Goya Foods Inc d/b/a Goya Foods

National Labor Relations Board - Administrative Judge Opinions

Mar 21, 2011

12-CA-019668 (N.L.R.B. Mar. 21, 2011)

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Miami, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
GOYA FOODS, INC., d/b/a Cases 12-CA-19668 12-CA-20127
GOYA FOODS OF FLORIDA 12-CA-19765 12-CA-20233-1
12-CA-19779-1 12-CA-20233-2
and 12-CA-19945 12-CA-20256
12-CA-19962 12-CA-20426
SOUTHERN REGIONAL, JOINT BOARD 12-CA-20041 12-CA-20496
WORKERS UNITED, a/w SEIU 12-CA-20099-1 12-CA-20542
12-CA-20570
Susy Kucera, Esq., for the General Counsel.
David C. Miller, Esq., James Crosland, Esq.,
and Carlos Ortiz, Esq., for the Respondent.
Rodolfo Chavez, Business Agent, for the
Charging Party.
SUPPLEMENTAL DECISION
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This matter arises out
of a compliance specification and notice of hearing issued on June 30, 2010, against Goya
Foods of Florida, Inc. (Goya or Respondent) I conducted a trial in Miami, Florida, on January
11 and 12, 2011, at which the parties had full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and Goya, I find and
conclude as follows
I. Findings of Fact
A. Background
On September 16, 1998, the Union of Needletrades, Industrial and Textile
Employees, AFL-CIO/CLC and also known as UNITE (the Union) initiated unfair labor
practice charges against Goya Foods of Florida (Goya1). On April 18, 2000, the Regional
Director for Region 12 of the National Labor Relations Board (the Board) issued a

1 Because Goya Foods of Florida is a d/b/a entity of Goya Foods, Inc., both entities are referred
to as “Goya” unless otherwise specified.
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consolidated complaint against Goya, alleging violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act.)
A 13-day unfair labor practice hearing was held in June 2000 before Administrative
Law Judge (ALJ) Lawrence W. Cullen concerning these allegations. On February 22, 2001,
ALJ Cullen issued his decision. As a part of his decision, the ALJ found that Goya unlawfully
terminated employees Alberto Turienzo (Turienzo), Jesus Martin (Martin), and Humberto
Galvaz (Galvez) on July 7, 1999, because they participated in a union rally on June 30, 1999.
The ALJ found that the employees were engaged in protected concerted activities under
Section 7 of the Act and recommended their immediate reinstatement with full backpay. ALJ
Cullen also found that Goya unlawfully suspended and reduced the earnings of employee
Reinaldo Bravo.
On August 30, 2006, the Board affirmed the decision of ALJ Cullen, finding that Goya
committed numerous violations of Section 8(a)(1), (3), and (5) and ordered Goya to cease
and desist from engaging in 22 separate unlawful acts. Specifically, the Board found that
President Mary Ann Unanue and other Goya managers informed employees that it would be
futile for them to select or continue to support a union because Goya would never recognize
or negotiate with it; interrogated employees about their union membership, activities, and
sympathies; promised to relieve employees of disagreeable assignments, solicited
grievances and promised to adjust grievances if employees ceased supporting the Union;
threatened employees with elimination of jobs, subcontracting of work, underemployment,
closing of the Company, moving Goya’s operations out of State, loss or reduction of pension,
and assaults on union representatives, if the employees engaged in union activities. The
Board also found that Goya ordered employees not to wear union paraphernalia; requested
employees to ascertain and disclose to Goya the union membership and activities of other
employees; and told employees that it would not recognize the authority of employees
designated by the Union to represent them. The Board further found that Goya’s unilateral
changes in drivers’ routes, salesmen’s store assignments, radio phone policy, its increased
use of temporary drivers, and its refusal to recognize union-designated representatives were
the types of violations that were likely to have a lasting and negative impact on employees‘
support for the Union. Furthermore, the Board found that Goya violated Section 8(a)(5) of the
Act by withdrawing recognition from the Union as the representative of the representative of
its warehouse employees, drivers, and sales and merchandising employees.2 As a part of its

2 I also take judicial notice of the fact that the Regional Director for Region 12 of the Board
issued a complaint against Goya on September 27, 2002, alleging additional violations of Sec. 8(a)(5)
of the Act. Based upon that complaint, ALJ George Carson II issued a decision finding that Goya
violated the Act by making various unilateral changes in terms and conditions of employment without
notice to or bargaining with the Union. In its decision of August 23, 2007, the Board adopted the
judge’s decision and found that Goya made unilateral changes in violation of Sec. 8(a)(5) of the Act.
