Tucker testified that on October 27, 1998, Eash authorized him to discuss terms of settlement with Landwehr, and that he spoke to Eash on October 28 and 29 during the course of the negotiations and again on November 3, 1998, when Eash communicated his rejection of Roadway's offer. Hearing Transcript (T.) 61-62. In response to examination by Landwehr, Tucker testified that upon conclusion of negotiations on October 29 he stated to Landwehr, "that in principal [sic] we had a resolution that would await your [Landwehr's] written draft of the settlement and I would then forward the same to my client." T. 16. Tucker admitted that, while he mailed Eash the draft settlement agreement, he neglected to read the agreement to him over the telephone and that at the time he and Landwehr entered into the agreement in principle, Eash had not seen its language. T. 20-21.

   The ALJ found that Eash orally agreed to final negotiated settlement terms which were memorialized, clearly and unequivocally, in the draft written agreement. R. D. & O. at 5. The ALJ also found the agreement to be fair, adequate and reasonable, and in the best interests of Eash. Finally, he found "that the settlement was arrived at without duress, only after full exploration by the parties of all issues in dispute and the legal and factual questions involved." Id. The ALJ consequently approved the settlement and granted Roadway's motion for its enforcement.

   Pursuant to the STAA implementing regulation at 29 C.F.R. §1978.109(c)(3), an ALJ's factual findings are conclusive if they are supported by substantial evidence on the record considered as a whole. BSP Trans., Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1063 (5th Cir. 1991).

   Pursuant to the Administrative Procedure Act, in reviewing an ALJ's conclusions of law, the Administrative Review Board, as the designee of the Secretary of Labor, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C. §557(b), quoted in Goldstein v. Ebasco Constructors, Inc., Case No. 86-ERA-36, Sec. Dec., Apr. 7, 1992 (applying analogous employee protection provision of Energy Reorganization Act, 42 U.S.C. §5851); see 29 C.F.R. §1978.109(b). The Board accordingly reviews questions of law de novo. See Yellow Freight Systems, Inc. v. Reich, 8 F.3d 980, 986 (4th Cir.1993); Roadway Express, Inc. v. Dole, 929 F.2d at 1063. See generally Mattes v. United States Dep't of Agriculture, 721 F.2d 1125, 1128-1130 (7th Cir. 1983) (rejecting argument that higher level administrative official was bound by ALJ's decision); McCann v. Califano, 621 F.2d 829, 831 (6th Cir. 1980), and cases cited therein (sustaining rejection of ALJ's recommended decision by higher level administrative review body).

   On appeal of the ALJ's R. D. & O., Eash argues that the ALJ erred in finding an enforceable settlement between the parties. Specifically, Eash argues that the record contains no evidence of an unequivocal declaration by the parties that they agreed to all material terms, that Eash never accepted Roadway's settlement offer, and that Eash never authorized his counsel's acceptance of that offer. Eash also argues that the ALJ erred in finding the putative settlement to be fair, adequate and reasonable. In response, Roadway argues that the R. D. & O. should be adopted. According to Roadway, the ALJ's finding that the parties had agreed to a settlement was supported by substantial evidence, and the settlement represented a fair, adequate and reasonable disposition of Eash's complaint. The issues are whether the parties entered into an enforceable oral agreement and, if so, whether that agreement should be approved. The Board is authorized to decide this case under 49 U.S.C. §31105(b)(2)(C) and 29 C.F.R. §1978.109.

49 C.F.R. §1978.111(d). Although this provision would appear to contemplate only written settlement agreements, oral settlement agreements also are permitted. See, e.g., Tankersley v. Triple Crown Services, Inc., Case No. 92-STA-8, Sec. Dec., Oct. 17, 1994. However, where an oral agreement is presented for approval, the record clearly must reflect all material terms of the settlement and evidence an unequivocal declaration by the parties that they have agreed to those terms. Hasan v. Nuclear Power Services, Inc., Case No. 86-ERA-24, Sec. Dec., June 26, 1991, slip op. at 8 (under analogous employee protection provision of Energy Reorganization Act).

