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Social Security Honors Arbitration Decision, Will Restart Negotiations with Judges Union

Last month, an independent arbitrator took the rare step of requiring the agency and the Association of Administrative Law Judges to completely redo negotiations after finding widespread bad faith bargaining by the agency.

The Social Security Administration on Tuesday announced that it would abide by an arbitrator’s decision ordering the agency to completely restart negotiations with a union representing its corps of administrative law judges.

Last month, Arbitrator John T. Nicholas found that management at the agency engaged in unfair labor practices, including illegally forcing matters to impasse and engaging in surface level bargaining, when negotiating five different articles of its contract with the Association of Administrative Law Judges. The decision marked the third instance where an independent arbitrator found evidence of malfeasance on the part of the agency’s negotiating team in relation to its negotiations with the judges union.

Although previous arbitration awards were relatively narrow in scope, such as requiring the agency to provide previously withheld information, Nicholas ordered the agency to completely restart the contract negotiation process from scratch, beginning with developing new ground rules for bargaining.

In a notice to Melissa McIntosh, the president of the judges union, Eddie Taylor, acting deputy associate commissioner for the agency’s Office of Labor-Management and Employee Relations, indicated the agency would comply with the order and asked when the parties may begin negotiations on a new contract.

“This is notice to inform you that the agency is complying with Arbitrator John T. Nicholas’ award dated May 17, 2021,” Taylor wrote. “As we have already communicated to you via earlier emails, the agency is prepared to engage in negotiations for a new term collective bargaining agreement.”

The agency had until June 17 to decide whether to appeal the arbitrator’s decision to the Federal Labor Relations Authority. But even though the Biden administration has instructed agencies to renegotiate collective bargaining agreements that include provisions of the now-rescinded Trump-era anti-labor executive orders, it was an open question as to how the agency would respond.

In a statement to Government Executive after the decision was published, agency spokesman Mark Hinkle described the decision as “substantively moot,” as the agency had offered to renegotiate the contract. But union officials noted that the agency refused to ask the Federal Service Impasses Panel to withdraw a largely pro-management decision on nine contested contract articles, a show of good faith demanded by the judges union as a precondition to new talks.

McIntosh said Wednesday that although she believes that the Trump appointed Commissioner Andrew Saul and Deputy Commissioner David Black must be removed for their union-busting work during the previous administration, she was happy to hear the agency will abandon that contract in favor of new negotiations.

“The union was pleased to see that the agency has finally relented and will comply with the arbitration award,” McIntosh said. “For some time, Commissioner Saul and Deputy Commissioner Black clung to the ill-gotten gains of the Trump-era union busting [impasses] panel order. This notification signals that they concede it is not possible to enforce it against us.”

It likely will take significant effort to restore the trust of the judges union during negotiations. Despite the multiple substantiated unfair labor practice complaints against the agency’s labor-management team, three members of the negotiating team were recently promoted, and two received performance awards. And Taylor, who served as chief spokesman for the management team in negotiations, will reprise that role in the next round of bargaining.

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