DATE:  October 3, 1994
CASE NOS. 87-ERA-6
          87-ERA-40


IN THE MATTER OF

JOHN C. REX,

          COMPLAINANT,

     v.

EBASCO SERVICES, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                                   ORDER

     On March 4, 1994, the Secretary issued an order dismissing
the complaint in this case and, in addition, directing the Chief
Administrative Law Judge (ALJ) to notify all Department of Labor
ALJs of the recommendation of the ALJ that sanctions be imposed
against Complainant's attorneys, Ms. Billie Pirner Garde and 
Mr. Robert Guild, for alleged misconduct.  The Secretary held
that, in any case in which Complainant's attorneys appear in the
future, the ALJ may, after notice and opportunity for hearing,
take the action authorized by 29 C.F.R. § 18.34(g)(3)
(1993).
     Chief ALJ Nahum Litt wrote a memorandum to the Secretary on
April 18, 1994, recommending that this case be reopened
and remanded to the Office of Administrative Law Judges for
appointment of an ALJ to hold a hearing on the qualifications of
Complainant's attorneys to appear in cases arising under 
29 C.F.R. Part 24.  In addition, on April 6, 1994, Ms. Garde and
Mr. Guild filed a motion for clarification of the March 4 order. 
The parties and the Wage Hour Administrator were invited
to file memoranda of law on the question raised in Judge Litt's
memorandum.  Ms. Garde and Mr. Guild and the Wage Hour
Administrator have filed such memoranda.

[PAGE 2]
     Judge Litt pointed out in his memorandum that "the
applicable regulations at 29 C.F.R. Part 18 do not permit a
single, determinative hearing on attorney misconduct, but require
this issue to be addressed . . . each time an attorney enters an
appearance."  See 29 C.F.R. § 18.34(g)(3) (1993). 
This procedure could result in numerous hearings on the same
issue with potentially inconsistent results.  In the interest of
fairness to the accused attorneys and to avoid the administrative
burden of repetitive hearings, Judge Litt recommended that the
Secretary reopen Rex v. Ebasco and remand it to him to
appoint an ALJ to conduct a single hearing under 29 C.F.R. §
18.34(g)(3).
     Ms. Garde represents that the Administrative Law Judge (ALJ)
in another case arising under the (ERA), Corder v. Bechtel
Energy Corp., Case No. 88-ERA-9, directed her to show cause
why she should not be disqualified from representing the
complainant in that case on the basis of her alleged improper
actions in Rex v. Ebasco.  After a hearing in which the
ALJ in Corder apparently considered only the brief and
oral statement of Ms. Garde, he vacated his order to show cause
and stated his opinion that 
Ms. Garde should not be denied the authority to appear in that
case.
     Ms. Garde urges me to refer this matter to the ALJ in the
Corder case to review the record in Rex. v. Ebasco,
as well as the brief in her own defense submitted in
Corder, and to make a recommendation on whether Ms. Garde
should be disqualified from appearing in cases arising under 29
C.F.R. Part 24.  Mr. Guild suggests that the allegations
concerning his conduct should be resolved in the same proceeding.
     The Wage Hour Administrator suggested that the Secretary has
the authority, under his power to regulate hearings before him,
Rex v. Ebasco Services, Inc., Case Nos. 87-ERA-6, 40,
Sec'y. Final Decision and Order Mar. 4, 1994, slip op. at 6-7 and
cases discussed therein, to refer the question of the fitness of
attorneys to practice before the Department of Labor in 29 C.F.R.
Part 24 cases to the Chief Administrative Law Judge for the
appointment of an ALJ to conduct a hearing and make a
recommendation to the Secretary on that issue.  The Wage Hour
Administrator believes 29 C.F.R. § 18.34.(g)(3) does not
prohibit the Secretary from making such a referral, and implies
that such a hearing and any resulting order should be final and
binding in all future cases in which Ms. Garde and Mr. Guild
enter appearances.
     I agree that it would be unfair and administratively
burdensome to require a hearing to be held each time Ms. Garde or
Mr. Guild enter an appearance in a case to determine their
fitness to practice.  This matter therefore is referred to the
Chief Administrative Law Judge to appoint an ALJ to hold a
hearing and make a recommendation to me on whether sanctions 
[PAGE 3]
should be imposed for Ms. Garde and Mr. Guild's alleged
misconduct. [1]   My final decision after such a recommended
decision will be binding in all cases in which Ms. Garde or 
Mr. Guild appear as representatives of a party.  Until issuance
of that final decision, Ms. Garde and Mr. Guild may continue to
represent parties in cases under 29 C.F.R. Part 24.
     The allegations of misconduct implicate the orderly
administration of 29 C.F.R. Part 24, as well as respect for the
authority of the Secretary and the Office of Administrative Law
Judges under the ERA.  Therefore, the Solicitor of Labor,
representing the Wage Hour Administrator as the Department of
Labor official delegated responsibility for administration of 29
C.F.R. Part 24, should present the case for imposition of
sanctions and will have the burden of proving the allegations by
a preponderance of the evidence.  See Steadman v.
S.E.C., 450 U.S. 91, 98 (1981); In the Matter of Theodore
Polydoroff and Timothy C. Miller, 133 M.C.C. 364 (I.C.C. 1984).  The
Solicitor also shall have the authority to enter into a
settlement of the matter, subject to approval by the Secretary.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   I do not agree with Ms. Garde and Mr. Guild that this
matter should be referred to the ALJ in the Corder
case to make the recommendation discussed above based only on the
ex parte hearing described above and the record in this
case.  On February 9, 1994, I rejected a settlement between the
parties in Corder and remanded the case to the ALJ for
further proceedings.  Corder v. Bechtel Energy Corp., Case
No. 88-ERA-9, Sec'y. Order Feb. 9, 1994.  The ALJ issued a
Recommended Order of Dismissal on August 30, 1994 and that case
is now pending before me.