ML20154G784

Affidavit of Jj Macktal Re Oppressive Terms of Settlement Agreement for Addl Safety Concerns.Related Info Encl

ML20154G784
Person / Time
Site:	Comanche Peak
Issue date:	09/09/1988
From:	Macktal J TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:
Shared Package
ML20154G733	List: ML20154G729 ML20154G759 ML20154G784
References
CPA, OL, NUDOCS 8809210067
Download: ML20154G784 (48)

Text

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CONCLUSION For all of the reasons stated herein, CPUR's Request for Hearing and Petition for Leave to Intervene dated August 11, 1988, should be granted.

Respectfully submitted, h a. f.

RICHARD LEE GRIFFIN I&

Bar No. 08464400 600 North Main Street Fort Worth, Texas 76106 (817( 870-1401 ATTORNEY FOR PETITIONER Certificate of service

I hereby certify that copies of the foregoing document were l mailed first class mail, postage prepaid, to the following parties on this 12th day of September, 1988.

Chairman, ASLB Panel Jack R. Newman L U.S. Nuclear Regulatory Commission Newman & Holtzinger, P.C.

Washington, D.C. 20555 Suite 1000 1615 L Street, N.W.

Washington, D.C. 20036 Office of the Secretary Steven M. Kohn, Esq.

Attention: Docketing & Service Branch Michael D. Kohn, Esq. 1 U.S. Nuclear Regulatory Commission Kohn & Associates i 526 U Street, N.W.

20555 Washing ton, D.C.

Washington, D.C. 20001 !

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I 8809210067 000912 l l PDR ADOCK 05000445 e O PDR l

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, xpt , .4CCPIER 295 i 9- 9-801 9:35 AM 0177327024 e (229601 1 82 8 6 ,1 06

&IZIRAXII 2Z 2 2 A A R h 2* H A 2 3 1 A le I I' Under the pains and penalties of perjury, I Joseph J. Macktal, hereby affirm that the following is true and correct

1) My name is Joseph J. Macktal, Jr.

2) Between January 31, 1985 and January 2, 1986 I was employed as an Electrician and Electrical Foreman at the Comanche peak Nuclear Construction site in Glenrose, Texas by Brown & Root, Inc. On January 2, 1986 I delivered to a Brown & Root general foreman, J. Rinddell. A true and correct copy is attached hereto as Exhibit 1. In l retallation for delivering this letter, my employment with

, Brown & Root was terminated.

3) While working at the Comanche Peak site I developed concerns about the follewing problems which I believe threatened the quality of the plant's construction, violated Nuclear Regulatory Commission (NRC) regulations, and/or threatened the public health and safety a) Contamination of stainless steel conduit.  ;

b) Falsification of training sheets and travelers; i c) Improper accounting of documents and materiali d) Improper design, manufacture, and installation of electrical coduits, and safety related circuits (including Hilti bolts, and pipe supports)i e) Improper site modification of vendor supplied 1

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equipment.

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4) I personally brought all of the above listed I

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xpox ?sLtcopitR 295 : 9- 9-se sios m: si m 27026 o 4229001 e3 It ed VI allegations to the NRC Staff during a transcribed confidential conference and during a confidential on-site inspection of the comanche peak site. Nonetheless, the NRC failed to adequately address these concerns. I therefore believe that these concerns continue to pose an unnecessary health and safety risk.

5) In addition, I have concerns that were not raised with the NRC staff or Licensing Board due to the restrictive terms of a secret settlement agreement entered into betroen Texas Utilities and my attorneys, Billie Garde and Tony Roissan. These concerns include a) The use of Kapton wiring and termination kits (including the design and installation of electrical penetrations) ;

b) SArtTEAM's identification of confidential whistleblevers and the harassment and intialdation of employees who brought safety concerns to management and/or SAFETEAMt c) The ultra-vulnerability of key safety systenst d) Design problems related to back-up safety systessi e) Improper attempts to silence witnesses and surpress information before the NRc f) SArxTEAM's participation in and cover-up of safety concerns.

6) Af ter bringing safety concerne to SAFETEAM. I was dezoted and continually haressed and intimidated by 2

xpok inscopion 29s o- s-es si:rr mi emmea e mweiae4 J

. L ed (I

management, culminating in a constructive discharge on January 2, 1986.

7) on Febuary 3, 1986 I filed a complaint under section 210 of the Inergy Reorganisation Act against Brown & Reet and Texas Utilities with the Department of Labor, known as ,

1 es-ERA-23. I was represented in 86-ERA-23 by Billie P.

Garde, Anthony z. Reisman, Government Accountability project (CAP) and Trial Lawyers for Public Justice (TLPJ). They also stated to as that they would be representing me before the NRC Licensing Board in matters related to Comanche Peak and before the Texas Imployment commission (TEC) hearing regarding unemployment compensation (upon information and belief this agreement is contained in a signed ,

representation agreement). In violation of their express ,

agreesent to represent me before the TEC, both Mr. Reismen and Ms. Carde failed to prepare for and attend the hearing. l l s) In early February, lles, I was told by Ms. Garde and l

) Mrs. Ellis on a number of occasions that I wod1d be called I

as a Cast witness before the ASLE. I 1

9) In lles I made a series of confidential transcribed  !

i safety disclosures to members of the NRC staff. I did not i

feel that the NRC staff properly addressed the safety 4

concerne I raised at that time and felt that they would not do so anytime thereafter. I wanted to testify before the l ASL3 about my safety concerns because I came to believe that I had to bypass the NRC staff bureaucracy and go directly to ,

the ASLB if my . concerns were to be adequately resolved.

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10) In 1986 I made a sortes of transcribed confidential i safety disclosures to NRC Staff. I believe that NRC Staff l l

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• noxisltcopica 295 9- s-se 9:37 mi et m 27c2e e (229est i oe e

ll ed ff failed to properly address the concerns I raised at that tLas nor any time thereafter.

11) I was told by CASE and its attorneys that if my concerns were to be adequately resolved they would have to be raised before the ASLE.

12) on November 18, 1986 I was in Dallas Texas to participate in the Department of Labor hearing on my case.

Two attorneys were present to represent se, Anthony Roissan, and Billie Garde.

13) on this day my attorneys, along with legal representatives of Brown & Root and the dol Administrative Law Judge Vivian Murray set for a pre-hearing conference.

14) During the pre-trial conference which was held in chambers outside of my presence, I felt as though my case was being tried in a back roca without the testimony of witnesses or myself. on several occasione hath sides came out of conference to obtain documents and evidence and than return to the back room. This back roon "conference" continued throughout the entire day. When I stated that I wanted to attend the "conference," Ms. Garde vehanently objected and flatly refused to allow me to attend.