The Board noted that in its earlier decision in 347 NLRB 1118 (2006), it had found that Goya
unlawfully withdrew recognition from the Union and it had ordered Goya to recognize and bargain with
the Union. Thus, in light of that earlier decision, the Board rejected Goya’s assertion that it had no
statutory obligation to bargain with the Union concerning its unilateral changes and found that Goya
violated Sec. 8(a)(5) and (1) of the Act. Goya Foods of Florida, 350 NLRB 939 (2007). I also take
judicial notice of the Board’s subsequent decision in 351 NLRB 94 (2007), in which the Board found
that Goya unilaterally changed terms and conditions of employment in April and May 2001 in violation
of Sec. 8(a)(5). Respondent’s petition for review was denied and enforcement was granted by the
D.C. Circuit in 2009. Goya Foods, Inc., v. NLRB, 309 Fed. Appx. 422 (D.C. Cir. 2009). On July 25,
2008, the Board issued a decision finding that Goya violated the Act by unilaterally changing pension
plans on two occasions and by refusing to provide information to the Union. The Board also found
Continued
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2006 decision, the Board also found that Goya unlawfully terminated Turienzo, Martin, and
Galvaz and unlawfully suspended and reduced the earnings of Bravo. Affirming the judge’s
decision, the Board ordered Goya to reinstate Turienzo, Martin, and Galvez with full
backpay3 and to make whole Bravo for lost wages. The Board agreed with the judge that an
affirmative bargaining order was warranted.
On April 24, 2008, the United States Court of Appeals for the Eleventh Circuit issued
its decision affirming and enforcing the Board’s decision.4 Although Goya argued that the
court should remand the case to the Board for additional analysis, the circuit found that there
was ample evidence to support the Board’s findings, including the bargaining order. The
court concluded that the findings of fact by the ALJ and the Board were unassailable. While
the court noted that the Board’s delay in ruling was of considerable concern, the court also
stated: “the peculiar posture of this case and the particularly egregious nature of Goya’s
unfair labor practices persuade us that enforcement of the Board’s order should not be
denied in this case.”
B. Parties’ Positions
The Acting General Counsel alleges that in October 2000, Goya executed private
settlement agreements with Martin and Turienzo, providing for monetary remuneration
without reinstatement. The compliance specification and notice of hearing specifically alleges
that Goya made false and/or misleading statements to Martin and Turienzo about the status
of the unfair labor practice proceedings and misrepresented to them that they had lost their
cases before the ALJ. Furthermore, the Acting General Counsel alleges that in doing so,
Goya engaged in fraudulent tactics intended to improperly influence Martin and Turienzo into
accepting the terms and conditions of the private settlements.
The Acting General Counsel also asserts that neither the Charging Party Union nor
the General Counsel was a party to the private settlements. It is further alleged that the
private settlement agreements contain provisions that are contrary to the purposes of the
Act. Accordingly, the Acting General Counsel submits that given the nature of the alleged
violations, Goya’s extensive related unfair labor practices, the inclusion of provisions in the
private settlement agreements that are contrary to the purposes of the Act, the manner in
which the settlement agreements were negotiated, and the absence of agreement by the
Charging Party Union or the General Counsel to be bound or to recommend approval of the
private settlements, the private settlements do not serve as waivers of reinstatement or serve
to toll backpay.
The Acting General Counsel seeks an order rejecting the private settlement
agreements in their entirety and a finding that the agreements are repugnant to the purposes
and policies of the Act and the Agency’s mission and responsibility to enforce the law in the
public interest. The Acting General Counsel further seeks an order requiring Goya to
immediately and properly reinstate Martin and Turienzo and to make them whole for any
_________________________
that Goya unlawfully informed employees that union employees were not eligible to participate in its
401(k) plan. Goya Foods of Florida, 352 NLRB 884 (2008). In taking judicial notice of subsequent
Board decisions dealing with unfair labor practice charges other than those involved in this matter, I do
not take judicial notice of the record evidence contained therein. I simply note the subsequent
proceedings and Board decisions for historical completeness.
