Defendant joins plaintiffs in opposing third-party motion to intervene
Two unions offered to help the U.S. Department of Labor defend an Obama-era OSHA rule being challenged in federal court. But the government has formally objected, arguing that the unions have no right to step into the legal dispute between it and private industry groups.
The move has stoked speculation that the Trump administration could be looking to further relax enforcement of existing regulations. That worries United Steelworkers (USW) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).
“In this case, there is no guarantee that the government will defend the New Rule forcefully in this Court,” the unions wrote in their March motion to intervene, noting that an executive order signed the month prior calls for a general reduction in federal regulation.
The rule in question, which was finalized last year, requires about 466,000 employers to file injury and illness logs with OSHA electronically, so the agency could then publish the data online. Industry groups filed multiple lawsuits, and federal officials said last month  they would postpone a July 5 deadline indefinitely—a delay the unions likely saw as an omen.
“There is even the possibility that the new Administration might attempt to use this litigation as a vehicle to weaken, rather than to uphold, the New Rule,” the unions wrote in their March motion. That could be described as a “sue-and-settle” tactic to change the rule while bypassing certain procedural steps typically required for such changes, they said.
Government attorneys responded by acknowledging the unions’ concern that the regulation could be softened or abolished.
“But that argument is a red herring,” the government wrote last month. “Any changes to the Rule would need to be made through the rulemaking process, not this litigation.”
The unions seemed pleased, though not totally placated, by the government’s commitment to traditional rulemaking channels.
“We are heartened to learn that OSHA accepts the fact that, under applicable law, any changes to the Rule can only be made following notice and comment rulemaking and not through this litigation,” the unions wrote in reply June 8. “But, the distinct possibility remains that OSHA’s defense of the Rule may not be as robust on some issues as on others.”
Randy Rabinowitz, an attorney representing the unions, told Bloomberg BNA  that she could not recall any other case in which the Labor Department declined help from a union seeking to assist in defending an OSHA rule.
The unions made two parallel arguments in support of their motion to intervene: (1) they have a legal right to do so, and (2) the court has the discretion and should permit them to do so. The plaintiffs objected to both claims; the government objected only to the first claim and took no position on the second.
Judge David L. Russell of the U.S. District Court for the Western District of Oklahoma has given no indication of his timeline for a ruling on the motion.