United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2021 Decided February 1, 2022

No. 20-1396

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

Consolidated with 20-1397, 20-1404

On Petitions for Review of an Order

of the Federal Labor Relations Authority

Matthew W. Milledge argued the cause for petitioners. 

With him on the briefs were David A. Borer, Andres M. 

Grajales, Judith E. Rivlin, Teague P. Paterson, Gregory 

O=Duden, Julie M. Wilson, and Allison C. Giles.

Noah Peters, Solicitor, Federal Labor Relations Authority, 

argued the cause for respondent. With him on the brief were 

Rebecca J. Osborne, Deputy Solicitor, and Sarah C. 

Blackadar, Attorney.

Before: TATEL, PILLARD and JACKSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge JACKSON.
2

JACKSON, Circuit Judge: 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.

BACKGROUND

Before the fall of 2020, it was the longstanding view of the 

FLRA that, despite certain federal employers’ clear statutory 
3

duty to engage in collective bargaining over “conditions of 

employment,” 5 U.S.C. § 7103(a)(12), some public-sector 

management decisions were not subject to bargaining if they 

had only a “de minimis impact” on such conditions. Dep’t of 

Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. 403, 407 

(1986); see also Dep’t of Health & Human Servs. Soc. Sec. 

Admin. Reg. V, 19 F.L.R.A. 827, 834 (1985) (McGinnis, 

concurring); Dep’t of Health & Human Servs. Soc. Sec. Admin. 

Chi. Region, 15 F.L.R.A. 922, 924 (1984). The de minimis

impact exception, the FLRA explained, “derive[s] from the 

Latin phrase ‘De minimis non curat lex,’ which . . . mean[s]

that the law does not care for, or take notice of, very small or 

trifling matters[.]” Dep’t of Health & Human Servs. Soc. Sec. 

Admin, 24 F.L.R.A. at 407 & n.2 (quoting De Minimis Non 

Curat Lex, BLACK’S LAW DICTIONARY (5th ed. 1979)). In 

other words, the FLRA read 5 U.S.C. § 7103(a)(12) and (14) to 

imply a narrow exception to the statute’s collective bargaining 

requirement; one that pertained to management decisions that 

had only a trivial effect on conditions of employment. 

In October of 2019, the United States Departments of 

Education and Agriculture jointly requested that the FLRA

issue a general statement of policy changing the impact 

threshold at which collective bargaining becomes mandatory. 

See 5 C.F.R. § 2427.2 (providing for general statements of 

policy or guidance). The Departments alleged several 

problems with the longstanding de minimis standard. For 

instance, they asserted that the de minimis policy was 

insufficiently concrete to permit consistent application, causing 

unnecessary litigation. They also asserted that “effective and 

efficient government would be promoted by the establishment” 

of a clearer standard, and they maintained that the ideal 

standard would be one under which only a “substantial 

change”—or, rather, a change having a “substantial impact” on 

conditions of employment—triggers the duty to bargain. 

Request for General Statement of Policy or Guidance at 3–4,

J.A. 3–4. 

On September 30, 2020, the FLRA adopted the 

Departments’ proposed standard over a dissent and without 
4

soliciting public comment. In a four-page policy statement, the 

FLRA announced that “an agency will not be required to 

bargain over a change to a condition of employment unless the 

change is determined to have a substantial impact on a 

condition of employment.” Dep’t of Educ., 71 F.L.R.A. at 971. 

The FLRA stated that the “more than de minimis” test for 

determining when the duty to bargain is triggered is “not the 

appropriate standard,” id., in part because that test had resulted 

in bargaining “whenever management has made any decision, 

no matter how small or trivial” and is also “unpredictable,” id.

at 969. The FLRA further faulted the initial agency decision to 

adopt the de minimis standard on the grounds that it was

insufficiently explained. Id. at 970. With respect to the

substantial-impact test, the FLRA suggested that this new 

standard would create “a line that [was] meaningful and 

determinative[,]” and noted that substantial impact is the 

governing bargaining threshold in the private sector. Id.