   This standard has been met in other cases by admission into evidence of documentation of an agreement signed by the complainant or by reaffirmance of an agreement by the complainant in open court. In Macktal v. Sec'y of Labor, for example, the complainant admitted in an affidavit that he initially had agreed to an oral settlement reached by his attorneys, that he had signed two versions of a general release and that he had accepted his share of the proceeds provided under the agreement. The court stated: "Given these indications of consent, we cannot conclude that the Secretary's finding of consent is an abuse of discretion." 923 F.2d at 1157 (Energy Reorganization Act). In Tankersley v. Triple Crown Services, Inc., Case No. 92-STA-8, Sec. Dec., Oct. 17, 1994, the complainant indicated his consent in a signed statement in which he admitted that he then wished to reject the respondent's settlement offer and to pursue his claim further despite previously having authorized his attorney to "settle the claim for what you can get." Slip op. at 2 and n.2 (STAA). The attorney obtained a settlement in the amount of $10,000. Tankersley v. Triple Crown Services, Inc., Case No. 92-STA-8, ALJ Rec. Dec., June 14, 1994, slip op. at 3 ("complainant did not ever deny that he gave his attorney authority to settle this matter 'for what he could get'; it was just that he, complainant, felt he should have settled for more than $10,000"). In Petty v. Timken Corporation, 849 F.2d 130, 132-133 (4th Cir. 1988) (Title VII, Civil Rights Act), a settlement existed where the employer made an offer of settlement; the offer was communicated to the employee by his counsel; the employee agreed to accept the offer after conferring with counsel; and the employee reaffirmed his acceptance in open court.

   The reviewing court found no basis for holding the settlement to be unfair, commenting that "[a]t most, [the employee] appears to have had second thoughts about the level of his recovery."

   A settlement is a contract; its formation, construction and enforcement are dictated by principles of contract law. Carr v. Runyan, 89 F.3d 327, 331 (7th Cir. 1996), cert. denied, 519 U.S. 1117 (1997). The complaint at issue in this case invokes a right to sue derived from a federal statute (49 U.S.C. §31105); accordingly, federal law governs the validity of any settlement of that complaint. Macktal v. Sec'y of Labor, 923 F.2d at 1157 and n.32. Cf. Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir. 1991) (Title VII, Civil Rights Act); Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d Cir. 1989) (42 U.S.C. §1981); Taylor v. Gordon Flesch Co., Inc., 793 F.2d 858, 862 (7th Cir. 1986) (Title VII); Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515, 1519 (11th Cir. 1986) (same); Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1516 (llth Cir. 1985) (Executive Order 11246); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1208-1209 (5th Cir. 1981) (Title VII).

   Federal courts routinely employ the Restatements of Laws in fashioning rules of federal common law for interpreting, e.g., Title VII administrative settlement agreements, "since those principles represent the 'prevailing view' among the states and are consistent with remedial [laws]." Bowden v. United States, 106 F.3d 433, 439 (D.C. Cir. 1997), citing United States v. Kimbell Foods, Inc., 440 U.S. 715, 729-730 (1979) and E.A. Farnsworth, Farnsworth on Contracts §7.3 (1990). Thus, in interpreting the purported settlement at issue in this case, particularly with regard to whether a binding settlement was reached by the parties, we turn to the Restatement (Second) of Contracts and the Restatement (Second) of Agency to discern the applicable federal common law rules, as well as to federal case law.

   Contrary to the ALJ's finding, no enforceable oral agreement existed because Eash neither accepted Roadway's settlement offer nor authorized its acceptance. The elements of contract formation -- offer, acceptance and consideration -- occasion the existence of an enforceable oral agreement. An oral agreement to settle a complaint is enforceable against a complainant who knowingly and voluntarily agreed to the terms of settlement or who authorized his attorney to settle the complaint. Fulgence v. J. Ray McDermott & Co., 662 F.2d at 1209. See Alexander v. Gardner- Denver Co., 415 U.S. 36, 52 n.15 (1974) (complainant must knowingly and voluntarily consent to settlement agreement under which he waives his right to pursue action). "Knowingly" has been defined as meaning "'done voluntarily and purposely, and not because of a mistake or accident.'" Taylor v. Gordon Flesch Co., 793 F.2d at 863, quoting United States v. Jones, 696 F.2d 479, 493 (7th Cir. 1982).