15) During the course of the conference both Billie Carde and Tony Roissan indicated to me thatt a) Brown & Root's final settlement offer was

$35,000.00s b) If I did not accept the settlement offer of

$35,000.00, I would have to pay GAP $12,000.00 before they could proceed with the hearing; and 4

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' e xp ox m zcopica 296 : 9- 9-es: 9:3s mi si m 2702s e 4229est i es

.I W II c) If I did not accept the settlement and I did

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not come up with the $12,000, they would withdraw as counsel (as they had already done in my unemployment hearing). At that time both Ms. Garde and Mr. Roissan knew I was unemployed and indigent. To the best of my recollection, the taras of representation expressly stated that orpenses were not due and payable until after the case was settled. Yet, Billie Garde ant. ';ony Roisaan were demanding money to continue with my case. .

CAP, TLPJ, Bill t3 Garde, and Tony Roissan agreed to represent me knowing that I was unemployed and unable to af ford an attorney. j l

14) After considerable pressure I agreed to settle my i l case for $35,000. I understood that the $35,000 settlement offer to be two separate agreements between Brown & Root and myself. The first settlement would be for $15,000 to be paid to me, and that a second settlement would be paid to -

GAP in the amount of $20,000.00 to cover "expensea" after the case was resolved. .

17) I was inforand by my attorneys that the Judge had ordered the parties to exe:ute the settlement within 30 days.

18) Brown & Root's attorneys did not attempt to execute the settlement within 30 days. On or about Decenber 26, itse, I informed Billie Garde that I nc longer wished to settle my case and that I wanted to proceed with the trial.

19) on or about December alth and 29th,1986, I wast a) informed by my attorneys for a second time I had to pay $12,000.00 if I did not accept a settlement 5

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xtROX TELECoPIER 295 1 9- 9-881 9138 AMI 8177327024 0 4229681 3 87 I e1 61 Me. Garde and Mr. Rotasan were negotiatingt b) told that if I did not accept the terne of the settlement (which I had not even seen) I would be sued for breach of contract, would face serious financial ,

burdene for the rest of my life, and that I would be billed by GAP for $12,000.00. Ma. Garde and Mr.

Roissan also warned that 3rown & Root would sue se for refusing to sign the settlement and that they would not represent me if such a suit occurred.

20) Nonetheless, I directed my attorneys to stop further settlement negotiations and prepare for trial. My attorneys refused to follow this instruction.

! 21) on December 26, 1986, I spoke over the telephone ,'

with Billie Garde. The following are verifiable exerpts of l

a telephone conversation between Ms. garde and myself Joseph J. Macktal I au not committed to any kind

! of a settlement whatsoever...I'm going to the papers Tuesday (and) blowing this whole thing wide open...There is no i

settlement...

Billie P. Gardes You don't have that option anymore. There is a settlement.

i Macktali No there isn't. I ain't signing...I l

i don't want a settissent...I don't want you to sign any kind of a settlement agreement.

! Garde Then you better he prepared to pay GAP the

expenas of...,

Macktal Whatever it takes...I'm not settling with them. ..I'm gonna expose the whole thing in the paper.

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' e xpox TELECOplDt 295 8 9 9-481 9139 AM: 0177327026 e 4229e81 ; e3 flhd (I

Gardet And that's worth $15,000.007 Macktal: Yep, that's worth it.

Garde I think you're making an absolutely insane decision. . . (T] hey're gonna sue you for breach et settlement...and that'll mean you're gonna have to get lawyers.

Macktal: Let then sue me...

eee Macktal: I'm not breaching the settlanent agreement. There was no settlement agreement...They did not complete the 30 day period...it's moot. its moot, it no longer exists.

Gardes You don't have that option.

eee Garde I'm your lawyer. I know what I'm talking about. You can not do this. You don't have the financial ability to do this because you don't have the ability to pay us.... I'm going to have to have T>ny call you...  ;

Macktal I don't care.

Garde We've invented the expense of $12.000.00 (and) that's a lot to us. We couldn't meet pay role last week. Everything is waiting to get this settlement noney in order to make bill payments...You can't afford to absorb that kind of a bill...This is $12,000.00.

eee l Macktal I have made arrangzonta to pick up the transcript (of my confidential deposition I gave to the NRC) from the NRC. The papers can't publish anything until the trail but the transcript (I can aske] public information I

xlmoxts$.tcopita 296 s. S-se 9:40 Am si m 27026 e (22sset i # s l14v1 Of now ==

Garden (Interrupting) You're not going to have any lawyers.

eee Mecktal They breached the contraett I den't want, the deels off. I'm going through with it because they breached the contract and as far as I'm concerned I want to go to trial. If they don't want to go to trial ==

Garde n (Interrupting) There isn't going to be 1 a trial.

! ee.

Macktal The settlement agressant as far as I'm

concerned is dead. Nothing happened and its over...

eee

22) on December 29, 1986, I received a call from Tony Roissan. At that time I told Mr. Reisman that I wanted to go forward with the trial and terminata settlement negotiations. I stated to Mr. Roissan that: "At this point I'm not agreeing to any kind of settlement. Bring it back to where it was. I want to go to trial."

23) During this December alth conversation with Mr.

Roissan I told him that I had contacted son'a reporters and that I chose to expose the entire situation to the press.

Kr. Roissan then told me that I did not need to tell the press anything now because "the reporters who are covering the licensing hearings

• would also "cover the same issues a when my information was reported to the Licensing board, and that my crise was not "a speech issue."

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' s xImox ftLtcopita 296 9- s-ess 9:40 ma st??3270:e e 422sest s eto 1.tM _

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24) During this December 29th conversation I was also told if I did not sign the settlement and chose to expose i

the situation taen the following would oesur "You realise that will put you in a deep financial I bind. . .they'll hold a judgment ever you, they will I. pursue you to the ends of the earth and if you are successful in esearing than in the press as you would like to do, they will pursue you to the ends of the

earth, so wherever you go to work they'll have a judgment against you of $15,000, $20,000, $30,000 or

$100,000 and they'll garnish your wages on earth any place you get a job. They'll destroy your credit...and at some point you'll have to pay a lot of money at the end they will have won even bigger than today...bocause l they're bigger they can beat up on you and because your smaller your not able to fight back. ..a

25) I then stated to Mr. Roissan that I still wanted to ago te trial.a I emphatically ended the conversation with Mr. Roissan stating that the settlement was off and that I l

decided and demanded to go to trial.

36) I was misled and signed the settlement under duress. I did not want to settle the case, but I thought !

had no option. A copy of the asettienent Agreement

• and a signed general release is attached hereto as Exhibit 2.

