Edwin Osorio 2nd Vice President
Contracts are normally entered into in order to define terms of agreements and to avoid any misunderstandings between the parties. All contracts must consist of the following elements in order to be enforceable: mutual assent, a valid offer and acceptance, consideration, capacity, and legality. When all of these elements are present, you have the makings of a standard contract. While not all contracts must be in writing, it can be difficult to prove all of these elements exist within an oral contract when the terms are not all defined explicitly; and the more complex the agreement, the more likely you will want to avoid an oral contract. There are very few contracts that are more complex or comprehensive than a collective bargaining agreement.
What makes a collective bargaining agreement different from a standard contract is the parties are normally a union representing the employees and an employer(s). Invariably, these agreements are governed by the same principles of a standard contract: they must have mutual assent (a meeting of the minds), consideration (the employees agree to provide a service—their employment—to the employer for compensation), and legality (the contract must conform to applicable laws and regulations). Unlike a standard contract, there is no conventional offer and acceptance, although through its union, the represented employees accept the terms and conditions as offered within a collective bargaining agreement. Through a legally binding certification process, the Union has been elected to represent the employees, implicitly satisfying the capacity element.
When it is paramount to have a clear understanding of the rights of the parties and the parties’ interests must be protected in order to validate the contract, there can be no dispute: the agreement must be in writing. However, ambiguities may be inserted into a contract intentionally when one side has a superior bargaining position and controls all mechanisms of enforcement within the relationship. This is insidiously epitomized with the maliciously implemented 2019 Collective Bargaining Agreement between The Social Security Administration (SSA) and the American Federation of Government Employees (AFGE).
This happened when SSA coerced AFGE to accept a one-sided agreement that attenuated employee’s rights that were previously negotiated and codified; their union usurped of its ability to represent them in compliance with statute. Because of SSA’s abuse of its superior bargaining power, it has appropriated the CBA in order to further a partisan agenda that has historically sought the demise of the Union and the ability to shrink the size of government indiscriminately by making it easier to terminate federal employees. The 2019 CBA makes this easier by giving SSA the framework to change at will the terms of the agreement by relying on ambiguities permeating throughout the CBA.
The use of such words as “reasonable, timely, appropriately, and normally” provide the agency with such wide latitude that it literally has the advantage of an oral contract that relies upon the interpretation that is ever changing in accordance with the agency’s needs at the moment. To be clear, an ambiguous word means it can be understood in more than one way. For example the word reasonable is anything that is fair and sensible. The purpose of a contract is to define what constitutes fair and sensible between the parties. Yet, the word “reasonable” is used 85 times in the 2019 CBA. The first time we see the word “reasonable is in Article 3. We get a bonus because we get in the same sentence the word “appropriate,” the first of 163 appearances. The sentence in part is “SSA will make every reasonable effort to provide lockable secure storage for appropriate personal belongings.” The superior bargaining party neglected to state what defines a “reasonable” effort because it tacitly reserves the right to modify what “reasonable” means as the agency’s needs change. However, this defeats the purpose of a contract, except if you are the superior bargaining party that controls the mechanisms of enforcement.
As mentioned above, the word “appropriate” is used 163 times. In article 9 of the CBA, it reads: “If determined appropriate by Management, the Agency may offer additional health and safety training at no cost to the Agency.” In other words, maybe the agency will, and maybe it won’t! In what world do we have a binding contract predicated on the predilections of a party at any given time? In a court of law this would be construed as an ambiguous contract term which goes against the drafter of the contract. The prevailing logic is that the superior bargaining party had the ability to insert defined language into the agreement if it had chosen to do so. It may be argued that ambiguous terms should be defined with mutual accord; oddly enough, the word “mutual, or mutually” is used 61 times with no determinative proposal on how to arrive at mutuality; which is a necessity for a binding contract!
The word “timely” is used 61 times in the 2019 CBA. The definition of timely is coming early or at the right time. Once again there is only one party making the determination of what constitutes timely. And because it is not defined, the unknown definition apparently does not need to be consistent with previous decisions or even maintain the pretext of being reasonable. This is the quintessential or more aptly put ignominious semblance of “to the victor go the spoils.” Article 3 of the 2019 CBA reads in part: “An employee has the right to be timely informed about records that are maintained about him or her and are filed…” An employee has not been bestowed a right when it is defined by ambiguity and uncertainty. By definition, a right is true or correct as a fact. “Timely” undefined is the antithesis of a right, yet it’s there in black in white on the pages of the 2019 CBA to be delimited by the agency at their prerogative—again antithetical to what is a right.
