UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Elliott v. Enercon Services, Inc., 92-ERA-47 (Sec'y June 28, 1993)

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DATE:  June 28, 1993
CASE NO. 92-ERA-47


IN THE MATTER OF

ERIC ELLIOTT,

          COMPLAINANT,

     v.

ENERCON, SERVICES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                     FINAL ORDER APPROVING SETTLEMENT 
                         AND DISMISSING COMPLAINT 

     Before me for review is the Recommended Order Approving
Settlement (R.D. and O.) of the Administrative Law Judge (ALJ) in
this case arising under the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. 
§ 5851 (1988).  The ALJ recommended approval of the Joint
otion to Approve Settlement and Release Agreement, and dismissal
of the complaint.   
     By Order dated January 5, 1993, the parties were instructed
to submit a copy of a memorandum to Complainant's file which was
referenced in Paragraph 2 of the Settlement and Release Agreement
(Agreement) of October 7, 1992, but was not submitted into
the administrative record.  Counsel for Respondent, counsel for
Complainant, and Complainant, each submitted a copy
of the Memorandum dated September 1, 1992.  Complainant's
response letter of January 17, 1993, indicated concerns over the
memorandum during settlement negotiations, i.e.,
Respondent "refused to incorporate the terms of the memorandum
within the agreement text or make the memo more binding." 
See Complainant's letter of January 17, 1993, with
emorandum attached.  Complainant further expressed concern that
he cannot now work at 
[PAGE 2]
Arkansas Nuclear One (ANO) due to the terms of his settlement.
     The terms of the Agreement, including the Memorandum
referenced therein, have been carefully reviewed and the
following discussion clarifies my interpretation of the terms.  I
note that the Agreement may encompass the settlement of matters
arising under various laws, only one of which is the ERA.  For
the reasons set forth in Poulos v. Ambassador Fuel Oil
Co., Inc., Case No. 86-CAA-1, Sec. Ord., Nov. 2, 1987,
slip op. at 2, and the cases cited therein, my review of the
Agreement is limited to determining whether its terms are a fair,
adequate and reasonable settlement of Complainant's allegations
that Respondent violated the ERA.
     The Agreement states that it "shall be interpreted,
construed and enforced in accordance with the laws of the State
of Oklahoma, without regard to the conflict of law rules
thereof."  Agreement at 2, Paragraph 8.  I interpret this
statement as not limiting the authority of the Secretary or the
United States district court under the statute and regulations. 
See 42 U.S.C. § 5851(d); 29 C.F.R. § 24.8(a);
Phillips v. Citizens Association for Sound Energy, Case
No. 91-ERA-25, Final Order of Dismissal, Nov. 4, 1991, slip op.
at 2.  Additionally, the provision in Paragraph 6 of the
Agreement, stating that "Agreement can be modified only after
obtaining the written consent of all parties thereto," is
interpreted to include the requisite approval of the Secretary. 
See 42 U.S.C. § 5851(b)(2).      Finally,
Complainant's concerns over the effect of the memorandum
incorporated into the settlement agreement are not persuasive.
[1]   The memorandum is expressly referenced in the Agreement and
is a binding term of the Agreement.      As interpreted and
construed herein, I find the terms of the settlement entered into
by the parties to be fair, adequate and reasonable, and I approve
the Agreement.    
     Accordingly, this case is DISMISSED.  
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor


Washington, D.C.


[ENDNOTES]
           
[1]  I note that the Secretary has considered the issue of
whether one party may disavow a settlement before the Secretary
has reviewed it, specifically addressing a claim of lack of
consent and attorney coercion.  Macktal v. Brown & Root,
Case No. 86-ERA-23, Sec. Order Rejecting in Part and Approving in
Part Settlement Between the parties and Dismissing Case, Nov. 14,
1989, slip op. at 4-10.  The Secretary's disposition on that
issue was expressly upheld.  Macktal v. Secretary of
Labor, 923 F.2d 1150, 1157 (5th Cir. 1991).  The record here
similarly contains no showing of coercion or other impropriety
that would justify renunciation of the settlement agreement. 
See generally San Joo Kim v. The Trustees of the
University of Pennsylvania, Case Nos. 91-ERA-45 and 92-ERA-8,
Final Ord. Approving Settlement Agreement and Dismissing Cases,
June 17, 1992, slip op. at 3-4.