. Paragraph 3 of the settlement Agreement prohibited me from voluntarily appearing as a witness before the Atomic safety and Licensing Board or the NRC. It also prohibitsd attorneys for CASE (GAP, TLPJ, Ms. Garde and Mr. Roissan) from calling me as a witness for' CASE or otherwise inducing 9

e mox nutcopio :se : s- s-ess stat mi si m 2 m s e 422sesi a ett M

lI any other attorney, party, agency or tribunal to call ne se a witness. It also required me to take all "reasonable a steps which Brown & Root instructed me to take so that I cannot appear as a compulsory witness. Essentially the l settlement agreement silenced me from appearing before the l

NRC with additional safety oencerne.

27) on May 11,1947, the secretary of Labor issued an Order in case 86-ERA-23 requiring the parties to submit a l

I copy of the confidential settlement agreement. (A true and exact copy of this Order is attached as Exhibit 3).

l 24) Evidently my copy of the order was sailed to me c/o Ms. Garde and gap. See a copy of a signed return.

! receipt included in Exhibit 3. A copy of the order was i never forwarded to me and I did not learn that such an order i

was issued until August of itse. I was unaware that the Secretary had requested me to pr.svide a copy of the settlement agreement to the Secretary or that I was in

, I breach of the Secretary's Order.

l 29) In or about June, 1987, I called Billie Garde to obtain documents. At that time she told se that my j

settlement was pending before the secretary of 14bor and that the Secretary had requested some more information about

the settlement. I was not informed that the secretary had j

issued an order and requested to see a copy of the

! settlement agreement itself.

I 30) Aft 4r speaking with Ms. Garde. but not knowing l

j that the Sacretary had requested to see a copy of the

!  ! s et':.le n,ent , I sent by first class sail a RIs 33,socion to i

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' 8 xteox TELEcoPIEA 295 a t- 9-eas s:42 M2 si m 27024 + 42294s1 a #12 M

If the Secretary requesting that the settlement be set aside.

(A true and correct copy of this action is attached as Rahibit 4).

31) I wrote the attached action out of desperation because I had been forced into signing the settlement against my will. I mailed the action in an attempt to gain justice and expose additional safety concerns that I was f prohibited from exposing under the terms of the secret settlement agreement.

4 32) I sailed the attached notion without the advice of Mr. Roissan and Ms. Garde or any other counsel. I did so i

because I believed that Ms. Gards and Mr. Rosiaan would not act to overturn the oppressive terms of the settlement J

agreement and I sent the action so I could be allowed to f i

contact intervenors and the NRC with additional safety t:encarne.

j This affidavit, consists of eleven pages and is hereby l

! executed by my hand this i

3 day of $t/ f __, 1988.

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STRICTI,Y CONFIDENTIAI.

UNITED STATES OF. AMERICA BEFORE TEE U.S. DEPARTMENT OF LABOR [

}

JOSEPR MACKTAL, )

)

Complainant, )

) Case No. 86-ERA-23

v. )  ;

r BROWN & ROOT, INC., )

).

Respondent. )

)

SETTLEMENT AGREEMENT f

WEEREAS Mr. Macktal's employment with Brown & Root, Inc.

("Brown & Root"IterminatedonJ'anuary.2','1586

. v. _ _

WEEREAS Mr. Macktal has instituted the above-captioned  ;

action against Brown & Root before the United States Department .

of Labor alleging that his termination violated Section 210 of

, the Energy Reorganisation Act of 1974, 42 U.S.C. 5 5451 l ("Section 210"):

I WHEREAS the dispute between Mr. Macktal and Brown & Root has been amicably resolved and Mr. Macktal now desires to with-f draw his complaint against Brown & Root, without admission of l liability by Brown & Root, Texas Utilities company and/or the other owners of Comanche Peak Steam Electric Station ("Comanche

, Peak"), or the SAFETEAM program, or the attorneys, related I

. , . . , g. c . .

.

• 1 .

, STRICTLY CONFip5NTIAL 2

l companies, successors, assigns, officers, directors, managers,  !

agents, and employees of the aforementioned companies, organi- l

- sations and programs (all of which entitles and individuals are hereinafter collectively referred to as "the Comanche Peak [

companies, organisations, programs and individuals")f i WQW, TEEREFORE, la consideration of the mutual promises contained herein, the parties agree as follows:

1) This settlement Agreement does not amoua* to, and shall not be construed as, an admission of liability or wrongdoing on the part of any of the Comanche Peak companias, organisa-tions, programs or it.dividuals as defined above. Moreover, this settlement Agreement does not amount to, and shall not be construed as, an admission by Mr. Macktal concerning the

~

morfts.cf this, action.#',,...

r . . 4...

2) Mr. Macktal shall execute a general release (attache'd hereto as Exhibit A) of all the Comanche F.ak companies, organisations, programs and individuals as defined above from any and all liability arising out of or relating to Mr. Macktal's employment with Brown 6 Root, the termination of his employment on January 2. 1986, or his resignation from his position with Brown . Root.

3) Mr. Macktal's representatoes An the above-captioned action Mr. Anthony 2. Roissan and Ms. Billie P. Garde (including Trial Lawyers for Public Justice and the Covern-

5

.*- . . . .. .**a STRICTLY CONFIDENTIAL 3_

ment Accountability Project, the organizations of which Mr.

Roisman and Ms. Garde, respectively, are a part and through which they came to represent Mr. Maci 1), hereby agree ~

that they trill not call Mr. Macktal as a witness or join Mr. Macktal as a party in any administrative or judicial proceeding in which either Mr. Roissan, Ms. Garde, Trial Lawyers for Public Justice or the Government Accountability Project, or any combination of them are now, or in the future may be, counsel or parties opposing any of the comanche Peak companies, organizations, programs or indi-viduals as defined above; nor will Mr. Roisman, Ms. Garde or their respective organizations do anything to suggest or otherwise to induce any other attorney, party, administra-tive agency, or administrative or judicial tribunal to call -'

Mr. Macktal as a witness or to join Mr. Macktal as a party ,

in such a proceeding. Further, Mr. Macktal hereby agrees that he will not volu,ntarily appear as a witness or a party in 'any such proceeding; and Mr. Macktal further agrees that if served with compulsory process seeking to compel his appearance or joinder in such a proceeding, he will

immediately notify the undersigned representative of Brown

& Root, or his successor, in writing and thereafter take all reasonable steps, including any such reasonable steps as may be suggested by the representatives of Brown & Root, to resist such compulsory process.

