I swear, sometimes I don’t know if I’m reading facts or farce.

Bloomberg BNA reports that the Labor Department — yes, the same Labor Department that has delayed implementation of OSHA’s electronic recordkeeping rule — is telling the court that unions should not be allowed to intervene in industry’s lawsuit because the Trump administration and the unions “share the same litigation objective: to defend the Recordkeeping Modernization Rule.”

Quickly checking my calendar to make sure it was June 1 and not April 1, I read the Labor Department’s brief and discovered that my BNA friend Bruce Rolfsen was not trying to invent June Fools Day.

The electronic recordkeeping rule, for those of you who are just tuning in, would require employers to send their injury and illness rates to OSHA by July 1, and prohibit employers from retaliating against workers for reporting injuries and illnesses.  In response to an industry petition, DOL recently announced its intention to delay the July 1 implementation date.

The briefs are in response to a lawsuit filed earlier this month by several industry associations, requesting that DOL stay the rule and re-open rulemaking because “OSHA lacks statutory authority,” the rule is “arbitrary, capricious, and otherwise contrary to law,” and just for good measure, somehow “violates the constitutional rights of Plaintiffs’ members under the First and Fifth Amendments to the Constitution of the United States.” According to the plaintiffs, the rule would allegedly reveal confidential information and prohibit employers from conducting post incident drug testing and establishing incentive programs. The plaintiffs were the Chamber of Commerce, the National Association of Home Builders, the National Chicken Council and several others.

So I’m not a lawyer, but I’ve worked around them long enough that I can pretty much understand — and sometimes even speak — their language without the help of a translator. After reading DOL’s brief, I think it goes something like this: Because the regulation is still in place, and it’s the government’s duty to defend any laws, standards or regulations that are currently in place, we’re all on the same side: “because the Government and the Unions share the same litigation objective: to defend the Recordkeeping Modernization Rule.”

If the unions suspect for some reason that the government may not, in fact, defend that rule…. Well, that suspicion, according to the brief, is “a red herring.”  The unions have failed to make any “concrete showing” that the government won’t defend the rule and “the Unions have offered nothing to suggest that the Government’s commitment to defending those provisions of the Rule that remain in place will shift.”

Good point.  Why would the unions doubt that DOL is committed to defending the rule, just because DOL has proposed to delay implementation of this rule, delayed enforcement of the silica standard, delayed the effective date of the beryllium standard and is about to issue a proposal to dismantle parts of it? (And let’s not forget repeal of the Volks Rule and the Fair Pay and Safety Workplaces rule.)

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

Rabinowitz also pointed out to Confined Space how DOL has changed its tune in this administration. When another rule was before the courts (Agricultural Retailers Ass’n v. U.S. Dep’t of Labor), OSHA noted that it “welcomes the Steelworkers’ voice in this litigation” because “unlike OSHA, the Steelworkers have employees on the ground in affected facilities, and OSHA believes the Court will benefit from the additional input the Steelworkers can provide on the issues at hand.” In that case, the court agreed.

Well, they may not be so hot at actually protecting workers or making serious legal arguments, but I suppose you have to give these guys a few points for creativity and humor.

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