3 Goya Foods of Florida, supra.
4 NLRB v. Goya Foods of Florida, 525 F.3d 1117 (11th Cir. 2008).
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backpay owed to them for the entire period since July 7, 1999.
Goya does not dispute that it entered into the private settlement agreements with
Martin and Turienzo. It asserts, however, that Turienzo and Martin initiated the settlement
discussions with Goya and that the principal terms of the agreements were suggested by
Turienzo and Martin. Goya further asserts that provisions of the agreements were not
intended to impose restrictions that would contravene the purposes of the Act.
C. Issues
As shown by the position of the parties, the primary issue in this matter involves the
validity of the private settlement agreements entered into by Goya and these two employees
in the absence of the General Counsel or the Charging Party Union. Because the
agreements are written, the terms and conditions of the settlement are undisputed. The
matters in dispute include: (1) the circumstances as to how the agreements came into
existence; (2) the substance of Goya’s communication to Turienzo and Martin prior to the
execution of the settlement agreements; and (3) the meaning of the terms of the agreements.
D. The Private Settlement Agreements
It is undisputed that on October 4, 2000, Jesus Martin signed four separate
documents; two in English and two in Spanish. One document was captioned “Full Waiver of
All Claims, General Release, and Confidential Settlement Agreement” and the document was
prepared in both English and Spanish. Both the English and Spanish copies of the
document were also signed by Robert Unanue representing Goya Foods, Inc. Francisco
Unanue signed the documents as a witness to both Robert Unanue’s signature and Jesus
Martin’s signature. On the same day, Martin also signed a document captioned “Waiver of
Reinstatement and Settlement of Receipt of Full Backpay.” The document provided that
Martin waived reinstatement with Goya and that he had received $25,000; which was
asserted to be 100 percent of the backpay owed him pursuant to the Board’s case. This
document was also prepared in both English and Spanish. On October 31, 2000, Alberto
Turienzo signed an agreement consisting of four separate documents that contained the
same language as those signed by Martin, except that Turienzo’s agreement provided for his
receipt of $22,000. As with the agreement signed by Martin, Robert Unanue signed the
documents on behalf of Goya Foods, Inc. and Francisco Unanue signed the documents as a
witness to the signatures of Turienzo and Robert Unanue.
Both of the settlement agreements signed by Martin and Turienzo contained the
same textual language; only the monetary amounts varied. Martin received $25,000 and
Turienzo received $22,000. The agreements provided that in exchange for the monetary
amount, the individuals agreed that the amount paid to them was all that they were entitled to
receive from Goya as settlement of any and all claims against Goya, including, but not limited
to, reinstatement and/or backpay pursuant to the Board case that had been filed on their
behalf. In receipt of the monetary amount, Martin and Turienzo were required to
acknowledge that the money paid to them was consideration to which they were not already
entitled. By signing the agreement and accepting the monetary amount, the employees
waived all rights and claims due them under the Board as well as any other Federal, State, or
local government agency or department, or any labor organization. Furthermore, in exchange
for the money paid to them, Martin and Turienzo agreed that they would not engage in any
union activity relating to Goya and/or its employees. Martin and Turienzo also agreed that
they would not at any time apply for or seek employment with Goya and that they would not
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disclose or discuss the terms of the agreement. Martin and Turienzo signed the agreements
in both English and in Spanish.
There is no dispute that the General Counsel and the Union were not parties to these
agreements. Both Robert Unanue and Francisco Unanue admitted that they did not inform
either the Union or the General Counsel of the agreements and they were unaware of any
other company officials who did so.
E. Witnesses Testifying in this Proceeding
1. Witnesses for the Acting General Counsel
Born in Cuba, Alberto Turienzo’s native language is Spanish. Using an interpreter, he
testified that he understands and speaks only “a little bit” of English. Turienzo began working
for Goya Foods of Florida in 1986 as a night-shift stocker. In 1987, he became a forklift
driver and worked for Goya until his discharge in 1999. Jesus Martin was also born in Cuba.
