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Administrative Law Judge Association Says Effort to Force Partial Contract Is 'Union Busting'

Officials with the group said efforts to implement part of a new union contract while elements remain under review by the Federal Service Impasses Panel are illegal.

Officials with the union representing administrative law judges said the Social Security Administration is trying to implement an unfinished collective bargaining agreement, despite the fact that several elements of the contract remain pending before an independent impasses panel.

The Association of Administrative Law Judges and Social Security reached agreement on 20 of 29 articles for their union contract last year. The other nine articles remain unresolved, and have been sent to the Federal Service Impasses Panel for adjudication in the coming weeks, although the union has objected to that, citing constitutional concerns about how panel members are appointed. 

In early March, Social Security Administration Chief Spokesman Eddie Taylor formally called on the administrative law judges union to ratify the portions of the contract not before the impasses panel by May 4, arguing that the remaining unresolved issues don’t need to be ratified since they will be imposed by the panel.

“Given that articles resolved by FSIP decisions are not subject to ratification, commencing the ratification process on the agreed-upon articles now provides for timely resolution of all articles,” Taylor wrote. “[If] your membership does not ratify the 20 articles, pursuant to the ground rules [memorandum of understanding], the parties will resume negotiations for a one-week session in Baltimore, Md., from May 11-15, 2020.”

Thus far, the union has rejected calls to ratify the contract, arguing that the 60-day ratification window should not begin until the impasses panel issues its decision. AALJ President Melissa McIntosh said it would be inappropriate to continue to push for early ratification of a partial contract while the agency responds to the novel coronavirus outbreak.

“I think it’s really unseemly that they continue to pursue this during a pandemic,” she said. “They really need to be focused on making sure the American public receives essential services and that hearings go off as planned, rather than continuing its effort to eliminate the judges’ union. I really am stunned that they’re persisting with this.”

The idea that matters before the impasses panel are not subject to union member ratification remains up for debate. The ground rules between the ALJ union and Social Security makes no mention of partial ratification, and in 2019, the impasses panel rejected efforts by the Defense Department Education Activity to include language exempting matter before the panel from ratification.

“The agency claims this language enshrines established [Federal Labor Relations Authority] precedent,” the impasses panel wrote. “However, the only authority it offers is an unpublished FLRA ALJ 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.”

And late last year, an independent arbitrator found that the Health and Human Services Department violated federal labor law by unilaterally implementing a partial contract on the National Treasury Employees Union after the impasses panel declined to weigh in on six issues.

In a statement, Social Security Administration spokeswoman Nicole Tiggemann declined to answer specific questions about the agency’s plans if the judges union declines to ratify a partial contract, but said the actions it is taking are “appropriate.”

“The agency is taking appropriate steps under the federal service labor-management relations statute,” she said. “SSA looks forward to a final national agreement between the agency and [AALJ], so that we can continue to focus our full efforts on providing critical services to the American public.”

McIntosh said she fears that even if the law is on the union’s side, there is no avenue to seek enforcement to stop the agency.

“The reality is that there are limited recourses available to us,” McIntosh said. “Within the context of federal sector labor law, your options are this: an unfair labor practice complaint, and there’s a grievance. If we filed a grievance, it could take over a year, and if we file an unfair labor practice [allegation], it will sit indefinitely, because there is no [FLRA] general counsel.”

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