certain factual findings by the RD are clearly erroneous and prejudicially affect the rights of a party.

A. The Disputed Member of the Board of Immigration Appeals Is a Management Official

A management official is defined in section 7103(a)(11) of the Statute 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 the agency[.]" As the RD noted, management officials are individuals who: (1) create, establish or prescribe general principles, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agency; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency. Navy/ADP, 7 FLRA at 177.

Applying the Navy/ADP criteria, the RD found that the incumbent Board Member was a management official because his "judgments and decisions in [immigration] cases . . . influence and determine the Board's policies within the meaning of section 7103(a)(11) of the Statute." RD's Decision at 6. In this connection, the RD found that the Board is a "quasi-judicial organization . . . [which] issues administrative decisions [by] interpret[ing] the immigration laws and establish[es] precedent in the area of administrative immigration law." Id. at 2-3. The RD also found that "Board [decisions are] essentially the final administrative ruling on the case" and "have the effect of law unless overruled by the courts." Id. at 5.

The Union does not dispute the RD findings. Instead, the Union argues that "administrative case law is distinct from policy, and, therefore, the adjudicators of that case law are not management officials." Application at 5. According to the Union, although "agency rule[-]making involves the adoption of broad, generally applicable guidelines based upon considerations of policy[,] . . . adjudicatory decisions . . . are based upon particular facts and information, and have an immediate affect upon the interests of [the] . . . parties." Id.

Contrary to the Union's position, nothing in the wording of section 7103(a)(11) or its legislative history indicates that agency policy may be established solely through agency rule-making. In this case, Congress has conferred on the Board the power to "exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case." See 8 C.F.R. &§ 3.1(d)(1). Both the RD and the Union agree that the Attorney General reviews Board decisions infrequently, that a decision of the Board is "the final administrative ruling on the case[,]" and that a Board decision is "binding [on] the Immigration Judges . . . [the] District Directors of the [INS] as well as the State Department." Application at 2. See also 8 C.F.R. &§ 3.1(d)(2). In this case, the Board has broad discretionary power to administer the immigration laws through the issuance of precedential and non-precedential final decisions. The Board's implementation of precedent in future Board cases effectively creates and establishes general agency principles which guide the outcome of future immigration decisions and establish Activity policy. For these reasons, we reject the Union's claim that the Activity's policies may not be established through the Board's decisions.

Moreover, there is no question that individual Board Members substantially influence and determine the Activity's immigration policy. It is undisputed that the Board "reviews approximately 1,000 decision[s] per month[,] [and] [e]ach member of the Board makes an individual decision on each case[.]" Application at 2. It is also undisputed that the Board Member's votes are not "supervised nor subject to change" within the Activity. Id. We conclude that the incumbent Board Member directly influences Activity policy through his participation in the interpretation of immigration laws and the issuance of decisions and, thereby, meets the definition of a management official set forth in section 7103(a)(11) of the Statute.

B. Regional Director's Factual Findings Are Not Clearly Erroneous

We construe the Union's allegations that "it was a factual error to characterize . . . legal decisions issued by the Board . . . as policies, procedures and standards[,]" and that Board decisions are not independent and unreviewed as claims that the RD's decision on substantial factual issues is clearly erroneous and such error prejudicially effects its rights under section 2422.17(c)(4) of the Authority's Rules and Regulations. Application at 3.

Based on our finding that Board decisions establish the Activity's immigration policy, we reject the Union's claim to the contrary. We also reject the Union's claim that the RD erred in concluding that the incumbent Board Member makes independent judgments. Although Board decisions are issued according to a majority vote, the record supports the RD's findings that each "Board [Member] makes an individual decision on each case," and that each Board Member's "independent vote . . . is neither supervised nor subject to change by any other authority or official within or outside the Board." RD's Decision at 5. Indeed the Union does not dispute these findings. See Application at 2. In addition, each Board Member may "present dissenting opinions[,]" if he or she disagrees with the majority decision. RD's Decision at 5.

We also reject the Union's claim that, because the Board's decisions are reviewable by the Attorney General and Federal courts, the incumbent Board Member is not a management official. The Union does not dispute the RD's finding that a decision of the "Board is essentially the final administrative ruling on the case and the case is not referred to any higher authority for approval or rejection." Application at 2. Moreover, "[t]he fact that an individual's work is or is not subject to higher level review or approval is only one factor to be considered in determ