DATE:  May 20, 1992
CASE NO. 91-STA-0007


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     AND

LARRY L. CHAMPLIN,

          COMPLAINANT,

     v.

FLORILLI CORP.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER 
     Before me for review is the [Recommended] Decision and 
Order (R.D. and O.) of the Administrative Law Judge (ALJ), issued
July 23, 1991, in the above-captioned case arising under the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.
app. § 2305 (1988).  Upon receipt of the ALJ's decision and
the case record, an Order was issued permitting the parties a
period of 15 days within which to file briefs in response to the
ALJ's decision.  No party has responded. [1] 

     In this case, the ALJ refused to approve a settlement
agreement proposed by the parties and, over Respondent's
objections, proceeded with the evidentiary hearing.  Upon hearing
the evidence, the ALJ found that Complainant had not sustained
his allegation of discrimination and recommended dismissal of the

[PAGE 2]
complaint. [2]   He ordered Complainant to repay the monetary
consideration he had received under the terms of the settlement. 
     After reviewing the evidence in light of applicable law, I
cannot agree with the ALJ's decision to reject the settlement and
proceed to hearing.  I find that Complainant voluntarily and
knowingly agreed to a settlement, which was fair, adequate and
reasonable under the circumstances, and that the case should have
been dismissed on that basis.
     The ALJ refused to accept the settlement on the basis that
he could not determine that the terms were fair, adequate and
reasonable.  Essentially, the ALJ questioned the propriety of the
settlement agreement because of the disparity between the
consideration for the settlement and the amount of damages
assessed in the Preliminary Findings and Order of the Assistant
Secretary of Labor for Occupational Safety and Health. [3]   The
ALJ, therefore, ordered the parties to respond and explain how
the settlement terms could be deemed fair.  Second Procedural
Order dated March 7, 1991.  
     In response to the ALJ's order, counsel for the Assistant
Secretary explained generally that through trial preparation,
each party obtains a fresh view of the case and becomes cognizant
that he or she may lose.  Counsel also submitted a sworn
affidavit explaining that she and Complainant had discussed the
strengths and weaknesses of this case in detail, that Complainant
was concerned about missing work due to the proceedings, that the
settlement terms were the Complainant's terms, and that he
affirmatively represented that he "didn't care about the money." 
Prosecuting Party's Response to Second Procedural Order at 4. 
Respondent's counsel also indicated to the ALJ that Complainant
had input into the terms of the settlement and that Complainant's
primary emphasis was on having the opportunity to voice his
concerns about safety in the trucking industry.  According to
Respondent's counsel, after the consideration was exchanged,
"[e]veryone then went away happy."  Letter from Thomas P.
Schlapkohl, dated March 20, 1991, at 2.  Complainant never filed
a response to the ALJ's order.       
     Under the STAA and implementing regulations, a proceeding
may be terminated on the basis of a settlement, provided either
the Secretary or the ALJ approves the settlement.  49 U.S.C. app.
§ 2305(c)(2)(A); 29 C.F.R. § 1978.111(d)(2) (1991).   
Consistently, the Secretary has held that the terms of the
proposed settlement must be fair, adequate, and reasonable, and
thus, the ALJ did not err in inquiring into the propriety of the
settlement before deciding whether to approve its terms. 
See, e.g., Thompson v. G & W Transportation Co.,
Inc., Case No. 90-STA-25, Sec. Approval of Settlement and 
Dismissal of Complaint, Oct. 24, 1990, slip op. at 2.   

