Biden-nominated D.C. Circuit Judge Ketanji Brown Jackson wrote a decision that overturned action by Trump officials and restored federal workers’ rights to negotiate and bargain with employers concerning all changes to working conditions except for trivial ones. The February 2022 ruling was in American Federation of Government Employees (AFGE) v Federal Labor Relations Authority (FLRA).
Under federal law and years of interpretation since 1985 by the FLRA, which oversees collective bargaining and labor relations with over 2 million federal employees and their unions, federal agencies must negotiate and collectively bargain with employees concerning all proposed changes to conditions of employment that have more than a trivial (or “de minimis”) effect on working conditions. After then-President Trump appointed several anti-labor FLRA members who constituted a majority, the FLRA significantly changed the rules in 2020. It issued a new policy statement, without seeking public comment and despite the dissent of one of its members, that “abandon[ed] its de minimis exception” and provided that employees had no right to bargain concerning such changes unless they have a “substantial impact” on employees. As commentator Mark Joseph Stern explained, the new standard would “inherently favor ‘government efficiency’ over workers’ rights,” and could allow agency managers to “pile on extra hours, limit telework, cut comp time, and slash benefits” unilaterally, without negotiating with workers’ representatives as part of a contract.
AFGE challenged the FLRA actions in the DC Circuit Court of Appeals as “arbitrary and capricious” and contrary to federal statutory law. The case was considered by a panel including Judge Jackson and Judges David Tatel and Patricia Millett, who joined an opinion by Judge Jackson striking down the FLRA’s action and restoring federal workers’ rights. Judge Jackson explained that the FLRA had rejected a “substantial impact” standard and adopted the “de minimis” criterion in 1985 because Congress had passed a law that was “more protective of collective bargaining.” FLRA’s new policy statement, she went on, “fails to show” a good reason “to discard thirty-five years” of past agency and court precedent applying that standard. The 2020 statement, she wrote, is “inconsistent” and “cannot withstand scrutiny,” and she carefully showed that the statement is “misleading” and does not demonstrate that the de minimis standard is unworkable, but instead “demonstrates how it works.” The FLRA’s “bald assertion” that its new standard would be better, Jackson continued, “contains no factual basis” and fails to “explain why and how” it reached its decision. Judge Jackson concluded that FLRA’s “cursory policy statement” that adopts the “previously rejected substantial-impact test” is “arbitrary and capricious” and must be vacated.
Judge Jackson has been frequently mentioned as a possible nominee to fill the vacancy on the Supreme Court created by Justice Breyer’s planned retirement. Whether she remains on the DC Circuit or becomes a member of the Supreme Court, Judge Jackson’s “clear and straightforward” opinion in this case is a good example of the fair-minded judging that workers and others can expect from her in the future. It is an excellent illustration of the importance of the Senate confirming even more such judges on our federal courts.