shutterstock ID: 573185038 By Lane V. Erickson

Unions seek new SSA contract, press Biden to fire holdovers

President Joe Biden reversed much of his predecessor's workforce agenda in the first days of his administration via executive order, but unions at the Social Security Administration are unhappy with the pace of implementation of new policies.

The unions are continuing to press for the ouster of SSA Commissioner Andrew Saul, who was appointed by President Donald Trump to a six-year term and can't be easily fired – at least not yet.

The American Federation of Government Employees wants to return to the bargaining table over its 2019 contract. It was negotiated after Trump issued executive orders limiting official time, restricting union use of federal facilities and easing the process for firing poor performers, in 2018.

After Biden repealed these orders, agencies received instructions to identity affected sections of contracts and "engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered" in March.

SSA finalized its review of the contract, identifying sections impacted by the rescinded orders, on June 23, said Mark Hinkle, an SSA press officer.

But AFGE officials say that the agency is conceding too little.

"It was devastating, actually, compared to what we expected. They pretty much ruled out everything," said Barri Sue Bryant, president of AFGE Local 2809, which represents employees at an SSA operations center in Wilkes-Barre, Pa., and member of the SSA General Committee.

Official time, federal time spent on union business, is a top concern for the union. In its review, the agency broke that section of the contract into pieces, ruling that some parts had "minimal" or "moderate" "potential impact" from the repealed policies, while others weren't impacted at all, Bryant said.

SSA ruled that the number of hours of official time allowed were "minimally impacted," she said, while they ruled that restrictions for what activities are allowed on union time weren't impacted.

There's a temporary agreement in place on official time that restores it to levels closer to the 2012 contract. That lasts through Oct. 31, but it's unclear what will happen next.

Union leaders are also concerned about the agency's decision on performance improvement plans, called Opportunity to Perform Successfully. SSA ruled that only parts of that section were "minimally impacted," Bryant said.

The agency ruled that teleworking policies, another key priority for the union, weren't impacted. The agency curtailed teleworking in 2019.

To AFGE officials, the results of this evaluation are indicative of an agency that says it's working to improve labor relations without following through.

"They want a better relationship with us? We've got to have a new contract. It's that simple," said Ralph DeJuliis, president of AFGE Council 220, which represents 29,000 SSA employees in field offices and telephone service centers.

Union leaders say that the repealed Trump policies influenced much of the contract because SSA's bargaining strategy involved "[holding] the executive orders and taking things to the [Federal Services Impasses Panel] over our head on everything," Bryant said. The message was "if you don't agree to this … you'll get less."

The Office of Management and Budget guidance implementing Biden's order doesn't require agencies to either renegotiate entire provisions of the contract or change parts that "were not intended to implement identified sections of the revoked EOs," said SSA's Hinkle.

"We want to work collaboratively with our union partners to meet the needs of the public," and the agency will follow up with its union partners on next steps, he said.

The agency is also working on plans for bringing the workforce back to the office and instituting post-pandemic workforce policies, although some SSA employees are already in the office.

"Our agency's planning process includes ongoing communications with employees across the agency and their representatives, as well as input from other stakeholders," Hinkle said. "We will meet labor obligations associated with these plans once they are approved."

The agency and union are currently bargaining over workplace safety plans the Biden administration instructed agencies to create. The SSA has already implemented its plans.

Both of these examples mirror an uptick in post-implementation bargaining overall, said DeJuliis and Bryant.

At a hearing in April, SSA Operations Deputy Commissioner Grace Kim told lawmakers the safety plan was being bargained post-implementation because pressing health and safety concerns required it to be deployed quickly.

Union officials also say that they haven't seen a marked difference in labor-management progress, despite the change in administration.

"The only thing that's different is their tone," said DeJuliis. "Now they go through the motions, but their actions, the bargaining that we've been to … they don't really agree to anything."

The agency and union established resolution committees to work through unfair labor practice charges and union management grievances, but they're not allowed to discuss items in the contract. That's limited their work, Bryant said.

Supreme Court relief?

The union is continuing to call for Biden to fire SSA's Commissioner Saul and Deputy Commissioner David Black, who've also come under fire from some Democrats in Congress and another union at the agency, the Association of Administrative Law Judges.

Saul has a six-year term ending in 2025. He can be fired by the president for "neglect of duty or malfeasance in office." Black's six-year position is Senate-confirmed, and the president can't remove him without an adverse finding.

Recent court decisions could change the legal landscape of the issue.

A June 23 ruling by the Supreme Court in Collins v Yellen, found that job protections given to the Fair Housing Finance Agency's director, whom the president could only fire for cause before the end of the set five-year term were in violation of the separation of powers and unconstitutional. Biden has already replaced the former director.

In a footnote on the majority's opinion, Justice Samuel Alito noted that the court's ruling doesn't "comment on the constitutionality of any removal restriction" applying to other parts of the federal government, although Justice Elena Kagan pointed out in her concurring opinion that the SSA has a similar leadership structure to FHFA.

"A betting person might wager that the agency's removal provision is next on the chopping block," she wrote.

Rep. John Larson (D-Conn.) said in the wake of the decision in Collins that the firing of Trump holdovers is "not a political move …. [t]his is achieving the outcomes of a president who has called Social Security a sacred trust between the American people and their government."

AFGE leaders say the decision is clear.

"It's Saul and Black. We need a whole new administration," DeJuliis said. "These two guys cannot get on board."

2021 Digital Almanac

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