DATE: FEBRUARY 4, 1993

CASE NOS.: 92-ERA-28
    92-ERA-29
    92-ERA-35
    92-ERA-55

In the Matter of

LINDA E. MITCHELL
    Complainant

    versus

ARIZONA PUBLIC SERVICE COMPANY

    and

ARIZONA NUCLEAR POWER PROJECT
    Respondents

BEFORE: Rudolf L. Jansen
    Administrative Law Judge

   These cases arise under the employee protection provisions of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. Section 5851. By way of a Notice of Hearing issued on December 15, 1992, the cases were scheduled to be heard commencing on January 19, 1993 in Phoenix, Arizona.

   Prior to the scheduled hearing date, counsel advised the undersigned that an administrative disposition of this group of cases had been reached. Subsequently, on January 22, 1993, I received a Joint Motion to Approve Settlement

Agreement and for Dismissal with Prejudice. The settlement documents incorporate the understanding of the parties as to the basis for settlement. The joint motion is signed by George H. Lyons, Esq., counsel for the Respondent, and also David R. Colapinto, Esq., counsel for Complainant. Both counsel also signed the Settlement Agreement as did a representative of Arizona Public Service Company and Linda E. Mitchell. The General Release agreement is also signed by a company representative and Linda E. Mitchell. The parties have moved that I recommend approval of the Settlement Agreement and that this group of cases be recommended for dismissal with prejudice.

   Initially I note that the agreement encompasses the settlement of all matters arising under the four cases relating to violations of the Energy Reorganization Act. Care has been taken in drafting the agreement to exclude any reference to other related legal matters that may exist involving the same principles. For my purposes here, I limit my review of this agreement to determine whether its terms are a fair, adequate and reasonable settlement of Linda E. Mitchell's complaints concerning violations of the Energy Reorganization Act. Poulos v. Ambassador Fuel Oil Co., Case No. 86-CAA-1, Sec. Order, slip op. at 2 (Nov. 2, 1987).

   The Settlement Agreement also provides that it is to be governed in all respects by the laws of the state of Arizona, and it then contains a disclaimer as that provision may relate to federal law. Settlement Agreement, Paragraph 7. I interpret that paragraph as meaning that its intent is not to limit the authority of the Secretary under any federal statute or regulation. Milewski v. Kansas Gas and Electric Co., Case No. 85-ERA-0021, Sec. Order Approving Settlement Agreement and Dismissing Complaint, June 28, 1990, slip op. at 2.

   Finally, I notice that at Paragraph F of the General Release that the Complainant has agreed to completely release and discharge the Respondents from any and all future claims, demands, obligations etc. Since a waiver of the Complainant's rights based upon any future Employer actions would be contrary to public policy, I interpret that provision of the agreement as being simply a waiver of the right to sue in the future on claims or causes of action arising out of facts occurring prior to the date of the execution of the agreement. Polizzi v. Gibbs & Hill, Inc., Case No. 87-ERA-38, Sec. Order Rejecting in Part and Approving in Part Settlement Submitted by the Parties and Dismissing Case, July 18, 1989, slip op. at 9.

   As limited and construed herein, and following consideration of the Settlement Agreement and the General Release, I find the agreement to be fair, adequate and reasonable, and I believe it is in the public interest to adopt the agreement as a basis for the administrative disposition of

these cases.

   Therefore, I recommend dismissal of these proceedings with full prejudice based upon authority conferred by 29 C.F.R. Section 18.39(b)

      RUDOLF L. JANSEN
      Administrative Law Judge