This proceeding arises under the employee protection
provision of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C
§ 5851 (1982), and implementing regulations at 29 C.F.R. Part
24 (1986).
This case is before me on the recommended Order of Administrative
Law Judge (ALJ) Vivian Schreter Murray issued on January 6,
1987. The order states that the parties to this action
have jointly moved, pursuant to 29 C.F.R. § 18.39(b), for dismissal
of this action with prejudice. Section 24.6 of 29 C.F.R. authorizes
the administrative law judge to issue a recommended decision
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after the termination of the proceeding. The recommended decision
is to be forwarded to the Secretary of Labor for approval and
a final order.
The record reflects that considerable discovery was conducted
in this case prior to the hearing which apparently was scheduled in November of 1986.
Correspondence in the record from Complainant's counsel dated December 10, 1986, refers
to "agreements of last month." Thus it appears that some agreement
between the parties underlies the joint motion to dismiss,
although no settlement agreement, stipulation or similar document
has been included in the record submitted to the Secretary.
Although it is not necessary that the settlement agreement
be made part of my final order, without an opportunity to review
the agreement I cannot determine if the terms of the settlement
are fair, adequate and reasonable, the usual standard for approval
of a settlement agreement. Johnson v. Transco Products, Case
No. 85-ERA-7, slip op. at 1, August 8. 1985. Compare Young
v. Hake, Case No. 83-ERA-11, slip op., January 18, 1985
("fair and equitable"); Eggers v. Cincinnati Drum Services,
Inc., Case No. 84-TSC-2, slip op. of ALJ, March 6, 1984 ("reasonable
and proper and that a dismissal is not against the public interest"),
approved by the Secretary, June 5, 1984; and Chan Van Vo v.
Carolina Power & Light Company, Case No. 85-ERA-3, slip op.
April 12, 1985 ("equitable"). Where a settlement is not fair
and equitable to a complainant, I cannot approve it for to
do so would be an abdication of the responsibility imposed
upon me by Congress to effectuate the purpose of Section 5851,
which is to encourage the reporting of safety violations by
prohibiting economic retaliation against employees reporting
such violations. McGavock v. Elbar, Inc., Case No. 86-STA-5,
Secretary's Order, at 2, November 25, 1986.
Therefore, if the parties desire to resolve this matter
by mutual agreement, within 30 days from receipt of this order
they should submit the settlement agreement for my review,
signed by both parties, including Complainant individually
and setting forth all the terms and conditions agreed to.