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The federal arbitrator recently stopped the Social Security Administration from moving ahead on a partial labor contract with the Association of Administrative Law Judges. The remaining parts of the proposed contract are tied up in federal court. Yet the administrative law judges say Social Security management will not bargain with them. Now in what the union sees as a breakthrough, the arbitrator has ordered Social Security back to the bargaining table. For an update, Federal Drive with Tom Temin spoke with the union president Melissa McIntosh.

Interview transcript:

Tom Temin: Ms. McIntosh. Good to have you back.

Melissa McIntosh: Thanks for having me.

Tom Temin: All right. And just a few weeks ago, actually about 10 days ago, the arbitrator said that the SSA could not move ahead on the imposition of the partial labor contract that you had. Now there’s even a newer development, they are forcing SSA back to the table. So review for us where the whole thing stands now.

Melissa McIntosh: We have now concluded the third bad-faith bargaining arbitration and the third independent arbitrator, John Nicholas, determined that SSA committed bad-faith bargaining. And it was so egregious, and they committed unfair labor practices within the bad-faith bargaining that he has ordered us back to the table from square one. We’re even ordered to start over by negotiating ground rules.

Tom Temin: Got it because the imposition of the contract which earlier, again 10 days ago was overturned, imposed 20 clauses that had not been signed off yet by the union, but impose those on the work agreement, whereas nine of them still remained tied up in federal court. So the question is, are all 29 possible clauses now back on the table at square one?

Melissa McIntosh: They absolutely are. So the second bad-faith bargaining decision you just referenced was about the illegal imposition of 20 articles. So those were rescinded by order of Arbitrator [Salvatore] Arrigo. Now we were left with the big picture arbitration. Did SSA commit bad-faith bargaining? Did it commit unfair labor practices? To the extent it was necessary to reboot the whole process from square one? And the answer was yes.

Tom Temin: And throughout all of this process, has SSA been communicating with you? I mean, is there any kind of non official talks going on, that, “Hey, guys, this is not the way we want this to go. It’s certainly not going the way we the union wanted?” Have there been, I don’t know what you’d call it – to ex parte talks?

Melissa McIntosh: I have attempted to communicate with the Trump administration hold over Commissioner Andrew Saul. And he will not actually directly communicate with me. But he did direct the head of the management negotiation team, which again, was found to have eggregiously committed that bad-faith bargaining. And they characterized my position as inflammatory rhetoric, and they will not back down and they are clinging to a Trump-era union busting panel order – they hope to impose against us. And if they can do that, they will have wiped out our union. And at this point, we’re calling upon the Biden administration to please direct Mr. Saul to stand down. This is the third decision. And SSA needs to not appeal this, because here’s what happens if they don’t appeal it: We go back to the bargaining table as equals. And we negotiate a contract that serves the American public. s it necessary to continue to battle us? It’s just not in the public interest. And so we are hoping that the Biden administration will direct Mr. Saul to stop the fight with this small union of judges and stand down, not appeal this decision.

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Tom Temin: And just to clarify the panel that you mentioned, that’s the Federal [Service] Impasses Panel, part of the Federal Labor Relations Authority that had ruled against the union and your contention, and why those clauses are in court was that the panel itself was illegally impaneled?

Melissa McIntosh: Yes, that’s absolutely right. And it is of note that one of the first things President Biden did when he took office was to fire all of the panel members. They were acting in an extraordinary way and not the positive definition of extraordinary. They were committing outrageous union busting in their hyper pro-agency determinations, what they left us with was a contract that we could not survive under or serve our members. So you know, Commissioner Saul will not, and I have asked him repeatedly, “Will you come with us, union and agency and ask for the withdrawal of that impossible union-busting panel order?” and the answer was no. They’re clinging to their ill gotten gains during the union busting era we just came out of.

Tom Temin: We’re speaking with Melissa McIntosh, president of the Association of Administrative Law Judges. And you mentioned that the union could not survive and that they were union busting. What in that agreement or non-agreement, I guess we should call it, made it union busting, as opposed to just terms that you would rather have more liberal?

Melissa McIntosh: Right. You know, I I’ve spent my career in, in labor law and the federal sector and labor relations. Reasonable minds differ, people have different ideas about how to best make work happen and serve the public. That’s not what happens at SSA. What happened was, for example, Arbitrator Nicholas found the agency committed surface bargaining over official time. Now what does that mean? They were only pretending to bargain. They really weren’t bargaining, they gave us so little time, it was impossible for us to serve the union members. So that would make us not viable. If we had no ability to serve our members. That’s union busting. They, in what Arbitrator Nicholas characterized as “taking my ball and going home” behavior. They refuse to even acknowledge our judicial function. That’s what a contract’s about – what work you do, how you do it, your role in the organization. It was petulant. I could go on and on. There were several findings of unfair labor practices that do relate to that panel order that the impasses panel, backed them up and said, sure, that sounds great to us. One less union to contend with in the federal sector.

Tom Temin: Now we’re on the air Thursday, and the arbitrator – Arbitrator Nicholas – came out with his finding on Tuesday. Have you heard anything subsequent yet from SSA, which is the one that is the subject of the arbitrators’ ruling to say, you’ve got to start negotiating again?

Melissa McIntosh: No, no we haven’t. I assume they are considering what they would like to do next. And it is our sincere hope that they will not appeal this, they will turn over a new leaf which they said they wanted to. But that’s all been window dressing. For them to cling to that union busting panel order speaks volumes, they still want to eliminate our small union of judges. So I just, again, our hope that the Biden administration will take note of this, and tell Mr. Saul, let’s focus on serving the public. This is not an administration that is here to bust a small union of judges.

Tom Temin: Aside from a sufficient amount of official time to be able to take care of members’ complaints and so forth, what other specific clause content are you hoping to get that will strengthen the union, in your view?

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Melissa McIntosh: We think it’s critical to recognize our judicial function. One of the things that the agency was very aggressive about was eliminating mention of the Administrative Procedure Act. That is so critical to us, because that is the way we ensure the due process rights of the claimants who appear before us. So we want a clear, robust, legally consistent description of what our function is at SSA. I think, as judges, that’s one of the most important provisions that we care about.

Tom Temin: And that was not in what was imposed as a contract just a few weeks ago.

Melissa McIntosh: No, well, that was that’s still pending and stay. That’s a part of the panel order.

Tom Temin: Got it.

Melissa McIntosh: But that is as well what Arbitrator Nicholas characterized as taking my ball and going home activity. When they drew a line through every, every aspect of judicial function. They wanted to eliminate it in the contract. And that really, truly epitomizes bad faith bargaining.

Tom Temin: All right so now the proverbial ball is in SSA’s court so to speak.

Melissa McIntosh: Well, it is because it’s their decision. Now, are they going to appeal this decision? They had 30 days from the submission by Arbitrator Nicholas to file an appeal with the Federal Labor Relations Authority. And it is again our hope that they just stopped this. They’ve been relentlessly fighting us. We get decision after decision. We have seven findings of unfair labor practices by the Federal Labor Relations Authority. We’ll either settle or complaints will issue. We have three independent arbitrators saying you commit bad-faith bargaining. Enough is enough. It’s time to move forward. It’s time to go back to the table and start over and refocus.

Tom Temin: Melissa McIntosh is president of the Association of Administrative Law Judges. Thanks so much for joining me.

Melissa McIntosh: My pleasure. Thank you.

Tom Temin: We’ll post this interview at Federal News Network.com/FederalDrive. Hear the Federal Drive on your schedule. Subscribe at Podcastone or wherever you get your shows.

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