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Court urged to bar union intervention in OSHA suit

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Employer groups urged a federal court to reject a motion by unions to intervene in the employers’ lawsuit against the U.S. Occupational Safety and Health Administration over the agency’s electronic record-keeping rule.

The regulation requires certain employers submit injury and illness data electronically and applies to establishments with 250 or more employees and to establishments with less than 250 employees but with 20 or more in certain high-risk industries.

On Jan. 4, the National Association of Home Builders of the United States and the U.S. Chamber of Commerce, among other organizations, challenged the regulation in U.S. District Court in Oklahoma City, asking the court to declare the rule unlawful and for an order vacating the regulation. The court granted a 60-day stay in the litigation on April 5, with a joint proposed summary judgment briefing by the plaintiffs and the government due on June 9.

The lawsuit contested OSHA’s plans to publish the collected information on a public website, with the plaintiffs arguing that there is no evidence that publication of the information will have any effect on workplace safety and health. In mid-May, the agency said it would delay the July 1 compliance date for the electronic submission of the 2016 Form 300A, but did not give a new date for implementation.

“I suspect everything will just be extended again,” said Matthew Linton, Denver-based of counsel with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. “If I were representing either party, I would want to put the brakes on and wait to see what OSHA is going to do.”

Two unions — the AFL-CIO and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union — filed a motion to intervene in the case on March 8, claiming their interests are not adequately represented by the existing parties.

“This is a pretty straightforward regulation,” said Margaret Seminario, director of safety and health at the union AFL-CIO in Washington. “This is nothing new and the fact that the Labor Department isn’t able to move forward or is delayed in moving forward on this is quite troubling.”

 “Unfortunately, under the Trump administration, we don’t have full confidence the Labor Department will stand by the regulation,” Ms. Seminario said.

The plaintiffs in the Oklahoma lawsuit urged the court to deny the unions’ motion in a filing last week.

“The unions have not demonstrated that they have an ‘interest’ in the rule, particularly given existing rules related to access to Occupational Safety and Health Administration logs by collective bargaining agents,” the plaintiffs continued. “In addition, there is no basis at present to conclude that the unions’ views on the rule would not be adequately represented by the defendants.”

But the unions argued that they have a right to intervene in part because the regulation would provide specific, new rights for them and their members, including allowing them to research injury experience and hazards across companies and industries.

“Accessing the data anonymously through a public website would be particularly helpful for workers who may fear retaliation if they request information directly from employers,” the unions stated in a new filing on Monday.

The federal government also objected to giving the unions the right to intervene.

“A government agency defending a regulation against a facial challenge has at least as much incentive and ability to defend that regulation, and to represent the interests of those who support it, as any member of the public,” the government said in its response last week. “Accordingly, any member of the public who seeks to intervene as of right in defense of a regulation must first clear a high bar where, as here, the government and the would-be intervenor share the same ultimate objective of defending the challenged regulation. Because the applicants for intervention here have not – and cannot – clear that bar in this case, the court should deny their motion.”

However, the government declined to take a position about whether the court should grant the unions’ motion for permissive intervention, meaning the unions could be given conditional permission to intervene by the court rather than having an unconditional right to intervene.

Ms. Seminario called the federal government’s opposition to union intervention “troubling.”

“That to me is not a good sign,” she said. “It’s not a sign that they are looking for support in defending this rule.”

Covered employers still have to prepare and maintain their written injury and illness logs, per OSHA’s record-keeping requirements, and will need to produce them in the event of an agency inspection, according to workplace safety experts.

“Those employers should be aware this is probably going to happen at some point in terms of submitting electronically,” Mr. Linton said. “But there’s really nothing to do until there’s some certainty.”