DATE: February 4, 1994
CASE NO. 87-ERA-35
IN THE MATTER OF
JAMES CARROLL PILLOW, JR.
COMPLAINANT,
v.
BECHTEL CONSTRUCTION, INC.
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER GRANTING CLARIFICATION AND REQUIRING SUBMISSION
OF WRITTEN SETTLEMENT AGREEMENT
This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988). In an earlier Decision and Order of
Remand (Remand Order), the Secretary found that Respondent
Bechtel Construction, Inc. (Bechtel) violated the ERA when it
switched Complainant James Pillow's work shift and selected him
for layoff. The Secretary remanded to the Administrative Law
Judge (ALJ) to take evidence on and recommend the amount of back
pay and compensatory damages (if any) to which Pillow is
entitled, and to calculate the costs and an attorney fee incurred
in bringing the complaint.
1. Motions for Clarification and for Stay
Shortly after the Remand Order was issued, Pillow moved to
clarify a statement in footnote 3 of that order. Bechtel opposed
the motion to clarify, and asked the Secretary to vacate the
Remand Order and adopt the Administrative Law Judge's (ALJ)
earlier recommended decision on the merits of the complaint.
Bechtel filed a petition for review of the Remand Order in the
United States Court of Appeals, Bechtel Construction Co. v.
[PAGE 2]
Secretary of Labor, No. 93-4867 (11th Cir.), [1] and asked
the Secretary to stay the proceedings on remand pending the
ruling on Pillow's motion for clarification.
2. The ALJ's Recommended Decision and Order on Damages
The ALJ scheduled a hearing on remand for November 9, 1993,
at which time the parties advised that they had reached an
agreement on the issues to be resolved on remand. R.D. at 1.
Their agreement did not settle the issue of liability, and
Bechtel indicated that it would seek judicial review of the
underlying decision on the merits. T. 2-3.
The parties did not submit a signed settlement agreement,
but rather, relied "upon statements made on the record to
encompass the entire agreement." R.D. at 1. Pursuant to their
agreement, if any part of the settlement is not accepted by the
Secretary, the entire agreement will be void and the case should
proceed for an evidentiary hearing on damages and related issues.
T. 27. The parties agreed that Bechtel would pay Pillow $25,000
in back pay and interest, T. 5, $25,000 in compensatory damages,
T. 7, and would pay Pillow's attorney $250,000 to cover the
attorney fee and costs. T. 15.
The ALJ found the agreement to be fair, adequate, and
reasonable and recommended its acceptance. R.D. at 2.
3. Order Requiring Submission of Written
Settlement Agreement
Pillow submitted a letter to the Secretary in which he
requested at least a doubling of the amount of award he is to
receive pursuant to the settlement. The letter does not indicate
service on the other parties, and therefore I have appended it
to this decision.
According to the ERA, "the Secretary may not enter into a
settlement terminating a proceeding on a complaint without the
participation and consent of the complainant" (emphasis
added). 42 U.S.C. § 5851(b)(2)(A) (1988). The Secretary
will not approve a settlement unless it is submitted in writing
and signed by all parties, or the record contains an unequivocal
declaration by the parties that they have agreed to all the terms
of a settlement and stating the terms clearly. Hasan v.
Nuclear Power Services, Inc., No. 86-ERA-24, Order to Show
Cause, Mar. 21, 1991, slip op. at 2. In light of Pillow's recent
letter, there appears not to be consent of all parties to the
settlement terms addressed at the hearing on remand.
Accordingly, I will order the parties to submit a written
settlement agreement signed by Complainant, Complainant's
attorney, and an authorized signatory for Respondent. If such an
agreement is not submitted, or if any party indicates that he or
it did not agree to the settlement award, Complainant Pillow will
[PAGE 3]
have to establish his damages by a preponderance of the evidence
at a future hearing on remand.
4. Stay Denied
In view of the ALJ's having proceeded with this case, the
request for stay of the hearing on remand is denied as moot.
5. Clarification Granted
In his motion for clarification, Pillow correctly pointed
out that the Secretary erred in stating that no one asked former
Bechtel employee Larry Booth whether he had warned Pillow about a
set up. See Remand Order at 6, n.3. Rather, Bechtel's
counsel asked Booth whether he gave such a warning, and Booth
denied it. RX 18 p. 36.
I will grant the motion to correct the misstatement of the
evidence in footnote 3 of the Remand Order. Upon consideration
of Pillow's motion to clarify and Bechtel's response, and upon a
further review of the record in this case, footnote 3 on page 6
of the Remand Order is amended to read as follows:
3/ Booth, who had left Bechtel's employ and moved to
Arizona, was not a witness at the hearing. See
RX 18 at 5. In a pre-hearing deposition, Booth denied
that he told Complainant about being "set up." RX 18
at 36.
This revision does not alter any of the other findings or
conclusions in the July 19, 1993, Remand Order.
In its response to the Motion for Clarification, Bechtel
argued that the misstatement about Booth's denial of warning
Pillow about a set up revealed "a clear error that permeates and
taints the Secretary's entire analysis of the case and requires
that the Secretary vacate the Decision" and adopt the ALJ's
earlier recommended decision in Bechtel's favor. Resp. Response
to Comp. Motion for Clarification at 1, 12. I will explain
briefly that Bechtel's assumption of error is incorrect.
Bechtel argues that it was improper for the Secretary to
believe that Pillow was warned about a set up to get him fired
because "it was the ALJ who observed Mr. Pillow and other
witnesses testify and who is in the best position to determine
his 'credibility.'" Resp. Response to Comp. Motion for
Clarification at 2. But the ALJ did not discredit Pillow's
testimony. [2] The ALJ was not present for Booth's deposition
and it appears that he was unaware of the contradiction in
testimony that the deposition revealed, because he found that
"Complainant's testimony and allegations throughout the record
do not contradict Respondent's evidence." ALJ Dec. at 4.
The ALJ's only mention of Larry Booth's deposition testimony
concerned other issues: whether Pillow got along with his
coworkers or interfered with the work of the Safety Department.
[PAGE 4]
ALJ Dec. at 9.
There was a solid basis in the record to credit Pillow's
testimony about the warning of a set up, since the ALJ did not
discredit Pillow's testimony in general or his testimony about
such a warning in particular. Pillow maintained that Booth had
warned him, both in a prehearing deposition, see Resp.
Response to Comp. Motion for Clarification at 2 n.1, and again at
the hearing on the merits. T. 105. Therefore, the correction of
the misstatement about whether Booth denied having warned Pillow
does not alter the remainder of the Remand Order or its outcome.
ORDER
1. Complainant's Motion for Clarification is granted. The
July 19, 1993, Decision and Order of Remand is clarified as set
forth in Part 5 above.
2. Respondent's Motion for Stay is denied.
3. Within 60 days of receipt of this Order, the parties
shall submit a signed, written settlement agreement setting forth
the terms of their settlement. If no such agreement is
submitted, a further order will issue authorizing the
Administrative Law Judge to proceed with a hearing on remand to
resolve the outstanding issues of damages, costs, and an attorney
fee.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The petition was dismissed as premature in November 1993.
[2] The ALJ made only a routine statement concerning witness
demeanor: "The following findings of fact and conclusions of law
are based upon my observation of the appearance and demeanor of
the witnesses who testified at the hearing and upon an analysis
of the entire record, arguments of the parties, and applicable
statutes, regulations, and case law." ALJ Dec. at 3.
