Macktal v. Secretary of Labor

Citation923 F.2d 1150
Decision Date20 February 1991
Docket NumberNo. 90-4029,90-4029
Parties119 Lab.Cas. P 10,843, 6 Indiv.Empl.Rts.Cas. 389 Joseph J. MACKTAL, Jr., Petitioner, v. SECRETARY OF LABOR, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Stephen M. Kohn, Kohn, Kohn & Colapinto, Washington, D.C., for petitioner.

Ellen L. Beard, Steven J. Mandel, Elizabeth Dole, Secretary of Labor, U.S. Dept. of Labor, Washington, D.C., for respondent.

Richard K. Walker, Nicholas S. Reynolds, Winston & Strawn, Washington, D.C., for intervenor, Brown & Root, Inc.

Petition for Review of an Order of the United States Department of Labor.

Before WISDOM, GEE, and HIGGINBOTHAM, Circuit Judges. *

WISDOM, Circuit Judge:

Joseph J. Macktal, Jr. filed a complaint with the Secretary of Labor (the Secretary) under section 210 of the Energy Reorganization Act of 1974. 1 In the complaint, he alleged that his employer, Brown & Root, Inc., discharged him because he identified potential problems in the construction of the Comanche Peak nuclear power plant. After Macktal filed his complaint, he and Brown & Root agreed to settle the dispute underlying the complaint and asked the Secretary to dismiss the complaint. After striking one provision, the Secretary approved the settlement and dismissed the complaint. Macktal appeals. We have jurisdiction under 42 U.S.C. Sec. 5851(b). We vacate the order of the Secretary and remand for further consideration.

I

Macktal began work with Brown & Root in January of 1985 as a journeyman electrician. While with Brown & Root, Macktal worked on the Comanche Peak nuclear power plant. Between October 1985 and January 1986, Macktal made six visits to SAFETEAM, Brown & Root's in-house program that investigated technical safety concerns identified by employees.

On January 2, 1986, Brown & Root gave Macktal a conference report concerning excessive absenteeism. The report identified a total of fifteen days of absence or "early out" departures during 1985, including five during the month of December. 2 The next day Macktal gave his supervisor a written response in which Macktal asserted that Brown & Root was applying the absentee policy more strictly against him because of his identification of safety problems. His response stated that he believed he was being harassed by Brown & Root management "because [he] revealed conditions that could affect the safe operation and shut-down of CBSES Unit II"; that is, in the vernacular, he was harassed because he was a whistle-blower.

In the final paragraph of the response, Macktal wrote:

In an effort to preserve my mental health and avoid any further harassment, I wish to be relieved of my duties until the TEC, NLRB, NRC can resolve these matters.

Brown & Root took this final paragraph as a resignation and escorted Macktal off-site.

One month later, Macktal filed a complaint with the Secretary, under section 210 of the Energy Reorganization Act of 1974, alleging that he was constructively discharged because of his whistle-blowing activity.

After a preliminary determination by the Wage and Hour Division that Macktal's claim lacked merit, Macktal requested a hearing before an administrative law judge (the "ALJ"). On November 18, 1986, the day of the scheduled hearing, the ALJ encouraged Macktal and Brown & Root to settle. The attorneys for the two parties conducted negotiations throughout the day and reached an oral agreement. During these negotiations, the attorneys would take occasional breaks to discuss the progress of the negotiations with their respective clients. Macktal admits that he agreed to settle his case for $35,000 3 "after considerable pressure" from his own attorneys. 4

A written settlement agreement and two versions of a general release followed in January of 1987. Macktal's attorneys signed the settlement agreement on behalf of Macktal. Soon thereafter, Macktal signed two versions of a general release as required by the settlement. The general release covered "any and all liability arising out of or relating to Mr. Macktal's employment with Brown & Root". Macktal has stated in his affidavit that his attorneys used the settlement they signed on his behalf to coerce Macktal into signing the general release.

