Date: August 1, 1996

Case No: 84-ERA-13

JOSEPH D. WAMPLER

Complainant

against

PULLMAN-HIGGINS COMPANY

Respondent

Appearances:

Ernest C. Hadley, Esq.

For the Complainant

Mark T. Broth, Esq.

For the Respondent

Before: DAVID W. DI NARDI
Administrative Law Judge

   In the above-captioned case, which arises under the employee protection provision of the Energy Reorganization Act (ERA), 42 U.S.C. §5851 (1988), this Administrative Law Judge, on March 26, 1984, dismissed Complainant's claim with prejudice, pursuant to 29 C.F.R. §24.5(e)(4), and, thereafter, Complainant, by letter dated April 12, 1990, requested reopening of the record for the purposes of further proceedings on his complaint and the Secretary, by order issued on January 23, 1992, granted such reopening and the Secretary, after reviewing the settlement agreement and ruling upon several motions, the Secretary of Labor, on February 14, 1994, issued a FINAL ORDER DISAPPROVING SETTLEMENT AND REMANDING CASE holding (1) that the settlement presented for approval contained a provision which was contrary to public policy and unenforceable in that it could restrict Complainant's communication of safety concerns to state and federal government agencies and (2) that the Secretary could not sever that provision and enforce the remainder of the agreement without the consent of the Complainant, as this would constitute a modification of a material term of a negotiated settlement agreement without the consent of both parties in accordance with Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991).

   The Secretary, by ORDER DENYING MOTION FOR RECONSIDERATION, issued on June 13, 1994, concluded, in light of Macktal, that he could neither approve this settlement agreement as written nor modify the terms of the agreement without the consent of the Complainant.

   Thereafter, after the U.S. Court of Appeals for the First Circuit declined to entertain jurisdiction of the Respondent's interlocutory appeal, the matter was remanded to the Office of Administrative Law Judges and, on November 8, 1995, the case was docketed at the Boston District and reassigned to this Administrative Law Judge for further proceedings consistent with the Secretary's decision.

   The parties were advised of such docketing and were afforded a reasonable amount of time to comply with the Secretary's mandate. The matter was then set for hearing by a Notice of Hearing on Remand and Pre-Hearing Order and this Administrative Law Judge was advised, just prior to the hearing date, that Complainant has withdrawn his Complaint with prejudice.

   Accordingly, in view of the foregoing, this Administrative Law Judge recommends again that the complaint filed herein by the Complainant shall be DISMISSED WITH PREJUDICE, pursuant to Rule 41 (a)(2) of the Federal Rules of Civil Procedure.

DAVID W. DI NARDI

Administrative Law Judge

Boston, Massachusetts

DWD:las