Judge Ketanji Brown Jackson's First Circuit Court Opinion

Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit is among the jurists identified as a potential replacement for Justice Stephen Breyer on the Supreme Court. This week, she issued her first opinion in an argued case as a judge on that court, American Federation of Government Employees v. National Labor Relations Authority in which a unanimous panel threw out a Trump Administration policy limiting the sorts of workplace changes that require collective bargaining.

Here's how Judge Jackson summarizes the ruling:

By statute, certain federal employers are required to engage in collective bargaining with their employees' representatives whenever there is a management-initiated change to the "conditions of employment affecting such employees." Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7103(a)(12); see also id. §§ 7102(2), 7103(a)(14). Congress has defined "conditions of employment" to include "personnel policies, practices, and matters . . . affecting working conditions," with certain enumerated exceptions. Id. § 7103(a)(14). And from the mid-1980s until the policy statement challenged here, the Federal Labor Relations Authority ("FLRA") interpreted these statutory provisions to require collective bargaining over any workplace changes that have more than a de minimis effect on such working conditions.

In September of 2020, the FLRA adopted a new threshold for when collective bargaining is required. Under the agency's new standard, the duty to bargain is triggered only if a workplace change has "a substantial impact on a condition of employment." U.S. Dep't of Educ., 71 F.L.R.A. 968, 971 (2020). The petitioners are public-sector labor unions that challenge the FLRA's decision to alter the bargaining threshold; they maintain that the FLRA's new standard is both inconsistent with the governing statute and insufficiently explained, and is therefore arbitrary, capricious, and contrary to law.

In the opinion that follows, we hold that the FLRA's decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). We therefore grant the unions' petitions for review and vacate the FLRA's policy statement.