United States District Court, E.D. California
HOME CARE ASSOCIATION OF AMERICA, CALIFORNIA ASSOCIATION FOR HEALTH SERVICE AT HOME, Plaintiffs
v.
GAVIN NEWSOM, IN HIS OFFICIAL CAPCITY AS GOVERNOR OF CALIFORNIA, XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR CALIFORNIA, AND KIMBERLY JOHNSON, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Defendants
ORDER RE: MOTION FOR LEAVE TO INTERVENE (DOC.
8)
I.
Background
In
2018, the State of California passed AB 2455 which added Cal.
Health & Safety Code §1792.29(d):
(1) For any new registration or renewal of registration
occurring on and after July 1, 2019, the department shall
provide an electronic copy of a registered home care
aide's name, telephone number, and cellular telephone
number on file with the department, upon its request, to a
labor organization in which a provider of in-home supportive
services, as described in Article 7 (commencing with Section
12300) of Chapter 3 of Part 3 of Division 9 of the Welfare
and Institutions Code, or a registered home care aide,
already participates and which exists for the purpose, in
whole or in part, of dealing with employers of home care
aides concerning access to training, grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work. The labor organization shall not use this
information for any purpose other than employee organizing,
representation, and assistance activities. The labor
organization shall not disclose this information to any other
party.
(2) The department shall establish a simple opt-out procedure
by which a registered home care aide or registered home care
aide applicant may request that his or her contact
information on file with the department not be disclosed in
response to a request described in paragraph (1).
The new
law generally requires the Department of Social Services to
disclose certain contact information of certified home care
providers to labor unions to assist in unionization efforts
in that industry. Plaintiffs Home Care Association of America
and California Association for Health Service at Home are
associations whose members are employers of home care
providers. Plaintiffs argue that Section 1792.29(d) is
preempted by the National Labor Relations Act as administered
by the National Labor Relations Board. Defendants Gavin
Newsom, Xavier Becerra, and Kimberly Johnson are California
state officials charged with implementing and administering
Section 1792.29(d).
Service
Employees International Union Local 2015 (“SEIU Local
2015”) is a labor union that represents home care and
nursing home workers in California. SEIU Local 2015 seeks
leave to intervene as a defendant. Doc. 8. Defendants have
indicated non-opposition to the request. Doc. 12. Plaintiffs
oppose the request. Doc. 15.
II.
Discussion
“On
timely motion, the court must permit anyone to intervene
who….claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest.” Fed. Rule Civ. Proc. 24(a)(2). The U.S.
Supreme Court has stated that “The requirement of the
Rule is satisfied if the applicant shows that representation
of his interest ‘may be' inadequate; and the burden
of making that showing should be treated as minimal.”
Trbovich v. UMW, 404 U.S. 528, 538 n.10 (1972). The
Ninth Circuit has prescribed a four part test:
(1) the motion must be timely; (2) the applicant must claim a
‘significantly protectable' interest relating to
the property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may as a practical matter impair or
impede its ability to protect that interest; and (4) the
applicant's interest must be inadequately represented by
the parties to the action.
Forest Conservation Council v. United States Forest
Serv., 66 F.3d 1489, 1493 (9th Cir. 1995), citing
Sierra Club v. United States EPA, 995 F.2d 1478,
1481 (9th Cir. 1993). Plaintiffs have courteously specified
that they object to only the last part of the test, allowing
all parties and the court to focus on the real point of
dispute. Doc. 15, 2:20-22.
In
considering whether a party meets the fourth prong of the
test, the Ninth Circuit has stated:
This Court considers three factors in determining the
adequacy of representation: (1) whether the interest of a
present party is such that it will undoubtedly make all of a
proposed intervenor's arguments; (2) whether the present
party is capable and willing to make such arguments; and (3)
whether a proposed intervenor would offer any necessary
elements to the proceeding that other parties would neglect.
The most important factor in determining the adequacy of
representation is how the interest compares with the
interests of existing parties. When an applicant for
intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation
arises. If the applicant's interest is identical to that
of one of the present parties, a compelling showing should be
required to demonstrate inadequate representation.
There is also an assumption of adequacy when the government
and the applicant are on the same side. In the absence of a
‘very compelling showing to the contrary,' it will
be presumed that a state adequately represents its citizens
when the applicant shares the same interest. Where parties
share the same ultimate ...