Impasses Panel Imposes Steep Cuts to Official Time, Other Rights for Administrative Law Judges

A federal panel tasked with hashing out disagreements that occur during collective bargaining negotiations has imposed a largely pro-management contract between the Social Security Administration and a union representing judges who handle disability cases.

The Federal Service Impasses Panel on Wednesday issued a decision on nine outstanding articles of the new contract between the Association of Administrative Law Judges and the Social Security Administration’s Office of Hearing Operations. The decision drastically cut judges’ access to official time, and did away with a number of other worker protections as well as gave the agency more “flexibility” to alter their telework program.

The impasses panel has been under fire in recent months. Federal employee unions have filed multiple lawsuits, alleging that the panel, whose members are appointed without Senate confirmation, is not legally constituted, and that the panel is impermissibly biased against organized labor.

On the issue of official time, the judges union proposed requiring employees to request official time in advance, but argued against an “artificial cap” on the amount of official time the union may use per year. Social Security proposed a cap of 3,600 hours of official time each year, with an individual cap of 200 hours per union official and 500 hours for the union president. For context, the union used more than 14,000 hours of official time in fiscal 2019.

The panel accused both sides of failing to provide “persuasive arguments” in favor of their proposal, and elected to implement a cap far lower than the agency proposed: one hour per bargaining unit employee per year, or roughly 1,200 hours.

“The Panel has consistently written that the President’s Executive Orders on federal-sector collective bargaining and labor-relations are an important source of public policy guidance for the Panel and an official time amount in excess of 1 hour per bargaining unit employee should ordinarily not be considered reasonable, necessary, and in the public interest,” the panel wrote. “Although the agency made an attempt to broker a deal by offering the union 3,600 [hours] of official time because the union time rate of 3.0 is in line with the other two bargaining units at the agency, that is not the relevant statutory standard.”

Additionally, the panel stripped from the contract requirements that the agency inform union employees of their right to representation during investigatory interviews and obtain two-party consent for audio or video recordings of interactions between judges, union representatives and managers. And it required employees to be in a “non-duty” status to read emails from the union, something that previously had been allowed under a policy that gave judges access to their personal email accounts.

The panel sided with management in a disagreement over whether managers must provide advanced approval before judges work extra time to earn credit hours. But in a rare minor win for the union, the panel affirmed some judges’ ability to earn premium pay “consistent with applicable law and regulations.”

The panel also gave the agency the “authority and discretion” to make changes to judges’ telework agreements after management said they would not reduce the current allowance of eight days of telework per month, but stipulated that the agency must negotiate with the union over any changes’ implementation.

Elsewhere at Social Security, union employees said they had a “long discussion” with management over the future of telework last year, only for the agency to cancel the program outright upon ratification of a new contract.

The ALJ union and the agency remain at loggerheads over how long the union has to ratify the contract. Although the parties agreed to ground rules that stipulated that the union now has 60 days to vote on the new contract, the agency has taken the position that the union only has until May 4, claiming that panel decisions are not subject to ratification.

Association of Administrative Law Judges President Melissa McIntosh decried the panel’s decision and accused the body of engaging in union busting.

“Given the unconstitutional make-up and persistent anti-union animus of the Federal Service Impasses Panel, we’re disappointed but not surprised that the panel ruled the way it did, in favor of management,” she said. “We anticipated this very result and we’ll take all necessary legal action to protect the rights of America’s disability judges, especially during this time of a pandemic.”