DATE: March 15, 1996
CASE NO. 95-ERA-42
IN THE MATTER OF
JAMES H. DAILY, JR.,
COMPLAINANT,
v.
CONAM INSPECTIONS and
PENNSYLVANIA POWER & LIGHT COMPANY,
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the employee protection provision of
the Energy Reorganization Act of 1974 (ERA), as amended, 42
U.S.C. § 5851 (1988 and Supp. IV 1992). The parties
submitted a Settlement Agreement and Full and Final Release of
Claims seeking approval of the settlement and dismissal of the
complaint. The Administrative Law Judge (ALJ) issued a decision
on February 29, 1996, recommending that the settlement be
approved. The request for approval is based on an agreement
entered into by the parties, therefore, I must review it to
determine whether the terms are a fair, adequate and reasonable
settlement of the complaint. 42 U.S.C. § 5851(b)(2)(A)
(1988). Macktal v. Secretary of Labor, 923 F.2d 1150,
1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of Labor,
885 F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v.
Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order,
Mar. 23, 1989, slip op. at 1-2.
The agreement appears to encompass the settlement of matters
[PAGE 2]
arising under various laws, only one of which is the ERA. See
¶ 3. For the reasons set forth in Poulos v. Ambassador
Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 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 the Complainant's allegations that Respondents
violated the ERA.
Paragraphs 4 and 6 contain language which provides that the
Complainant shall keep the terms of the Settlement Agreement
confidential except to his spouse, attorneys and financial
advisors. I construe these confidentiality provisions as not
restricting any disclosure where required by law. McGlynn v.
Pulsair Inc., Case No. 93-CAA-2, Sec. Final Order Approving
Settlement, June 28, 1993, slip op. at 3. The parties'
submissions including the agreement become part of the record of
the case and are subject to the Freedom of Information Act
(FOIA), 5 U.S.C. § 552 (1988). FOIA requires Federal
agencies to disclose requested records unless they are exempt
from disclosure under the Act.[1] See Debose v. Carolina
Power & Light Co., Case No. 92-ERA-14, Ord. Disapproving
Settlement and Remanding Case, Feb. 7, 1994, slip op. at 2-3 and
cases there cited.
I find that the agreement, as here construed, is a fair,
adequate and reasonable settlement of the complaint.
Accordingly, I APPROVE the agreement and DISMISS THE COMPLAINT
WITH PREJUDICE.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Pursuant to 29 C.F.R. § 70.26(b), submitters may designate
specific information as confidential commercial information to be
handled as provided in the regulations. When FOIA requests are
received for such information, the Department of Labor will
notify the submitter promptly, 29 C.F.R. § 70.26(c); the
submitter will be given a reasonable amount of time to state its
objections to disclosure, 29 C.F.R. § 70.26(e); and the
submitter will be notified if a decision is made to disclose the
information, 29 C.F.R. § 70.26(f). If the information is
withheld and a suit is filed by the requester to compel
disclosure, the submitter will be notified, 29 C.F.R. §
70.26(h).