The FLRA’s dissenting member argued that the agency’s 

adoption of a new bargaining threshold was an unjustifiable 

departure from past precedent and that there was a clear legal 

basis for the agency’s prior adoption of the de minimis

standard. See id. at 972 (DuBester, dissenting). The dissent 

also maintained that the substantial-impact test was contrary to 

the governing statute, id. at 973, and that the FLRA’s policy 

change was not sufficiently reasoned or explained, id. at 973–

76. 

The petitioners in these consolidated cases—the American 

Federation of Government Employees, AFL-CIO, the National 

Treasury Employees Union, and the American Federation of 

State, County and Municipal Employees, AFL-CIO—are labor 

unions that represent employees of government agencies that

the FLRA’s policy change covers. Each filed a timely petition 

for review of the FLRA’s policy statement, and we 

consolidated the petitions. The unions have standing as 

employee representatives whose “bargaining position” would 

be “fundamentally diminished” under the FLRA’s new 

interpretation, see Nat’l Treasury Emps. Union v. Chertoff, 452 

F.3d 839, 853 (D.C. Cir. 2006), and we have jurisdiction over 
5

their petitions for review, see 5 U.S.C. § 7123(a). 

The unions challenge the FLRA’s policy statement on two 

grounds, both of which implicate APA standards. First, they

argue that the new substantial-impact threshold rests on an 

impermissible reading of 5 U.S.C. §§ 7103(a)(12) and (a)(14);

they contend, in particular, that removing managementinitiated changes whose effects are more than de minimis but 

less than substantial from the scope of collective bargaining is 

contrary to the plain and unambiguous language of these 

statutory provisions. Second, the unions assail the FLRA’s 

policy statement adopting the substantial-impact standard as 

arbitrary and capricious. See 5 U.S.C. § 706(2)(A). In this 

regard, according to the unions, the FLRA’s explanation for 

dispensing with its old policy and adopting the new one was 

insufficient to support the policy change. 

DISCUSSION

Our analysis begins with the petitioners’ arbitrary and 

capricious challenge. The petitioners also challenge the 

substantial-impact exception as contrary to the statute and 

unsupported by any canon that would justify its treatment as

“inherent in most statutory schemes by implication.” See Ass’n 

of Admin. Law Judges v. FLRA (AALJ), 397 F.3d 957, 962 

(D.C. Cir. 2005) (quoting Env’t Def. Fund, Inc. v. EPA, 82 F.3d 

451, 466 (D.C. Cir. 1996)). Because we hold that the policy is 

unreasoned, we need not and do not reach the statutory claim. 

Cf. Shays v. FEC, 414 F.3d 76, 97 (D.C. Cir. 2005) (declining 

to assess a claim about the meaning of a statutory provision

where the failure of the challenged action under the arbitrary 

and capricious standard offered a sufficient basis for decision).

Under the arbitrary and capricious standard, “we must 

ensure that the [FLRA] ‘examine[d] the relevant data and 

articulate[d] a satisfactory explanation for its action including 

a rational connection between the facts found and the choice 

made.’” AFGE v. FLRA (AFGE 2020), 961 F.3d 452, 456

(D.C. Cir. 2020) (alterations in original) (quoting Fred Meyer 

Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)). The 

key question is, at its core, whether the FLRA “engage[d] in 
6

reasoned decisionmaking.” Fred Meyer, 865 F.3d at 638

(internal citations omitted); see also FCC v. Prometheus Radio 

Project, 141 S. Ct. 1150, 1158 (2021). And while the FLRA

certainly “may depart from its precedent,” in so doing, it “must 

supply a reasoned analysis indicating that prior policies and 

standards are being deliberately changed.” AFGE 2020, 961 

F.3d at 457 (quoting Nat’l Fed’n of Fed. Emps. v. FLRA, 369 

F.3d 548, 553 (D.C. Cir. 2004)). The agency must also show 

that “the new policy is permissible under the statute, that there 

are good reasons for it, and that the agency believes it to be 

better” than the previous policy. FCC v. Fox Television 

Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). 

