U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Date: August 1, 1996
Case No: 84-ERA-13
JOSEPH D. WAMPLER
Complainant
against
PULLMAN-HIGGINS COMPANY
Respondent
Appearances:
Ernest C. Hadley, Esq.
For the Complainant
Mark T. Broth, Esq.
For the Respondent
Before: DAVID W. DI NARDI Administrative Law Judge
RECOMMENDED DECISION AND ORDER GRANTING WITHDRAWAL OF COMPLAINT WITH PREJUDICE
In the above-captioned case, which arises
under the employee protection provision of the Energy
Reorganization Act (ERA), 42 U.S.C. §5851 (1988), this
Administrative Law Judge, on March 26, 1984, dismissed
Complainant's claim with prejudice, pursuant to 29 C.F.R.
§24.5(e)(4), and, thereafter, Complainant, by letter dated
April 12, 1990, requested reopening of the record for the
purposes of further proceedings on his complaint and the
Secretary, by order issued on January 23, 1992, granted such
reopening and the Secretary, after reviewing the settlement
agreement and ruling upon several motions, the Secretary of
Labor, on February 14, 1994, issued a FINAL ORDER DISAPPROVING
SETTLEMENT AND REMANDING CASE holding (1) that the settlement
presented for approval contained a provision which was contrary
to public policy and unenforceable in that it could restrict
Complainant's communication of safety concerns to state and
federal government agencies and (2) that the Secretary could not
sever that provision and enforce the remainder of the agreement
without the consent of the Complainant, as this would constitute
a modification of a material term of a negotiated settlement
agreement without the consent of both parties in accordance with
Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir.
1991).
The Secretary, by ORDER DENYING MOTION FOR
RECONSIDERATION, issued on June 13, 1994, concluded, in light
of Macktal, that he could neither approve this settlement
agreement as written nor modify the terms of the agreement
without the consent of the Complainant.
Thereafter, after the U.S. Court of Appeals
for the First Circuit declined to entertain jurisdiction of the
Respondent's interlocutory appeal, the matter was remanded to the
Office of Administrative Law Judges and, on November 8, 1995, the
case was docketed at the Boston District and reassigned to this
Administrative Law Judge for further proceedings consistent with
the Secretary's decision.
The parties were advised of such docketing
and were afforded a reasonable amount of time to comply with the
Secretary's mandate. The matter was then set for hearing by a
Notice of Hearing on Remand and Pre-Hearing Order and this
Administrative Law Judge was advised, just prior to the hearing
date, that Complainant has withdrawn his Complaint with
prejudice.
Accordingly, in view of the foregoing, this
Administrative Law Judge recommends again that the complaint
filed herein by the Complainant shall be DISMISSED WITH
PREJUDICE, pursuant to Rule 41 (a)(2) of the Federal Rules of
Civil Procedure.
DAVID W. DI NARDI
Administrative Law Judge
Boston, Massachusetts
DWD:las
[ENDNOTES]
1The Final Order will be issued by the
Secretary of Labor.