UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

 DOCKET NO. 16-0853 

 

 

ORDER DENYING AMY OGLE’S ELECTION OF PARTY STATUS AND, IN THE 

ALTERNATIVE, PERMISSIVE INTERVENOR STATUS

This matter comes before the Court on Amy Ogle’s Brief Regarding Electing Party Status

and, in the Alternative, Permissive Intervenor Status.

1

 Amy Ogle’s husband, Jason Ogle, was an 

employee of Respondent. On November 1, 2015, Jason Ogle was killed when a flash fire 

occurred at Respondent’s workplace. In response to the incident, Complainant conducted an 

investigation of Respondent and issued a Citation and Notification of Penalty, alleging six 

violations of the Occupational Safety and Health Act (“the Act”). Amy Ogle seeks to elect party 

status pursuant to Rule 20 of the Commission Rules of Procedure. See 29 C.F.R. § 2200.20. 

After reviewing the parties’ and Mrs. Ogle’s briefs, the Court finds Mrs. Ogle is not eligible to 

elect party status under Rule 20 or to seek, in the alternative, intervention under Rule 21.2

 

1. Mrs. Ogle filed her Petition to Elect Party Status on November 16, 2016. The Court entered a briefing Order 

dated November 17, 2016 directing counsel for the parties and Mrs. Ogle to address whether the Estate of Jason 

Ogle had standing to elect party status under Commission Rule 20, 29 C.F.R. § 2200.20. 

2. Although Mrs. Ogle did not directly address intervention under Rule 21, Complainant hinted at the possibility 

that Mrs. Ogle, as representative of the Estate of Jason Ogle, could pursue permissive intervention. See 

Complainant’s Brief Regarding Amy Ogle Seeking to Elect Party Status (citing Wayne Farms, LLC, OSHRC Docket 

No. 14-1672 (Order dtd February 27, 2015)). As such, the Court shall address both possibilities. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

WTG GAS PROCESSING LP EAST 

VEALMOOR PLANT, 

 

 Respondent. 
2

Party Status Pursuant to Commission Rule 20

Commission Rule 20(a) states, “Affected employees and authorized employee 

representatives may elect party status concerning any matter in which the Act confers a right to 

participate.” Id. An ‘affected employee’ is defined by the Act as “an employee of a cited 

employer who is exposed to or has access to the hazard arising out of the allegedly violative 

circumstances, conditions, practices, or operations.” Id. § 2200.1(e) (emphasis added). An 

‘authorized employee representative’ means “a labor organization that has a collective 

bargaining relationship with the cited employer and that represents affected employees.” Id. § 

2200.1(g). The Court finds Mrs. Ogle does not qualify under either definition, thereby 

precluding her from electing party status in this matter under Rule 20. 

As noted above, Mrs. Ogle is the spouse of an employee who was killed in a flash fire at 

Respondent’s workplace. Although she claims that she is the legal representative of Jason Ogle, 

she is, in fact, the personal representative of the Estate of Jason Ogle. Though she may be a 

personal representative of the estate, Mrs. Ogle does not qualify under the plain language of the 

term ‘authorized employee representative’, because that term is specifically limited to “a labor 

organization that has a collective bargaining agreement with the cited employer and that 

represents affected employees.” 29 C.F.R. § 2200.1(g) (emphasis added). Mrs. Ogle is not a 

labor organization, nor does she represent an affected employee. 

As noted by ALJ Joys, the definition of ‘affected employee’ refers to exposure in the 

present tense. See Wayne Farms, LLC, supra. Thus, she concluded the Commission did not 

intend to allow former employees to claim party status because they are not actively exposed to 

the hazard under review by the Commission. Id. In other words, current employees have a 

unique interest in ensuring the continued safety of their workplace, whereas former employees 
3

do not. See id. (citing Donovan v. Oil, Chemical, and Atomic Workers Int’l, 718 F.2d 1341, 

1352 (5th Cir. 1983)). Tragically, due to the flash fire, Mr. Ogle is no longer an employee of 

Respondent and, therefore, no longer has an interest in the ongoing safety of Respondent’s 

workplace. Accordingly, neither Jason Ogle, the Estate of Jason Ogle, nor Mrs. Ogle meets the 

necessary qualifications for party status under Rule 20. 

Texas Estate Code Confers No Rights to Party Status 

According to the Texas Estates Code (“Estate Code”), which Mrs. Ogle cites, an ‘estate’ 

means “a decedent’s property.” Tex. Estates Code Ann. § 22.012 (Vernon 2014). The Estate 

Code also states that the administration of an estate is entirely a proceeding in rem. Id. § 32.001. 

Black’s Law Dictionary defines an action in rem as “[a]n action determining the title to property 

and the rights of the parties, not merely among themselves, but also against all persons at any 

time claiming an interest in that property; a real action.” Black’s Law Dictionary, “Action in 

rem” (10th ed. 2014). Thus, although Mrs. Ogle has authority to commence lawsuits on behalf 

of the estate, the scope of that authority is limited to: “(1) recovery of personal property, debts, or 

damages; or (2) title to or possession of land, any right attached to or arising from that land, or an 

injury or damage done to that land.” Tex. Estates Code Ann. § 351.054 (Vernon 2014). Mr. 

Ogle’s estate, the administration of which is entirely in rem, only has a property-based interest in 

any litigation. Thus, Mrs. Ogle’s authority to commence litigation only extends to claims related 

to the recovery of personal property, debts, or damages and title to or possession of land. See 

Tex. Estates Code Ann. § 351.054, supra. 