With these standards in mind and for the reasons explained 

below, we conclude that the FLRA’s decision to abandon its 

longstanding precedents and adopt the substantial-impact 

standard was not sufficiently reasoned in several critical 

respects. 

A

The first problem with the FLRA’s reasoning is that its 

policy statement falls short on explaining the purported flaws 

of the de minimis standard.

To start, the policy statement’s description of the problem

it seeks to solve is inconsistent. At the beginning of its

substantive discussion, the FLRA laments that “[it] has 

effectively extended the bargaining obligation under the de 

minimis test to . . . trigger[] an agency’s duty to bargain 

whenever management has made any decision, no matter how 

small or trivial.” Dep’t of Educ., 71 F.L.R.A. at 969. The 

policy statement explains that this purportedly ubiquitous 

misapplication of the de minimis standard to require bargaining 

in any and all circumstances has “drained” that standard “of 

any determinative meaning[.]” Id. In the preceding 

paragraphs, however, the policy statement’s background 

section highlights its concern that the de minimis standard is 

“unpredictable” and “has created uncertainty,” citing several 

examples of cases in which the FLRA concluded that a 

workplace change was de minimis and thus beyond the scope 
7

of bargaining. Id. at 969 & n.14; see also id. at 970 n.18 

(explaining that the FLRA forewent solicitation of public 

comments “because we are well aware of the confusion sown 

by nearly thirty-five years of our caselaw”). 

It is not at all clear how the de minimis standard could both 

lead inexorably to the conclusion that all management 

decisions “no matter how small or trivial” must be subject to 

bargaining and at the same time yield unpredictable results, 

including, by the FLRA’s own telling, many instances in which 

the duty to bargain was not triggered. See id. at 969 & n.14. 

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.

Even looking past this apparent contradiction, the FLRA’s 

claim that the de minimis standard’s unpredictability has 

“created uncertainty that has negatively impacted labormanagement relations” is unconvincing on its own terms. Id.

at 969 (internal quotation marks omitted). As evidence of the 

“vast differences of opinion among arbitrators, judges, and the 

[FLRA itself] as to what matters affect conditions of 

employment sufficiently to require bargaining,” the FLRA

cites four pairs of decisions that involve purportedly similar 

facts in which the FLRA found certain management-initiated

changes to be more than de minimis (and thus subject to 

bargaining) and others to be de minimis (and thus not). Id. at 

969 & n.14. But closer inspection reveals that these divergent 

results are readily explained by distinguishable contexts. See 

id. at 973 (DuBester, dissenting) (“[T]he cases cited by the 

majority simply reflect the inherently fact-dependent nature of 

the de minimis exception.”).

Take, for instance, the policy statement’s citation to two 

decisions about office and seating arrangements that the agency 

now claims were contradictory. In Social Security 

Administration, Baltimore, Maryland, the FLRA concluded 

that “changes in seating assignments . . . including the 

movement of four employees (one-fourth of all [bargaining] 

unit employees) and one employee[’]s[] loss of access to a 
8

window” when considered together were “sufficient to support 

the . . . conclusion that the changes in seating arrangements 

were more than de minimis.” U.S. Dep’t of Health & Human 

Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. 655, 668, 688

(1990)). In GSA, Region 9, on the other hand, the FLRA 

determined that an employer’s decision to temporarily move a 

single employee to another building—after her union 

suggested that such a temporary move would benefit the 

employee—had, in light of “equitable considerations,” only a 

de minimis impact on her working conditions. 52 F.L.R.A.

1107, 1108–09, 1111–12 (1997). 

To describe these decisions is to distinguish them. And

the latter decision, GSA, Region 9, indeed expressly 

distinguished the former as being about a “permanent 

relocation[] of employees that w[as] instituted by agency 

management for operational reasons,” rather than a temporary 

move at the employee’s union’s suggestion. See id. at 1112

(citing U.S. Dep’t of Health & Human Servs., Soc. Sec. Admin., 

Balt., Md., 36 F.L.R.A. at 655). The FLRA’s summary 

assertion that these decisions were irreconcilable and thus 

evidence of the de minimis exception’s unpredictability thus

lacks merit.