. STRICTLY CONFIDENTIAL

4) 'On the date of the execution of this Settlement Agreement, Ms. Garde shall filo with the presiding Administrative Law Judge a joint. notion to dismiss with prejudice the above-captioned case. Copies of the joint notion flied and the cover letter by which the joint motion is transmitted to I the presiding Administrative Law Judge shall be served on the undersigned representative of Brown & Root by first class mail on the same date as the filing.

5) Within three (3) business days of receipt by Brown & Root of the duly executed General Release described above in paragraph 2 of this Settlement Agreement and written notice of the filing of the joint-motion to dismiss as described above in paragraph 4 of this Settlement Agreement, Brown &

, Root shall send to Ms. Garde a check in the amount of l .

$35,0,00.00 and payable jointly to Mr. Macktal and to -

l  ; Ms. Garde. Said amount shall be held in escrow by Ms., Garde until such time as Brown & Root either receives l

, an Order from the presiding Administrative Law Judge dismissing the above-captioned case with prejudice, or is otherwise notified by the office of the presiding Admini-strative Law Judge that such an Order has been signed and l

entered. Written notice of release of said monies or any portion thereof from escrow shall be sent by first class mail by Ms. Garde to the undersigned representative of i Brown & Root on the same day that such release occurs.

T '

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, STRICTLY CONFIDENTIAL l

6) Within five (5) business days of receipt by Drown & Root of a.: Order from the presiding Administrative Law Judge dismissing the above-captioned case with prejudice, Brown &

Root will remove from Mr. Macktal's personnel file his three-page memorandum of January 3, 1986, and the cssign-ment termination sheet (the "pink sheet"), and both docu-t ments shall be placed with Brown & Root's litigation files.

A new assignment termination sheet will be placed in Mr.

Macktal's personnel file which'will indicate only that Mr.

Macktal quit or resigned his position with Brown & Root for

, personal reasons; and Mr. Macktal's personnel file, i

including the substitute.d asaignment termination sheet, will be sealed. Further, in response to inquiries and unless otherwise authorized by Mr. Macktal or compelled by law or compulsory process, Brown & Root will provide no information about Mr. Macktal or his employment at Brown &

Root other than the dates of his employment, the job titles in which he was employed (journeyman electrician and elec-trical foreman), and the rate of pay that Mr. Macktal received during the term of his employment. In the event that Brown & Root should conclude that it is compelled by law or compulsory p,rocess to reveal further information about Mr. Macktal to any person or entity other than a federal, state or local taxing authority, Brown & Root will

I ..

STRICTLY CONFIDENTIAL notify Mr. Macktal or Ms. Garde of the legal compulsion or compulsory process and invite him to interpose an objection to such disclosure with tne party or entity seeking dis-closure or with, if appropriate, the agency reaponsible for the administration of the law or regulation giving rise to the legal compulsion. Notwithstanding any other provision of this Agreement, Brown & Root is not in any way obliged

, to conceal.or resist disclosure of any information about

! Mr. Macktal to a federal, state or local taxing authority that Brown & Root deems itself obligated to reveal, whether by virtue of compulsory process or otherwise, and notice to Mr. Macktal of any such revelations shall not be required.

Within ten (10) business days of receipt by Lsown & Root of 7) an' Order of the presiding Administrative Law Judge dismis- I sing the above-captioned action with, prejudice, Brown & .

Root will send to Ms. Garde a letter, addressed to Mr. Macktal and in the form attached hereto as Exhibit B, setting forth the dates of Mr. Macktal's employment, the job titles in which he'was employed, and the rate of pay that he was receiving on the date on which he left the

employ of Brown & Root.

1 i

8) Mr. Macktal and his representatives, Anthony Z. Roisman, ,

L and Ms. Billie Garde (including Trial Lawyers for Public Justice and the Government Accountability Project, .the ,

i i t I

i

- - - - - - - - - - - , - - - , - - - , --,---.--,,,-,,----_,-,-.------,,m+- , , - - . , - - - - ,---n.-- - - - - , - - , - - , - - - - - - - - - - , - - - - --

\

s

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STRICTLY CONFIDENTIAL organizations of which Mr. Roisman and Ms. Garde, respec-tively, are a part and through which they came to represent Mr. Macktal), agree that the terms of this Agreement shall be confidential. Mr. Macktal agrees that he will not in any way disclose the terms of this Agreement to any person, except as specifically provided below. Should Mr. Macktal disclose the terms of this hgreement to any person prior to

, January 1, 1995, such disclosure shall be deemed a material breach of this Settlement Agreement, relieving Brown & Root of any'and all obligations running to Mr. Macktal under the Agreement and creating in Brown & Root the right to bring an action for the recovery of all sums paid under this Agreement, plus interest and reasonable attorney fees. For purposes of this promise of confidentiality, Mr. Macktal, Mr. Rol'sman, Ms. Garde, Trial Lawyers for Public Justice, the Government Accountability Project and Brown & Root

agree as follows

a. "Disclosure" of the terms of this Agreement means any verbal or written communication describing the terms of this Agreement including the use of such adjectives as "generous,," "large," and "substan- '

tial," or words of description to similar effect, and includes making this Agreement or a copy of any portion thereof available to any person or entityr

b. Disclosure of the terms of this Agreement by Anthony Z. Roisman and/or by Billie Garde and/or by Trial Lawyers for Public Justice and/or the Government Accountability Project to any person shall be considered to be a breach of Mr.

l

. s. '

l S

STRICTLY CONFIDENTIAL Macktal's promise of confidentiality, with the same effect as if Mr. Macktal himself had made the disclosure;

c. Brown & Root shall not consider discussion of the terms of this Agreement between and among Mr.

Macktal, Mr. Roisman, and Ms. Garde to be a breach of Mr. Macktal's promise of confidentiality;

d. Mr. Macktal warrants that neither he nor Mr.

' Roissan nor Ms. Garde have disclosed the terms of this Agreement as verbally discussed between representatives of Mr. Macktal and Brown & Root after 12:00 noon, November 18, 1986, but before execution of this Agreement. Brown & Root shall consider any such disclosure during that period to be a breach of Mr. Macktal's promise of confiden-tiality;

e. Brown & Root shall not consider Mr. Macktal, Mr. Roisman, Ms. Garde, Trial Lawyers for Public Justice or the Government Accountability Project to have breached Mr. Macktal's promise of confidentiality if any of them is required to disclose the terms of this Agreement under compul-

'. sion of legal process, provided that when such disclosure is requested, the party to whom the request is made shall promptly give notice of such I request to Brown & Root and withhold disclosure until Brown & Root has had a reasonable oppor-tunity to object or, if Brown & Root does not object, until Brown & Root provides Mr. Macktal, Mr. Roisman, Ms. Garde, Trial Lawyers for Public Justice or the Government Accountability Project with written consent to disclosure. Brown &

Root's consent to disclosure on any cccasion does l not represent its consent to future requests for disclosure under compulsion of legal process.

