Home Care Association of America v. Newsom

          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 ...