The settlement contained a number of other terms, including a confidentiality agreement and Brown & Root's agreement not to convey its dissatisfaction with Macktal to any of Macktal's future prospective employers. While most of the other terms are not relevant for the purpose of this appeal, one is: paragraph 3.

In paragraph 3 of the agreement, Macktal agreed not to appear voluntarily as a witness in any administrative or judicial proceeding concerning the safe operation of the Comanche Peak plant. He also agreed to take reasonable steps to resist a subpoena requiring his testimony at such proceeding. In addition, his original counsel agreed not to call Macktal as a witness, and not to do or say anything that might encourage another to call Macktal as a witness, in such proceedings.

Based on the settlement, the two parties made a joint motion to dismiss which motion the ALJ recommended the Secretary grant. 5 Instead of granting the motion to dismiss, the Secretary asked for a copy of the settlement agreement. Brown & Root and Macktal's original attorneys refused to provide the settlement agreement and asked the Secretary to reconsider the order. Eventually, Macktal, through new counsel, learned of the Secretary's order and delivered a copy of the settlement agreement to the Secretary. Macktal asked the Secretary to disapprove the settlement. Brown & Root opposed Macktal's request.

The Secretary issued an order severing paragraph 3 of the settlement agreement as contrary to public policy, but otherwise upholding the settlement, and dismissed the action. Macktal appeals.

II

We begin with the statutory language. Section 210 provides:

(b) Complaint, filing and notification

(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person [on account of whistle-blowing] may, within thirty days after such violation occurs, file (or have filed on his behalf) a complaint with the Secretary of Labor [ ("Secretary") ] alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission.

(2)(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall conduct an investigation of the violation alleged in the complaint. Within thirty days of the receipt of such complaint, the Secretary shall complete such investigation and shall notify in writing the complainant (and any person acting in his behalf) and the person alleged to have committed such violation of the results of the investigation conducted pursuant to this subparagraph. Within ninety days of the receipt of such complaint the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subparagraph (B) or denying the complaint. An order of the Secretary shall be made on the record after notice and opportunity for a public hearing. The Secretary may not enter into a settlement terminating a proceeding on a complaint without the participation and consent of the complainant. 6

Once a complaint is filed, the statutory language authorizes only three options: (1) an order granting relief; (2) an order denying relief; or (3) a consensual settlement involving all three parties. The Secretary has published regulations detailing the procedures she will follow to determine which of these three options she will choose. Under the regulations, the Wage and Hour Division conducts an investigation and makes a preliminary determination of the merits of the complaint. 7 If either party disputes the initial finding of the Wage and Hour Division, the regulations provide for an adversary hearing before an ALJ. 8 In this hearing, each side presents arguments and evidence. 9 Based on the hearing, the ALJ issues a recommended decision. 10

Perhaps because the Secretary selected this adversarial format for the required public hearing, the parties use analogies to civil litigation to determine the appropriate extent of the Secretary's authority. While such analogies may be helpful, an analogy cannot give the Secretary authority withheld by the words of the statute, nor can analogies deprive the Secretary of authority provided by the words of the statute. Thus, Brown & Root's argument that the Secretary has no "jurisdiction" over the complaint once Brown & Root and Macktal filed a joint motion to dismiss must be rejected. The words of the statute require the Secretary to take one of three actions once a complaint is filed. 11 The statute makes no exception for cases in which the complainant and the company reach an independent settlement.

Also using the analogy, the Secretary likens her role to that of a judge and argues that she can sever terms that violate public policy, and enforce the remainder of the settlement, as if she were a court asked to enforce a private contract containing terms that violate public policy. 12 The Secretary's position contains two component arguments. First, she argues that she can allow the complainant and the company to negotiate a settlement and then approve the settlement if it adequately protects the public's interest and equitably treats the employee. Second, she argues that she can strike provisions of the negotiated settlement that are contrary to the public's interest without the consent of the other two parties. She reminds us that we must uphold her interpretation if it is rational and consistent with the statute. 13

We agree with the Secretary's first argument that she may "enter into" a...

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