The Appointment of New Members to the DOL ARB is a Small Step Forward
“Faced with the choice between changing one’s mind and proving that there is no need to do so, almost everyone gets busy on the proof.”
-- John Kenneth Galbraith
I set out today to write a totally different blog with a totally different point of view than where I ended up.
Last week, I read a story in the Washington Post about the lapsed appointment of the final Merit Systems Protection Board (“MSPB”) member. Apparently, none of President Trump’s nominees to the MSPB have been approved, and now the last member of the Board is about to depart. It is almost as if the current Trump Administration wants to make the government less functional than it is, as if that policy constitutes a purposeful strategy to defeat expansive government programs. But the master plan, if that is what it is, seems to be more likely to make the Administration look inept if not completely incompetent to govern.
Until now, it was my thought that some of the same forces are at work at the US Department of Labor (“DOL”) , where the Acting Wage & Hour Administrator just quit effective January 5, 2019, to leave for a private sector job, and other positions remain unfilled. The agency appears to be drifting with little direction. It is as if nobody is steering the ship of state. One of my recurrent frustrations is that the DOL Administrative Review Board (“ARB”), was essentially on hold, while the Trump Administration decided who to appoint to the office. The ARB is an essential cog in the workings of many laws, ranging from the debarment statutes, the Service Contract Act, the Davis-Bacon Act, Fair labor Standards Act civil penalties, the Sarbanes-Oxley Whistle Blower statute, and numerous other labor laws (a wide range of worker protection laws, primarily involving environmental, transportation, and securities whistleblower protection; H-1B immigration provisions; child labor; employment discrimination; job training; and seasonal and migrant workers).
Previous Republican administration had appointed independent minded Board members along with rewarding party loyalists, and the Democrats had made a habit of appointing union vetted and friendly members. But all had filled the ARB with warm bodies, whether out of partisan lust, or political spoils of office, or a desire for competence—and often motivated by all three. But two years into the current administration, and the ARB had become an empty husk.The ARB’s own website notes that the Board had not issued any decisons from August 2018 through December 2018.
But rather than castigate Caesar, I come now to praise him. I was gratified to see that DOL on January 8, 2019 announced three new appointments to the ARB, each for a two year term. See https://www.dol.gov/newsroom/releases/osec/osec20190108. Hooray! Now the ARB has a quorum and can get to work. The three new members are William Thomas Barto, James A. Haynes, and Daniel T. Gresh. As noted in the DOL press release: "The ARB's mission is to issue legally correct, just, and timely decisions," said U.S. Deputy Secretary of Labor Patrick Pizzella." Here is what DOL said about the appointees’ qualifications:
The newly appointed members and the expertise they represent are:
William Thomas Barto will serve as the chair of the ARB. Barto most recently has served as Administrative Law Judge for the U.S. Department of Labor, where he has presided over formal adversarial hearings concerning a wide variety of labor-related matters, including claims arising under the Black Lung Benefits Act, the Longshore and Harbor Workers' Compensation Act, and dozens of other labor-related statutes and regulations involving whistleblower complaints, immigration, child labor, employment discrimination, and federal construction and service contracts. Barto received a Master of Laws from the Judge Advocate Generals School, a Juris Doctor from the University of North Carolina School of Law, and a Bachelor of Arts from Johns Hopkins University.
James A. Haynes will serve as a member of the ARB. Haynes most recently served as an Appellate Administrative Law Judge for the Employees Compensation Appeals Board where he issued over 11,000 decisions and orders. Haynes received a Juris Doctor from the University of Maryland School of Law, and a Bachelor of Arts from the University of Maryland at College Park.
Daniel T. Gresh will serve as a member of the ARB. Gresh is an attorney for the ARB where he participates in reviews of appeals of complaints filed under a broad range of federal administrative labor laws, including financial, environmental and transportation employee protection statutes; immigration, child labor, employment discrimination and job training laws; contract and wage compliance laws, the McNamara-O'Hara Service Contract Act, the Davis-Bacon Act, and the Administrative Procedure Act. Gresh received a Juris Doctor from The George Washington University Law School, and a Bachelor of Arts from Villanova University.
https://www.dol.gov/newsroom/releases/osec/osec20190108.
My own view is that Secretary Acosta and Deputy Secretary Pizzella are to be commended for picking qualified civil servants for the positions rather than the children of big campaign donors or the partisan scrum of office seekers. It is, of course, puzzling why it took so long. But better late than never. Perhaps the appointments had to be vetted through the White House. In any case, all three appointees appear to have relevant and diverse experience, with no axe to grind. Each has the potential to add to the effectiveness of the Board, and this promotes faith in the competence and justice of the ARB’s rulings. The appointments seem solid, which in this administration is sometimes unusual state of affairs.
The ARB positions do not require Congressional approval and there is really little oversight into who gets to fill these very important roles. (That is one reason why the delay in the appointments was particularly perplexing.) They are appointed by the Secretary of Labor and served at his sufferance. They are not independent Administrative Law Judges (“ALJs”), and thus they lack the protections of that office, and they can be dismissed at any time by the Secretary of DOL. As such, they are vulnerable to pressures and political currents. Too often, the ARB has been a political football, and the decisions have fluctuated as the control of the DOL has shifted from party to party. But here, Secretary Acosta showed why some view the DOL as a small island of sanity and stability in a chaotic sea.