Sophia Serrao
Tue, 02/08/2022
On February 1, 2022, the U.S. Court of Appeals for the D.C. Circuit reversed a Federal Labor Relations Authority decision eliminating bargaining over de minimis issues. In September of 2020, the FLRA altered their threshold for collective bargaining over management-initiated changes from issues that had more than a “de minimis” impact on employment to a higher “substantial impact” threshold. This change set a higher bar for when agencies needed to negotiate with unions. Before this change, the FLRA required collective bargaining over workplace changes that had more than a de minimis impact on employees. Public-sector unions successfully challenged this new policy, arguing that the change was not sufficiently reasoned.
Since 1985, the FLRA applied the de minimis standard to determine when agencies had to bargain with the union over a change to working conditions. Through the years, the FLRA itself explained that the de minimis test struck the correct balance between efficiency interests and labor rights and was the appropriate threshold in comparison to the substantial-impact test. Yet, in 2020, the FLRA concluded that agencies would not be required to bargain over a changed condition of employment unless the change would have a substantial impact on the employment.
Various unions challenged the FLRA’s new position, and the appellate court agreed with the unions. The court deemed the review standard change to be insufficiently explained, and ultimately arbitrary and capricious. According to the Court, the FLRA did not sufficiently explain why the de minimis standard was flawed, especially after having defended and praised the de minimis standard for more than 35 years. The court also ruled that the FLRA did not sufficiently justify the need for the higher threshold. The court determined the FLRA only provided a cursory rationale for the policy change and therefore vacated the FLRA’s decision.
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