Federal worker union representation disputes: Social Security ALJs
Disparate treatment of two separate groups of ALJs on union access may come into the spotlight with the president’s 2023 order for agencies to consider whether any groups of employees were wrongly denied collective bargaining rights.
The Social Security Administration (SSA) states that its “administrative appeals operation is one of the largest administrative judicial systems in the world.” Within that system, administrative law judges (ALJs) play a crucial role in seeing that eligible Social Security claimants get the disability, retirement or survivors benefits, or Supplemental Security Income (SSI) to which they have a right.
The agency denies many claims at the initial application stage, but there are several levels of review and appeal available. Normally, the third step of review is a hearing before an ALJ, who reviews the entire written record and takes testimony from the claimant and potentially from family members, medical experts, vocational experts and others.
ALJ hearing schedules have been notoriously backed up for years. They face internal pressure to issue decisions quickly and at a high rate to shrink the daunting backlog. With many cases involving complex legal and medical issues and voluminous evidence, it would not be surprising for these federal employees to experience real stress at work.
Traditional ALJs vs. National Hearing Center ALJs
In 2007, SSA established the National Hearing Center (NHC) through which ALJs hear and decide disability claims from backed-up caseloads at local SSA offices throughout the country. The NHC judges are not unionized, while those in local offices are in a bargaining unit, meaning that they are allowed to join a union if they wish.
According to America’s Work Force (AWF) Union Podcast’s introduction to Judge Som Ramrup’s participation in a 2022 podcast, when an employer hires nonunion employees at a lower wage than unionized workers already in place, it is called double breasting. Judge Ramrup feels that President Biden should open the ALJ bargaining unit to the NHC ALJs.
The debate over the unionization of only one group of SSA ALJs is sharp and vocal. For example, an August 8, 2023, Federal Times article states that the Association of Administrative Law Judges Council 1 union (AALJ) wants to bring the relatively small number of NHC judges into their collective bargaining unit of which traditional ALJs are members.
The union’s president is Judge Ramrup who asserts that the two groups do the same jobs, which SSA disputes because NHC judges have “supervisory duties” that prevents union membership. However, one anonymous ALJ with NHC told Federal Times that SSA management exercises discretionary supervisory duties and not NHC ALJs – that saying on paper that the job includes supervisory responsibilities is one thing, but it is another thing that in practice, the ALJs there do not exercise those responsibilities. For this reason, union leadership and SSA employees are advocating for the agency to even the playing field and let NHC judges join the bargaining unit.
According to the article, nonunion ALJs at NHC assert that they should benefit from “union representation that can guarantee free and open discussion of workloads, performance issues and ways to improve hearings processing.” Union President Ramrup, noting that decisions about working conditions are made at NHC without union protection that would otherwise be collectively bargained.
Looking forward
Despite the disparity in ALJ treatment at SSA, it is no secret that President Biden is very supportive of labor and related rights. In Jan. 2023, the Office of Personnel Management (OPM) sent a memo to executive agency and department heads explaining that the administration seeks to “encourag[e] [federal] worker organizing and collective bargaining.” OPM directed each agency to “[r]eview the bargaining unit status for non-bargaining unit employee[s] . . . to assess whether these employees are properly excluded from bargaining unit coverage . . .”
Any federal employee questioning whether their bargaining unit classification is correct should consult with an experienced federal employment law attorney to determine what legal remedies may be available. For example, a federal employee or a union can file a representation petition with the Office of the General Counsel (OGC) of the Federal Labor Relations Authority (FLRA), among other remedies.