Martin worked as a forklift driver for Goya for approximately 12 to 13 years. He does not
speak or understand English. Both Turienzo and Martin’s testimony were given via an
interpreter.
Both Turienzo and Martin were terminated by Goya on July 7, 1999, after
participating in a union rally on June 30, 1999. As referenced above, the Board found that
Turienzo and Martin were unlawfully terminated for engaging in protected concerted activity
by soliciting support regarding the Union’s campaign against Goya’s health and safety
practices. ALJ Cullen noted in his decision that the purpose of the Union’s rally was to
publicize and garner support for its health based grievances against Goya for alleged rodent
infestation and unsanitary and unsafe working conditions. ALJ Cullen also noted that on
June 23, 1999, Turienzo and Martin registered complaints with the Florida Department of
Agriculture, which found rodent activity.
2. Goya’s witnesses
Goya Foods of Florida is a trade name or d/b/a for Goya Foods, Inc. In his underlying
decision, ALJ Cullen noted that Goya is the largest wholesaler of Hispanic food products in
the United Sates and operates in several States and Puerto Rico as well as in Miami, Florida.
Robert Unanue has been with Goya Foods, Inc. for 34 years.5 In August 1999, Robert
Unanue replaced his cousin Mary Ann Unanue to become president of Goya Foods of
Florida and he reported to his uncle, Joseph Unanue, who was then serving as president of
Goya Foods, Inc. In 2004, Robert Unanue became president of Goya Foods, Inc. and his
brother currently serves as executive vice president for Goya Foods, Inc.,
ALJ Cullen also noted in his decision that an individual identified as Frank Unanue
was the uncle of Mary Ann Unanue and was also a part owner of Goya. Both Mary Ann
Unanue and the individual identified as Frank Unanue was found by the ALJ to have
engaged in conduct violative of Section 8(a)(1). After Robert Unanue served as president of
Goya Foods of Florida, Francisco Unanue became president of Goya Foods of Florida and

5 His testimony reflects that while he took two sabbaticals from the Company during the period
of time between 1990 and 1999, he returned to the Company to assume the position of president of
Goya Foods of Florida in August 1999.
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remains in that position at this time. Both Francisco Unanue and Robert Unanue attended
the June 2000 unfair labor practice hearing. Goya’s counsel clarified at hearing that
Francisco Unanue is the son of Frank Unanue; the individual who is discussed in ALJ
Cullen’s decision. Francisco Unanue testified that at the time that the settlement agreements
were signed with the employees in 2000, he was not an employee of Goya. He testified that
his cousin, Robert Unanue, brought him into the settlement discussions because he was
known to the employees because of his previous employment with Goya.
F. Facts of the Case as Presented by the Parties
1. Martin’s recollection of signing the settlement agreement
Jesus Martin testified that Francisco Unanue initially contacted him approximately 2
or 3 weeks before he actually signed the settlement agreement. He confirmed that both
Francisco Unanue and Robert Unanue telephoned him over a 3-week period. He ultimately
met with Francisco Unanue and Robert Unanue at Francisco Unanue’s office to sign the
agreement. Martin testified that when he spoke with Francisco Unanue, Unanue said, “I’ve
called you because the judge declared that you workers have no right.” Martin testified “in
other words, that we lost the Union, that we had lost the case.“ Martin recalled that he
questioned Unanue if it were true that the judge had said that they had lost the case.
Unanue confirmed that it was true. Martin testified that after he first talked with Unanue, he
did not contact the Union to verify the status of the case. He testified that he did not know
who to contact in the Union. He spoke, however, with Turienzo prior to signing the
settlement agreement and discussed Unanue’s statement that the judge had decided against
the Union and the employees had lost their case. Turienzo told Martin that if that were the
case, they would have to sign Goya’s agreement.
Martin also testified that he did nothing to contact the Union because he believed
Francisco Unanue. Martin testified that he did not read the settlement agreement before he
signed it. In fact, Francisco Unanue read the settlement agreement to him. Martin also
recalled that on the day that he signed the settlement agreement, Unanue sent him to the
bank and he received $25,000. Martin explained that he signed the settlement agreement
because he had debts, and complications because of his diabetes and he had no money.