The FLRA’s other examples are more of the same. For 

instance, the agency speciously summarizes one of its 

decisions as holding that “[r]equiring [an] employee to give up 

a ‘second’ office while keeping [his] primary office” was 

“more than de minimis” and another as determining that

“moving an employee permanently to a vacant office 

[was] held not to be more than de minimis.” Dep’t of Educ.,

71 F.L.R.A. 969 n.14 (first citing U.S. Dep’t of the Air Force, 

Air Force Materiel Command, Space & Missile Sys. Ctr.,

Detachment 12, Kirtland Air Force Base, N.M., 64 F.L.R.A.

166, 173–74 (2009); and then citing Nat’l Treasury Emps.’ 

Union, Chapter 26, 66 F.L.R.A. 650, 653 (2012)). 

But these decisions too are readily distinguishable on their 

facts. U.S. Department of the Airforce concerned an 

employer’s decision to downsize the workspace of a trainer 
9

who was a member of the relevant collective bargaining unit. 

64 F.L.R.A. at 173–74. In that case, the FLRA held that the 

employer’s decision to downsize the trainer’s primary office at 

the same time it took away a second workspace that he had used 

to conduct certain face-to-face training and store equipment—

changes made on short notice and without relocation

assistance—when viewed alongside problems with the new 

workspace, constituted a more-than-de minimis change. See 

id. In stark contrast, National Treasury Employees’ Union, 

Chapter 26, was not about the reassignment of a union 

employee at all; instead, it concerned a union’s challenge to an 

employer’s decision to assign an employee outside the 

bargaining unit to a vacant workstation in the same office as 

employees in the bargaining unit. 66 F.L.R.A. at 652–53. 

Unsurprisingly, the FLRA held that the mere presence of an 

employee outside the bargaining unit in the same office as unit 

members had only a de minimis effect on the union employees’ 

conditions of employment. Id. at 653. Once again, the FLRA’s 

evidence of an irretrievably broken standard falls flat.

As this court observed once before, “there is little 

indication that the de minimis exception” has created the sort 

of “confusion” the FLRA now claims. AALJ, 397 F.3d at 963. 

Rather than demonstrate such confusion, the examples that the 

FLRA cites to frame the problem it seeks to address seem to us 

to demonstrate rigorous application by the FLRA of a factintensive standard to varying factual contexts. Put another 

way, far from demonstrating the de minimis standard is 

unworkable, the FLRA’s policy statement simply appears to 

demonstrate how it works.

B

The FLRA’s condemnation of the de minimistest also fails

to grapple with the agency’s own past policy choices and this 

court’s decisions upholding them.

1

In the policy statement under review, the FLRA insists that 

the agency’s initial adoption of the de minimis threshold back 

in 1985 was insufficiently explained and reasons that this initial 
10

failure supports the 2020 policy change. In this regard, the 

FLRA explains that the agency had used a substantial-impact 

standard for a few years before it adopted the de minimis 

threshold in 1985. And it calls the decision to discard the 

substantial-impact standard in favor of the de minimis 

threshold “specious” for failing to “provide any rationale as to 

why the substantial impact standard was incorrect.” Dep’t of 

Educ., 71 F.L.R.A. at 970 n.24. The FLRA further suggests 

that if a rigorous statutory analysis had been done in 1985, the 

agency would have discovered that “the de minimis standard is 

inconsistent with the purposes of the Statute.” Id. at 971. Thus, 

the FLRA seeks to cast its policy change as merely correcting 

thirty-five-year-old procedural and interpretive errors. 

That rationale cannot withstand scrutiny. It is true that 

before it adopted the de minimis exception in 1985 the FLRA 

had applied a substantial-impact standard like the one at issue 

here, apparently as a carryover from the executive-order 

regime that governed public-sector labor relations before the 

enactment of the Labor-Management Relations Statute in 1978. 

