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DOJ Continues to Insist Immigration Judges Union is ‘Defunct,’ Despite Moving to Nullify Decertification Decision

September 02, 2021 (2 min read)

Erich Wagner, Government Executive, Sept. 1, 2021

"Officials at a union representing the nation’s corps of immigration judges said Wednesday that they are baffled by the Executive Office for Immigration Review’s recent legal actions, in which the office pushed to undo a controversial decision to decertify the union but continues to insist that the union is effectively defunct. ... Since President Biden entered office, the department has moved to reverse course on the issue of decertification. In June, the Justice Department withdrew its opposition to the judges union’s motion to reconsider the FLRA’s decertification decision, and it has asked the FLRA for permission to withdraw its underlying petition to decertify the union in the first place.

But [Union President Mimi] Tsankov said that hasn’t translated to the unfair labor practice complaints. Last month, FLRA Acting General Counsel Charlotte Dye consolidated all of the judges union’s allegations into one case and issued a complaint, finding that those accusations held merit for consideration by an administrative law judge. But the Justice Department’s response, filed Tuesday, argues that it is impossible to have committed unfair labor practices, because the union is no longer certified.

“As the authority has not ruled on any filings post its November 2020 order, the November 2020 order remains in full force and effect,” attorneys for the department wrote. “As a result of the authority’s November 2020 ruling, there are no longer any employees in the bargaining unit. As there are no employees in the bargaining unit, in essence, NAIJ is defunct.”

Tsankov said she has struggled to understand how the department simultaneously appears to support undoing the controversial decision to decertify the union, while also arguing that it did not engage in wrongdoing because the union is decertified.

“I honestly cannot square the fact that they have taken positions in some respects in which they support the union, but in the critical filings before the Office of the General Counsel of the FLRA, they’re taking the position that we are effectively dissolved and are now defunct,” she said. “Not only is this factually wrong, this position has no place in legal filings the week before Labor Day by an ostensibly pro-labor administration. We’re really mystified by their actions.”

The agency also has failed to restart labor-management relations in any way since Biden’s inauguration, Tsankov said.

“They’re still failing to include it in all of the meetings on how they plan to change the way in which they essentially open the courts during the pandemic and maintain safe working conditions,” she said. “The impacts truly span everything from judicial security, the safety of judges and stakeholders, to the facts on the ground and experiences by all of the judges who are presiding in their courts to ensure these are fair and impartial hearings. We are the body that argues on behalf of our judges when there has been a lapse or a perceived lapse, so we’re confused as to why any administration would not support working with labor to ensure fair proceedings and the safety for all parties.”"