undisputed proposition that the decision to settle is the client's to make, not the attorney's"). An attorney consequently may not compromise a client's case without authorization. Greater Kansas City Laborers Pension Fund v. Paramount Industries, Inc., 829 F.2d 644, 646 (8th Cir. 1987). See Malave v. Carney Hospital, 170 F.3d 217, 221 (1st Cir. 1999) ("a general retainer, standing alone, does not permit an unauthorized attorney to settle claims on his client's behalf[;] rule rests on the salutary proposition that the decision to settle litigation belongs to the client, not the lawyer"); Artha Management, Inc. v. Sonia Holdings, Ltd., 91 F.3d at 329 (retention of counsel does not in itself bestow the authority to settle a case); Edwards v. Born, Inc., 792 F.2d 387, 390 (3d Cir. 1986) ("attorney does not possess the inherent authority to compromise by virtue of his retention for litigation alone").

Q. When you authorized [Tucker] to negotiate what he could, did you authorize him to settle for whatever he could?

A. No. I didn't authorize him to settle. Because, I knew that it would come down to a signature and I always reserved that fact that I was going to have to put my signature on an agreement.

T. 77. Tucker similarly testified that at some unspecified point in a discussion of settlement terms, Eash told Tucker "to do whatever [he] could." T. 67-68.

plaintiff in Fennell v. TLB Kent Co., 865 F.2d at 500, uttered an analogous thought when he advised his attorney that he would not accept a proffered monetary settlement but that "he was willing to settle the case out of court 'with the intentions of getting it out of the way and behind me.'" The court found the attorney's subsequent acceptance of a settlement offer to be unauthorized.

reasonably to believe that he possessed actual authority to enter into a binding settlement agreement absent Eash's prior approval. Cf. Edwards v. Born, Inc., 792 F.2d at 391-392 (implied actual authority to settle claims may have existed where client frequently throughout course of relationship refused to name settlement figure, stating that settlement was the attorney's job).

   Eash did not in any manner ratify the settlement, for example by failing promptly to repudiate the attorney's act upon learning that the attorney had exceeded his authority or by accepting benefits flowing from the settlement. See Tiernan v. Devoe, 923 F.2d at 1037-1038 and n.10. See also Macktal v. Sec'y of Labor, 923 F.2d at 1157, where the complainant by affidavit admitted his initial agreement to the settlement terms, signed a general release and accepted his share of proceeds provided under the settlement. Instead, immediately upon reading the draft agreement, Eash advised Tucker that the terms were unacceptable. Thus, the instant case is similar to Fennell v. TLB Kent Co., where counsel for the parties reached a settlement during a telephone conference call in which no party participated and the challenging party promptly objected to the agreement upon being advised of its terms. 865 F.2d at 503 ("[c]lients should not be faced with a Hobson's choice of denying their counsel all authority to explore settlement or being bound by any settlement to which their counsel might agree, having resort only to an action against their counsel for malpractice"). The court in Fennell found that counsel lacked settlement authority.

   We find no acceptance, or authorization of acceptance, by Eash of settlement terms in the instant case. No agreement consequently existed.

   Even if we were to conclude that Eash accepted the offer of settlement or authorized his counsel to settle on his behalf, we nevertheless would find that no agreement existed. As previously noted, in order for us to conclude that the parties orally agreed to an enforceable settlement, as Roadway contends, we must find within the evidence of record an unequivocal declaration by the parties that they have agreed to all material terms of the settlement. Under federal law, if we find that the parties have entered into an oral agreement of settlement, that settlement will be held enforceable. See Macktal v. Sec'y of Labor, 923 F.2d at 1157 and n.32.

   The ALJ found that the parties had entered into an enforceable oral agreement to settle the instant complaint. This finding is not supported by substantial evidence on the record considered as a whole.

   Where a written settlement agreement is drafted concurrent with or subsequent to concluded negotiations, the initial issue is whether the parties intended the written document (1) to memorialize an already enforceable oral agreement or (2) to constitute a condition precedent to the

existence of an agreement. If the parties to a settlement intend memorialization as a mere convenience, then they may be bound upon oral agreement prior to execution of the written document. If, however, the parties intend that no contract will exist until the agreement is formalized in writing and executed, then no legal consequences arise until that time. Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1986) (because of freedom "to determine the exact point at which an agreement becomes binding, a party can negotiate candidly, secure in the knowledge that he will not be bound until execution of what both parties consider to be final document" [sic]).