[PAGE 3]
     The law, however, does not support his conclusion that the
consideration for the settlement was inadequate.  As stated by
the court in DiMartino v. City of Hartford, 636 F. Supp.
1241, 1250 (D. Conn. 1986), a case involving a claim of age
discrimination in employment,
     [a]dequacy of consideration turns not on whether a
     party received as much as he might have had he
     litigated the dispute and won, "but, rather, whether he
     received something of value to which he was not already
     unquestionably entitled."  Runyan v. NCR Corp.,
     573 F. Supp. 1454, 1460 (S.D. Ohio 1983); Schmitt-
     Norton Ford, Inc. v. Ford Motor Co., 524 F. Supp.
     1099, 1103 (D. Minn. 1981), aff'd, 685 F.2d 438
     (8th Cir. 1982).
     Under the STAA it is well established that when a hearing is
requested, as here, the Assistant Secretary's preliminary
findings are not accorded weight in any decision in the case. 
Stack v. Preston Trucking Co., Case No. 89-STA-15, Sec.
Final Dec. and Order, Jan. 4, 1991, slip op. at 2 n.3. 
Consequently, Complainant had no guarantee of winning any amount
of damages.  Considering the existing circumstances and the
responses of counsel for both the Assistant Secretary and the
Respondent, who at that juncture, as the record reflects, were
conducting depositions and engaging in other discovery in
preparation for litigating the case before the ALJ, I do not find
that the consideration for the settlement was inadequate,
unreasonable, or inequitable.
     Furthermore, I find that Complainant knowingly and
voluntarily consented to the settlement at the time it was
executed and has not shown any legitimate basis to nullify the
settlement.  During his second deposition on June 7, 1991,
Complainant testified that in actuality he signed the agreement
under duress, i.e., that he felt compelled to settle in
order to avoid Respondent's exposure of Complainant's past
criminal record.  Respondent's Exhibit (RX) 2 at 101. 
Complainant's post hoc position does not support a
finding of duress.  See Jurgensen v. Fairfax County,
Virginia, 745 F.2d 868, 889-90 (4th Cir. 1984).  Respondent's
attempt during discovery to find evidence of criminal convictions
that might bear on Complainant's credibility was not made in bad
faith or calculated to annoy or coerce Complainant.  RX 6 at 61-
64.  In fact, Respondent's counsel showed respect for
Complainant's reluctance to answer on this subject and did not
force the issue.  RX 6 at 62-63.
     Furthermore, Complainant signed the agreement, which
expressly provides that "[w]hile maintaining their respective
positions, the parties do believe the terms of the settlement are
fair adequate and reasonable," and he accepted the monetary
consideration for the settlement.  The record does not show that 
[PAGE 4]
Complainant ever relinquished or repaid the consideration.  It is
also undisputed that Complainant remained silent from the time he
signed the agreement, on or about January 17, 1991, until
sometime after May 9, 1991, when he engaged in a telephone
conversation with the ALJ.  See Notice of Hearing dated
May 9, 1991; Transcript at 13.  Significantly, Complainant
remained silent despite orders issued by the ALJ on March 7,
1991, and March 25, 1991, questioning the fairness of the
settlement and specifically providing Complainant the opportunity
to file a statement in response.  Under these circumstances, and
in view of the statements made by counsel for the Assistant
Secretary in her affidavit, the settlement is not voidable for
duress. [4]   See DiMartino, 636 F. Supp. at 1252. 

     Finally, Complainant cannot avoid the settlement merely
because upon further reflection he believed the terms were
insufficient.  Glass v. Rock Island Refining Corp., 788
F.2d 450, 454-55 (7th Cir. 1986); cf. Macktal v.
Secretary of Labor, 923 F.2d 1150, 1156-57 (5th Cir. 1991).
     Accordingly, on the basis of the parties' settlement
agreement, the complaint IS DISMISSED.  29 C.F.R. 
§ 1978.111(d)(2). 
     SO ORDERED.



                              LYNN MARTIN 
                              Secretary of Labor

Washington, D.C.



OAA:JOJOYCE:cl:February 20, 1996
Room S-4309:FPB:523-9728   


[ENDNOTES]
           
[1]  The ALJ's decision and the case record were not transmitted
to the Secretary until February 25, 1992, following an inquiry by
Respondent's counsel.  Consequently, this decision is issued
outside the time frame contemplated by the STAA.  Although as a
matter of course I make every effort to render final decisions
within that time frame, I note that the time restrictions are
directory not jurisdictional.  Roadway Express, Inc. v.
Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).   

[2]  The ALJ simply did not believe Complainant's testimony.  He
noted that Complainant, during his testimony at the hearing, had
demonstrated both a readiness not to tell the truth and a
disregard for compliance with the law.  R.D. and O. at 5.

[3]  Following the preliminary investigation of Complainant's
allegations, the Assistant Secretary found reasonable cause to
believe that Complainant was discharged by Respondent in
violation of the STAA.  Respondent appealed and the case was
transferred to the ALJ for an evidentiary hearing.

[4]  That Complainant was not represented by his own independent
counsel during the settlement discussions does not persuade me
that his decision to enter the settlement was unknowing or
involuntary.  Complainant was neither barred from retaining
private counsel nor denied access to counsel.  See
generally Rogers v. General Electric Co., 781 F.2d
452, 456 (5th Cir. 1986).