DATE:  March 22, 1994
CASE NOS. 94-CAA-1, 94-CAA-6


IN THE MATTER OF 

GERALD E. MCCOY, 

          COMPLAINANT,

     v.

UTAH POWER/PACIFIC POWER,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                        ORDER TO SUBMIT SETTLEMENT

     Before me for review is a Recommended Order Dismissing
Complaints issued by Administrative Law Judge (ALJ) Jeffrey
Tureck on February 7, 1994.  The order recommended dismissal of
the cases which arose under the employee protection provisions 
of the Clean Air Act (CAA), or the Act 42 U.S.C. § 7622
(1988) and were consolidated for hearing purposes. [1]   The
basis for the ALJ's recommendation is a Memorandum of Settlement
Agreement, General Release and Covenants jointly submitted by the
parties to the ALJ, agreeing to the dismissal of the Department
of Labor complaints and the civil action in the U.S. District
Court. 
     No copy of the settlement agreement is included in the
record, and it appears that the agreement was not submitted to or
reviewed by the ALJ.  The Memorandum indicates at ¶ 3, that
"[i]n consideration of the settlement, McCoy agreed . . . (4) to
keep confidential the terms and conditions of the settlement." 
The Memorandum also provides at ¶ 3 "that if any differences
exist between the Memorandum and the Agreement or if an
interpretive dispute arises concerning these two documents, the
Agreement shall be the governing document."
     In cases arising under the employee protection provision of
the CAA and the implementing regulations at 29 C.F.R. Part 24, it

[PAGE 2]
would be error for the Secretary to enter into a settlement with
the alleged violator, 42 U.S.C. § 7622(b)(2)(A), and to
otherwise dismiss a case which has been settled without reviewing
the settlement agreement to determine whether it is fair,
adequate and reasonable.  See 29 C.F.R. § 24.6(a)
(1993); Macktal v. Secretary of Labor, 923 F.2d 1150,
1153-54 (5th Cir. 1991); Thompson v. United States Dep't of
Labor, 885 F.2d 551, 556 (9th Cir. 1989); McGlynn v.
Pulsair Incorporated, Case No. 93-CAA-2, Sec. Final Ord.
Approving Settlement, June 28, 1993.  This seems particularly
necessary when the agreement has legal precedence over the
memorandum and the full terms of the agreement are not known
to the Secretary or the ALJ.  
     As indicated in prior decisions of the Secretary, the
Department does not simply provide a forum for private parties 
to litigate their private employment discrimination suits. 
Protected whistleblowing may expose not just private harms, but
health and safety hazards to the public, and the Secretary
represents the public interest in keeping channels of information
open by assuring that settlements adequately protect
whistleblowers.  See Daily v. Portland Gen'l Elec.
Co., Case No. 88-ERA-40, Sec. Ord. to Submit Settlement, Nov.
6, 1898, slip op. at 3-4; Polizzi v. Gibbs and Hill, Inc., Case
No. 87-ERA-38, Sec. Ord. Rejecting in Part and Approving in Part
Settlement Submitted by the Parties and Dismissing the Case, July
18, 1988, slip op. at 2-3.
     The Secretary has consistently held that once submitted for
review, the parties' submissions including settlement agreements
and all related documents become 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.
     In the interest of administrative economy, I will review the
terms of the settlement agreement rather than remand the case to
the ALJ for further consideration.  See Fuchko and
Yunker v. Georgia Power Co., Case Nos. 89-ERA-9 & 10, Sec.
Ord. to Submit Settlement Agreement, March 23, 1989, slip op. at
1-2.  The parties are ordered to submit to me a copy of the
settlement 
[PAGE 3]
agreement within thirty days of receipt of this order.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.








[ENDNOTES]
           
[1]   The Complainant also instituted legal action on the same
cause of action in the United States District Court for the
District of Utah, Central Division, Civil Docket No. 93C-760B.

[2]   The parties should be aware that the 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) (1993).  When FOIA
requests are received for such information, 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).