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Arbitrator: Social Security Engaged in Multiple Instances of Bad Faith Bargaining, Must Renegotiate

In a separate decision, a federal judge found the court lacked jurisdiction to hear the Association of Administrative Law Judges’ suit challenging the constitutionality of appointments to the Federal Service Impasses Panel.

An independent arbitrator this week took the rare step of ordering the Social Security Administration and a union representing administrative law judges to completely redo negotiations on a new contract, after he found several instances of illegal bad faith bargaining by the agency.

In a decision dated May 17, Arbitrator John T. Nicholas found that management at the agency engaged in unfair labor practices in relation to five different articles of its contract negotiations with the Association of Administrative Law Judges. The ruling marks the third instance in which an arbitrator has found instances of malfeasance on the part of management at the Social Security Administration in connection with their negotiations with the judges’ union.

In those previous cases, the arbitrator issued narrow awards to the union, such as requiring the agency to provide previously improperly withheld information and rescind an effort to implement a partial contract. But Nicholas instructed the parties to completely restart the contract negotiation process from the beginning with negotiations on ground rules for bargaining over an entirely new contract.

“A status quo ante remedy is hereby granted, which requires the parties to return to the bargaining table to restart negotiations, making the agreed upon 20 articles null and void,” Nicholas wrote. “The negotiations will proceed under the ground rules of a new [memorandum of understanding], which must be drafted and agreed upon forthwith.”

In negotiations over telework, previously agreed upon memoranda of understanding and facilities issues, the arbitrator found that management illegally forced matters to impasse, effectively waiving the union’s right to bargain over subjects that are deemed “permissible” under federal labor law. Although management stated they wished to cut down on the use of MOUs by including their provisions in the full union contract, the arbitrator found they never actually moved to discuss the substance of those memoranda.

“While the union made considerable concessions by initially agreeing to eliminate all MOUs that were in direct contradiction of provisions in the CBA, and eventually agreeing to eliminate 20 of the 26 MOUs that were in existence, the agency refused to move off its original proposal and required the elimination of all existing MOUs as a prerequisite for the agreement to a new CBA,” Nicholas wrote. “Rather than attempting to bargain over the contents of the MOUS, the agency’s initial, interim and final offers remained the same.”

The arbitrator also found that the Social Security Administration engaged in “surface level” bargaining on official time, in essence making tweaks to their proposal without actually trying to find a solution amenable to both parties, and he found the agency engaged in bad faith bargaining in its negotiations over provisions intended to protect the judges’ judicial function.

“It is apparent to your arbitrator that the agency’s decision to simply refuse to provide a last and best offer during negotiations [on the judicial function provision] as a form of protest to the back and forth negotiations is tantamount to saying, ‘I’m taking my ball and going home,’ which is an inexcusable position to take when negotiating a national agreement,” Nicholas wrote. “Therefore, the agency’s refusal to bargain over the definition of a judge’s employment functions is in your arbitrator’s opinion a clear violation of [the statute] and constitutes an unfair labor practice.”

The agency has until June 17 to decide whether to appeal the arbitrator’s decision to the Federal Labor Relations Authority. But complicating matters are the fact that President Biden has instructed agencies to renegotiate contracts that include provisions of former President Trump’s anti-labor executive orders, and the fact that on Wednesday, U.S. District Judge Amy Berman Jackson found that she lacked jurisdiction to hear a case brought by the judges’ union challenging the constitutionality of the Federal Service Impasses Panel’s appointees, potentially freeing the agency to implement the contested contract.

In a statement, Social Security Administration spokesman Mark Hinkle downplayed the potential impact of the arbitrator’s ruling, and accused the judges’ union of blocking efforts to negotiate a new contract.

“The arbitration decision was substantively moot by the time the decision was issued, as SSA has offered the AALJ the opportunity to renegotiate the entire CBA on several occasions,” Hinkle said. “In fact, the agency’s chief spokesperson for these negotiations has sent at least four communications making that offer to the AALJ chief negotiator . . . Despite these repeated efforts, AALJ has refused to even meet with the agency.”

Despite describing the decision as “substantively moot,” Hinkle said SSA “does not comment on ongoing litigation, including cases subject to appeal.”

“That said, we are focused on finding a way forward to work collaboratively with the AALJ to resolve all outstanding labor disputes and agree to a mutually beneficial new term agreement,” he said.

But AALJ President Melissa McIntosh, who said she has not heard from management since the arbitration decision was released, said the agency’s characterization of its newly collaborative overtures are “extremely disingenuous.” The agency has repeatedly refused to ask the impasses panel to withdraw its order on nine contested contract provisions, which the union argues is an effort to hold the Trump-era contract over their head as leverage.

“They want to cling to their advantage that they received from that panel order that would, for all practical purposes, eliminate us as a union,” McIntosh said. “The arbitration award is not ‘substantively moot.’ It has ordered us back to the table as equals at square one . . . It is unbelievable that they are still trying to grasp onto their ill-gotten gains from the impasses panel that was immediately fired upon the change in administration.”

Hinkle acknowledged that federal law allows parties to agree to renegotiate contracts imposed by the impasses panel, although he did not explain why the Social Security Administration thus far has refused to sign onto the union's request to do so.

"While panel decisions are binding, the law allows for parties to mutually agree, on their own, to different terms, which then become binding," he said. "As we have previously stated, the Agency is willing to return to the bargaining table with no preconditions."