Bloomberg Law
Feb. 1, 2022, 3:26 PMUpdated: Feb. 1, 2022, 9:55 PM

Supreme Court Hopeful Tosses Labor Policy in Debut Ruling (3)

Kathleen Dailey
Kathleen Dailey
Legal Reporter
Rob Tricchinelli
Rob Tricchinelli
Team Leader

Judge Ketanji Brown Jackson, who is reportedly in the mix to be President Joe Biden’s nominee to join the U.S. Supreme Court, sided with public-sector unions Tuesday in her first appeals court opinion.

Jackson’s opinion for the U.S. Court of Appeals for the D.C. Circuit invalidated an effort by the Federal Labor Relations Authority to heighten bargaining requirements for public-sector workers. The decision means the agency will have to reconsider a rule that wouldn’t require it to bargain over small or trivial changes to conditions of employment, including office and seating arrangements.

Since joining the D.C. Circuit, Jackson has been mentioned as one of the leading candidates to replace retiring Justice Stephen G. Breyer, now bringing more attention to her decisions.

The FLRA had long required collective bargaining for any workplace changes that had more than a “de minimis effect” on workplace conditions, but in September 2020 it adopted a more stringent standard, requiring bargaining only in situations that have a “substantial impact on a condition of employment,” Jackson’s opinion noted.

The FLRA didn’t fully support or explain the reasoning behind its decision to heighten the standard, making it arbitrary and capricious, Jackson wrote.

Bargaining Background

The ruling isn’t the first time Jackson has weighed in on federal bargaining issues.

As a judge at the U.S. District Court for the District of Columbia, Jackson blocked three executive orders issued by then-President Donald Trump, which she said would “eviscerate” federal workers’ collective bargaining rights.

The D.C. Circuit later reversed that ruling, saying that the FLRA, not the court, had the power to block the orders.

‘Cursory Statement’

Now that Jackson herself is on the D.C. Circuit, she has been involved in several per curiam orders issued by the court since she assumed the position in June 2021, but Tuesday’s FLRA case was the first opinion.

In its “cursory policy statement,” the FLRA claimed the “de minimis” standard wasn’t working because it “created uncertainty,” Jackson noted. It cited four decisions applying the standard to changes in the federal workplace.

Two of the decisions involved agency changes to employee seating arrangements; one concluded that the change was more than “de minimis,” while the other found the opposite.

It’s understandable that the agency reached different conclusions in these cases, though, because they involved very different facts, Jackson said.

These examples don’t support the FLRA’s contention that the standard is “unworkable,” Jackson wrote. Rather, they “demonstrate how it works,” through a “rigorous application” of “a fact-intensive standard to varying factual contexts,” she said.

The FLRA’s contention that it lacked sufficient reasoning when it first adopted the de minimis standard in 1985 is also “incorrect,” Jackson said. Either way, the agency still has to provide a sufficient explanation for the policy shift, she noted.

The U.S. Court of Appeals for the D.C. thus vacated the FLRA’s policy.

The American Federation of Government Employees, the largest federal union, challenged the policy shift in 2020, shortly after it was made.

Judges Cornelia T.L. Pillard and David S. Tatel joined the opinion.

Attorneys for AFGE represented the union. Attorneys for the FLRA represented the agency.

The case is Am. Fed. of Gov’t Emps. v. Fed. Lab. Rel. Auth., D.C. Cir., No. 20-1396, 2/1/22.

(Adds additional background beginning in the sixth paragraph. A previous version of this story corrected the court's name in the snapshot bullets.)

To contact the reporters on this story: Kathleen Dailey at; Rob Tricchinelli in Washington at

To contact the editors responsible for this story: Nicholas Datlowe at; Peggy Aulino at