But the mere fact that the FLRA briefly used a substantialimpact standard soon after the agency’s creation does not

provide inherent support for the present decision to discard 

thirty-five years of intervening precedent and return to that past 

policy. Indeed, Executive Order 11491, which governed 

before the Labor-Management Relations Statute, did not 

require bargaining at all. Instead, it directed agencies to 

“meet . . . and confer in good faith with respect to personnel 

policies and practices and matters affecting working 

conditions, so far as may be appropriate,” Exec. Order No. 

11,491 § 11(a), 3 C.F.R. (1966-1970), which is in marked 

contrast to the Labor-Management Relations Statute’s

requirement that agencies bargain over “any condition of 

employment,” 5 U.S.C. § 7114(b)(2); see also Nat’l Fed’n of 

Fed. Emps. v. FLRA, 369 F.3d 548, 554 (D.C. Cir. 2004) 

(“Congress passed the Federal Labor Relations Act to 

encourage collective bargaining between federal employees 

and their employers.”). And the FLRA has itself recognized 

that the Labor-Management Relations Statute is more 
11

protective of collective bargaining than was the Executive 

Order and practice thereunder. See Dep’t of Educ., 71 F.L.R.A. 

at 974 & nn. 42–44 (DuBester, dissenting).

Furthermore, the FLRA’s characterization of its earlier 

decisions as lacking explanation for its adoption of the de 

minimis exception is misleading. In fact, as the dissenting 

Commissioner points out, id. at 974–75 (DuBester, dissenting),

those earlier decisions expressly considered the question, and 

in light of Congress’s clear purpose of expanding public-sector 

bargaining rights, the mid-1980s FLRA specifically “rejected 

the ‘substantial impact’ test” in favor of the de minimis 

exception, Dep’t of Health & Human Servs. Soc. Sec. Admin. 

Chi. Region, 15 F.L.R.A. at 924. What is more, the agency

explained back then that it was rejecting the substantial-impact 

threshold both because the de minimis test struck the correct 

balance between government efficiency interests and labor 

rights, see Dep’t of Health & Human Servs. Soc. Sec. Admin. 

Reg. V, 19 F.L.R.A. at 834 (McGinnis, concurring), and

because “[t]he limited scope of Federal sector bargaining 

caused by external laws, rules, and regulations also demands 

that the [FLRA] not impose further limitations unless they are 

based on clear statutory authority and are buttressed by sound 

policy considerations,” Dep’t of Health & Human Servs. Soc. 

Sec. Admin., 24 F.L.R.A. at 406–07. And the FLRA has since 

reiterated the view that the de minimis standard is “the 

appropriate threshold” under the relevant statutory provisions. 

Soc. Sec. Admin. Off. of Hearings & Appeals, 59 F.L.R.A. 646, 

653 (2004), aff’d, AALJ, 397 F.3d at 964. 

To be sure, the FLRA’s reasons for replacing the 

substantial-impact standard with the de minimis exception 

back in the mid-1980s were not tidily arranged in a single 

decision. But the FLRA’s present assertion that the agency had

offered no “explanation or rationale to support the change”

from the substantial-impact test to the de minimis standard,

Dep’t of Educ., 71 F.L.R.A. at 970, is simply incorrect. 

Notably, even if the FLRA had failed to provide an 

adequate explanation for its adoption of the de minimis
12

standard more than thirty-five years ago, any such failure 

would not absolve the agency of its present-day responsibility 

to explain its decision to jettison the precedents that apply the 

de minimis threshold. The FLRA cannot point to a latent and

unchallenged purported defect in the original adoption of its 

prior policy and offer that as an independent basis for adopting 

a new one. Rather, the decision to adopt a new policy must be 

sufficiently explained on its own terms, because “[i]n 

administrative law, as elsewhere, two wrongs do not make a 

right.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 

914, 928 (D.C. Cir. 2017). We have long held that “we cannot 

condone the ‘correction’ of one error by the commitment of 

another,” id. (quoting Gray v. Mississippi, 481 U.S. 648, 663 

(1987)), and we decline to do so here.

