U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Room 507
(617) 223-9355
(617) 223-4254 (FAX)
Dated: October 7, 1998
Case No.: 98-ERA-36
File No.: 01-0240-98-007
IN THE MATTER OF:
Jeffrey W. Allen Complainant
v.
Williams Power Company
and
Vermont Yankee Nuclear Power Corporation Respondents
RECOMMENDED DECISION AND ORDER
APPROVING CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE
and
DISMISSING COMPLAINT WITH PREJUDICE
This is a proceeding arising under the Energy Reorganization Act, 42 U.S.C.
§5851, and its implementing regulations found at 29 C.F.R. Part 24. The undersigned is
presently in receipt of a Joint Motion for a Recommended Decision and Order Approving Settlement
Agreement and Dismissal With Prejudice. Attached to that Joint Motion is a Release and Settlement
Agreement, executed by all parties on September 23, 1998.
[Page 2]
The Part 24 regulations do not contain any provision relating to a dismissal
of a complaint by voluntary settlement. Therefore, it is necessary to refer to the Rules of Practice and
Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R.
Part 18, which Rules are controlling in the absence of a specific provision at Part 24.
Part 18.9 allows the parties in a proceeding before an administrative law judge
to reach agreement on their own. 29 C.F.R. Part 18.9(a)-(c). The parties must "[n]otify the
administrative law judge that the parties have reached a full settlement and have agreed to dismissal
of the action." 29 C.F.R. Part 18.9(c)(2). Once such notification occurs, the administrative law
judge shall then issue a decision within thirty (30) days if satisfied with the agreement's form and
substance. 29 C.F.R. Part 18.9(d).
This Judge must review the Settlement Agreement to determine whether its
terms are a fair, adequate and reasonable settlement of the complaint. Bonanno v. Stone &
Webster Engineering Corp., 97-ERA-33 (ARB 6/27/97) (citation omitted). In the matter sub
judice, I note that the terms of the settlement agreement encompass the settlement of matters arising
under various laws, only one of which is the ERA. See generally para. 3. For the reasons
set forth in Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y 11/2/87), I have
limited my review of the agreement to determining whether its terms are a fair, adequate and
reasonable settlement of Complainant's allegation that Respondent violated the ERA.
Upon careful review, this Judge has reached the determination that the Release
and Settlement Agreement fully comports with precedent established by the Secretary and/or
Administrative Review Board.
The parties have included language in the agreement to the effect that neither
party believes it acted unlawfully and that nothing in the agreement should be construed as an
admission of liability. See para. 15. This recommended decision and order shall not be
construed as indicating my view on the merits of this entire matter.
Paragraph 16 of the settlement provide that the parties shall keep the terms of
the settlement confidential. I note, however, the parties' effort to bring this confidentiality provision
into compliance with applicable case law, such as McGlynn v. Pulsair Inc., 93-CAA-2
(Sec'y 6/28/93), by specifically providing the confidentiality provision does not restrict disclosure
where required by law. See para. 16
In accordance with Biddy v. Pipeline Service Co., 95-TSC-7
(12/3/96), the parties have certified that no other settlement agreements were entered into between
the parties. See para. 12.
This Judge notes the parties have designated the Settlement Agreement and
Release as confidential commercial information, as defined at 29 C.F.R. Part 70.26, and thereby
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attempt to preclude disclosure pursuant to the Freedom of Information Act (FOIA), 5 U.S.C.
§552. In this regard, see para. 16.
FOIA, however, requires agencies to disclose requested documents unless they
are exempt from disclosure. See Bonanno, supra, at p. 2.; Klock v. Tennessee Valley
Auth., 95-ERA-20 (ARB 5/30/96), at p. 2; Darr v. Precise Hard Chrome,
95-CAA-6 (Sec'y 5/9/95), at p. 2; Webb v. Consolidated Edison Co., 93-CAA-5 (Sec'y
11/3/93) at p. 2. Since no FOIA request has been made, "it would be premature to determine
whether any of the exemptions in 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
would also be inappropriate to decide such questions in this proceeding." Darr,
supra, at pp. 2-3. See Also DeBose v. Carolina Power and Light Co., 92-ERA-14 (Sec'y
2/7/94), at p. 3. Nevertheless, the Release and Settlement Agreement shall be placed in a portion of
the file clearly designated as confidential commercial information which must be handled in
accordance with the appropriate procedure for a FOIA request, which procedure is found at 29
C.F.R. Part 70.26. See GenerallyBonanno, supra, at n. 1.
Accordingly, it is hereby RECOMMENDED that the Release and
Settlement Agreement between Complainant Jeffrey W. Allen and Respondents Williams Power
Company and Vermont Yankee Nuclear Power Corporation be APPROVED and that the
matter be DISMISSED WITH PREJUDICE. It is FURTHER
RECOMMENDED that the Release and Settlement Agreement be designated as confidential
commercial information and be handled in accordance with 29 C.F.R. Part 70.26.
DAVID W. DI
NARDI
Administrative
Law Judge
Boston, Massachusetts
DWD:pte
NOTICE: This Recommended Decision and Order will automatically become the final
order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed
with the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room
S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must
be received by the Administrative Review Board within ten business days of the date of this
Recommended Decision and Order, and shall be served on all parties and on the Chief
Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg.
6614 (1998).