2. The involvement of employee Gilberto Torres
During the same 2- to 3-week period prior to his signing the settlement agreement,
Martin also received two to three telephone calls from employee Gilberto Torres urging
Martin to sign the settlement agreement. Martin testified that Torres told him that the Union
had lost the case and that Goya was not tricking him and he should sign the settlement
agreement before he lost everything. Martin testified that he believed Torres and he believed
Francisco Unanue.
Torres has been employed with Goya since on or about March 1993, and on May 14,
2001, Torres was promoted to fleet maintenance supervisor. Prior to that time, he was a
warehouse employee. Torres denied that he ever told Martin that the Union had lost the
case or that he advised Martin to take the settlement before he lost everything. Counsel for
the Acting General Counsel submitted into evidence documents showing that Torres
received various loans or pay advances from Goya during the period of time from November
1999 through November 2000. Specifically, Torres received the following loans: (1) $85 on
November 10, 1999; (2) $300 on December 1, 1999; (3) $700 on May 26, 2000; (4) $150 on
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June 1, 2000; (5) $2500 on September 6, 2000; and (6) $3000 on November 3, 2000. Torres
testified that he paid back each of the loans that he received from Goya. In response to the
exhibits submitted by the Acting General Counsel, Goya submitted into evidence documents
covering a period of time from September 10, 1993, through February 9, 2009, reflecting 19
loans or pay advances to Torres. The amount of the loans ranged from $100 to $5000.
Torres testified that he repaid all of the loans or pay advances during this period of time.
In her posthearing brief, counsel for the Acting General Counsel points out that
Torres received the loan of $2500 approximately 1 month prior to Martin’s signing the
settlement agreement and he received the loan of $3000 only 3 days after Turienzo signed
the settlement agreement. Counsel further submits that prior to the fall of 2000; Torres had
never received loans as large as those given to him in September and November 2000 and
that he did not receive any other loans as large as these until he became a supervisor.
Furthermore, counsel for the Acting General Counsel points out that unlike all but one of the
other loans to Torres, the September 6 and November 3, 2000 loans do not have any
notation showing that the loans were to be deducted from his paycheck or that the loans
have ever been repaid. The only other loan without this notation was a loan of $5000 given
to Torres in February 2003 and after his promotion to supervisor.
3. Turienzo’s recollection of signing the settlement agreement
Turienzo testified that approximately 1 to 2 days before he signed the settlement
agreement, he was contacted by Francisco Unanue. Unanue told him that he wanted to
have a meeting with him in his office. The record reflects that Francisco Unanue’s office was
located in a building other than Goya; however, in a facility affiliated with Goya. The meeting
was held in Francisco Unanue’s office at approximately 5:30 or 6 p.m. in the afternoon. Both
Francisco Unanue and Robert Unanue were present. Turienzo testified that while Robert
Unanue was present during the meeting, Francisco Unanue conducted the meeting.
Turienzo recalled that Unanue told him that the Union had lost its case against Goya and that
he (Turienzo) had lost all his legal resources. Unanue told him that because he had been a
good employee there for 13 years, Goya would offer him a proposition. Unanue said that he
did not want Turienzo’s family to suffer the consequences. In describing what Francisco
Unanue told him, Turienzo recalled: “They did not want my family to suffer the
consequences, that I could be recompensated with a settlement of $22,000 if I signed a
paper that I would never talk or anything, some kind of waiver of never talking bad about
Goya, never going on television, newspapers, or any kind of press, radio.”
Although Turienzo asserted to Unanue that he had made more money than that when
he worked there, Unanue stated that this amount was the most that Goya could offer him.
Turienzo asked if the Board knew about the agreement. Unanue told him that the Board
didn’t have to know about it because the Union had already lost the trial and Goya had won
the trial.
Turienzo recalled that he just glanced over the settlement agreement before signing it
and he was in the meeting for only about 25 minutes. Turienzo did not know who prepared
the document that he signed. Additionally, he testified that he did not suggest any language
contained in the private settlement agreement. He understood that in signing the agreement,
he was prohibited from discussing or disclosing the terms of the document. He denied that it
was his idea to include this language. Turienzo confirmed that he is not an attorney nor has
he ever studied law. He has never drafted a legal document and does not write in English.