Brown & Root shall not consider an objection by Mr. Macktal, Mr. Roisman, Ms. Garde, Trial Lawyers for Public Justice or the Government Accountability Project or their representatives to i

a request for disclosure under compulsion of legal t process by reference to Mr. Macktal's promise of i

confidentiality to be a breach of that promise; I i 1 ,

. . . a s

~

~ ~ '-'

< .- t _m c -  ; y pF, r. ~ . * ~ "

,- STRICTLY CONFIDENTIAL 9-

9) This Agreement shall be binding upon and inure to the bene-fit of the parties, their respective agents, representa-tives, attorneys, successors, and assigns, and as to Mr.

Macktal, his heirs, executors, administrators, and personal representatives.

I e

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.e - s

• . . . -. s . . . . ,

STRICTLY CONFIDENTIAL 10 -

The foregoing provides the entire AGREEMENT between the parties and this AGREEMENT cannot be modified except by written stipulation signed'by each of the parties hereto.

bOE Ih Billie Pirner Garde for Joseph Macktal, the Government Accountability Project, and hersel:!

L4, / /d LKnthony . of man for '

Josep ck 1, Trial Lawyers for u ic J stice, and himsel

-h .') ., $f __ __-

) ~

l Richard K. Walker for

' Brown and Root, Inc.

4 This 2nd day of January, 1987.

t l

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- . - _ . - ~ , , _ _ _ _ . . - _ , - . _ - - _ . . .-- - - _ . - - . - _---_. ,_-_,.,_ ,. _ .__ ,-__ ,_ ,., .__ _ _ . ,_ - - _ _ _ -

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.., . . ~ '"L r ' [

UNITED STATES OF AMERICA BEFORE THE U.S. DEPARTMENT OF LABOR

)

JOSEPH MACKTAL, )

)

Complainant, )

v.

) Cahe No. 86-ERA-23

)

)

BROWN & ROOT, INC., )

)

Respondent. )

)

GENERAL RELEASE In connection with the Settlement Agreement executed on behalf of myself and by a representative of Brown & Root, Inc.

("Brown & Root") on January 2, 1987 and in consideration for the promises made therein, I, Joseph Macktal, do hereby release {,

and forever discharge Brown & Root, Texas Utilities Company and the other cuners of the Comanche Peak Steam Electric Station

("Conanche Peak"), the SAFETEAM program, and their respective attorneys, related companies, successors, assigns, officers, directors, managers, agents, and employees from any and all liability arising out of my employment with Brown & Root, the termination of'my employment on January 3, 1986, my resignation from my position with Brown & Root, or any other claims or choses in action I might have, whether known or unknown, that accrued or were inchoate as of the date hereof.

o ,

,ll

. L i

I understand that this GENERAL RELEASE resolves any claims raised in the complaint I filed with the Department of Labor on February 3, 1986, together with any and all clains that I might have asserted in any suit, cause of action, charge of discrimination, or claims against Brown & Root, Texas Utilities Company and/or the other owners of Comanche Peak, the SAFETEAM program and all representatives of the management of those companies, organizations and programs.

I further agree that this GENERAL RELEASE shall be binding on the undersigned, my agents, attorneys, representatives, executors, personal representatives, heirs, successors, and assigns.

I hereby acknowledge that I have read this GENERAL REL::ASE, discussed it with my utto:ney(s), and that I fully understand the terms, nature, and effect of the GENERAL RELEASE, and have voluntarily and knowingly executed the GENERAL RELEASE.

This 7 day of January, 1987.

h}fcc JogpphMacktal l

i

- - . _ . _ - _ _ - , _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ . _ _ . _ , _ _ _ _ _ . _ _ _ _ . _ _ _ . ~ _ . _ _. . . _ _

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EXHIBIT 3 1

l

' , s U.S. DEPARTMENT OF LABOR SECRETARY OF LASCR WASHINGTON, D.C.

DATE: May 11, 1987 CASE NO.: 86-ERA-23 e

IN THE MATTER OF JOSEPH MACKTAL, COMPLAINANT, v.

BROWN & ROOT, INC. ,

RESPONDENT, BEFORE: THE SECRETARY OF LABOR ,

ORDER TO SUBMIT SETTLEMENT AGREEMENT This proceeding arises under the employee protection provi-sion of the Energy Reorganization Act of 1974 (ERA) , 42 U.S.C S 5851 (1902), and implementing regulations at 29 C.F.R. Part 24 (1986).

I This case is before me on the recommended Order of Adminis-trative Law Judge (ALJ) Vivian Schreter Murray issued on January 6, 1987. '.he order states that the parties to this action have jointly moved, pursuant to 29 C.F.R.

S 18.39(b), for dismissal 1 of this action with prejudice. Section 24.6 of 29 C.F.R. authorizos i

the administrative law judge to issue a recommended decision af ter the termination of the proceeding. The recommended decision ,I is to be forwarded to the Secretary of Labor for approval and l a fina) order. .

• The record re flects that consider e". ' r discovery was con-  !

ducted in this case prior to the hearing which apparently was i

i

, , p '

,2

'4 '. *

, Correspondence in the record scheduled in November of 1986.

1986, refers from Complainant's counsel dated December 10, to "agreements of last month." Thus it appears that some agree-ment between the parties underlies the joint motion to dismiss, although no settlement L,seement, stipulation or similar docu-ment has been included in the record submitted to the Secretary.

Although it is not necessary that the settlement agreement be made part of my final order, without an opportunity to review the agreement I cannot determine if the terms of the settlement are fair, adequate and reasonable, the usual standard for approval of a settlement agreement. Johnson v. Trans'co Products, Case No. 85-ERA-7, slip op. at 1, August 8. 1985. Compare Young I v. Hake, Case No.,83-ERA-11, slip op., January 18, 1985 j

("f air and equitable"); Eggers v. Cincinnati Drum Services, l Inc., Case No. 84-TSC 2, 311p op. of ALJ, March 6, 1984 ("reasonable and proper and that a dismissal is not against the public interest"),

approved by the Secretary, June 5, 1964; and Chan Van Vo v.

Carolina Power & Light Company, Case No. 85-ERA-3, slip op.

April 12, 1985 ("equitable"). Where a settlement is not fair and equitable to a complainant, I cannot approve it for to do so would be an abdication of the responsibility imposed upon me by Congress to effectuate the purpose of Section 5851, which is to encourage the reporting of safety violations by prohibiting economic retaliation against employees reporting such violatins. McGavock v. Elbar, Inc., Case tio. 86-STA-5,

,, ===4.... T.*

s ,

V

Secretary's Order, at 2, November 25, 1986.

