Looking at Ketanji Brown Jackson, Possible Supreme Court Nominee and New Decision Impacting Unions

A Court of Appeals has overturned an FLRA decision. The court decision was written by Ketanji Brown Jackson, potential Supreme Court nominee.

Ketanji Brown Jackson Authors Appeals Court Decision

The Court of Appeals for the District of Columbia Circuit has issued a consolidated decision from several unions involving a federal labor relations issue. The case is an appeal from a 2020 statement of policy issued by the Federal Labor Relations Authority (FLRA).

Of more general interest, the Court’s decision was written by “Circuit Judge Jackson”. Judge Jackson is Ketanji Brown Jackson.

The federal labor relations community is relatively small and generally works with issues of little interest to the general public. Generally, the case decisions involve the interpretation and application of the federal government’s labor relations statute. Most cases are brought by unions representing federal employees and often involve issues concerning conditions of employment in a federal agency.

That is also the case in the recent appeals court decision AFGE v. FLRA (20-1396). Again, the case decision is of little interest to the general public or even to most federal employees outside of the labor relations community.

What is unique about the case is that some labor relations experts will recognize the name of the judge. Judge Jackson has previously issued a decision on a federal labor relations issue summarized in several articles on FedSmith.

In this earlier decision, she overturned several Executive Orders issued by President Trump. One of the articles on Judge Jackson’s decision summarized her decision in this way:

The decision offers a theory of collective bargaining for the federal government relying more on a somewhat extreme left-wing view of the process than either that envisioned by the governing statute, 40 years of Federal sector negotiations, or any semblance of common sense.

Looking back, it is ironic that the Court of Appeals for the District of Columbia refused to uphold the initial decision written by Judge Jackson and refused to rehear the unions’ case involving the Trump Executive Orders.

Judge Jackson: US Future Supreme Court Justice?

Again, this is normally of little interest to the general public.

Judge Jackson is now considered a front-runner as a nominee by President Biden for the US Supreme Court. In other words, the decision issued this week by the Court of Appeals and written by Judge Jackson may be viewed as important because of her possible future as a Supreme Court Justice.

As noted by this news report, the case is her first opinion from the appeals court backing unions. Of course, it is not her first case involving unions or federal sector unions as noted above. In that case, the Court of Appeals, where Judge Jackson now sits, overturned her decision and concluded the proper venue to resolve the case was the Federal Labor Relations Authority.

Case Now Before the Court of Appeals

Judge Jackson now has had a “second bite of the apple” on a federal labor relations case as she wrote the latest decision before this Court of Appeals involving the Federal Labor Relations Authority. This time around, she was ruling on a decision of the FLRA and not reviewing Executive Orders issued by former President Trump so the jurisdictional issue was not in question.

In the initial decision before the lower court on which Judge Jackson ruled, labor relations expert Bob Gilson made this observation about the decision:

Judge Jackson applies a personal view or understanding of bargaining in her decision. Her view, intensely pro-union, is that collective bargaining cannot be limited in any way except by the statute while the clear language of the law gives any government-wide rule or regulation such authority….

The latest decision on labor relations by Judge Jackson appears to be consistent with Gilson’s initial observation. In the latest decision, the issue concerns a bargaining issue involving an interpretation of the federal labor relations statute.

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.” Previously, the FLRA had used a “de minimis” standard as an exception to the obligation to bargain on a topic in the federal government.

In this new case, the Court agreed with the unions’ position and concluded that the FLRA’s decision “was not sufficiently reasoned, and thus is arbitrary and capricious in violation of…the Administrative Procedure Act….”

Basis for FLRA Decision: Weeding Out Trivia

In 2020, in its policy decision, the Federal Labor Relations Authority overturned the de minimis best for deciding whether a topic was appropriate for bargaining in the federal sector. In its decision, the FLRA wrote:

[W]e conclude that a “more than de minimis” test is not the appropriate standard to apply to determine whether a purported agency initiated change is significant enough to impose upon an agency a statutory duty to bargain. By definition, “de minimis” signals triviality. Therefore, it is incongruous to impose a statutory duty to bargain on matters that are barely more than trivial, but even more so, when the matters have no substantial impact on conditions of employment. Accordingly, the Authority will not use “more than de minimis” as a test to determine whether an agency has a duty to bargain over changes to conditions of employment.

In the Court’s 18 page decision, the holding was that the FLRA’s decision “falls short on explaining the purported flaws of the de minimis standard” with a detailed history of prior FLRA decisions on the issue.

Impact of this Decision on Supreme Court Nomination

There was little doubt that the philosophy of Ketanji Brown Jackson would be highly regarded by unions. President Biden narrowed the field of potential candidates for the Supreme Court down to a “Black female” during his presidential campaign. So, Judge Jackson certainly checks two important boxes on his list of candidates.

The unions and the administration are very much in sync. The unions do not criticize the administration and the administration works to award benefits to unions. As President Biden said while campaigning, “union members were the supporters who ‘brung me to the dance.’

Do not be surprised to see this decision authored by Judge Jackson referenced in news articles as President Biden narrows down his choices and seeks support from other political allies prior to making a final announcement.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47