   Parties are accorded "the power to contract as they please, so that they may, if they like, bind themselves orally or by informal letters, or that they may maintain 'complete immunity from all obligation' until a written agreement is executed." R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir. 1984), quoting 1 A. Corbin, Corbin on Contracts §30 (1963). The Second Circuit, in Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568 (1993), characterized the dichotomy:

Many modern business transactions could not be carried out unless the parties were able to rely on oral promises or informal writings, such as letters, memos and faxes. A stock market transaction or insurance coverage by verbal binder are examples. In other, more complex transactions, negotiations would be chilled were a person later to be held bound by every chance promise made. In such situations, the legal obligation must await the execution of a formal written agreement so the party may be assured that all proper precautions were taken before it was legally committed. The tension between the concepts contract arises upon meeting of the minds, no binding contract absent a writing has resulted in courts struggling to resolve these inherently conflicting notions.

Id. at 570.

   The issue is fairly straightforward if at least one of the parties expressly reserves the right not to be bound until a writing is executed. Difficulties arise when, as in the instant case, the parties have not expressed their intent except to state that they expect the agreement to be reduced to writing. See John D. Calamari & Joseph M. Perillo, The Law of Contracts §2-7 (3d ed. 1987). Intent generally is derived in this circumstance from objective signs, e.g., the parties' words and actions during negotiation. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d at 576 ("[f]act finders examining intent are instructed to look to the time of contracting[;] they must consider the objective intentions of the parties manifested at that time").

   The Restatement (Second) of Contracts similarly recognizes the dichotomy, acknowledging that an oral contract may exist even where the parties contemplate a written memorial: "Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations." Restatement (Second) of Contracts §27 (1981) (emphasis added). Parties may, orally or by an exchange of writings, agree upon all terms incorporated into a contract, including an agreement to execute a final writing which will contain a memorialization of all terms. If such is the case, it will be deemed that they have concluded the contract prior to the final writing. Id., at comment (a). If, however,

either party knows or has reason to know that the other party regards the agreement as incomplete and intends that no obligation shall exist until other terms are assented to or until the whole has been reduced to another written form, the preliminary negotiations and agreements do not constitute a contract.

Id., at comment (b).

   The Restatement enumerates the following considerations for application in determining whether parties intend to be bound by an agreement in the absence of a document executed by the parties:

the extent to which express agreement has been reached on all the terms to be included, whether the contract is of a type usually put in writing, whether it needs a formal writing for its full expression, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether a standard form of contract is widely used in similar transactions, and whether either party takes any action in preparation for performance during the negotiations.

Restatement (Second) of Contracts §27, at comment (c). Oral testimony, "correspondence or other preliminary or partially complete writings" may serve to demonstrate these circumstances. Id.

   Courts have focused particularly on the following Restatement criteria, recognizing that no single criterion is decisive: (1) whether any party expressly has reserved the right not to be bound in the absence of an executed written agreement; (2) whether any party has partially performed and whether that performance has been accepted by the party disclaiming the agreement; (3) whether all terms

have been fully negotiated or settled so that nothing remains but to sign what already has been agreed upon; and (4) whether the particular agreement is the type of contract usually committed to writing. Ciaramella v. Reader's Digest Ass'n, Inc., 131 F.3d 320, 323 (2d Cir. 1997); Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d at 575-576; Winston v. Mediafare Entertainment Corp., 777 F.2d at 80; R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d at 75-76. We consider each criterion in turn.

   A. Intent not to be bound absent a writing

   Although neither party expressly reserved the right not to be bound absent a writing, the record supports a finding that Eash and Tucker intended any agreement to take effect only upon its execution. At the hearing convened a mere two weeks after negotiations had transpired, Tucker testified as follows in response to examination by Landwehr:

Q. Is it not correct Mr. Tucker that you represented to me that we had a settlement of this case on the afternoon of October 29, 1998?

A. That is correct.

Q. Is it not correct that I asked you whether your client had agreed to that and you said, "Yes, he had."

A. My recollection of our conversation is that I had told you that in principal [sic] we had a resolution that would await your written draft of the settlement agreement and I would then forward the same to my client.