Before leaving the meeting, he received a check for the $22,000. Turienzo testified that at
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the time of the meeting, he was unaware of the amount of backpay that the Board was
seeking for him. He also testified that he did not read the section of the settlement
agreement that precluded his engaging in any union activity related to Goya and its
employees.
4. The testimony of Robert and Francisco Unanue
Robert Unanue testified that during the summer of 2000, he received a telephone call
from Turienzo. He asserted that he had never met Turienzo. He testified that Turienzo told
him that he would like to get together with Unanue to work things out and he wanted to come
to see him. Robert Turienzo testified that he later met with Turienzo in his office. Unanue
testified that Turienzo had a “couple of offers” to Goya. Unanue asserts that Turienzo
offered to stop disparaging the Company and he wanted a confidential agreement. Unanue
recalled that he told Turienzo when they met that he could not return to work for Goya.
Unanue testified that Turienzo was “okay” with that and confirmed that he would get the other
parties together for a meeting. Unanue testified that there was no discussion about any
specific monetary amount to be paid to Turienzo.
Robert Unanue testified that he later attended a meeting with Turienzo, Martin,
Galvez, and Bravo. Robert Unanue explained that because the employees “didn’t want to
create a ruckus,” the meeting had been held in Francisco Unanue’s office and not at the
Goya facility. Robert Unanue recalled that during this meeting, there were discussions about
the employees’ disparaging the Company, confidentiality, and backpay. There was also
discussion concerning the fact that there would be no reinstatement for Turienzo, Martin, and
Galvez.6
Francisco Unanue testified that he attended a meeting in July or August 2000 with
Turienzo, Martin, and Humberto Galvez. Initially, he could not recall whether Bravo or
Robert Unanue was present. He recalled that the meeting lasted for approximate 30 to 45
minutes and he identified Turienzo as the person “carrying” the conversation. He described
the meeting as a conversation to “see if something could be worked out” and he explained
that it was just a “concept” of the employees with their proposal to stop bad-mouthing the
Company if Goya gave them money. He described the proposed arrangement as akin to an
amicable divorce. Unanue also asserted that the subject of the employees ceasing to bad-
mouth the Company was initiated by Turienzo and not Goya. Unanue also testified that it
was Turienzo who wanted the confidentiality clause included in the agreement. Unanue
asserted that while the employees offered to cease bad-mouthing the Company in exchange
for money, no monetary amount was discussed. Unanue acknowledged, however, that it
was important to Goya that the employees stop bad-mouthing the Company. Francisco
Unanue testified that Goya responded to the offer by saying that they would think about it
and get back with the employees. Francisco Unanue testified that Goya may have presented
documents to the employees during this first meeting; however, he could not recall whether
Goya had any documents at that time. He recalled that no agreement was reached with the
employees during the first meeting. Francisco Unanue also testified that the employees had
not wanted the other employees in the warehouse to know that they were meeting with
Francisco and Robert Unanue.

6 Although Bravo had not lost his job with Goya, there was discussion about his receiving some
money and then leaving the Company.
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Francisco Unanue testified that he had a second meeting with Turienzo, Martin, and
perhaps Bravo at his office. He recalled that Robert Unanue was out of town and did not
attend the meeting. He could not recall how the second meeting came about. He opined
that either Goya called the employees or the employees called and initiated the meeting. He
testified that by this second meeting, there was a document that covered the topics
discussed during the first meeting. Francisco Unanue asserted that he gave the document to
the employees and told them to take it home with them and to read it and consult with
whomever they wished and when they were “ready” to call Goya. Francisco Unanue could
not recall whether any specific monetary amounts were discussed during this meeting.
Robert Unanue testified that during this period of time, he spoke with Martin a couple
of times by telephone. Francisco Unanue recalled that following his second meeting with
employees, he met again with Martin and Turienzo and an agreement was reached with
Martin. He recalled that during the meeting, Turienzo told Martin that he thought that it was a
good deal. At a later time, Francisco Unanue and Robert Unanue met with Turienzo in which
an agreement was reached with Turienzo.
Francisco Unanue denied that he told the employees during any of the meetings that
the Union had lost the case before the judge and he denied that he referenced the judge
during the meetings. Robert Unanue also denied that he ever heard Francisco Unanue
make any statements during the meetings about the ALJ decision or the unfair labor practice
trial. Francisco Unanue also testified that he never made any attempt to interpret or explain
the settlement documents to the employees during any of his meetings with the employees.
