Correction: Additional comments were added from SSA on Aug. 10 saying the agency had responded to congressional inquiry.
A class of administrative law judges hired to help reduce case backlogs at the Social Security Administration is unfairly being denied collective bargaining rights enjoyed by their colleagues at the agency, according to a union seeking to represent them.
Judges adjudicating disability claims for SSA’s National Hearing Center, created in 2007 to process cases from overworked local offices, are considered supervisory employees and thus excluded from unions by law. In practice, these employees say they don’t get to exercise the supervisory authority they’ve been granted, and therefore the reason for their exclusion is weakened.
“Look at the position description for bargaining unit judges in the hearing offices: it’s identical to those at the national hearing centers,” said Som Ramrup, president of the Association of Administrative Law Judges Council 1 union. “What both sets of judges do is hear and decide cases. There’s really no reason to have this dual system.”
The judgeships were created when the center was stood up to address hundreds of thousands of pending hearings. Judges could adjudicate claims remotely, allowing them to assist beleaguered local offices around the country. Since many hearings went remote during the pandemic and the agency has dramatically decreased its pending hearings, these judges function more and more like their unionized counterparts, said Ramrup.
It’s true that position descriptions for both judges are identical, Nicole Tiggemann, an agency spokesperson, confirmed in a statement. However, “NHC [judges] currently have the authority to hire, direct, reward, suspend, discipline, or remove employees, decide grievances, and evaluate their performance,” she said. These are all supervisory duties that distinguish between union eligibility.
Having those authorities is not the same as being able to fully act on them, said one national hearing center judge who spoke to Federal Times on the condition of anonymity due to privacy concerns.
“I have no discretion over which attorneys I’m supervising,” the judge said. “They are assigned to me by management, and [they] can be transferred or reassigned at management’s discretion at any time. And that happens throughout the year.”
Employees and union leaders are calling calling on the agency to review and rectify the bargaining status of these employees, which the White House in January addressed via guidance to all federal agencies.
“It’s an insult to the president that it still exists, because the Biden administration certainly directed federal agencies to identify whether or not bargaining unit positions were correctly excluded from coverage,” said Ramrup.
A 15-year battle
By the time the national hearing center was created, the number of pending cases had doubled over six years.
At the end of fiscal 2022, the agency logged the lowest number of pending hearings in two decades, the agency reported. However, the pandemic caused an uptick in wait times because public offices closed, and still today, it’s a priority of the agency to improve efficiency and service delivery.
Modern judges continue to do work in “a high-volume environment,” per a Government Accountability Office report from 2021. There are about 1,700 federal administrative law judges nationwide, of which about 1,500 work for SSA.
Because of the nature of the work and the long-term improvements slated for the agency, non-union judges say they should be able to benefit from union representation that can guarantee free and open discussion of workloads, performance issues and ways to improve hearings processing.
“That doesn’t exist,” said one judge.
“Some of those judges are retaliated against,” Ramrup said. “They’re isolated. There are changes to their working conditions that are not bargained, and they’re really subject to the whims of the managers at SSA without the protection of the union.”
Ramrup said the situation has not changed even despite recent Congressional attention. Last year, five senators sent a letter to acting commission Kilolo Kijakazi, asking what barriers stood in the way of transferring employees to the bargaining unit.
“Since the creation of the NHCs, the purported ‘supervisory’ duties of NHC judges have essentially been eliminated, and the position of NHC [administrative law judge] is for all purposes the same as the position of bargaining unit ALJ,” said the letter signed by Ohio Sen. Sherrod Brown.
Acting on OPM’s recommendations and in step with the administration’s pro-labor stance is an opportunity to “finally correct the anti-union exclusion of NHC ALJs from the AALJ bargaining unit,” according to Brown’s letter.
The agency’s spokesperson said SSA responded to Sen. Brown on June 9 and Nov. 28, 2022. Sen. Brown’s office did confirm that it received a response dated June 9 in a follow-up inquiry from Federal Times.
In 2008 and 2011, federal labor authorities got involved and issued opposing decisions on the judges’ eligibility.
The union filed a grievance against the agency’s initial move to create the NHC and solicit job candidates without consulting its members. Throughout arbitration, the question of eligibility came up, and it was determined as a sideline issue that the positions at the national hearing center were union eligible as there was no evidence to show that these judges “actually performed any supervisory duties.”
However, that decision was overturned three years later by the Federal Labor Relations Authority, though it did determine the agency committed an unfair labor practice by acting with hostility toward the union.
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.