T. 16. Consistent with the foregoing, Tucker subsequently testified: "You [Landwehr] indicated that [the terms] would be acceptable to your client [Roadway]. And you said that you would fax to me on the following date a written settlement agreement," which Tucker received in due course. T. 68.

   Eash similarly expected the agreement to be reduced to writing. He testified that he understood from Tucker that Roadway had proposed a settlement and that after he received it he could either sign it or refuse to sign it. T. 37.

   From the foregoing, it is evident that both Tucker and Eash considered execution of a written agreement as integral to settlement. Landwehr similarly knew that both Tucker and Eash expected to receive and consider a written agreement according to Tucker's testimony, (which the ALJ credited). R. D. & O. at 5. We find most compelling in this respect Tucker's testimony, quoted above, that "resolution" would "await" the written draft which Tucker ultimately received from Landwehr and submitted to Eash, and which Eash refused to sign. These circumstances parallel those in which a court "rejected an alleged oral agreement because an earlier letter from one of the parties . . . said, 'If your client finds this proposal agreeable in principle, we can proceed to reduce it to a written agreement . . . .'" R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d at 75, quoting ABC Trading Co. v. Westinghouse Electric Supply Co., 382 F. Supp. 600, 602 (E.D.N.Y. 1974).

   Language in the draft settlement agreement itself also lends significant support to our finding that the parties intended to bind themselves at the moment of signing. The operative sections of the draft are framed in terms of the present and future, denoting an agreement entered into upon execution and obligating the parties to perform future acts. The draft begins by stating that "[t]his settlement agreement is entered into" by the respective parties. After reciting the background of the complaint, the draft states that "[b]ased on the circumstances described above, and in consideration of the terms set forth below, Eash and Roadway agree as follows." The draft requires that Eash "will immediately execute" operative documents. Further, "[i]t is . . . understood and agreed" that certain of Eash's obligations under the settlement "are conditions precedent to the completion of the settlement . . . ." As to consideration (and purported consideration), "Roadway will not request a hearing" available as the result of one of the warning letters, and Roadway "will not retaliate against Eash" for filing the complaint. Were the draft intended merely to memorialize a previous oral agreement, it follows that it would document the parties as having agreed to certain terms. Moreover, it would not state, as it does, that "[t]he parties acknowledge that this Agreement constitutes the entire agreement between them." (Emphasis added.) See Ciaramella v. Reader's Digest Ass'n, Inc., 131 F.3d at 324 (presence of merger clause "is persuasive evidence that the parties did not intend to be bound prior to the execution of a written agreement"). Finally, the draft agreement contains a general release, which has been held to "emphasize the execution of the document." Id. at 325. The release states that on the specified date, "before me [the notary public] personally appeared Larry E. Eash, Sr., to me known to be the person named herein, who executed the foregoing Agreement, that he understands the contents thereof and that he voluntarily executed the same." A party's signature to such a release is "meant to signify his voluntary and informed consent to the terms and obligations of the agreement. By not signing, he demonstrate[s] that he with[holds] consent." Id.

   As in Ciaramella, the sole communication suggesting a previous oral agreement consisted of a counsel's comment during negotiation with an opposing counsel. There, Ciaramella's counsel stated, "We have a deal." Here, Tucker stated that they had a settlement "in principle." In both cases, "nothing in the record suggests that either attorney took this [type of] statement to be an explicit waiver of the signature requirement." Id. Although neither party in the instant case expressly reserved the right not to be bound, the draft settlement proposal and pertinent communications reveal such an intent. See Zucker v. Katz, 836 F. Supp. 137, 144- 148 (S.D.N.Y. 1993).

   B. Partial performance

   C. All terms fully settled

   The third criterion is whether there literally was nothing left to negotiate. "Nothing" has been construed to mean seemingly insignificant, as well as substantive, points. "The actual drafting of a written instrument will frequently reveal points of disagreement, ambiguity, or omission which must be worked out prior to execution. Details that are unnoticed or passed by in oral discussion will be pinned down when the understanding is reduced to writing." R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d at 75. "That these 'unnoticed' or 'passed by' points of disagreement may in the long view be fairly characterized as minor or technical does not mean that a binding contract was formed prior to the time that they were finally worked out." Winston v. Mediafare Entertainment Corp., 777 F.2d at 82. For a court to so hold "would deprive the parties of their right to enter into only the exact contract they desired." Id. at 83.

