DATE:  February 14, 1994
CASE NO. 84-ERA-13


IN THE MATTER OF

JOSEPH D. WAMPLER,

          COMPLAINANT,

     v.

PULLMAN-HIGGINS COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                   FINAL ORDER DISAPPROVING SETTLEMENT 
                            AND REMANDING CASE

     Before me for review is the Order of the Administrative Law
Judge (ALJ) issued on March 26, 1984, in this case arising under
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988).  The ALJ's Order granted Complainant's
motion for withdrawal and dismissed the complaint with prejudice
pursuant to 29 C.F.R. § 24.5(e)(4).  By letter dated April
12, 1990, Complainant requested that I vacate the Administrative
Law Judge's Order and reopen the hearing on his complaint. 
Complainant contended that the withdrawal of his complaint was
based on a settlement agreement which should be declared null and
void because of an unenforceable provision restricting
Complainant's communication with the Nuclear Regulatory
Commission (NRC).  Accordingly, Complainant sought to have this
case reopened.      
     On January 23, 1992, I issued an Order to Submit Settlement
Agreement, directing the parties to submit a copy of any executed
settlement agreement and to set forth the extent to which they
had performed their obligations under this agreement.  Finding 
[PAGE 2]
that the case remained open for a final decision by the
Secretary, I denied the request to reopen the record.  See
Order to Submit Settlement Agreement, slip op. at 2, fn. 2. 
Additionally, the parties were invited to submit their views on
the severability of any provision which prevented Complainant
from communicating any of his safety concerns to the NRC.  
     In response to my January 23 Order, each party filed a brief
before me and submitted a copy of the fully executed settlement
agreement and general release dated March 20, 1984.  See
Attachments E, G to Pullman-Higgins' Response to Order to Submit
Settlement Agreement (Respondent's Response); Exhibit 1 to
Complainant's Response to Order of the Secretary of Labor
(Complainant's Response).  
     Section 210(b)(2)(A) of the ERA, 42 U.S.C. §
5851(b)(2)(A), provides that "the Secretary shall, unless the
proceeding on the complaint is terminated by the Secretary on the
basis of a settlement entered into by the Secretary and the
person alleged to have committed such violation, issue an order
either providing the relief prescribed by subparagraph (B) or
denying the complaint."  The Secretary's role is to review the
terms of settlement agreed upon by the private parties to ensure
that the settlement is fair, adequate and reasonable.  See
42 U.S.C. § 5851(b)(2)(A); 29 C.F.R. § 24.6(a) (1991);
Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-
54 (5th Cir. 1991); Thompson v. United States Department of
Labor, 885 F.2d 551, 556 (9th Cir. 1989).  In the interest of
administrative economy, I will review the settlement agreement in
light of the record in this case, including the parties'
responses on severability, rather than remand the case to the ALJ
for initial review of the settlement agreement.  See
Hamka v. The Detroit Edison Company, Case No. 
88-ERA-26, Sec. Order to Submit Settlement, Feb. 15, 1990, slip
op. at 4.
     Review of the settlement agreement and general release
reveals that the agreement may encompass the settlement of claims
arising under various laws only one of which is the ERA.  For the
reasons set forth in Poulos v. Ambassador Fuel Oil Co.,
Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op at
2, I have limited my review of the agreement to determining
whether its terms are a fair, adequate and reasonable settlement
of Complainant's allegation that Respondent violated the ERA.
     With respect to the parties' agreement to keep the terms of
the settlement agreement confidential, I note that the parties'
submissions become a part of the record in this case, and that
the Freedom of Information Act, 5 U.S.C. § 552 (1988),
requires federal agencies to disclose requested records unless
they are exempt from disclosure under the Act.  See
Plumlee v. Alyeska Pipeline Service Company, Case Nos. 92-
TSC-7, 10, Sec. Fin. Order 
[PAGE 3]
Approving Settlements and Dismissing Cases with Prejudice, Aug.
6, 1993, slip op. at 5-6; McTiernan v. Public Service Co. of
Colorado, Inc., Case No. 91-ERA-37, Sec. Order Approving
Settlement, Feb. 21, 1992, slip op. at 1-2.  
     The challenged provision of the settlement agreement
provides, "Neither party will discuss or disclose the facts of
this case except if ordered to do so by court, tribunal or agency
of competent jurisdiction."  Para. # 2.  Complainant argues
before me that this provision violates the very right which the
ERA is intended to protect, to freely express health and safety
concerns to the NRC, and that therefore, the entire agreement
should be declared null and void as contrary to public policy,
and as a deterrent to keep such clauses out of future agreements. 
To the extent that this provision could be construed as
restricting Complainant from voluntarily communicating and
providing information to any federal or state government
agencies, it is void as contrary to public policy and
unenforceable. [1]   See Polizzi v. Gibbs & Hill,
Inc., Case No. 87-ERA-38, Sec. Order, July 18, 1989, slip op.
at 3-6.  
     In its brief before me, Respondent requested that the
challenged provision be stricken from the settlement agreement to
the extent that it may be construed as limiting Complainant's
ability to provide information to government agencies, but urges
that the remainder of the agreement should be upheld.  Although
Respondent, the party in whose favor the invalid provisions would
run, has specifically agreed to severance of the provision as
unenforceable, See Respondent's Response at 13-14,
Complainant has not consented to such a modification of the
agreement.  Section 5851(b)(2)(B) of the ERA specifically states, 
"The Secretary may not enter into a settlement terminating a
proceeding on a complaint without the participation and consent
of the complainant."  
     In the situation presented here, I feel constrained to
follow the Court's decision in Macktal holding that the
Secretary must consent or not consent to the terms of a proposed
settlement as written, and cannot sever a term and enforce the
remainder of the agreement under the language of the ERA, without
the consent of both parties.  Macktal, 923 F.2d at 1155. 
Such action was found to be a prohibited modification of a
material term of a negotiated settlement without the consent of
the parties. [2]   Accordingly, I must reject the settlement
agreement before me and remand the case to the ALJ.  See
Macktal v. Brown & Root, Inc., Case No. 86-ERA-23, Sec.
Order Disapproving Settlement and Remanding Case, Oct. 13, 1993,
slip op. at 2-7.     Accordingly, the settlement agreement is rejected and the
case is remanded for further appropriate action consistent with
this opinion and the ERA. 

[PAGE 4]
     SO ORDERED.



                              ROBERT B. REICH     
                              Secretary of Labor

Washington, D.C.












[ENDNOTES]
           
[1]  The Secretary represents the public interest in keeping
channels of information open by assuring that settlements
adequately protect whistleblowers.

[2]  I further note however, that the Court upheld the
Secretary's position that Complainant's initial consent to a
settlement agreement cannot be withdrawn before the Secretary has
reviewed the settlement.  Macktal at 1156-1157.