U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: February 9, 1994
CASE NO. 88-ERA-9
IN THE MATTER OF
JOHN A. CORDER,
COMPLAINANT,
v.
BECHTEL ENERGY CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER
The administrative law judge (ALJ) in this case arising
under Section 210 (the employee protection provision) of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§ 5851 (1982), issued a [Recommended][1] Agreed Order of
Dismissal with Prejudice (Order of Dismissal) on October 28,
1988. The Order of Dismissal stated that "all matters in and
related to this cause have been concluded by compromise and
settlement.
The Order of Dismissal indicated that the ALJ had reviewed the
settlement and then permitted it to be "withdrawn" and retained
by counsel for Respondent. A copy of the settlement was not made
part of the record at that time. On December 15, 1988,
[PAGE 2]
the ALJ issued an Order Sealing Transcript which purported to
place the transcript of the proceedings before the ALJ on October
24, 1988, under seal "[i]n order to honor the request of the
parties that the terms of the settlement remain confidential."
On May 25, 1989, the Secretary issued an Order to Submit
Settlement which noted that a case under the ERA cannot be
dismissed on the basis of a settlement unless the settlement has
been reviewed to determine whether it is fair, adequate and
reasonable, and that there was a serious question whether an ALJ
or the Secretary has the authority under the ERA to seal the
transcript of a hearing. The Order to Submit Settlement ordered
the parties to submit a copy of the settlement agreement and gave
the parties an opportunity to submit briefs on whether the
Secretary has the authority under the ERA to seal all or any
portion of the record.
Complainant wrote a letter to the Secretary on June 24,
1989, stating that he "was forced to sign [the] agreement with
[Bechtel] against my will and moral convictions due to the
pressures put on me by my attorney . . . ." A copy of the
settlement agreement was attached to Complainant's letter.
Complainant also indicated in that letter that he does not concur
with the ALJ's order sealing the transcript and requested that
the transcript and the settlement be made public. He did not,
however, request that the settlement be rejected. On June 29,
1989, Respondent filed a Brief in Support of Authority of
Administrative Law Judge James Kerr Re Sealing of Transcript of
Hearing Re Settlement (Respondent's brief). The Release and
Settlement Agreement, marked "Sealed," and the sealed transcript
were attached to the brief as exhibits.
In its brief in response to the Secretary's May 25, 1989
order, Respondent argued that the Secretary or an ALJ has
authority to seal any portion of the record in this case under 29
C.F.R. § 18.56 (1993). That section of the Rules of Practice
and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (ALJ Rules of Practice) provides:
On his or her own motion, or on the motion of any party, the
administrative law judge may direct that there be a
restricted
[PAGE 3]
access portion of the record to contain any material in the
record to which public access is restricted by law or by the
terms of a protective order entered in the proceedings.
Respondent also argued that disclosure of the settlement would
violate 18 U.S.C. § 1905 (1982), which prohibits disclosure
by government employees of trade secrets and confidential
statistical information. Finally, Respondent argued that it would
be inequitable to the parties and would not serve any public
purpose to disclose the terms of the settlement. Respondent
asserted in this regard that disclosure would invade
Complainant's privacy [2] and could prejudice Respondent in its
settlement negotiations in othe discouraging settlements.
The Secretary has held in a number of cases with respect to
confidentiality provisions in settlement agreements that the FOIA
"requires agencies to disclose requested documents unless they
are exempt from disclosure . . . ." Plumlee v. Alveska Pipeline
Service Co., Case Nos. 92-TSC-7, 10; 92-WPC-6, 7, 8, 10, Sec'y.
Final Order Approving Settlements and Dismissing Cases with
Prejudice, Aug. 6, 1993, slip. op at 6. See also Mitchell v.
Arizona Public Service Co., Case Nos. 92-ERA-28, 29, 35, 55,
Sec'y. Final Order Approving Settlement Agreement and Dismissing
Cases, Jun. 28, 1993, slip op. at 2 (request to place settlement
agreement under seal denied); Davis v. Vallev View Ferrs
Authoritv, Case No. 93-WPC-1, Sec'y. Final Order Approving
Settlement and Dismissing Complaint, Jun. 28, 1993, 91ip Op. at 2
n.1 (parties' submissions become part of record and are subject
to FOIA); Ratliff v. Airco Gases, Case No. 93-STA-00005, Sec'y.
Final Order Approving Settlement Agreement Jun. 25, 1993, slip
op. at 2 (same); Reid v. Tennessee Valley Auth., Case No.
91-ERA17, Sec'y. Order Approving Settlement and Dismissing
Complaint with Prejudice, Aug. 31, 1992, slip op. at 3 n.1
(same); Daily v. Portland Gen'l. Elec. Co., Case No. 88-ERA-40,
Sec'y. Order Approving Settlement and Dismissing Case, Mar. 1,
1990, slip op. at 1 n.1 (same). The hearing record in this case,
including the transcript and the settlement agreement, therefore,
are agency records which must be made available for public
inspection and copying under the FOIA.
