Arbitrator: Social Security Violated Labor Law Again in Dealings With Administrative Law Judge Union

An independent arbitrator last week ruled that the Social Security Administration violated federal labor law when it moved to unilaterally implement a partial union contract on the Association of Administrative Law Judges, despite the fact that several issues remained up for negotiation.

Over the last two years, Social Security and the ALJ union have undergone a long and at times acrimonious process to negotiate a new union contract. Last January, the Federal Service Impasses Panel took jurisdiction over nine contract articles still disputed by the parties, over the objection of the union.

Last May, another arbitrator found that management at the agency engaged in bad faith bargaining by repeatedly withholding routine requests for information by the union during their negotiations.

Once the impasses panel issued its decision last spring, the union sued the panel, arguing that its members were unconstitutionally appointed without the advice and consent of the Senate, given their level of autonomy and the inability of parties to directly appeal their decisions. In light of those proceedings, the Federal Labor Relations Authority stayed the impasses panel’s decision until the court case was resolved. District Court Judge Amy Berman Jackson still had not issued a decision as of Monday.

Despite the fact that several elements of the new contract still had not been finalized, the Social Security Administration called on the judges union to ratify a partial contract of articles on which they had come to agreement, in apparent violation of the parties’ ground rules for negotiations. When the union declined to hold that vote, the agency unilaterally imposed those contract provisions in August 2020.

In his decision, Arbitrator Salvatore Arrigo said the agency’s violation of its memorandum of understanding with the union when it implemented the partial contract was “clear and patent,” and that it “constituted a repudiation of the essence of the ratification process.”

“When the ratification period began, the union membership did not know which articles, if any, the panel would impose,” he wrote. “It is not a ‘new CBA’ unless all the final articles are presented at the time of ratification. There quite obviously could be interaction between agreed upon articles and Panel-imposed articles, constituting the entire CBA, which could color the meaning or application of the entire document.”

Arrigo ruled that the agency should cease engaging in bad faith bargaining with the administrative law judges union, rescind its demand that the union ratify only part of the new contract, and roll back implementation of those new provisions. The agency may appeal the decision to the FLRA for review.

AALJ President Melissa McIntosh applauded the arbitrator’s decision and urged the agency to come back to the bargaining table.

“This arbitration award is one of the most important in the history of our union,” she said. “We hope the agency, under the direction of Commissioner Andrew Saul and Deputy Commissioner David Black, will indeed ‘cease and desist’ from failing and refusing to bargain in good faith.”

Social Security Spokeswoman Nicole Tiggemann said the agency is “reviewing” the ruling.

“The complex bargaining history of these term negotiations has presented unique challenges,” she said. “We remain hopeful that in the near future, we can implement a full agreement that improves public service and respects the rights of the union and bargaining unit employees as set forth in the Federal Service Labor-Management Relations statute.”