Therefore, if the parties desire to resolve this matter by mutual agreement, within 30 days from rece(pt of this order they should submit the settlement agreement for my review, signed by both parties, including complainant individually and setting forth all the terms and conditions agreed to.

SO OP.DERED.

Secretary of Labor Washington, D.C.

l 4

4 e

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CERTIFICATE OF SERVICE Case Name:

Joseph Macktal v. Brow'n & Root, Inc.,

Case No. : 86-ERA-23 Document :

ORDER TO SUBMIT SETTLEMENT AGREEMENT ,

A copy on persons of the above-referenced document was sent MAY Ii 1987 . to the following CERTIFIED MAIL 3 L

$NY Richard ::. Walker, Esq.

Metteil Watkins II Esq.

Bishop, Liberman,, Cook, Purcell & Reynolds 1200 seventeenth St., N.W.

Washington, D.C. 20036 Nicholas S. Reynolds, Esq.

Peter Kryn Dykema.Esq. I '"'"*"

nishop, Liberman,, Cook, k- ~ I Purcell & Reynolds 1200 Seventeenth St., N.W.

Washington, D.C. 20036 y

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m mx mw n> ?nQF '.** 1 0

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g g !78 " 'y Joseph J. Macktal ,

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E '

4 c/o A t tnGovernment Accountability Project Billie P. Garde b% '

5 ' "g h5 1555 Connecticut Ave., N.W. \j ' mb (

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Suite 202 1 {'

y?

),

Washington, D.C. 20036 3g ..

os 1

g{ O o J [

l Billie P. Garde, Esq. u  !

, Government Accountability Project - Midwest Office 3EI

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o 3424 tiorth Marcos Lane g' p Appleton, Wisconsin 54911 e r

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JC3 P:: : '.'. ;i*TA

. . L Oonplainant,

v. case Ito. 8G-URA-23 73~.1: L .?. COT, II;c.,

nospondent.

CCi?LII.'.*A 7 JZUO.h? FOR !~.aA3I:'O

'::;3".AS c' . :'Acktal has instituted the above-captioned action against Brown 3, acot before the United Statos Departnen'. of labor allesing that his ternination violated Section 210 of the 2nergy Reorganization Act of 1974, 42 U.S.C. S 5851 ("Section 210");

U'r~42%AS 't. :acktal on Dece=ber 26, 1986 instructed his atter-ney not to consunnate the ;*nding settlenent agreenent, and to proceed with the hearins. On January 7,1987 Fx, F.acktal uss threat-ened, and forced to sign a ceneral release under duress.

l'C'./; TIC:RIFOR3, ::r. 'achtal ask the Secretary of Imber to review the Decenber 26, 1986 convarsation between :'s, :'cektal, and his attornoy to detornine if !*r . ::achtal was threatenod, and forced to I si;n under durecc.

'O'.7 7"223703: Ir. :'achte.1 prayc that the United Statcc of

!.::crica .3ocrotary of Tabor will overturn the presidin- Ad..inistrative law Jttd: e's order to di::. ice with projudice the above captiond ence, r.nd ;rocoed with the honrin. ce ductico my prevail.

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EXHIBIT 4 i

I

...'.,.. 8

? ,e y , .* ,

Ja'mes Saginaw, Esq.

Joe Cruz, Esq. ,

Fred Baron & Associates Dallas Federal Savings Bldg.

Suite 1400 8333 Douglas Avenue Dallas, TX 75225

• Hr. Robert Fillmore Worsham, Forsythe, Sampels

& Wooldridge 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 Curtis L. Poer, Director U.S. Department of Labor ESA - Wage & Hour 525 Griffin Street Dallas, TX 75201 Director of Enforcement Staff -

Office of Inspection and Enforcement Nuclear Regulatory Commission Washington, D.C. 20555 Chief Counsel ,

Regional Operations and Enforcement Nuclear Regulatory Commission Washing ton , D.C.

20555 Deputy Adminirtrator Wage & Hour Divisien, ESA U.S. Department of Labor Room S-3502, FPB 200 Constitution Avenue, N.W.

Washington, D.C. 20210

!!onica Gallagher Associate Solicitor USDOL/OSOL Division of Fair Labor Standards 200 Constitution Avenue, N.W.

Room N-2716 Washing ton , D.C. 20210 4

4

s. d UNITED STATES OF AMERICA BEFORE THE SECRETARY OF LABOR JOSEPH J. MACKTAL, Complainant, vs. 86-ERA-23 BROWN & ROOT, INC., AND ,

TEXAS UTILITIES, Respondents.

HOTION FOR EXPEDITED CONSIDERATION OR FOR EMERGENCY PARTIAL ORDER Complainant Joseph Macktal hereby requests an expedited order concerning the enforceability of Paragraph 3 of the January 2, 1987 Settlement Agreement entered into

.between attorneys for Texas Utilities, Brown & Root and Mr.

Macktal (here'inafter "Settlement").

Paragraph 3 of the Settlement is null and void as a matter of law and public policy as it prohibits Mr. Macktal from the "reporting of safety violations" to the NRC in direct opposition to the "purpose of Section 5851."

Macktal v. Brown & Root, Inc., 86-ERA-23, Order to Submit

';*tlement Agreement, dated May 11, 1987.

Mr. Macktal fears that he will be subjected to a breach of contract suit or other forms of liability and discrimination if he "violates" the Settlement. More importantly, an immediate nullification of paragraph 3 will facilitate Mr. Macktal's disclosure of heretofore undisclosed safety violations Mr. Macktal observed while 1

~ _ -

4 .

4 employed at the Comanche Peak facility.

The illegal nature of paragraph 3 of the Settlement is set forth in detail in the accompanying brief, entitled Complainant's Request to the Secretary of Labor to Disapprove Settlement and Romand for Further Proceedings.

WHEREFORE, in consideration of this motion and the accompanying brief, Complainant respectfully requests the Secretary of Labor to strike paragraph 3 of the Settlement f

Agreement within ten days of the filing of this pleading.

Respectfully submitted, KOHN & ASSOCIATES J

! By: Stephen'M. Kohn, Esq.

Michael D. Kohn, Esq.

l David K. Colapinto, Esq.

