President Joe Biden is proud to be the most pro-Union president in history. He has called up union campaigns from the rostrum, and met with Amazon and Starbucks organizers in the White House. Biden has tried to make the federal government a “model employer. “EN report from a White House task force on workers’ organization and empowerment talks about this and promises to “provide greater access and information to unions seeking to represent and build membership among the federal workforce.”
But the administration has not yet acted to rectify a fierce anti-union effort in the federal government, one that began 15 years ago and continues today. The Social Security Administration has two sets of administrative law judges (ALJs) who decide complaints about retirement, Supplemental Security Income, disability insurance, and survivors’ benefits. These judges conduct the same hearings and make the same decisions, but one group is organized, and the other group is not, for reasons that critics have considered erroneous.
“There was no reason to create a unit of non-union judges who do the same as bargaining unit judges,” said Judge Som Ramrup, president of the Association of Administrative Law Judges (AALJ) union and an ALJ in New York. “Not allowing these judges to have a voice in terms of working conditions is disrespectful and demoralizing.”
The setup is famously known in union circles as “double-breasted”, where non-union and union workers perform the same tasks. Five U.S. senators sent a letter to the Acting Commissioner of the Social Security Administration, Dr. Kilolo Kijakazi, last month, in which he called for an end to the exclusion. “We still have questions about whether SSA has committed an anti-union hiring practice” when we established the double-breasted back in 2007, Sens. Sherrod Brown (D-OH), Bob Casey (D-PA), Ron Wyden (D-OR), Ben Cardin (D-MD) and Chris Van Hollen (D-MD) wrote.
SSA has not responded to a request for comment. The White House has not responded yet either.
THE SITUATION IS BACK to the George W. Bush administration in 2007, when the Social Security Administration saw an influx of appeals across the country. (Bush had also sought to privatize Social Security, but the necessary congressional support for such a change was clearly lacking.) This was demographically predictable, said Nancy Altman, chair of the Social Security Works and member of the Social Security Advisory Board. “Baby boomers were at their highest disability years before retirement,” she explained. “It made sense to build the staff.”
At the same time, the SSA was led by Michael Astrue, a longtime Republican aide who served three GOP presidents. Just in March, Astrue presented his philosophy with regard to unions in a interview with Federal News Networkand complains that “you can not make the changes you need to improve the quality of work unless the union approves them.”
Astrue’s solution to the hearing backlog was to set up National Hearing Centers (NHCs), with offices in five cities across the country (Baltimore, St. Louis, Chicago, Albuquerque and Falls Church, Virginia), where judges would conduct video hearings. But from the beginning, these NHC judges were excluded from the Social Security Judge’s bargaining unit, which had existed since 2001. “When he set them up, [Astrue] not notified the union, even though there was a clear change in working conditions, “said Judge Ramrup. “Clearly, the only reason the NHCs were created was an anti-union conspiracy.”
“There was no need to create a unit of non-union judges who do the same as bargaining unit judges.”
Astrue’s agency claimed that the NHC judges performed supervisory duties and were therefore leaders. The difference was due to NHC judges being assigned dedicated decision writers. This has evolved over time to where there is a pool of decision makers and NHC judges get that writer from the pool without hiring them specifically.
NHC judges actually write performance evaluations of the authors, which is characteristic of a supervisor, but Judge Ramrup pointed out that ALJs also provide input for evaluations of their authors, which goes to the authors’ technical supervisor. She also noted that NHC judges get feedback on their evaluations from higher up. “According to the statutes, supervision must not be routine or clerical,” Judge Ramrup said, “but must exercise consistent independent judgment.” NHC judges are incapable of exercising the independent sentence, she argued.
Meanwhile, every other part of the job is identical, which involves consulting cases and rulings. Since the pandemic, ALJs have also primarily made video or telephone hearings, making the boundaries between them and NHC judges even narrower.
There are about 1,200 ALJs and only about 65 NHC judges excluded from the bargaining unit. These NHC judges were originally drawn from the population by bargaining unit judges who performed their work in hearing offices across the country; The Albuquerque NHC office was originally located on the same site as the hearing office, with a wall built to separate the two. The job description for hiring ALJs and NHC judges uses the same language.
Most NHC judges accept the assignment because their spouses have work in the assigned city, or they want to return to that city because they are affiliated there. Many initially do not realize that they will lose union privileges if they go to the NHCs, Judge Ramrup explained.
When the NHCs were set up, the AALJ filed a complaint, and in 2008 an arbitrator ruled that the NHC judges “perform identical tasks” as other ALJs and did not have supervisory status, making them part of the bargaining unit. However, the SSA filed a unit clearance with the Federal Labor Relations Authority, and in 2011 the agency found the NHC judges to be supervisors. However, the FLRA agreed with the arbitrator that the SSA was committing unfair labor practices by not notifying the union of the creation of NHCs and showing anti-union will.
Yet practice continues. Astrue was held on to by President Obama for four years, and he never got a replacement confirmed. In fact, Democrats have not had a confirmed Social Security Administration commissioner since Kenneth Apfel in the Clinton years. Altman, who calls the NHC creation “a classic case of union disintegration,” said that this lack of a confirmed commissioner has made it difficult to change practices. “Acting commissioners are not the same,” Altman said. “If they themselves want to be confirmed, they will not rock the boat.”
Today, however, the White House has identified anti-union activity as a serious issue that needs to be addressed. The five senators noted President Biden’s commitment to making the federal government a model employer, and that the White House task force empowering workers specifically recommended federal agencies to determine “whether non-negotiating positions are properly excluded from covering negotiating units.” and to “correct the status of the negotiating unit for positions in the federal sector” – precisely the problem in this case.
Judge Ramrup explained the consequences of the NHC judges having no union. At one of the NHC locations in Chicago, she said, the SSA office moved to a floor of a building without windows. To better get light into people’s work spaces, they put up glass walls so everyone can look into everyone else’s offices, lack of privacy is exacerbated by NHC judges ruling sensitive hearings on retirement and disability. “If they were in the negotiating unit, we would have negotiated it,” Judge Ramrup said.
The Senate letter shows that Congress has been nominated on this matter. It is unclear what level of discussions have taken place with SSA or the White House on this matter, although AALJ has called for stopping the exclusion for many years. “This should have been fixed a long time ago,” Altman said. “But [now] you have a president who claims to be a model employer and pro-union. “
The SSA could simply reverse the decision to make the NHC judges exempt from the bargaining unit. Altman says it would raise the morale of an agency who has scored low on surveys of job satisfaction. The NHC situation, she added, was a by-product of leaders who were not fans of either social security or government action. “This was a trifecta, you’re going to be anti-union, anti-government and anti-social security all at once!” she said.