   This criterion clearly militates in favor of Eash. Eash objected that Roadway had not agreed to expunge the warning letters from his employment file as he had requested. He also objected that the draft agreement failed to mention that he had contested the letters and that they were issued because he had refused to drive when fatigued -- "that this was a fatigue issue." According to Eash, Tucker had advised him that "there was a proposed settlement" and had represented that it would be a "clean slate, shake hands, walk away" type of settlement when, as written, "[t]he basic blame for all of this was transferred onto my [Eash's] shoulders." T. 34. Because the warning letters were not expunged but instead were permitted to run their course, the agreement was not a "no-fault" agreement as Tucker had represented to Eash would be the case. Rather, it was an admission or "acceptance" of Eash's guilt. T. 31. Eash also points out that Roadway agreed to cancel a hearing arising from the most recent disciplinary warning letter. The letter remained in Eash's employment file under the draft agreement, however, which meant that it could serve as the basis for further disciplinary hearings as part of "Eash's overall work record." Tucker, according to his own testimony, never apprised Eash of this result, and Eash never agreed to it. See Complainant's Brief Opposing Recommended Decision and Order at 8.

   D. Type of agreement usually committed to writing

   This criterion similarly favors Eash. Courts generally agree that settlement of litigation should be documented either in writing or on the record in open court. Ciaramella v. Reader's Digest Ass'n Inc., 131 F.3d at 326. "Where, as here, the parties are adversaries and the purpose of the agreement is to forestall litigation, prudence strongly suggests that their agreement be written in order to make it readily enforceable, and to avoid still further litigation." Winston v. Mediafare Entertainment Corp., 777 F.2d at 83.

   Substantial evidence on the record considered as a whole fails to support the ALJ's finding that an oral agreement existed. Rather, the evidence demonstrates, and we find, that Eash never entered into an enforceable oral agreement with Roadway to settle the complaint because execution of a writing constituted a term of agreement.

   Even if we were to find that Eash had consented to accepting the settlement terms and an oral agreement consequently existed, Eash's nonperformance voided that agreement under its express language. As drafted by Landwehr, Roadway's counsel, the written agreement provided the following as the first of five enumerated terms:

Eash will immediately execute those documents necessary to dismiss with prejudice his objections to the Department of Labor's dismissal of his complaint, to withdraw his request for a hearing before an Administrative Law Judge, to cancel the hearing before an Administrative Law Judge presently scheduled November 17, 1998, and to dismiss Case No. 1988-STA-28. It is expressly understood and agreed that the dismissal of Eash's objections to the Department of Labor's dismissal of his complaint, the withdrawal of his request for a hearing before an Administrative Law Judge, the cancellation of a hearing before an Administrative Law Judge and the dismissal with prejudice of Case No. 1988-STA-28 are conditions precedent to the completion of the settlement evidenced by this agreement. Should these conditions precedent not occur, this Agreement shall be null and void.

R. D. & O., Exhibit A (emphasis added). Thus, on this basis alone the ALJ's conclusion that the parties entered into an oral agreement, the terms of which are set forth in the draft written agreement, cannot stand. By the very terms of that draft agreement, Eash's noncompliance with the above-referenced conditions, rendered any purported agreement void. No basis consequently existed for the ALJ's enforcement of the agreement.

   Complainant and Respondent did not enter into an enforceable oral settlement agreement. The ALJ's contrary finding is not supported by substantial evidence. Rather, the record supports a finding that Complainant neither accepted nor authorized acceptance of Respondent's settlement offer. The record also demonstrates that execution of a written document constituted a condition precedent to the existence of an agreement. The ALJ erred by failing to apply the appropriate legal analysis in this respect. Finally, any agreement would be void under its own terms. The ALJ erroneously failed to consider this operative provision of the agreement in finding the agreement enforceable. Because we have

found an agreement lacking, we do not reach the issue whether the proffered terms constituted a fair, adequate and reasonable settlement of the complaint. The complaint IS REMANDED to the ALJ for a hearing on the merits.

   SO ORDERED.

