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Date: June 18, 1996 Case No: 96-ERA-1 File No.: 95-107-11184 Anthony J. Ross COMPLAINANT against Northeast Nuclear Energy Company RESPONDENT Appearances: Michael C. Subit, Esq. For Complainant Charles C. Thebaud, Jr., Esq. Timothy P. Matthews, Esq. Mary F. Riley, Esq. For the Respondent Before: DAVID W. DI NARDI Administrative Law Judge RECOMMENDED DECISION AND ORDER This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. § 5851 ("Act" or "ERA"), and the implementing regulations found in 29 C.F.R. Part 24, whereby employees of licensees or applicants for a license of the Nuclear Regulatory Commission and their contractors and subcontractors may file complaints and receive certain redress upon a showing of being subjected to discriminatory action for engaging in a protected activity. The matter was scheduled for a hearing to begin at our courtroom in Washington, D.C. on Monday, April 22, 1996 and on April 18, 1996, the parties notified this Administrative Law Judge David W. Di Nardi that they had reached a settlement in principle in Case No. 96-ERA-1. A copy of the Settlement Agreement resolving this case has been filed as Exhibit A to this Joint Motion. That Settlement Agreement also resolves Case Nos. 94-ERA-17 and 94-ERA-
[PAGE 2] 39, which are currently pending review by the Secretary of Labor or the Administrative Review Board, whichever is appropriate. In accordance with the terms of the Settlement Agreement, the parties submit this Joint Motion For A Recommended Decision and A Final Order Approving A Settlement Agreement And Dismissing The Complaint With Prejudice ("Joint Motion"). The parties agree that the Settlement Agreement constitutes a fair, adequate, and reasonable resolution of all complaints filed by Mr. Ross against Northeast Nuclear Energy Company ("NNECO"), now pending before the U.S. Department of Labor. As already noted, the matter in Case No. 96-ERA-1 was scheduled for hearing on April 22, 1996, but, at the request of the parties, this Administrative Law Judge cancelled the hearing to permit the parties to conclude their settlement discussions and to prepare a Settlement Agreement. On May 28, 1996, the parties resolved all issues and signed the Settlement Agreement resolving this matter and the Joint Motion was filed on June 6, 1996. The Energy Reorganization Act of 1974, as amended ("ERA"), specifically permits the settlement of complaints filed under the ERA.[1] In approving settlements by the parties, the Secretary considers whether the terms of the agreement are "a fair, adequate and reasonable settlement" of the allegations.[2] The parties have negotiated at arm's length and in good faith, and have mutually agreed that the Settlement Agreement constitutes a fair, adequate, and reasonable resolution of all the pending matters. As set forth in the accompanying cover letter and in the Settlement Agreement, the parties specifically intend and request that the Settlement Agreement be maintained in strict confidence and not be disclosed to the public. Therefore, NNECO, with the full support and agreement of Mr. Ross, has invoked its pre- disclosure notification rights under 29 C.F.R. § 70.26. Accordingly, the parties request that the Presiding Judge issue a Recommended Decision and Order which: (1) recommends the approval of the settlement Agreement and all of its terms, in full, and without modification; (2) recommends the dismissal of the complaint with prejudice in Case No. 96-ERA-1; (3) finds the Settlement Agreement to be fair, adequate, and reasonable in light of the allegations and issues raised in this case; (4) finds that the Settlement Agreement constitutes confidential commercial and financial information and that NNECO is entitled to the pre-notification rights set forth in 29 C.F.R. § 70.26; and (5) urges the Secretary of Labor to issue a Final Order Approving The
[PAGE 3] Settlement Agreement And Dismissing All of the Ross Pending Complaints with Prejudice. Accordingly, in view of the foregoing, this Administrative Law Judge, having considered the closed record as perfected thus far by the parties with reference to Case No. 96-ERA-1, the only matter formally before the Office of Administrative Law Judges at this time, and having also considered the settlement Agreement and the Joint Motion, issues the following: RECOMMENDED ORDER (1) I recommend the approval of the Settlement Agreement and all of its terms, in full and without modification. (2) I recommend that the complaint filed by Anthony J. Ross in Case No. 96-ERA-1 (File No. 95-107-11184) shall be DISMISSED WITH PREJUDICE because I find and conclude that the Settlement Agreement is fair, adequate and reasonable in light of the allegations and issues raised herein. (3) I recommend that NNECO be afforded the pre-notification provisions and rights set forth in 29 C.F.R. § 70.26 as I further find and conclude that the Settlement Agreement constitutes confidential commercial and financial information. (4) I further recommend that the Secretary of Labor also approve the Settlement Agreement as it pertains to Case Nos. 94- ERA-17 and 94-ERA-39 and that these two companion complaints filed by Anthony J. Ross also be DISMISSED WITH PREJUDICE. DAVID W. DI NARDI Administrative Law Judge Dated: June 18, 1996 Boston, Massachusetts DWD:gcb [ENDNO TES] [1] 42 U.S.C. § 5851(b)(2)(A). [2] Rondinelli v. Consolidated Edison Co. of New York, Inc., Case No. 91-CAA-3, Final Order Approving Settlement, slip op., (Sec'y, April 10, 1992); Aron v. The Cleveland Clinic Foundation, Case No. 92-ERA-4, Final Order Approving settlement Agreement and Dismissing Case, slip op., (Sec'y June 4, 1992).