In the event a request for inspection or copying of the
record in this case is made by a member of the public, therefore,
that request must be responded to as provided in the FOIA. If an
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exemption is applicable to the record in this case or any
specific document in it, the Department of Labor would determine
at the time a request is made whether to exercise its discretion
to claim the exemption and withhold the document. If no exemption
were applicable, the document would have to be disclosed. Since
no FOIA request has been made, it would be premature to determine
whether any of the exemptions in the FOIA would be applicable and
whether the Department of Labor would exercise its authority to
claim such an exemption and withhold the requested information.
It also would be inappropriate to decide such questions in this
proceeding. Department of Labor regulations provide specific
procedures for responding to FOIA requests, for appeals by
requestors from denials of such requests, and for protecting the
interests of submitters of confidential commercial information.
See 29 C.F.R. Part 70.
Therefore, the ALJ's order sealing the transcript of the
October 24, 1988, hearing in this case is reversed, and the
record in this case shall be available for inspection and copying
in accordance with the FOIA and the procedures in 29 C.F.R. Part
70.
The Release and Settlement Agreement (Agreement) in this
case has been reviewed and, for the reasons discussed below, I
reject it and this case will be remanded to the ALJ for further
proceedings consistent with this order.[3]
Under paragraph 5 of the Agreement, Complainant "agrees to
withdraw and forever cease his participation in the [Nuclear
Regulatory Commission] Proceeding and the [Public Utilities
Commission] Proceeding." Under paragraph 6, Complainant agrees,
except as "required by law," not to make any "disclosure, comment
or other communication concerning . . . any and all claims,
allegations, or assertions, of whatever description . . .
regarding or related to [the South Texas Nuclear Plant],
including [Complainant's] employment at [the South Texas Nuclear
plant] and its termination, and the design, engineering,
construction, materials, equipment, safety, maintainability,
operability, viability, prudence, or personnel associated with
the [South Texas Nuclear Plant]."
Paragraph 6 of the Agreement in this case would prohibit
Complainant, among other things, from providing information tot
or assisting or cooperating with, the Department of Labor in
investigations of complaints against Respondent or involving the
South Texas Nuclear Plant under the ERA or any other
environmental whistleblower protection statute. Paragraph 6 also
would prohibit Complainant from providing information or
[PAGE 5]
assisting or cooperating with the Department of Labor or any
other federal or state agency in the investigation or prosecution
of any charge of discrimination or wrongful employment practices,
in violation of any federal or state law, rule, or regulation.
This could include, for example, the Fair Labor Standards Act,
the Occupational Safety and Health Act, Executive Order No.
11,246, Section 503 of the Rehabilitation Act of 1973, and Title
VII of the Civil Rights Act of 1964. This provision appears to
prohibit Complainant from voluntarily testifying or otherwise
participating in any proceeding or investigation involving the
South Texas Nuclear Plant, including Nuclear Regulatory
Commission licensing or safety proceedings or investigations, and
state regulatory or rate proceedings or investigations. This
prohibition also could include investigation or enforcement
proceedings by the United States Environmental Protection Agency.
The only exception to these restrictions would be where
Complainant is "required by law to respond to any inquiries,
subpoenas, and other legal process . . . ." Agreement, Para.
6(b).
I find that these provisions of the Agreement would have the
effect of drying up channels of information for the Department of
Labor in ERA cases and under other laws, as well as for other
agencies in carrying out their responsibilities. Although I note
that the NRC has directed all licensees and contractors to notify
complainants who are parties to settlement agreements which
restrict the right of the complainant to provide information to
the NRC that such provisions will not be enforced, NRC directive
of April 27, 1989 (copy attached), the restrictions of paragraph
6 here are considerably broader. See discussion above. Although
Secretaries of Labor have in the past found such provisions of
settlement agreements void as against public policy, severed
those provisions and approved the remainder of the agreement,
see, e.q., 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 5-7, the Fifth Circuit has held that the Secretary has no
authority to alter the terms of a settlement agreement reached by
[PAGE 6]
the parties. Macktal v. Secretary of Labor, 923 F.2d 1150,
1154-56 (5th Cir. 1991). The Secretary may either approve or
disapprove the agreement as written, and if he disapproves the
agreement he may negotiate a new settlement or remand the matter
for a hearing. Id. at 1156.
Accordingly, for the reasons discussed above with respect to
paragraph 6 of the Agreement, I find I cannot enter into this
settlement and I reject it. This case is REMANDED to the ALJ for
further proceedings consistent with this order.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Under 29 C.F.R. § 24.6 of the regulations implementing
the ERA, an ALJ is authorized to issue only a recommended
decision which must be reviewed by the Secretary before it
becomes final.
[2] This argument would appear to be moot because Complainant
stated in his letter of June 24, 1989, that he wants the
settlement to be public.
[3] Paragraphs 1, 3, and 4, appear to encompass the settlement of
matters arising under various laws, only one of which is the ERA.
For the reasons set forth in Poulos v. Ambassador Fuel Oil Co.,
Case No. 86-CAA-1, Sec. Order, November 2, 1987, slip op. at 2, I
have limited my review of the agreement to determining whether
its terms are a fair, adequate and reasonable settlement of
Complainant's allegations that Respondent violated the ERA.
