Case 5:17-cv-00009-R Document 36 Filed 03/08/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA
______________________________________
NATIONAL ASSOCIATION OF HOME )
BUILDERS OF THE UNITED )
STATES, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No.: 5:17-CV-00009-R
)
THOMAS E. PEREZ, SECRETARY )
OF LABOR, in his official capacity, et al., )
)
Defendants. )
)
_____________________________________ )

MOTION OF AFL-CIO AND UNITED STEELWORKERS TO INTERVENE AND

BRIEF IN SUPPORT THEREOF

Pursuant to Federal Rule of Civil Procedure 24, the American Federation of Labor

and Congress of Industrial Organizations (AFL-CIO) and the United Steel, Paper and

Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers

International Union, AFL-CIO/CLC (USW) (collectively, Union Intervenors or

Unions) hereby move to intervene in the above-captioned case as of right under Fed. R.

Civ. P. 24(a)(2) or, in the alternative, by leave of Court pursuant to Fed. R. Civ. P. 24(b).

Statement of objection: Defendants do not object to intervention by leave under

24(b), but do object to intervention by right under 24(a)(2). Plaintiffs do object to

intervention.

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In this lawsuit, various industry groups and companies challenge provisions of the

final rule issued by the Occupational Safety and Health Administration (OSHA), titled

Improve Tracking Workplace Injuries and Illnesses, 81 Fed. Reg. 29,624 (May 12,

2016), as revised at 81 Fed. Reg. 31,854 (May 20, 2016) (the New Rule). The Union

Intervenors participated extensively in the rulemaking proceedings leading up to the New

Rule. For the reasons stated in this brief, the Unions respectfully request that the Court

grant their motion to intervene.

ARGUMENT

I. The Union Intervenors are Entitled to Intervene as of Right

It is a basic principle that [f]ederal courts should allow intervention where no

one would be hurt and the greater justice could be attained. Utah Assn of Counties v.

Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001) (quoting Sierra Club v. Espy, 18 F.3d

1202 (5th Cir. 1994)). To vindicate that principle, intervention as of right should be

granted if the movants have satisfied four requirements:

(1) the application is timely; (2) the applicant[s] claim[] an interest relating
to the property or transaction which is the subject of the action; (3) the
applicant[s] interest may as a practical matter be impaired or impeded; and
(4) the applicant[s] interest is not adequately represented by existing parties.

United States v. Albert Inv. Co., Inc., 585 F.3d 1386, 1391 (10th Cir. 2009) (quoting Utah

Assn of Counties, 255 F.3d at 1249) (internal quotations omitted). The Union

Intervenors satisfy each requirement.

A. A motion to intervene generally is held to be timely if there has been no

prejudicial delay and the case is not ready for final disposition. See, e.g., Utah Assn of

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Counties, 255 F.3d at 1251. In this case, the Complaint was filed only two months ago,

and no answer has been filed. Clearly, a motion to intervene at this point is timely.

B. The Union Intervenors satisfy the interest requirement of Rule 24(a)(2)

because they have an interest which is direct, substantial, and legally protectable. Utah

Assn of Counties, 255 F.3d at 1251. The Unions interests are manifested in the

extensive comments they filed in the rulemaking proceeding, attached hereto, which

explained how the provisions OSHA ultimately adopted would protect the health and

safety of the more than 12 million workers the Unions represent.

C. The third requirement, which is a minimal burden, is satisfied where

impairment of [the potential intervenors] substantial legal interest is possible if

intervention is denied. WildEarth Guardians v. National Park Serv., 604 F.3d 1192,

1199 (10th Cir. 2010). Here the potential impairment of the Union Intervenors interest is

clear: if the plaintiffs in this lawsuit obtain the relief they seek, the Unions and their

members will be deprived of the benefits of the New Rule.

D. Finally, the Union Intervenors interests are not adequately represented by

the existing parties. An intervenors burden on this factor, as on the previous factor, is

minimal, id. at 1200: Rule 24(a)(2) is satisfied even where the applicant show[s] only

the possibility that representation may be inadequate, id. (emphasis added). 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 publics interests and the private

interests of a prospective intervenor. Id. (citing Utahns for Better Transp. v. U.S. Dept.