2

Finally, to the extent that the FLRA now asserts that the de 

minimis standard must go because it is categorically

“inconsistent with the purposes of the [Labor-Management 

Relations] Statute,” Dep’t of Educ., 71 F.L.R.A. at 971, that

contention is plainly contrary to this court’s past interpretation 

of the statute. 

In AALJ, for instance, a union challenged the FLRA’s 

application of the de minimis exception to a new category of 

management decisions. The agency argued the exception was 

inherent in the statute, and thus urged us to hold that collective 

bargaining was not required for a de minimis change to 

conditions of employment. We agreed, concluding that an

exception for de minimis effects on conditions of employment

is “inherent in” the statute and thus “neither contrary to the text 

nor unreasonable in light of” the Labor-Management Relations 

Statute’s purpose. AALJ, 397 F.3d at 959, 962. 

Our holding in AALJ is a clear recognition of the 

appropriateness of a de minimis exception to the duty to 

bargain, as a matter of law. Thus, when the FLRA nevertheless

reached the conclusion that the de minimis test is not 

“appropriate” for determining whether the duty to bargain is 

triggered, Dep’t of Educ., 71 F.L.R.A. at 971, it not only 
13

ignored its own decisions outlining the reasons for its adoption 

of the de minimis exception in the first place, but also “departed 

from precedent” that had expressly decided that the de minimis 

exception is consistent with the Labor-Management Relations 

Statute, AFGE 2020, 961 F.3d at 459. For this reason, too, we

conclude the need for the policy change “is not sensibly 

explained.” Id. (internal quotation marks omitted).

C

Up to this point, we have focused on the deficiencies in the 

FLRA’s reasons for its conclusion that the de minimis standard 

was so problematic that it needed to be changed. Beyond the 

various ill-defined reasons that the FLRA offers for departing 

from the de minimis threshold, the policy statement under 

review also undertakes to explain why the FLRA now prefers

the substantial-impact standard. The FLRA points to two

principal reasons for this decision. And, once again, neither is 

sufficiently explained. 

1

The FLRA first heralds the substantial-impact standard’s 

bona fides by suggesting that it draws “a line that is meaningful 

and determinative” for agencies and their employees seeking 

to navigate labor negotiations. Dep’t of Educ., 71 F.L.R.A. at 

970. And in its brief the FLRA further contends that its finding

that the new standard will be more predictable and 

administrable is “precisely the sort of predictive judgment” to 

which this court must defer. FLRA Br. 63. 

But neither the FLRA’s challenged decision nor its brief 

on review analyzes the relative administrability of the 

substantial-impact and de minimis standards. This is a critical

“gap in [the FLRA’s] reasoning[.]” AFGE 2020, 961 F.3d at 

459. And the FLRA simply ignores the guidance and 

elaboration provided in its own opinions. See, e.g., Dep’t of 

Health & Human Servs. Soc. Sec. Admin. Region V, 19 

F.L.R.A. at 834–35 (McGinnis, concurring) (identifying five 

factors informing application of the de minimis standard). It is 

especially striking that the FLRA does not provide a 

comparative analysis of the two standards or in its policy 
14

statement even argue that the substantial-impact standard used

by the National Labor Relations Board (NLRB) in the privatesector context has in fact led to more predictable results, since, 

as noted above, the FLRA frames inconsistent application as 

the principal problem the new standard is designed to fix.

