Before me for review is the Recommended Decision and order on
Remand by the Secretary (R.D. and O.) issued, on May 5, 1988, by Administrative Law Judge
(ALJ) Robert J. Brissenden in the above-captioned case.
The events leading to the remand are set forth in detail by the ALJ.
See R.D. and O. at 1-2. Briefly, on July 9, 1986, Secretary Brock issued a Final
Decision and order finding that Respondent Elbar's discharge of Complainant violated Section
2305(b) of the Surface Transportation Assistance Act of 1982, 49 U.S.C. app. § 2305
(1982). Subsequently, Complainant and Elbar entered into a settlement agreement. On April 6,
1987, the Secretary, having found that the settlement was fair, adequate and reasonable, issued an
order Approving Settlement. Following the issuance of this order, Complainant McGavock
complained that as a result of the collusion of his former attorney and Elbar's attorney, he was
coerced into accepting Respondent's terms for settlement after expiration of the period for appeal
of the Final Decision and Order of July 9, 1986. On January 25, 1988, I stayed the Order
Approving Settlement and remanded the case to the ALJ for a hearing on Complainant's
contentions that the settlement was entered into subsequent to expiration of the appeal period and
that he had been coerced into accepting Respondent Elbar's terms for settlement.
Following the hearing on remand, the ALJ issued his decision in which
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he found that a binding settlement agreement was reached on September 8, 1986, the final day of
the appeal period, that Complainant had entered into the agreement voluntarily, and that there
had been no coercion, collusion or fraud by Complainant's attorney and Respondent Elbar's
attorney.
Based on a thorough review of the record, I conclude that the ALJ's
factual findings are supported by substantial evidence on the record as a whole, and are thus
conclusive. 29 C.F.R. § 1978.109(c)(3) (1987). As noted in Palmer v. Western
TruckManpower, Case No. 85-STA-6, issued January 16, 1987:
Where the standard of review of an ALJ decision is whether the findings of
fact are supported by substantial evidence in the record as a whole, the ALJ's credibility
determinations will not be disturbed by the reviewing authority unless they
"conflict with a clear preponderance of the evidence" or "are 'inherently
incredible and patently unreasonable'." Cordero v. Triple A Machine
Shop, 580 F.2d 1331, 1355 (9th Cir. 1978).
Slip op. at 7. I further find that the ALJ's conclusions are in accordance with law.
Accordingly, I adopt and append to this order ALJ Brissenden's R.D. and O.
Furthermore, inasmuch as it has been found that the parties agreed to a
settlement before the expiration of the period for appeal of my Final Decision and order, and that
Complainant voluntarily entered into the settlement, I find no basis for altering the prior finding
that the settlement is fair, adequate and reasonable, Therefore, the April 6, 1987, stay of the order
Approving Settlement is lifted, and pursuant to that Order, this matter is DISMISSED.
