Add this to the list of absurdities from the Trump Administration: the Justice Department (DOJ) is arguing that the AFL-CIO and the United Steelworkers (USW) should rely on DOJ attorneys to defend an Obama-era OSHA regulation. Seriously?
The rule that DOJ says it will defend on the unions’ behalf was adopted by OSHA in May 2016 and concerns the reporting of injuries by employers. It is being threatened by a frivolous lawsuit brought the U.S. Chamber of Commerce, National Association of Home Builders, and the National Chicken Council. The business associations filed their lawsuit in the U.S. district court for the western district of Oklahoma—a venue they believe will favor them—to argue against the OSHA rule.
Soon afterwards, the AFL-CIO and USW filed a motion to intervene in the case to defend the OSHA rule. The unions argue they should be granted the right to participate in the lawsuit because they have more than 12 million members who are affected by the new regulation and they were active participants in the rulemaking proceedings which led to the new OSHA reporting rule.
But in a brief dated May 30, DOJ attorneys told the court that the unions do not meet all of the requirements to justify being a party to the litigation. They say:
“The unions do not satisfy the fourth requirement because they have not shown—and could not show—that the Government would inadequately represent their interests.”
They also write:
“any member of the public who seeks to intervene as of right in defense of a regulation must first clear a high bar…. [that their] interest is not adequately represented by existing parties.”
In other words, the unions should rely on Trump’s DOJ to defend OSHA’s regulation. Let’s think about that for a moment. This is the same Trump administration that is requiring agencies to identify two regulations to repeal for any single regulation the agency may want to implement. It’s also the same Trump administration that has teams set up in every agency to identify regulations to repeal, replace, or modify. And the same Trump administration that has already suspended indefinitely the compliance date for this exact OSHA injury reporting rule. So why would unions trust this administration to defend the rule vigorously against the Chamber of Commerce et al’s frivolous lawsuit?
In OSHA’s 47 year history, it is unprecedented for the government to object to a union intervening to defend an OSHA regulation. But I’ve gotten used to the words “unprecedented” and “Trump” being used in the same sentence.
But I learned the following by reading the AFL-CIO and USW’s motion to participate in the lawsuit:
“Even when an applicant for intervention and the government seek the same outcome in a lawsuit, the Tenth Circuit has “repeatedly recognized that it is ‘on its face impossible’ for a government agency to carry the task of protecting the public’s interests and the private interests of a prospective intervenor.” (citing Utahns for Better Transp. v. U.S. Dept. of Transp., 295 F.3d 1111, 1117 (10th Cir. 2002));
A group of public interest organizations also filed a motion to participate in the litigation to defend the OSHA injury reporting rule. They are the American Public Health Association (APHA), Public Citizen, the Council of State and Territorial Epidemiologists, and Center for Media and Democracy. These groups are expecting to hear from DOJ by June 12 about their motion. I suspect they will read the same DOJ nonsense to “trust us” that the unions heard.
As an APHA member, I say “trust Trump’s DOJ? Not gonna happen.”
[Update 6/13/2017: As expected, the DOJ filed a motion to restrict APHA and the other groups from being intervenors in the case. I await the judge’s decision.]