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A New Year may have dawned, but relationships between management and social security officials remain strained. The relatively small group, the SSA’s administrative judges, recently expressed no confidence in the agency’s management. For updates, Federal Drive with Tom Temin turned to the President of the Association of Administrative Law Judges, Melissa McIntosh.
Tom Available: Ms. McIntosh, it’s nice to have you back.
Melissa McIntosh: Thank you, nice to be here.
Tom Available: What is the basis of the expression of distrust of old Andy Saul?
Melissa McIntosh: Well, while Commissioner Saul promised Congress to respect labor law and to work with the union, unfortunately he did not. And he also approved the busting of Unions Without Borders. He authorized his subordinates to request the elimination of my union. In addition, regulations have been put in place that undermine our independence of making decisions and take aggressive steps to get rid of our work.
Tom Available: Let’s take these one at a time to decertify the union. Is that what he asked the agency to do?
Melissa McIntosh: No, it’s a little more sophisticated. He authorized two subordinates, including Theresa Gruber, the Deputy Commissioner of the Office of Hearing Operations, to conduct malicious negotiations and make proposals that would affect our functioning. We wouldn’t have time to represent our members. Furthermore, Ms. Gruber and her senior executives who negotiated the contract – and I say this with bad faith – are way beyond the executive regulations that most of us are familiar with, the anti-union executive regulations of the summer of 2018. They refused to recognize us as judges in the proposal. You deleted our judicial function from the contract. You have deleted the references to the Administrative Procedure Act in the contract. In other words, it is more difficult for us to assert our independence as judges through this collective agreement. So if you don’t give us time to represent our members, if we don’t have time to comply with our legal obligations, you are trying to get rid of our union through collective bargaining. And again, he and David Black, his deputy, said they were telling Congress under oath that they would work with us, they would comply with labor laws, and they did not.
Tom Available: And I remember earlier you and I talked about an effort where administrative judges were trying to make sure they had their constitutional independence. I think, as you say, through the judges’ reporting structure. Tell us what you were looking for and what the status of it was.
Melissa McIntosh: On March 1, 2019, we wrote to the Commissioner in office at the time, informing her that our reporting structure was not constitutional. We are inferior civil servants reporting to an associate and under the appointment clause of the United States Constitution. That is not right. And unfortunately no surprise, the agency still hasn’t replied to our letter. And I think this is really a great example of the carefree nature that our agency takes with it. You know we lost thousands and thousands of hours of vacation completing the agency’s mission, but there is a very hostile controversial stance that Theresa Gruber who was in charge of the hearing operations office we sit under and the Rest of the SSA leadership takes with its judges.
Tom Available: We speak to Melissa McIntosh, she is the president of the Association of Administrative Law Judges. And we should point out that no contract has been signed at this point. And are you continuing the previous contract?
Melissa McIntosh: This is a great question because, while we did not have a contract and have a stint on nine items due to our legal process that is on the DC circuit, unfortunately the agency illegally imposed 20 items that we have tentatively approved. So you start even though there are 20 items below what we operate. While we claim it does not, we are going to arbitrate about it. But the nine articles about which we reached a dead end and that our stay is really the most critical to our functioning. But it was again an illegal act. You cannot go to a ratification vote without a signed treaty. It is very clear. It’s standard labor law. Basic rules don’t allow it, but they just don’t care. There was a recent decision by the umpires characterizing their interactions with us as gentlemen and I think that’s fair. Additionally, a separate independent arbitrator found that during these negotiations they conducted malicious negotiations by illegally withholding information.
Tom Available: Two questions: Withholding information – What type of information do you think you have withheld?
Melissa McIntosh: So we actually made numerous requests for information, which is very common in the course of the negotiations. So that was just a lot of information. For example, support your position and your analysis of why you think you need a seven-year contract, which is frankly unknown in the federal sector. A seven year contract is extremely strange. And instead of giving the information, they said, “We don’t have to give you the information.” Lo and behold, when they backed their stance on the impasse, they provided the information. And I think it doesn’t – there really isn’t anything else that can prove more bad faith than that. We don’t have it, we don’t have to give it to you. But if it serves our purposes, we will pass it on to third parties to strengthen our position.
Tom Available: And the other problem, you mentioned nine controversial clauses. What is the nature of these clauses in general, are these the ones that you don’t want or that you want in the contract?
Melissa McIntosh: Well, the cul-de-sac body, which is decidedly anti-union and over 90 percent anti-union, has members who are very closely associated with anti-union organizations. In the federal sector, the law states in the public interest that trade unions are present. No wonder that the committee decided almost 100% on the agency’s proposals. So these are critical topics, critical articles related to official time. Our ability to represent our members and comply with our legal obligations. Judicial function – our ability to assert our position within the agency and to be able to argue the independence of decision-making within the agency, others relate to our ability to transfer the contract term, which is of course extremely important. As I said, a seven-year contract is again unknown. So these are some examples of the things that have remained.
Tom Available: And in practical terms we have a new administration, Andrew Saul was confirmed as commissioner by 2025 or ’26, although it is often the case that the commissioners step down when a new administration is added. Are you at that point and holding through for his resignation and Carolyn Colvin to be confirmed as his successor?
Melissa McIntosh: We didn’t hear Carolyn Colvin was in the mix to be the successor. Of course we don’t know. She is of course responsible for or leading the transition team. But 88% of Social Security judges do not trust Andrew Saul’s leadership and do not trust David Black’s leadership for the various reasons I have given. We don’t officially have our members “Would you like to demand their resignation?” Questioned. We asked, “Do you have faith in her?” And I am sure as you know Council 220 AFGE, led by Ralph DeJulius, they made that request specifically. And it should be noted that the AFGE Council 220 is the second largest negotiating entity – at least as I understand it – in the United States within the federal sector, and that is why they have called for their resignation. And just to encourage the anti-union animus we see at SSA and the hostility towards the environment that has not waned, Mr DeJulius is sitting at home under 120 days of suspension to receive an email about the status of instant messaging receive. This is a gentleman who has served 42 years of federal service. And even to impose suspensions during a pandemic – and furthermore, the agency continues to issue pandemic cleanup, SSA’s labor administration relationship is broken.
Tom Available: Well, we’ll leave it there and see what happens. Melissa McIntosh is President of the Association of Administrative Law Judges. As always, thank you very much.
Melissa McIntosh: Thank you very much.
Tom Available: We’ll post this interview, along with a link to more information, at FederalNewsNetwork.com/FederalDrive. Federal Drive here on request. Subscribe to Apple Podcasts or anywhere you get your shows.
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