There is no obvious reason to expect that labor unions and 

employers will disagree less frequently about whether any 

given management decision has a “substantial impact” on 

conditions of employment than they previously did over 

whether such a decision had a more than de minimis effect. But 

see Dep’t of Educ., 71 F.L.R.A. at 971. Indeed, these two

standards share many characteristics that might lead one to 

expect just as much disagreement—and, for that matter, just as 

many “differences of opinion among arbitrators, judges, and 

the [FLRA] as to what matters affect conditions of employment 

sufficiently to require bargaining[,]” id. at 969 (internal 

quotation marks omitted)—when the substantial-impact 

threshold is applied. See also id. at 973–74 (DuBester, 

dissenting) (“The majority fails to explain how adoption of its 

new standard will produce decisions that are any less factdependent than those applying the current standard.”). Thus, 

the new standard that the FLRA has adopted is not the sort of 

“common sense” measure for “advanc[ing the decision’s 

stated] goals”—here, predictability and streamlined 

administration—that we have found adequate to withstand 

arbitrary and capricious review. Free Access & Broad. 

Telemedia, LLC v. FCC, 865 F.3d 615, 618 (D.C. Cir. 2017). 

To address this obvious shortcoming, the FLRA argues for 

the first time in its brief that the new substantial-impact 

standard will have more predictable results because the FLRA

will be able to draw on fifty years of NLRB decisions applying 

the substantial-impact test. The FLRA does not explain in its 

brief or otherwise why the NLRB’s substantial-impact

decisions would be easier to apply than the FLRA’s own thirtyfive years of precedents using the de minimis test. But,

regardless, this argument is forfeit because it was not raised 

“where it counts”—i.e., in the challenged decision itself. 

AFGE 2020, 961 F.3d at 457; see Motor Vehicle Mfrs. Ass’n of 
15

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50

(1983) (“[C]ourts may not accept appellate counsel’s post hoc 

rationalizations for agency action.”).

What remains is the FLRA’s bald assertion that its own 

“determination that the substantial impact test would draw a 

line that is [more] meaningful and determinative is precisely

the sort of predictive judgment to which this [c]ourt accords 

heightened deference.” FLRA Br. 63 (internal quotation marks 

omitted). We fully recognize that we must defer to expert 

agencies’ “reasoned predictions about technical issues[.]”

BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 (D.C. 

Cir. 2008). But 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. 

With respect to its consistency concern, the FLRA must at 

least explain why and how it has concluded that the substantialimpact threshold is “better” than the standard it was 

relinquishing. Fox Television, 556 U.S. at 515. It has failed to 

do so. 

2

The FLRA’s final tack is to invoke the NLRB’s 

longstanding use of a substantial-impact standard in the 

private-sector context, as an independent reason for the 

FLRA’s adoption of the same collective bargaining threshold. 

The FLRA’s policy statement asserts that, because “collective 

bargaining in the public sector” under the Labor-Management 

Relations Statute “must be narrower” than in the private sector,

“[i]t is incongruous . . . [to apply] a standard more lenient than 

the test applied by the [NLRB] . . . to determine whether a 

change requires bargaining.” Dep’t of Educ., 71 F.L.R.A. at 

970. In its brief, the FLRA adds that it is not just permitted but 

indeed required to consider NLRB precedents when it

administers parallel provisions of its statute; in this regard, it
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points to our instruction that “when the [FLRA] departs from a 

familiar principle rooted in private sector precedent, it should 

either identify ‘practical distinctions between private and 

governmental needs’ that justify the departure, or offer some 

evidence in the language, history, or structure of the statute 

suggesting that Congress intended a different result.” AFGE v. 

FLRA (AFGE 1988), 853 F.2d 986, 992 (D.C. Cir. 1988) 

(citation omitted). 

But NLRB precedent cannot save the FLRA’s unreasoned 

and unreasonable determination to import the substantialimpact standard. To start, the FLRA flips the controlling 

question on its head. Unlike in AFGE 1988, we are not being

called upon to review a decision to part ways with NLRB

precedent in the first instance. Instead, we are evaluating the 

FLRA’s recent departure from its own longstanding precedents

that since the 1980s have struck a balance that is different from 

the NLRB’s decisions. In other words, the baseline for our 

review is the FLRA’s longstanding and repeatedly reaffirmed 

decision to diverge from NLRB policy, which makes AFGE 

1988’s explanation of what the FLRA must do to rationalize a

new departure from NLRB precedent inapposite. 