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of Transp., 295 F.3d 1111, 1117 (10th Cir. 2002)); see also Utahns, 295 F.3d at 1117 (the

inevitable divergence between the governments interests and a private intervenors

interests creates the kind of conflict that satisfies the minimal burden of showing

inadequacy of representation.) (citing Utah Assn of Counties, 255 F.3d at 1255)).

In this case, there is no guarantee that the government will defend the New Rule

forcefully in this Court. Executive Order 13777, signed by President Trump on February

24, 2017, indicates that the new Administration plans to rescind or weaken many

regulations issued by previous administrations.

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. See generally K.

Hayes, Sue and Settle: Forcing Government Regulation Through Litigation, 40 U.

Dayton Law Rev. 105 (2015) (describing the sue-and-settle tactic by which litigation is

used to change regulations through a negotiated settlement that may depart from

substantive and procedural requirements); id. at 108 and n. 19 (noting the use of this

tactic by businesses).

Intervention by the Unions will ensure that worker health and safety interests

remain fully protected by a party to this litigation no matter how the position of the

government may evolve.

Accordingly, the Union Intervenors respectfully request that the Court grant their

Motion to Intervene as of right under Fed. R. Civ. P. 24(a)(2).

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II. In the Alternative, the Court Should Grant Permissive Intervention

The Court may grant permissive intervention where it finds that the putative

intervenor has a claim or defense that shares with the main action a common question of

law or fact, and that granting intervention will not unduly delay or prejudice the

adjudication of the original parties rights. Fed. R. Civ. P. 24(b)(1)(B) & (3). All of

those requirements are met here; as explained above, the Union Intervenors bring no new

claims and seek only to defend the New Rule which is at issue in the main action, and at

this early stage of the case there can be no prejudice to any party. Additionally, the

Union Intervenors have particular experience and familiarity with the New Rule, having

participated in the rulemaking. For these reasons, if the Court does not grant intervention

as of right, under Rule 24(a), it should grant the Union Intervenors leave to intervene

permissively under Rule 24(b). 1

CONCLUSION

For the above reasons, the Union Intervenors respectfully request that the Court

grant them intervention as of right or, in the alternative, permissively by leave of Court.

1
This motion to intervene need not be accompanied by a formal pleading, because the
motion and the attached comments submitted by the Union Intervenors in the rulemaking
give the parties ample notice of the Union Intervenors position and the grounds for
intervention. See, e.g., Providence Baptist Church v. Hillandale Committee, Ltd., 425
F.3d 309, 313-14 (6th Cir. 2005) (abuse of discretion for district court to deny motion to
intervene on the basis that the prospective intervenor failed to attach a pleading because
the parties are clearly on notice as to [the prospective intervenors] position and
arguments); Piambino v. Bailey, 757 F.2d 1112, 1121 (11th Cir. 1985) (no basis to deny
motion to intervene for failure to attach a pleading where the parties suffered no prejudice
because they knew the nature of [the prospective intervenors] substantive claims).
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Respectfully submitted,

FRASIER, FRASIER & HICKMAN, LLP

By: /s/Steven R. Hickman

STEVEN R. HICKMAN, OBA #4172
1700 Southwest Blvd.
Tulsa, OK 74107
Telephone: 918-584-4724
Facsimile: 918-583-5637
Email: frasier@tulsa.com

JEREMIAH A. COLLINS
jcollins@bredhoff.com
THOMAS W. PEREZ-LOPEZ
tplopez@bredhoff.com
Bredhoff & Kaiser, P.L.L.C.
805 Fifteenth St NW, Suite 1000
Washington, D.C. 20005
(202) 842-2600

RANDY S. RABINOWITZ
OSH Law Project, LLC
P.O. Box 3769
Washington, DC 20027
Telephone: 202-256-4080
randy@oshlaw.org

Counsel for Movants

for Intervention AFL-CIO and USW

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on 8 March 2017, a true, correct, and exact
copy of the foregoing document was served via electronic notice by the CM/ECF filing
system to all parties on their list of parties to be served in effect this date.

By: s/Steven R. Hickman

Steven R. Hickman