DATE:  June 3, 1994
CASE NO. 89-ERA-27


IN THE MATTER OF

JAMES C. JONES,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                       ORDER DISAPPROVING SETTLEMENT
                            AND REMANDING CASE

     Before me for review is the Recommended Order of Dismissal
(R.O.) of the Administrative Law Judge (ALJ) issued on 
November 9, 1989, in this case arising under the employee
protection provision of the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C. § 5851 (1988).  In his R.O., the
ALJ reviewed the parties' Conciliation Agreement and Joint Motion
for Order of Dismissal, found the terms of the agreement to be
"fair to all parties and consistent with provisions of the law,"
and ordered the case dismissed with prejudice.  Pursuant to the
parties' request, the ALJ also ordered:

     [T]hat the terms of the conciliation agreement entered
     into between the parties shall be kept confidential by
     the parties and their attorneys in accordance with that
     agreement, that after review and approval by the
     Secretary of Labor, the copy of such agreement
     submitted for inspection in camera shall be resealed
     and returned to the attorneys for the Tennessee Valley
     Authority, and that the Department of Labor's file 
     . . . concerning the inspection and approval of the 
[PAGE 2]
    agreement shall be sealed and the contents thereof not subject to
    disclosure other than by order of the Secretary of Labor after
    notice to counsel for the parties and an opportunity to be heard.
R.D. at 1.
     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 the settlement agreed upon by the private parties to
ensure that they are fair, adequate and reasonable to settle
Complainant's allegations that Respondent violated the ERA. [1]  
Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-1154
(5th Cir. 1991);  Thompson v. U.S. Department of Labor,
885 F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v.
Georgia Power Co., Case Nos. 89-ERA-9, 10, Sec. Ord., March
23, 1989, slip op. at 1-2.
     The Secretary consistently has held that once submitted for
review, the parties' submissions including Settlement Agreements
and all related documents become a part of the public record in
the case and are subject to the provisions of the Freedom of
Information Act (FOIA), 5 U.S.C. § 552 (1988), requiring
Federal agencies to disclose requested records unless they are
exempt from disclosure under the Act. [2]   See Wampler
v. Pullman-Higgins Co., Case No. 84-ERA-13, Sec. Final Ord.
Disapproving Settlement and Remanding Case, Feb. 14, 1994, slip
op. at 3-4; Corder v. Bechtel Energy Corp., Case No. 88-
ERA-9, Sec. Ord., Feb. 9, 1994, slip op. at 4-5; DeBose v.
Carolina Power & Light Co., Case No. 92-ERA-14, Sec. Ord.
Disapproving Settlement and Remanding Case, Feb. 7, 1994, slip
op. at 2-3; Plumlee v. Alyeska Pipeline Service Co., Case
Nos. 92-TSC-7 and 10, 92-WPC-6, 7, 8, and 10, Sec. Final Ord.
Approving Settlements and Dismissing Cases with Prejudice, Aug.
6, 1993, slip op. at 5-6.
     I also have addressed the issue of sealing settlement
agreements and placing related documents in a restricted access
portion of the record pursuant to 29 C.F.R. § 18.56 (1992),
and have rejected such requests.  See Corder, slip
op. at 1-5; DeBose, slip op. at 2-4; Mitchell v.
Arizona Public Service Co., Case Nos. 92-ERA-28, 29, 35 and
55, Sec. Ord. Approving Settlement Agreement and Dismissing
Cases, June 28, 1993, slip op. at 2.
     Based on the precedent set forth above, I reject the
parties' request that the case files be sealed, and I do not
approve the confidentiality provisions of the conciliation
agreement and joint motion.  Accordingly, I decline to adopt the
ALJ's recommended order and remand the case for hearing.

[PAGE 3]
     SO ORDERED.




                         ROBERT B. REICH
                         Secretary of Labor

Washington, D.C.






[ENDNOTES]
         
[1]   The Department of Labor does not simply provide a forum for
private parties to litigate their private employment
discrimination suits.  Whistleblowing under the employee
protection provision of the ERA may expose not just private
harms, but health and safety hazards to the public.  The
Secretary represents the public interest in keeping channels of
information open by assuring that settlements adequately protect
whistleblowers.  Polizzi v. Gibbs & Hill, Inc., Case No.
87-ERA-38, Sec. Ord. Rejecting in Part and Approving in Part
Settlement Submitted by the Parties and Dismissing Case, Jul. 18,
1989, slip op at 3.

[2]   Department of Labor regulations implementing the FOIA
provide that submitters of information may designate specific
information as confidential commercial information to be handled
as provided in those regulations.  29 C.F.R. § 70.26(b)
(1991).  When FOIA requests for such information are received,
the Department of Labor will notify the submitter promptly, 29
C.F.R. § 70.26(c), the submitter will be given a reasonable
period of time to state its objections to disclosure, 29 C.F.R.
§ 70.26(e), and the submitter will be notified if a decision
is made to disclose the information.  29 C.F.R. § 70.26(f). 
If the information is withheld and suit is filed by the requestor
to compel disclosure, the submitter will be notified.  29 C.F.R.
§ 70.26(h).