526 U Street, N.W.

Washington, D.C. 20001 i (202) 234-4663  !

e 2

J 6, -

UNITED STATES OF AMERICA BEFORE THE SECRETARY OF LABOR

)

JOSEPH J. MACKTAL, Complainant, vs. ) 86-ERA-23 BROWN & ROOT, INC., AND TEXAS UTILITIES, ,

Respondents. s REQUEST TO THE SECRETARY OF LABOR NOT TO APPROVE THE SETTLEMENT AND I

FOR REMAND 4

Procedural History On August 24, 1988 Mr. Joseph Macktal first i

learned of the Secretary of Labor's (SOL) May 11, 1988 Order j

to submit settlement Agreement. Since that date he and his l

attorneys have had an opportunity to review tha brief submitted by Respondent Brown & Root on June 5, 1987 and the i

f l 1etter submitted by his former attorney Ma, Billie Garde on '

l  ;

I June 8, 1987. '

As the Secretary of Labor did not stay his Order i Mr. ,

pursuant to the filings of Ms. Garde and Brown & Root, a

Macktal hereby submits, as exhibit 2 of his Affidavit, The settlement agreement copy of the settlement agreement.

in this case actually consists of two separate documents, l This document The first is entitled "Settlement Agreement".

f  ;

was not signed by Mr. Macktal but was signed by his  ;

i

> 1 I I i -

j e i

l

k

• J attorneys, Ms. Garde and Mr. Anthony Z. Roisman. The second document, entitled "General Release" was signed by Mr.

Macktal. The General Release states that the release was executed "in connection with the Suttlement Agreement."

Facts Facts relevant to this pleading are set forth in the attached Affidavit of Joseph J. 'Macktal, Jr.

Arguments I. The Settlement Agreement is Null and Void on the Basis of Public Policy and Must Be Set Aside.

Paragraph 3 of the Settlement Agreement prohibits Mr.

Macktal from "voluntarily appear (ing) as a witness or a party in any such proceeding..." including "any l

• l administrative or judicial proceeding in which either Mr.

Roisman, Ms. Garde, Trial Lawyers for Public Justice or the Government Accountability Project, or any combination of them are now, or in the future may be, counsel or parties opposing any of the comanche Peak Companies, organization, programs or individuals..." Tho settlement agreement defines "Comanche Peak Companies" to include all companies, employees or attorneys that are in any way involved with the I construction of the Comanche Peak facility. (See Third "whereas" in the settlement agreement). Because Ms. Garde, Mr. Roisman, TLPJ and GAP represented the intervenor Citizens Association for Sound Energy (CASE) before the Atomic Safety and Licensing Board (ASLB) and most, if not all,comanchePeakWhistkeblowers,thescope'ofthegag order is all-encompassing.

2 l

l

i.. J e Not only was Mr. Macktal prohibited from voluntarily appearing as a witness before on-going NRC licensing hearings and on-going NRC staff investigations into Comanche Peak, i'f subpoenaed to testify Mr. Macktal would be obligated to work with Brown & Root's attorneys to "resist" compulsory processes. Likewise, Mr. Roissan, Ms. Garde, GAP, and TLPJ were prohibited from ever "inducing" or "suggesting" to the NRC, ASLB or other*Section 210 complainants that Mr. Macktal be called as a witness. As such, paragraph 3 of the settlement created actual and potential hidden conflicts of interests between Ms. Garde, Mr. Roisman and their clients, including CASE and other 1

individual Section 210 complainants.

In short, th,e Settlement Agreement, at the time, essentially guaranteed that Mr. Macktal would never be able to testify before the NRC about problems he observed at Comanche Peak, including numerous unresolved safety concerns he had not as of yet had a chance to air with the NRC Staff of the ASLB. See, Aff., para. 3-5.

Paragraph 3 of the Settlement Agreement violated public policy and NRC regulations and this language must be

1. Indeed, the ALJ in Masan v. NPSI, 86-ERA-24, inferred that not going to "Safeteam" with safety concerns constituted bad faith on the part of the complainant after the complainant testified that "Safeteam" was untrustworthy and controlled by Texas Utilities management and that the identities of employee-whistleblowers were routinely leaked to Texas Utilities who then retaliated against those whistleblowers. When Mr. Masan's counsel asked forMs.

theGarde name of (who at the time was co-counsel on the case) a witness tocould "Safeteam" coroborate not beMr. Hasan's trusted, Ms. statement Garde did that not, because she could not under the terms of the settlement, reveal the identity of Mr. Macktal.

3

k . 4 stricken. Essentially, paragraph 3 represents a classic example of bargaining money for silence. Such agreements have historically been found to be impermissible by every court which has considered the issue. See, e.g., Franklin v2 White, 493 N.2.2d 161, 165 (Ind. 1986) ("Contracts which unduly tend to influence'the' production or suppression of evidence are void."); Josephs v. Briant, 108 Ark 171, 157 S.W. 136, 140 (1913) ("A contract is void as against public policy by which one of the parties agrees to suppress or conceal, or enable another to suppress or conceal, testimony..."). Also see, 6A Corbin on Contracts, sec. 430, at page 380 (1962 ed.). Paragraph 3 of the Settlement Agreement is anathema to Section 210 and must be stricken in its entirety.

Unquestionably, Section 210 was was not passed to provide a legal shield to silence employee whistleblowers by tempting them with large sums of money if they agree to remain silent. Likewise, Section 210 was not passed to undermine the NRC's ability to receive safety allegations.

Rather it was passed to "help assure" employee disclosure of health and safety violations to NRC and utility management (see, Senate Report 95-848, 1978 U.S. Code Cong. Ad. News 7303, 7304), and to make sure that the NRC's "channels of information" were not "dried up." Deford v. Secretary of Labor , 700 F.2d 281, 286 (6th Cir. 1983).

In Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986), Justice Edwards wrotet "If employees are coerced and intimidated into remaining silent when they should speak 4

5 ..

out, the results can be catastrophic." What could be more detrimental to the free flow of information to the NRC than a money-for-silence secret settlement between utility employees and attorneys for the utility? Clearly, no clause in any settlement which can be directly or indirectly interpreted to inhibit a potential witness from providing information to a government agency or court can be approved.

The contract also violates NRC regulations. For example, NRC regulations state that "the Commission will not permit any interference with communications between the Commission's representatives and employees of such organization." Vol. 47, Federal Register No. 135 at page f

30453 (July 14, 1982). Offering money for silence is an extreme form of "interference" between the Commission and i

employee-whistleblowers, i

II. The Secretary of Labor Must Refuse to Approve the Settlement

< Unlike most other federal or state remedies, Section 210 of the Energy Reorganization Act statutorily establishes l

that the Secretary is a party to all settiaments: "the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation, (will) issue an order either providing the relief prescribed in subparagraph (B) (reinstatement, back pay, attorneys fees, etc.) or denying the complaint....The 4

Secretary may not enter into a settlement terminating a proceeding on complaint'without the participation and

< consent of the complainant." 4 2 U.S.c. sec. 5851 (b) (2) ( A) .

j only the sol can authorize the settlement of a case.