“Normally” is another word when relied upon in a contract takes on multiple meanings. In this particular instance, SSA uses the word 71 times as a device to misappropriate the CBA. By definition the word normally means under normal or usual conditions. The difficulty arises when the word “normally” is meant to govern a provision that is not normal or usual. For example, Article 4 states: “Normally bargaining will not occur during weeks that contain Federal Holidays.” This is a meaningless provision, unless you are the superior bargaining party that can initiate bargaining the week of Christmas and the only options the weaker party has is to accept or relinquish its bargaining rights. In other words, what’s the point of this provision if it is up to the superior bargaining party to define what is normal with no requisite adherence to what may have been considered normal in the past? A valid agreement would prohibit bargaining on the week of a federal holiday, permit such bargaining, or define the parameters that would validate such bargaining. Most importantly, it would recognize there is nothing normal in its use of the word “normally.”
The 2019 CBA between SSA and AFGE has a total of 380 ambiguities deriving from just the four aforementioned words out of a total of 223 pages. And while it can be argued that not all ambiguities are equal, it is dispositive that some amount to critical defects in the agreement that give the agency license to write the agreement as they go along—this author intentionally did not use the verb “rewrite” because the inference should be clear that the provision would have to have been written at least once for it to be a rewrite. There may be no better example than the provision in Article 30 that states in part: “The parties recognize that a mutually agreed upon schedule is required for scheduling union time.”
This one ambiguity requires much attention. In the first instance, the phrase the parties recognize is a euphemism for the agency demands. More importantly, this provision is completely silent on the method for choosing a schedule, how to initiate such a discussion, or how to resolve any impasse. When you are the weaker bargaining party the silence becomes deafening. It is the drafter of this agreement that holds all of the cards. It is the drafter, in this case SSA that will be the final arbiter on implementing a schedule for the Union representative. SSA did not consider impasse because as the final arbiter, it knows there will be no impasse, it will simply impose a schedule despite lacking the explicit authority to do so—to the victor go the spoils. And yet, SSA would have anyone reading this provision believe that the Union consented to this provision. This is evidence of the agency’s abuse of the hegemonic leverage it yields and its willful misapplication.
No different than a contract that fails to specify the monetary currency to be used between two parties from two different countries and two different currencies, the 2019 CBA has a defect that at minimum requires redress that resolves the ambiguities; at maximum the CBA is not redressable and should be invalidated immediately as unenforceable. It can be argued that the subjectivity laden provisions can be agreed upon by the parties, however, when one party has a vastly superior position of bargaining power over the other and no incentive to act in good faith, it is exponentially imperative that there be no subjectivity, because there is no deterrent for the superior bargaining power to abuse its position in its own interests and subsequently no consequences. SSA has taken this position at every conceivable opportunity thus reinforcing the old axiom “power corrupts and absolute power corrupts absolutely.”
Usually, an ambiguous contract means that a specific term, word, phrase, or definition is vague or unclear. In some instances the intent of the parties can be considered; however, in this instance only SSA’s intent has been given any merit. Also, in most disputes, ambiguous agreements are said to be resolved “against” the party that drafted the contract. The argument is that the prevailing party could have simply inserted its intent textually into the agreement. SSA did not have any assistance with the Union when drafting the 2019 CBA; in fact, it used a proverbial gun at the head of AFGE and “made them an offer they couldn’t refuse.” Depending on one’s interpretation, this could be considered “agreement by coercion,” or the agency’s interpretation “mutually agreed upon.”
The point in producing a written agreement, whether it is a business contract or a collective bargaining agreement, should always be to prevent future disagreements. If future disputes require contract experts, this is a good indicator the contract is not clear and possibly defective. Anything that may have two or more interpretations must be clearly defined so it is understood by all parties; any alternate inferences should be addressed. In conclusion, it cannot be overstated that the 2019 SSA/AFGE CBA is defective and thus, unenforceable. The logical action should be to revert back to the 2012 CBA while a new contract that brings amelioration to all parties. If SSA remains steadfast in its malevolence towards the Union/bargaining unit, the Union will have no choice but to seek judicial intervention. For the foregoing reasons and the application of the Mischief Rule of Statutory Interpretation (to suppress the mischief and advance the remedy), the groundwork exists for a strong argument in favor of invalidating the current CBA. The quixotic and self-serving execution of the 2019 CBA will only come to an end when the Union contends the malleability of what should be a reciprocally beneficial collective bargaining agreement; with no compulsion, SSA will not capitulate.