U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
FTS 920-1571
FAX (804) 722-3448
DATE: February 27, 1992
CASE NO.: 92-ERA-14
IN THE MATTER OF
JAMES DEBOSE,
COMPLAINANT,
v.
CAROLINA POWER & LIGHT COMPANY,
RESPONDENT.
ORDER RECOMMENDING DISAPPROVAL OF PROPOSED SETTLEMENT AGREEMENT
A Joint Motion Requesting Approval of Settlement and
Stipulation to Dismissal of Complaint with Prejudice (dated
February 24, 1991) and a signed Settlement Agreement (dated
February 19, 1992), with attachments, have been received.
At the outset it should be noted that whistleblower cases are
not purely private proceedings. Rather, these cases are vested
with a public interest. As the Secretary has noted:
[Page 2]
The Department of Labor does not simply provide a
forum for private parties to litigate their private
employment discrimination suits. Protected whistleblowing
under 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., 87-ERA-38 (Secretary's Order
of July 18, 1989). (Footnote omitted).
1Vogel v. Florida Power
Corp., 90-ERA-19 (Secretary's Order
of March 12, 1991) has been cited by the parties for the
proposition that orders of the Secretary can be sealed. In Vogel
the Secretary unsealed a settlement agreement that the parties
wished to keep confidential "in view of the parties' agreement that
the settlement will not fail if not kept under seal". The Vogel
decision is unclear as to whether the Secretary would have left the
agreement sealed absent that concession. The decision could be
read so as to imply that had the proposed agreement required
confidentiality, the Secretary would have rejected it on that
basis. The instant case is distinguishable from Vogel in any event
since the parties insist that restricted access is not severable
from the rest of the agreement. This case, accordingly, affords
the opportunity to clarify the ambiguities left by Vogel.
2 The proposed settlement
will be sealed to protect the
parties, position until such time as the Secretary has had a chance
to review this matter. At such time the undersigned recommends
that the agreement be taken out of restricted access
3 Although the agreement
does not forbid Complainant from
cooperating with law enforcement agencies, the information will, as
a practical matter be available only to the Nuclear Regulatory
Commission. It is unlikely that as the agreement is presently
structured that it would come to the attention of interested state
and local agencies. Nor would this information be available to
other employees of the Respondent. Compare this to the practice
under the National Labor Relations Act requiring National Labor
Relations Board orders to be posted at Employer's place of
business.