Labor Department Objects to Union Intervention in OSHA Lawsuit

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By Bruce Rolfsen

Unions shouldn’t be allowed to defend OSHA’s electronic record-keeping rule in federal court, attorneys representing the Department of Labor say.

The federal attorneys, in a May 30 response to the union proposal, say the Trump administration will represent the unions’ interests in preserving the rule against a lawsuit filed by several business organizations.

“In this litigation, the Unions and the Government have an identical interest—defending the Rule—and the Unions have failed to identify a concrete manner in which the Government cannot adequately represent that shared interest,” Labor Department lawyers said ( Nat’l Assoc. of Home Builders v. Perez , W.D. Okla., No. 17-0009, 5/30/17 ).

Randy Rabinowitz of the Occupational Safety & Health Law Project LLC, one of the attorneys representing the unions, told Bloomberg BNA May 31 that she couldn’t recall another case where the Labor Department objected to union help in defending an OSHA rule.

Trump Commitment?

The unions in their March 8 motion to intervene said that President Donald Trump’s actions to rescind or weaken regulations raise questions on whether the government will defend the rule.

Although the rule took effect Jan. 1, OSHA has postponed indefinitely the July 1 deadline for employers to submit their records and removed language from its website justifying some portions of the rule.

The government position is similar to the stance taken by the coalition of employer organizations, including the U.S. Chamber of Commerce, which initiated the court challenge.

Industry groups say in their May 30 response to the unions’ intervention motion that the unions should be kept out of the lawsuit for several reasons. Those reasons include that the unions already have access to the record-keeping data for the worksites they represent and that “there is no basis at present to conclude” the Labor Department won’t represent the unions’ views.Government attorneys left the door slightly open for union intervention, saying they took no position on the judge using his own discretion to allow “permissive” intervention. Judge David L. Russell of the U.S. District Court for the Western District of Oklahoma is presiding over the case and hasn’t indicated when he’ll rule on the unions’ intervention request.

Affects 466,000 Employers

The record-keeping rule calls for about 466,000 employers to electronically file with OSHA data from injury and illness logs that the agency requires workplaces to keep (RIN:1218-AC49). Once the information is submitted, OSHA would post each employer’s numbers on the agency’s public website.

In addition, the rule limits drug testing and incentive programs that could convince workers they shouldn’t report hazards, injuries and illnesses.

Representing the government are Department of Justice attorneys Michael Bahr and Judry Subar of the Federal Programs Branch, and Deputy Assistant Attorney General Joyce Branda.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The government's May 30 intervention response is available at http://src.bna.com/pnA.

The March 8 motion to intervene is available at http://src.bna.com/pnI.

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