DATE:  May 2, 1994  
CASE NOS.:  94-WPC-1
            94-WPC-2     
            94-WPC-3

IN THE MATTER OF            
                             
EDWARD P. MARTHIN,                 
          COMPLAINANT,      
  
     V.                                 

TAD TECHNICAL SERVICES CORPORATION,
          RESPONDENT,

     AND

THE DIAL CORPORATION,
          RESPONDENT.


   RECOMMENDED DECISION AND ORDER DISAPPROVING SETTLEMENT
                         AGREEMENT

     In general, the proposed settlement agreement appears to be
fair, reasonable and adequate in disposing of the issues raised
in this proceeding.  However, paragraphs 6, 7, and 10 appear to
unduly restrict Complainant from cooperating in other proceedings
under the employee protection provisions of the applicable
environmental statutes.  In reviewing these provisions, the
guiding principles have been summarized as follows:

          The Department of Labor does not simply provide a
     forum for private parties to litigate their private
     employment discrimination suits.  Protected whistle-
     blowing under the ERA may expose not just private
     harms, but health and safety hazardous 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).

     Paragraph 6 of the proposed agreement provides in relevant
part:

     . . . Marthin shall thereafter not initiate any further
     
[PAGE 2]
     contact with any government agencies or officials regarding
     any matter whatsoever involving Dial and/or TAD, either on
     his own behalf or on behalf of anyone else, except that
     nothing herein shall prohibit Marthin from properly and
     truthfully responding to communications and requests for
     information from any government agencies or officials.

     Paragraph 7 provides as follows:

          Marthin covenants and warrants that he will not
     institute or participate in any other actions,
     complaints, claims or proceedings of any kind against
     Dial or TAD arising out of or related to, in whole or
     in part, any claim that is being released in this
     Agreement, including any claims that is being released
     in this Agreement, including any claims being prepared
     or to be filed by any former employees of Dial and/or
     TAD; Marthin further covenants and warrants that he
     will not institute, assist with, provide guidance or
     counsel for, or other wise participate in any actions,
     claims, complaints or proceedings of any kind against
     Dial or TAD brought by or on behalf of Tiffany Simmons.

     Paragraph 10 provides as follows:

          Marthin agrees that he will keep the terms of this
     Agreement and all matters regarding his employment by
     TAD at Dial, including the subject matters of any
     complaints he has lodged against Dial and/or TAD,
     completely confidential, and that he shall not divulge
     such matters to any other person or entity, except upon
     request or government agencies or officials, or upon
     subpoena or order of court, and then only as specified
     in such request or order.  However, it is understood by
     the parties to this Agreement that Marthin will be
     allowed to respond to questions regarding his job
     duties while employed by TAD when being interviewed by
     prospective employers, and Marthin may respond to
     questions regarding his employment and alleged job
     injury in a potential workers' compensation claim.

     While the Complainant may agree not to sue Respondents on
his own behalf in connection with any of the claims at issue in
this proceeding, it is contrary to public policy to prohibit the
Complainant from cooperating in connection with legal proceedings
involving other individuals, although relating in some way to the
subject matter of the settlement agreement.  


[PAGE 3]
     Clearly, the parties may not agree to prohibit Complainant's
testimony in a case brought by a fellow employee, even if such a
case arises out of the same set of facts.  Such provisions are
contrary to public policy.  See Macktal v. Brown &
Root, 86-ERA-23, November 14, 1989 (Secretary's Order
Rejecting in Part and Approving in Part Settlement Between the
Parties and Dismissing Case).  

     In addition, the agreement should be amended to make it
clear that Complainant is not prohibited from initiating contact
with government agencies responsible for regulating the
Respondents' conduct.  In short, his contacts with such agencies
should not be limited solely to those occasions where the agency
seeks out the complainant.

     Consent settlements should be structured so as to keep the
channels of information open in order to facilitate enforcement
of the applicable statutes.  See Polizzi v. Gibbs &
Hill, Inc., supra.

     The review of the agreement has been limited to its impact
on enforcement of the statutes under the Secretary of Labor's
jurisdiction.

     IT IS RECOMMENDED that the proposed settlement agreement in
its present form be disapproved.

                                   THEODOR P. VON BRAND
                                   Administrative Law Judge

TPVB/jbm