UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Avery v. Duke Power Co., 94-ERA-46 (ALJ Feb. 14, 1996)

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Date:     February 14, 1996

Case No.  94-ERA-46

In the Matter of

ROBERT AVERY,
     Complainant,

v.

DUKE POWER COMPANY,
     Respondent,



                RECOMMENDED DECISION AND ORDER APPROVING
               SETTLEMENT AGREEMENT AND DISMISSING COMPLAINT


     This case comes before the Secretary for the second
time.  Previously, Complainant, Robert W. Avery, acting
pro se, had moved to dismiss his claim under the
Energy Reorganization Act of 1954 on grounds that he was unable
to obtain an attorney and was not qualified to represent himself. 
Respondent Duke Power Company replied that it did not object to
the dismissal of the complaint so long as that dismissal was with
prejudice.  Complainant apparently agreed to this stipulation. 
Thus, on March 22, 1995, I recommended to the Secretary that he
dismiss the complaint with prejudice.  Instead, the Secretary
issued an order to show cause why the case should not be
dismissed with prejudice.  Complainant responded to the Secretary
that he did not want the case dismissed but was not qualified to
represent himself and was unable to secure the services of an
attorney.  Next, on May 2, 1995, the Secretary issued an order
allowing Complainant 30 days in which to secure the services of
an attorney or advise that he was prepared to proceed pro
se.  By letter dated May 19, 1995, Complainant
[PAGE 2]
advised the Secretary that he was prepared to go forward with
representation of counsel.    Accordingly, the Secretary remanded
the case to me for further proceedings.

     As a result of further negotiations, the parties have
reached a settlement that is embodied in the attached settlement
agreement.  Although the agreement results in payment to the
Complainant of a nominal amount of money, because Mr. Avery was
adequately represented by counsel, I am persuaded that the
settlement agreement fairly, reasonably and adequately disposes
of the allegations raised in the complaint.  Further, the
settlement agreement is structured so as to keep the channels of
information open in order to facilitate future enforcement of
safety and environmental statutes.  Thus, I believe that the
settlement accords with DOL policy in this regard.

     Therefore, IT IS RECOMMENDED that the proposed settlement
agreement be approved and that this proceeding be dismissed with
prejudice.


                             RECOMMENDED ORDER

     IT IS ORDERED that the settlement agreement between the
parties be, and hereby is, approved and that the complaint of
Robert W. Avery  be, and hereby is, dismissed with prejudice.


                    
                         FLETCHER E. CAMPBELL, JR.
                         Administrative Law Judge




NOTE:  This recommended order and the administrative file in
this matter will be forwarded for review by the Secretary of
Labor to the Office of Administrative Appeals, U.S. Department of
Labor, Rm. S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility
to advise and assist the Secretary in the preparation and
issuance of final decisions in employee protection cases
adjudicated under 29 C.F.R. parts 24 and 1978.  See 55 F.R. 13250
(1990).


FEC/lfrl
Newport News, VA