DATE:  January 23, 1992
CASE NO. 84-ERA-13


IN THE MATTER OF

JOSEPH D. WAMPLER,

          COMPLAINANT,

     v.

PULLMAN-HIGGINS COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                   ORDER TO SUBMIT SETTLEMENT AGREEMENT 
                            
     By letter, dated April 12, 1990, Complainant through his counsel has requested reopening
of the record in this case for the purpose of further proceedings on his complaint.  See
Letter from Ernest C. Hadley to the Office of the Administrator of the Wage and Hour Division,
April 12, 1990 (Letter).[1]  Specfically, Complainant requests that I vacate the Order, issued by
Administrative Law Judge (ALJ) David W. DiNardi on March 26, 1984, which dismissed
Complainant's claim with prejudice pursuant to 29 C.F.R. § 24.5(e)(4), and requests that
the hearing on this claim be reopened.

     As a basis for his request, Complainant alleges that, during the hearing begun on March
19, 1984, a settlement agreement was entered into by the parties and was approved by the ALJ. 
This agreement, Complainant now contends, "did not constitute a legal settlement agreement"
because it contained an unenforceable provision -- namely " a provision which prevented Mr.
Wampler from communicating any of his safety concerns to the Nuclear Regulatory
Commission."  Letter at 2.  It appears, therefore, that Complainant's purpose, six years later, is to
nullify the 1984 settlement he now acknowledges.

     Review of the record in this case does not reveal a copy of any settlement agreement nor
any evidence that a settlement agreement nor any evidence that a settlement agreement was
presented to the ALJ for approval.[2]  Accordingly the parties are directed (1) to submit, within
thirty days of receipt of this order, a copy of the settlement agreement signed by both parties,
including Complainant individually, and setting forth all the terms and conditions, and (2) to set
forth the extent to which they have performed their obligations under that agreement.  The parties
are invited to submit their views on the severability of any provision which prevents
Complainant from communicating any of his safety concerns to the Nuclear Regulatory
Commission.[3]

     All documents filed shall be seved on the opposing party.

     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor


Washington, D.C.


[ENDNOTES]
           
[1]  Since Complainant has failed to served Respondent with a copy of this letter, a copy is
attached to this Order for the purpose of accomplishing such service.


[2]  According to the ALJ's Order, the ALJ dismissed Complainant's claim after being notified by
Complainant that he withdrawing his objection to Wage and Hour Division's determination that
Respondent had not discriminating discharged Complainant, and after the subsequent
concurrence of Respondent's counsel to the dismissal.  An ALJ's order of dismissal however, is
not a final order.  See Milewski v. Kansas Gas & Electric Co., Case No. 85-ERA-0021, Sec. Order, Apr. 23, 1990, slip op. at 3, as modified by Avery v. B & W
Commercial Nuclear Fuel Plant, Case No. 91-ERA-8, Sec. Final Order of Dismissal, Oct.
21, 1991.  Because the Secretary has not issued a final order, this case remains open. 
Consequently, Complainant's request to reopen the record is denied.


[3]  The presense in a settlement agreement of an unenforceable clause of the type described by
Complainant does not automatically vitiate the entire agreement.  See McQuay v. The
Waldinger Corporation, Case No. 85-ERA-33, Secretary's Order Approving Settlement and
Dismissing Case, May 31, 1990, severing the unenforceable provisions of settlement and
approving the remainder of the agreement; Polizzi v. Gibbs & Hill,
Inc., Case No. 87-ERA-38, Secretary's Order, July 18, 1989.