      E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member

Paul Greenberg, Chair, concurring

   I concur with the result reached in this case based on the analysis in part IV, which I join. However, because I am unconvinced that attorney John Tucker lacked authority to settle Complainant Larry Eash's complaint, I do not join in part III of the Decision.

    The ALJ's Recommended Decision and Order (R. D. & O.) focuses primarily on whether Eash authorized his attorney to finalize a settlement with Roadway, and whether an oral enforceable settlement agreement reached by the parties is enforceable. Crediting attorney Tucker's testimony over the testimony of Eash, the ALJ implicitly finds that Eash had authorized Tucker to settle the case on his behalf. Moreover, the ALJ finds that oral settlement agreements are enforceable, citing Tankersley v. Triple Crown Services, Inc., 92-STA-8, Sec'y Fin. Dec. and Ord. (Oct. 17, 1997) and Hassan v. Nuclear Power Services, Inc., 89-ERA-24, Sec'y Ord. to Show Cause (Mar. 21, 1991). However, the ultimate question presented to the ALJ i.e., whether agreement between the parties was reached receives only cursory attention in the R. D. & O.

   Along with the majority, I agree that it is clear from the record in this case that no settlement was reached, and that the ALJ's conclusion to the contrary is not supported by substantial evidence. The testimony of both Eash and Tucker indicate an expectation that any agreement negotiated by Tucker on behalf of Eash would be reduced to writing and forwarded to Eash for review, consistent with conventional settlement procedures. The parties' actions confirm this expectation, with Roadway developing a draft which was forwarded to Eash for review. Once Eash had an opportunity to review the terms of the draft agreement en toto, he disapproved the proposed settlement agreement because it included features that he viewed as unacceptable. The failure of the parties to reach the true

"meeting of the minds" needed to settle the complaint is sufficient reason, by itself, to remand the case to the Administrative Law Judge for a hearing on the merits.

   Although I join my colleagues in concluding that attorney Tucker did not settle Eash's complaint, I am unconvinced that Tucker lacked the authority to do so. See part III of the majority opinion. I am concerned that this finding is incompatible with the standard governing our review of cases under the STAA, and also is not supported by the high degree of proof normally required of a party asserting that his or her attorney acted without the client's authority.

   Under the STAA regulations, an ALJ's factual findings are conclusive if they are supported by substantial evidence in the record. 29 C.F.R. §1978.109(c)(3). The record in this case includes Eash's testimony that he instructed Tucker to "negotiate what you can, I want out," as well as Tucker's testimony that Eash told him to do whatever he [Tucker] could because "I just want out of it." R. D. & O. at 3, 4. The ALJ generally credited Tucker's testimony, and discredited Eash's, but I believe it is noteworthy in this instance that testimony from both of the witnesses confirms that Eash communicated a strong desire to end the litigation along with an emphatic charge to his attorney to take an aggressive role in bringing the matter to a conclusion. Although the record in this case is not extensively developed, Tucker might reasonably have inferred that Eash had authorized him to settle the case. Based on the statements of Tucker and Eash, I am reluctant to conclude that the ALJ's finding that Tucker had authority to settle Eash's complaint is not supported by substantial evidence on the record as a whole.

   Further, it is axiomatic that parties such as Eash ordinarily are bound by the actions of the attorneys whom they chose to represent them. Pioneer Investment Serv. Co. v. Brunswick Assoc. L't'd Partnership, 507 U.S. 380, 381 (1993); Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962). In this case, Eash chose to have attorney Tucker represent him in all his direct dealings with Roadway. As the majority notes at p. 8 citing United States v. International Brotherhood of Teamsters, 986 F.2d 15, 20 (2d Cir. 1993), "[t]he burden of proving that an attorney entered into a settlement agreement without authority is not insubstantial." In this instance, the only evidence in the record challenging Tucker's claim that he was authorized to settle the case is Eash's testimony, which was discredited by the presiding judge (R. D. & O. at 5) and which was offered without any independent corroboration.

   For these reasons, I do not join the majority in holding that the ALJ erred in finding that Tucker had authority to settle Eash's complaint. However, the conclusion reached by the majority in part III of the Decision (dealing generally with agency) is not essential to the result reached in this Decision (i.e., reversal and remand) because no final settlement agreement ever was reached.

      PAUL GREENBERG
      Chair