Administrative Law Judges Union Accuses Social Security of Illegal Implementation of Contract

The Association of Administrative Law Judges accused the Social Security Administration of breaking federal labor law when it implemented a partial union contract on Monday.

Union representatives said that the agency’s move flies in the face of the ground rules the parties reached earlier in the negotiation process, and that a decision by management to unilaterally rewrite one provision to implement a new rule on how it will withhold union dues is flatly illegal.

Negotiations over a new collective bargaining agreement between Social Security and the administrative law judges date back over a year. During discussions last year, the parties reached agreement on 20 of 29 proposed contract articles, but went to impasse over the final nine. The Federal Service Impasses Panel issued a largely pro-management decision in April, prompting the union to sue the panel, arguing that the manner in which members were appointed violates the Appointments Clause of the Constitution.

In April, the agency indicated that it would implement a partial contract, arguing that provisions decided by the impasses panel are not subject to ratification. But it relented and indicated it would delay implementation pending the lawsuit after the Federal Labor Relations Authority took the rare step to stay the panel’s order.

“What they agreed to do was not to proceed with the panel’s orders, in light of the [U.S.] District Court case that’s pending before Judge [Amy Berman] Jackson,” said Melissa McIntosh, president of the Association of Administrative Law Judges. “Then they clarified to us that they didn’t mean they’d delay indefinitely . . . We had a robust disagreement in correspondence exchanges about the legality of implementing a partial contract when there was no legal way to do so in the ground rules, but they implemented anyway as of yesterday.”

McIntosh said that in order to ratify and implement a partial collective bargaining agreement, the parties must agree to a severability clause as a part of the ground rules for negotiations, which did not happen in this case.

In a statement to Government Executive, Social Security Administration spokesman Mark Hinkle maintained the agency’s actions were in keeping with the ground rules and insisted that impasses panel orders are not subject to ratification.

“On March 3, 2020, SSA provided [the union] notice that the union had 60 days to complete the ratification process for the 20 signed articles, consistent with the parties’ ground rules memorandum of understanding,” Hinkle wrote. “On May 4, [the union] notified the agency that it did not submit the 20 articles to its membership for ratification. [The union] agreed upon and made commitments to 20 complete articles during negotiations; however, the union chose not to engage in a ratification process with its membership on those articles. For the other nine articles, the union does not have the right to seek ratification by its membership for the [impasses panel]-imposed articles.”

But not even the impasses panel agrees with Social Security’s claim that panel orders are not subject to ratification. Last year, the panel removed language from a contract proposal offered by the Defense Department Education Activity in its dispute with the Federal Education Association seeking to exempt panel-imposed articles from the ratification process.

“Finally, the agency’s language concerning non-ratification of panel imposed language is rejected,” the panel wrote. “The agency claims that this language enshrines established [labor authority] precedent. However, the only authority it offers is a non-published [labor relations authority administrative law judge] decision that was ultimately dismissed by the authority because the parties reached a settlement. Thus, its precedential value is questionable. Indeed, the panel is unaware of any binding FLRA decisions that actually capture management’s position.”

McIntosh said that the partial contract that was implemented on Monday does not actually reflect what the union agreed to last year. The agency unilaterally rewrote a provision on union dues withholding to reflect controversial regulations recently issued by the FLRA making it easier to cancel dues. Those regulations were officially implemented on Monday.

“They just rewrote the article and included that with the other tentatively agreed-to articles and illegally implemented them yesterday,” McIntosh said. “Their theory was that because there’s a new regulation, they had the right to do it, but that’s absolutely not the case. This is a change in the conditions of employment in addition to illegal implementation of an article. They had no right to make such a change without negotiating it.”

Although federal agencies are entitled to ensure that new collective bargaining agreements reflect new governmentwide rules and regulations, federal labor law requires them to “consult with” unions and negotiate over how those rules are implemented. Hinkle did not respond to detailed questions about the unilaterally rewritten contract article.

McIntosh said she believes the decision to move forward with contract implementation—and to unilaterally alter the dues withholding provision—is an intentional effort by Social Security Commissioner Andrew Saul and Deputy Commissioner for Hearings Operations Theresa Gruber to engage in “union busting.”

“I’ll say this. Waiting to implement this until the day this regulation came into effect was designed to maximize the harm that the Social Security Administration could do to this small union of judges,” McIntosh said. “They have relentlessly sought to take disability hearings away from [administrative law judges] and to the appeals council, and Gruber has sought to eliminate all references to the Administrative Procedures Act as well as our judicial function from our contract. And these issues don’t even relate to anything in [President Trump’s] 2018 executive orders. This is Gruber’s attempt to weaken our decisional independence.”

The union has filed a grievance against the agency, which McIntosh said will go to arbitration, and then likely the Federal Labor Relations Authority. But the process likely will take at least a year.