The FLRA’s decision to adopt the NLRB’s substantialimpact test also fails to account for the agency’s own past 

assessments of how the differences between the public-sector 

and private-sector bargaining contexts inform the appropriate 

bargaining threshold. We have previously cautioned that the 

FLRA must “be careful to appreciate fully those distinctions 

between the private and public sectors that might necessitate a 

different legal analysis and conclusion” with respect to 

collective bargaining, since “the bargaining status of any given 

subject is determined by different statutory provisions and by 

different policy considerations.” Library of Cong. v. FLRA, 

699 F.2d 1280, 1287 (D.C. Cir. 1983). 

The FLRA apparently took those distinctions into account 

in its 1986 decision in Department of Health & Human 

Services Social Security Administration, when it acknowledged 

the NLRB’s substantial-impact standard was “similar[]” to the 
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FLRA’s de minimis exception, 24 F.L.R.A. at 406 n.1, but

nevertheless opted to apply the de minimis standard. Critically, 

that decision highlighted “[t]he limited scope of Federal sector 

bargaining caused by external laws, rules, and regulations[,]” 

and observed that this context “demands that the [FLRA] not 

impose further limitations unless they are based on clear 

statutory authority and are buttressed by sound policy 

considerations.” Id. at 406–07 (emphasis added); cf. Library 

of Cong., 699 F.2d at 1287 & n.33 (explaining that “[t]he scope 

of collective bargaining is far broader in the private sector,” in 

terms of the categories of conditions subject to bargaining, 

since the Labor-Management Relations Statute “exclu[des] 

from the scope of federal sector bargaining [] matters provided 

for by federal statute, such as the pay rate or hours of 

employment”).

Thus, the FLRA has held in the past that the relative 

substantive narrowness of the public-sector bargaining

mandated under the Labor-Management Relations Statute in 

fact supports the de minimis standard notwithstanding the 

NLRB’s more stringent bargaining threshold. See Dep’t of 

Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407.

That conclusion is precisely the opposite of the one that the 

FLRA reached here. The agency now ignores its earlier 

balancing of the factors unique to public-sector bargaining and 

fails to address the reasons that it previously found persuasive 

when it decided to select a test that differs from the one that 

pertains to private-sector bargaining. 

We conclude that, whatever the virtues of the FLRA’s 

present analysis concerning the statutory scheme for publicsector bargaining relative to its private-sector counterpart 

(which we do not here decide), the FLRA must acknowledge 

that in the past it reached the opposite conclusion about the 

need for congruity between the public- and private-sector 

bargaining thresholds. Thus, “[i]t is not enough” for the agency 

to now rest on abstract invocations of the “narrowness” of 

public-sector bargaining or “rely vaguely on [it]s general duty 

to interpret the statute with government efficiency in mind.”

AFGE 1988, 853 F.2d at 993. Rather, the FLRA’s adoption of 
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the substantial-impact threshold after it previously and 

specifically rejected that standard must be built on a more 

“solid foundation,” id., including an explanation of the 

agency’s view of why the new approach better comports with 

all of the provisions that Congress enacted to govern collective 

bargaining in the public sector. See, e.g., 5 U.S.C. 

§ 7101(a)(1)(B) (finding that collective bargaining 

“contributes to the effective conduct of public business”).

The FLRA’s failure to address its previous balancing of 

the Labor-Management Relations Statute’s priorities—a 

balancing that led it to adopt a different policy than that of the 

NLRB—is yet another indication that the FLRA has not, in 

fact, “engage[d] in reasoned decisionmaking.” Fred Meyer, 

865 F.3d at 638; see 5 U.S.C. § 706(2)(A).

CONCLUSION

The cursory policy statement that the FLRA issued to 

justify its choice to abandon thirty-five years of precedent

promoting and applying the de minimis standard and to adopt 

the previously rejected substantial-impact test is arbitrary and 

capricious for the reasons explained above. Consequently, the 

unions’ petitions for review are granted and the FLRA’s

September 30, 2020 general statement of policy is vacated. 

So ordered.