The Act provides no rights for the recovery of property. The estate simply has no in rem

recourse under the Act, nor does it have an interest in the timing of any abatement agreed to 
4

between the parties. Thus, the Estate Code does not vest any common law right of standing in 

the estate to participate in this proceeding. 

Permissive Intervention Under Commission Rule 21

As an alternative to claiming party status under Rule 20, an interested individual may 

seek to intervene in the proceedings through Rule 21.3 See 29 C.F.R. § 2200.21. In order to 

qualify for intervention as a non-party, a petitioner must: (1) set forth the interest of the 

petitioner in the proceeding; (2) show that the participation of the petitioner will aid in the 

determination of the issues in question; and (3) show that the intervention will not unduly delay 

the proceeding. Id. § 2200.21(b). Subsequently, the Commission or Judge “may grant a petition 

for intervention to such an extent and upon such terms as the Commission or the Judge shall 

determine.” Id. § 2200.21(c). Based on the arguments presented by Mrs. Ogle, the Court denies 

the petition for permissive intervention under Rule 21. 

First, Mrs. Ogle claims that she has an interest in the disposition of this action, but does 

not clearly express what that interest is. The only indication of interest appears in paragraph 7 of 

Mrs. Ogle’s petition, which states, “A [sic] employee should be able to be represented in an 

action in death as in life. The opposite rule would create a situation where death in the 

employment prohibits the employee’s representatives to be informed through the OSHA 

proceeding.” Amy Ogle’s Br. at ¶ 7. In other words, it appears Mrs. Ogle’s sole interest in this 

litigation is to be informed of its progress and result; presumably because a ruling adverse to the 

employer in this context can serve as a basis for liability in an independent civil suit. This 

 

3. Under the Act, unless the Commission has adopted a different rule, its proceedings shall be in accordance with 

the Federal Rules of Civil Procedure. 29 U.S.C. § 661(g). Mrs. Ogle argues that if she could be allowed intervention 

under the Federal Rules of Civil Procedure in other litigation, she should be allowed party status in this case. That 

argument fails to take into account that the Commission has adopted a specific rule for intervention different than 

the Federal Rules of Civil Procedure. Based on this statutory provision, the Commission has held that Commission 

Rule 21 is the sole means by which intervention can be accomplished and, thus, held F.R.C.P 24(a) inapplicable to 

Commission proceedings. Brown & Root, Inc., 7 BNA OSHC 1526 (No. 78-0127, 1979). 
5

individualized interest in the outcome, however, has nothing to do with “assur[ing] safe and 

healthful working conditions for working men and women . . . .” 29 U.S.C. § 651. Instead, Mrs. 

Ogle’s interest is merely ancillary to the purpose of these Commission proceedings and, 

therefore, insufficient to justify her participation in the case at bar. Further, insofar as she wishes 

to be informed of the outcome or progress of this case, Mrs. Ogle’s interests can be adequately 

fulfilled through a Freedom of Information (“FOIA”)4 request for documents. 

Second, Mrs. Ogle has made no claim that her participation in this proceeding will aid in 

the determination of the issues in question. See 29 C.F.R. § 2200.21(b). Nor, for that matter, can 

the Court conceive how Mrs. Ogle’s participation in this proceeding will aid in the determination 

of whether the cited standards apply, whether Respondent violated the standards, whether 

Respondent had knowledge of the hazardous condition, or whether employees were exposed to 

the condition. There has been no allegation that she possesses actual knowledge of any issue 

germane to the determination of liability or that she possesses specialized knowledge regarding 

the industry in question. See Brown & Root, 7 BNA OSHC 1526 (“The union’s knowledge of 

structural steel construction techniques and procedures may lend significant assistance to a 

complete determination of the facts and issues in question.”). 

The Commission has held “that where a petitioner can show the three criteria set forth in 

Commission Rule 21(b), that petitioner should be granted leave to intervene unless the 

administrative law judge finds, in the exercise of his discretion, that the petitioner’s interest is 

minimal and the petitioner’s assistance in the proceeding would be insignificant.” Id. Even if the 

Court were to find that Mrs. Ogle has met the three criteria of Commission Rule 21(b)—it does 

not—it would still find that her interest in this proceeding is minimal and her assistance would 

be insignificant. Accordingly, the Court denies Mrs. Ogle’s petition for permissive intervention. 

 

4. See 5 U.S.C. § 552. See also www.oshrc.gov and FOIA link to access procedure for submitting requests.
6

The Estate will not be Prejudiced

Neither the Court nor the Commission seeks to prevent Mrs. Ogle from representing her 

deceased husband’s interests. Indeed, the Act specifically provides: 

Nothing in this Act shall be construed to supersede or in any manner affect any 

workmen’s compensation law or to enlarge or diminish or affect in any other 

manner the common law or statutory rights, duties, or liabilities of employers and 

employees under any law with respect to injuries, diseases, or death of employees 

arising out of, or in the course of, employment. 

29 U.S.C. § 653(b)(4). Nothing about this litigation will impact Mrs. Ogle’s rights as a 

representative—or the estate’s rights—in other litigation. The estate’s interest in any litigation is 

purely pecuniary and such interests are adequately represented in proceedings under Texas’ 

Estates Code. 

SO ORDERED. 

 s/ Patrick B. Augustine 

Date: January 3, 2017 Patrick B. Augustine

Denver, Colorado Judge, OSHRC