DATE:  June 13, 1994
CASE NO. 84-ERA-13


IN THE MATTER OF

JOSEPH D. WAMPLER,

          COMPLAINANT,

     v.

PULLMAN-HIGGINS COMPANY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                 ORDER DENYING MOTION FOR RECONSIDERATION

     Before me for consideration is Respondent's Motion to
Reconsider Secretary's Final Order Disapproving Settlement and
Remanding Case (Motion), received on March 24, 1994, in the
above-captioned case arising under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988).  Both parties were afforded
an opportunity to file briefs on the issues raised in the Motion.
See Secretary's Order Granting Opportunity to File Brief
in Response to Motion to Reconsider Case, dated March 18, 1994. 
Complainant filed a brief responding to the Motion, but
Respondent did not file a reply brief.
     On February 14, 1994, I issued a Final Order Disapproving
Settlement and Remanding Case, holding that the settlement
agreement 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.  In accordance with the decision

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of the U.S. Court of Appeals for the Fifth Circuit in Macktal
v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991), I found
that I could not sever that provision and enforce the remainder
of the agreement without the consent of Complainant, as this
would constitute a modification of a material term of a
negotiated settlement agreement without the consent of both
parties.  Accordingly, I disapproved the agreement and remanded
the case to the ALJ.
     Respondent now seeks reconsideration of the Final Order in
this case, requesting that the Secretary approve the original
settlement agreement with an attached formal release which
discharges Complainant from any duties under the challenged
provision (Paragraph 2). See "Attachment A."  Respondent
argues that by attaching this formal release to the settlement
agreement it has unilaterally released Complainant from any
duties and obligations of Paragraph 2, and that this release can
be made a part of the public record in the case along with the
original settlement agreement.
     Complainant responds that Respondent's motion for
reconsideration should be denied and that the attempt to apply
traditional contract law to the instant situation must fail. 
Complainant argues that allowing Respondent to unilaterally amend
the settlement agreement in this circumstance is tantamount to
allowing modification of the settlement without Complainant's
consent.
     I have carefully reviewed the submissions of both parties
and I deny the motion for reconsideration.  The arguments
advanced by Respondent, that application of traditional contract
law allows for a unilateral release from the offending provision,
and that Complainant has been allowed to communicate safety
concerns without enforcement of the provision, were addressed in
Macktal v. Brown & Root, Inc., Case No. 86-ERA-23, Sec.
Ord. Disapproving Settlement and Remanding Case, Oct. 13, 1993,
slip op. at 3-6.  As explained in my Order in Macktal and
in my Final Order in the present case, I have concluded that in
light of the Court's holding in Macktal, and my
responsibility in reviewing settlement agreements in ERA cases, I
cannot approve this settlement agreement as written, nor can I
modify the terms of the agreement without the consent of
Complainant.
     Accordingly, I deny Respondent's Motion to Reconsider.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

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Washington, D.C.