A new year might have dawned but relations between management and employees at the Social Security Administration remain tense. The relatively small group, SSA’s administrative law judges, recently expressed no confidence in the agency’s leadership. For updates, Federal Drive with Tom Temin turned to the president of the Association of Administrative Law Judges Melissa McIntosh.
Tom Temin: Ms. McIntosh, good to have you back.
Melissa McIntosh: Thank you, good to be here.
Tom Temin: So what is the basis of the expression of no confidence in old Andy Saul?
Melissa McIntosh: Well, unfortunately, while Commissioner Saul pledged to Congress that he would comply with labor law, and he would work with the union, he has not. And what’s more, he has authorized no-holds-barred union busting. He has authorized his subordinates to seek the elimination of my union. And in addition to that, regulations have rolled forward that erode our decisional independence, as well as take aggressive steps to eliminate our job.
Tom Temin: Well, let’s take these one at a time with respect to decertifying the union, is that what he has called on the agency to do?
Melissa McIntosh: No, it’s a little more sophisticated than that. He authorized two subordinates, including Theresa Gruber, who is the deputy commissioner of the Office of Hearing Operations, to engage in bad faith bargaining and put to impact proposals that would disable our ability to function, we wouldn’t have any time to represent our members. And in addition to that, well beyond the executive orders most of us are familiar with, those anti-union executive orders from the summer of 2018, Ms. Gruber and her management officials who negotiated the contract – and I do say in bad faith – they refused to even recognize us as judges in the proposal. They eliminated our judicial function from the contract. They eliminated the Administrative Procedure Act references in the contract. That means it’s harder for us to assert our independence as judges through this collective bargaining agreement. So when you don’t give us any time to represent our members, when we don’t have any time to meet our statutory obligations, you through collective bargaining are seeking to eliminate our union. And again, he as well as David Black, his deputy, they said to Congress, under oath, they would work with us, they would comply with labor laws, and they have not.
Tom Temin: And earlier I recall, you and I spoke about an effort in which the administrative judges were trying to make sure that they had their constitutional independence, I think, as you put it, by the reporting structure for judges. Tell us what it is you were seeking and what the status of that was.
Melissa McIntosh: On March 1, in 2019, we issued a letter to the then acting commissioner and advised her our reporting structure is not constitutional. We are inferior officers, and we are reporting to an employee and under the appointments clause of the United States Constitution. That is not proper. And unfortunately, no surprise, the agency still has not responded to our letter. And I think that really is a great example of the cavalier nature that our agency takes with us. You know, we lost thousands upon thousands of hours of leave in order to meet agency mission, but there’s a very hostile adversarial posture that Theresa Gruber, who was in charge of the Office of Hearing Operations under which we sit, and the rest of SSA leadership takes with its judges.
Tom Temin: We’re speaking with Melissa McIntosh, she’s the president of the Association of Administrative Law Judges. And we should point out, then there’s still no contract settled at this point. And you are just continuing with the prior contract, still?
Melissa McIntosh: That’s a great question because the agency, while we had no contract, and we have a stay on nine articles, due to our court case, which is in the D.C. circuit, unfortunately, they illegally imposed 20 articles we tentatively agreed to. So they’re starting though there’s 20 articles are under under what which we operate. While we assert that is not the case, and we are going to arbitration over it. But the nine articles we went to impasse over, and that our stayed are really the most critical to our ability to function. But again, it was another illegal act. You can’t go to a ratification vote without a completed contract. It’s very clear. It’s standard labor law. Ground rules don’t permit it, but they simply don’t care. There was a recent arbitrators decision, who characterized their interactions with us as cavalier and I think that that’s fair and as well, a separate independent arbitrator determined that they committed bad faith bargaining during those negotiations by illegally withholding information.
Tom Temin: Two questions, first, withholding information – what was the nature of the information you feel they withheld?
Melissa McIntosh: So we actually issued numerous information requests, which is very common in the course of negotiation. And so that was just a variety of information. For example, please support your position and your analysis for why you think you need a seven-year contract, which is frankly unheard of in the federal sector. A seven-year contract is extremely odd. And instead of giving the information, they said, “We don’t have to give you the information.” But lo and behold, when they supported their position to the impasses panel, they provided the information. And I think that doesn’t – there’s really nothing else that can demonstrate bad faith more than that. We don’t have it, we don’t have to give it to you. But when it serves our purposes, we’ll provide it to a third party to bolster our position.
Tom Temin: And the other issue, you mentioned nine clauses that are in dispute. What is the nature generally of those clauses, these are ones you do not want in or you do want in the contract?
Melissa McIntosh: Well, the impasses panel, which is decidedly anti-union, and that 90-plus percent rules against unions, and has members of it that have very strong ties to anti-union organizations. In the federal sector, the statute actually says, in the public interest for unions to be present. Well, the panel, no surprise, ruled for the agency’s proposals, almost 100%. So these are critical issues, critical articles in relation to official time. Our ability to represent our members and comply with our statutory obligation. Judicial function – our ability to assert our position within the agency and to be able to argue decisional independence within the agency, others relate to our ability to transfer the term of the contract, which is of course, extremely important. A seven-year contract is again, as I said, unheard of. So those are some of the examples of the things that are stayed.
Tom Temin: And as a practical matter, we have a new administration coming in, Andrew Saul was confirmed through I think 2025 or ’26 as commissioner, although it’s often the commissioners resign when there’s a new administration coming in. Are you at this point, holding out for his resignation and Carolyn Colvin to be confirmed as his successor?
Melissa McIntosh: We have not heard that Carolyn Colvin was in the mix to be the successor. Of course, we don’t know. She is, of course in charge of or the lead in the transition team. But 88% of the judges of the Social Security Administration have said they have no confidence in Andrew Saul’s leadership and no confidence in David Black’s leadership for the various reasons that I’ve given. We didn’t formally survey our members on “Do you want to call for their resignation?” What we did do was ask, “Do you have confidence in them?” And I’m sure as you know, Council 220 AFGE led by Ralph DeJulius, they did specifically make that query. And it’s of note that Council 220 of AFGE is the second largest bargaining unit – at least that’s my understanding – in the in the United States within the federal sector, and so they have called for their resignation. And just to further the anti-union animus that we’re seeing at SSA and the hostility from the environment which has not let up, Mr. DeJulius is sitting home under 120 days suspension for an email he sent about instant messaging status. This is a gentleman who has 42 years of federal service. And even to issue suspensions during a pandemic – and what’s more, the agency continues to issue removal in a pandemic, the labor management relationship of SSA, is broken.
Tom Temin: Well, we’ll leave it there and see what happens. Melissa McIntosh is president of the Association of Administrative Law Judges. As always, thanks so much.
Melissa McIntosh: Thank you so much.
Tom Temin: We’ll post this interview along with a link to more information at FederalNewsNetwork.com/FederalDrive. Here the Federal Drive on demand. Subscribe at Apple Podcasts or wherever you get your shows.