Ketanji Brown Jackson may sit at the top of President Joe Biden’s Supreme Court short list, but until she gets the nod, she’ll keep plugging away at her current gig: a judge on the nation’s “second highest court,” the U.S. Court of Appeals for the District of Columbia Circuit. This court has long served as a springboard to SCOTUS, which may be one reason Biden elevated Jackson to it in June. While Jackson authored myriad opinions during her eight years as a trial court judge, she had not written a single opinion for the D.C. Circuit—until Tuesday, when she made her debut in AFL-CIO v. Federal Labor Relations Authority. The case emerged from a sharp dispute between the Trump administration and organized labor over the rights of federal unions to negotiate their working conditions. And in her lucid, concise opinion, Jackson delivered an unqualified win to union rights.
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The roots of Tuesday’s decision lie in President Donald Trump’s takeover of the Federal Labor Relations Authority, or FLRA, an agency that oversees labor-management relations for 2.1 million federal workers (and their unions). Trump established a 2–1 majority on the agency’s board by installing two Republican union-busters, Colleen Duffy Kiko and James T. Abbott. Toward the end of Trump’s presidency, Kiko and Abbott issued multiple “general statements of policy” overturning decades of case law protecting collective bargaining. These policies aggressively limited unions’ ability to negotiate matters that did not come up in formal bargaining, including new demands and restrictions from management.
Jackson’s first D.C. Circuit opinion involves one such “statement” from Kiko and Abbott about when, exactly, managers trigger their “duty to bargain.” Federal law compels agencies to bargain collectively over any “condition of employment” that affects working conditions. In 1985, however, the FLRA created an exception for “de minimis” changes, which are so “trivial” that they do not merit attention. So, for instance, an agency can reduce the number of reserved spots in a parking garage where space is always available without bargaining first. But if an agency wants to make it more difficult for its employees to get reimbursed for cellphone calls on work-related travel, it’ll need to go to the bargaining table. This “de minimis” rule encourages managers to err on the side of negotiating meaningful new work requirements instead of imposing them unilaterally.
Kiko and Abbott decided to replace this standard with a much more stringent rule: Managers, they declared, need only bargain over workplace changes that have a “substantial impact” on employment conditions. It’s not entirely clear how this standard would cash out in the real world, but Kiko and Abbott implied that it would inherently favor “government efficiency” over workers’ rights. It’s easy to envision managers attempting to pile on extra hours, limit telework, cut comp time, and slash benefits—anything not required by the latest union contract could be fair game. This standard encourages managers to find loopholes in the contract, ramming through new demands unilaterally by insisting that they aren’t truly “substantial.”
A group of unions sued, and on Tuesday, Jackson agreed with them that the FLRA’s move was “arbitrary and capricious” in violation of federal law. She framed the case around one simple question: Was the board’s departure from precedent support by “a reasoned analysis”? It was not, she explained, for several reasons. First, the board’s criticism of the “de minimis” standard failed basic logic: It simultaneously asserted that this test invariably triggered a duty to bargain and produced wildly “unpredictable results.”
“It is not at all clear,” Jackson continued, how the standard could be “unpredictable” if it always leads to the same outcome. “Yet that is how the FLRA’s policy statement reads: the existing standard both purportedly subjects every minor decision to review and is unworkable because it is impossible to predict.”
The FLRA board put forth several examples of the old standard’s alleged inconsistency; for instance, one temporary change to a new office was deemed “de minimis,” while a permanent change to seating assignments was not. But, as Jackson explained, “closer inspection reveals that these divergent results are readily explained by distinguishable contexts.” In each case, there was a rational justification for differing outcomes, a key factor that rendered a manager’s decision more or less than trivial. Or, as Jackson put it: “To describe these decisions is to distinguish them.”
Next, Jackson turned to the board’s refusal to engage candidly with the FLRA’s 35-year history applying the “de minimis” standard. Kiko and Abbott claimed that the agency never explained the basis for the test. But their “characterization” of this precedent is “misleading.” In reality, the agency adopted the test because Congress passed a new law that was “more protective of collective bargaining,” forcing the agency to expand employers’ duty to bargain. It is not, as the board declared, inconsistent with “the purposes” of laws protecting federal unions.
Third, Jackson rejected Kiko and Abbott’s claim that a “substantial impact” test would somehow draw a brighter line. The board failed to “provide a comparative analysis of the two standards,” and “there is no obvious reason to expect that labor unions and employers will disagree less frequently” about what counts as a “substantial impact.” All the FLRA provided was a “bald assertion” that, in its view, the new test would work better. Jackson declined to defer to this determination, explaining: “There is nothing technical about the predictability assessment that the FLRA makes here, and we are not bound by the FLRA’s conclusory and counterintuitive assertions about the consistency with which its new standard is likely to be applied in subsequent adjudications, especially when the record contains no factual basis for making such a forecast.”
And that’s pretty much it. Nothing flashy, nothing heated, just a clear and straightforward application of the law in a manner that happens to produce a major victory for federal unions. It’s not much different from her writing on the U.S. District Court for the District of Columbia, though it lacks the biting maxims (“presidents are not kings”) that Jackson occasionally deployed on the lower court. In lieu of flashy prose, Jackson leaned on wry understatement and pith.
On the district court, Jackson exhibited a deep understanding of labor law, as well as a refreshing lack of antipathy toward unions (all too common among her Trump-appointed colleagues). At this inflection point for labor, as millions of Americans demand better working conditions and fight the decline of unions, she brings important expertise to the bench. Biden vowed to be the most pro-union president ever, and placing Jackson on the Supreme Court would certainly help to cement that legacy.