5

. '..t Even if the SOL believes that a particular settlement is fair and just, a case cannot be settled without the consent of the complainant, complainant Joseph J. Macktal specifically requests that the 50L not approve the settlement agreement.

Consequently, as a matter of law complainant is entitled to have the settlement set aside and th,e case remanded back to the ALJ for further proceedings.

Respondents incorrectly rely on FRCP 41 (a) (1) (1) to justify their position that the settlement agreement need not be provided to the Secretary. This reliance is misplaced. FRCP 41 (a) (1) (1) does not apply whenever a statute contains alternative provisions governing voluntary dismissal.

Voluntary dismissals under TRCP 61 (a) (1) are "expressly made subject to the provisitns of any statute of the United States." 9 height and Miller, Federal Practice and Procedure Section 2363 (1971) ; TRCF 41 (a) (1) . Thus the statutory language of Section 210 espresely requires the Secretary's active involvement in approving settlement 42 U.S.C. sec. 5851 (b) (2) ( A) . It is therefore agreements.

axiomatic that the Secretary would decline to enforce any aspect of a settlement agreement entered into between the parties that contradicts public policy and firmly established jurisprudence.

6

- - . .- _- .. .-. ~ ._.

11 bor' III. The SOL Should Not Approve the settlement Because of Evidence of Fraud and Duress 7 Even if the SOL found paragraph 3 of the settlement agreement not to be null and void as a matter e,i law and j public policy, the 80L still should not approve the 5 settlement on the ground of fraud and duress.

. Mr. Macktal's affidavit on its face is sufficient to l

warrant a romand to an AIJ with instr,uctions to determir.e l I whether the settlement agreement is. void a_b initio on the i basis of fraud and duress. See, Aff., at para. 14-26.

j For example, af ter Mr. Macktal requested his attorneys l to proceed with the case and halt settlement negotiations,

he was told that_a binding settlement already existed when

! it clearly did not. Aff., at para. 19-21. Mr. Macktal was told that should he terminate settlement negotiations he would be sued for breach of contract and he could be burdended by a judgment against him for as much as a

$100,000.00 with the Utility "pursuing" him to the "ends of the earth" in an attempt to satisfy that judgment. Aff., at para. 24. More importantly, Mr. Macktal was told by his i attorneys that before he cou.d 1 go to trial he would have to pay up front $12,000 to*his pro bono counsel, a condition l repugnant to the very terms of the signed retainer agreement Af f. , at para.15, 19 1

running between client and counsel and 21.

The facts set forth in Mr. Macktal's affidavit are more than suf ficient to warrant remand to an AIJ to determine whether fraud an_d dur'ess render the settlement agreement void.

7

t ..a IV. SOL Precedent Requires That the settlement Not Be Approved In the order to Submit Settlement Agreement the sol

reiterated a series of precedents in which the SOL held that i

sett)'Jent must be "fair, adequate and reasonable" and must not he dagainst the public interest." Macktal ys Brown

& Root, 86-ERA-23, slip op. of SOL at 2 (May 11, 1987). See

, also, Hoffman y2 Fuel Economy Contractita, 87-ERA-33, slip l op, of SOL at 2 (August 10, 1988); Moran ys Consilidated Edison of New York, Inc., 88-CAA-2, slip op. of SOL (June 20, 1988); Egenrieder yz Metropolitan Edison Co./GPU, 85-ERA-23, slip op. of SOL (April 11, 1988). Specifically, the SOL reasoned that "where a settlement is not fair and ,

equitable to complainant, I cannot approve it for to do so I would be an abdication of the responsibility imposed upon me i by Congress to effectuate the parpose of Section 5851, which 4

J iJ to encourage the reporting of safety violations..."

Macktal, 86-ERA-23, slip op. of SOL at 2 (May 11, 1987). ,

j For reasons staced herein and facts set forth in !!r. j i Macktal's affidavit, the settlement cannot, on its face, l effectuate the purpose of Section 210, nor is it in the I public interest. Clearly, a enntract clause not to testify

) before the NRC absolutely contradicts the congressional (

purpose for the enactment of Section'210 ("to encourage reporting the sarety violations"). Id.. Likewise, given the  ;

pressure placed upon Mr. Macktal which forced him to sign the settlement, tite agreement cannot be considered "fair, m*squate and reasonable." Id.

Tho public policy implications of this case transcend f

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the specific facts of Mr. Macktal's allegations. Few employee whistleblowers und6.* stand the adverse economic f ramifications of a retaliatory i.scharge. After a significant period of economic deprivation, the prospect of prolonged and costly litigation ar.d the disruption of routine life, individual whistleblowers often see no alternative but settlement on almost any terms. If an employer is allowed to place "silence" on the bargining table, the result is predictable it is only a matter of time until an employee succumbs. Public policy requires ,

that such terms must never enter into settlement negotiations. Any agreement, explicit or implicit, that in any way prohibits a complainant.from freely testifying or otherwise providing information to an appropriate government agency must be declaired null and void. only by doing so, in the strongest possible terms, can the Secretary insure that the settlement process is not used to undermine the very purpose of environnental whistleblower legislation, once a "money for silence" settlement is effectuated, it is usually in the interact o! both the complainant and respondent to keep those terms of settlement secret. The Macktal case represents the first known instance an employee was coerced against his will into signing such an agreement.

Thus, Mr. Macktal is the first complainant willing to risk civil liability in order to challenge the unconscionable terms found in the attached settlement agreement. It is not "f air" or "reasonable'i for a complainant to ever be placed in the position Mr. Macktal finds himself. Until the 9

e 4 .a Secretary strikes the settlement, Mr. Macktal must fear a i counter suit. Mr. Roisman's warning that Mr. Macktal would be followed to "the ends of the earth" if he publically exposed his concerns should not be lightly taken, given Mr.

Roismar.'s years of experience litigating against Texas Utilities and Brown & Root. Only the Secretary, by expidious nullfication of the Macktal settlement, can adequately address this problem.

conclusion The settlement is not fair, equitabbA or reasonable.

On the basis of the SOL's precedent alone the settlement Agreement should not be approved. The case should be remanded to the ALJ with instruction that the parties be given a reasonable opportunity to re-settle the case on terms not violative of public policy; that if settlement is not reached, discovery bi re-opened and the case should proceed to trial.

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Respectfully submitted, M ,

Stephen M. Kohn, Esq.

Michael D. Kohn, Esq.

David X. Colapinto, Esq.

KOHN & ASSOCIATES 526 U Street, ll.W.

Washington, D.C. 20001 (202) 234-4663 September 9, 1988 ,

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