He asserted, however, that the employees understood that if they accepted the deal, they
could not ever return to work for the Company. Robert Unanue testified that Francisco
Unanue and he asked the employees if they understood the documents and had time to
review the documents. He recalls that the employees responded, “Yes.”
Robert Unanue asserted that Goya did not disclose the contents or the existence of
the private settlement agreements to either the Charging Party Union or to the Board
because of the wishes of Turienzo. Unanue contends that Turienzo told him that he wanted
their discussions to remain confidential because he did not want outside pressure from the
Union or anyone else. Unanue also testified that while the private settlement agreements
were prepared by Goya’s representatives, many of the terms were proposed by Turienzo and
the discriminatees.
5. Turienzo’s rebuttal testimony
On rebuttal, Turienzo testified that he did not approach Goya after the unfair labor
practice hearing to try to settle the case. He testified that Francisco Unanue telephoned him
to initiate the settlement discussions. Turienzo denied that he offered to either Robert
Unanue or Francisco Unanue to stop bad-mouthing the Company in exchange for a
settlement. Turienzo also denied that he ever told Francisco Unanue or Robert Unanue that
he wanted to keep the settlement agreements confidential. He also denied that he ever
spoke for any of the other employees during the settlement discussions. Turienzo testified
he only had one telephone conversation with Francisco Unanue and no telephone
conversations with Robert Unanue. He confirmed that he attended only one meeting with
Francisco and Robert Unanue. He denied that he attended any meetings with Goya and the
other employees.
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II. Conclusions
Goya asserts that the Board should give effect to the settlement agreements between
Goya and Turienzo and Martin whereas the Acting General Counsel maintains that the
settlement agreements should be rejected. Both Goya and the Acting General Counsel cite
the Board’s decision in Independent Stave Co., 287 NLRB 740 (1987), in support of their
positions. In this landmark decision dealing with private settlements, the Board not only
reiterated its guiding principles in analyzing settlements, but it also set out various factors
that may be used in the analysis of private settlements. Referencing its prior decisions in
Combustion Engineering, 272 NLRB 215 (1984); Coca-Cola Bottling Co of Los Angeles., 243
NLRB 501,502 (1979); and Texaco, Inc., 273 NLRB 1335, 1336-1337 (1985), the Board
acknowledged its longstanding policy of encouraging the peaceful, nonlitigious resolution of
disputes and its policy of encouraging parties to resolve disputes without resort to the
Board’s processes. The Board went on to point out, however, that notwithstanding this
strong commitment to settlements, it is not required to give effect to all settlements reached
by the parties to a dispute whether the settlement is reached with or without the General
Counsel’s approval. Independent Stave, above at 741. The Board explained that its power
to prevent unfair labor practices is exclusive, and that its function is to be performed in the
public interest and not in vindication of private “rights.” Additionally, the Board made it clear
that the Board alone is vested with lawful discretion to determine whether a proceeding,
when once instituted, may be abandoned. Ibid.
The Board acknowledged that it would be impossible to anticipate each and every
factor which would have relevance to a review of non-Board settlements and thus did not find
it necessary to provide an exhaustive list of all the factors that may be relevant in individual
cases. In the alternative, the Board explained that it would examine all the surrounding
circumstances. Such analysis would include, but not be limited to (1) whether the charging
party or parties, the respondent(s), and any of the individual discriminate(s) have agreed to
be bound, and the position taken by the General Counsel regarding the settlement; (2)
whether the settlement is reasonable in light of the nature of the violations alleged, the risks
inherent in litigation, and the stage of the litigation; (3) whether there has been any fraud,
coercion, or duress by any of the parties in reaching the settlement; and (4) whether the
respondent has engaged in a history of violations of the Act or has breached previous
settlement agreements resolving unfair labor practice disputes. Independent Stave, above at
743.
Goya asserts that all of the Independent Stave factors weigh heavily in favor of giving
effect to the settlements. The Acting General Counsel, however, contends that all of the
factors favor the rejection of the private settlement agreements executed by discriminates
Martin and Turienzo.
A. Analysis of the Independent Stave Factors
1. Whether the parties agree to be bound and the position of the Acting General
Counsel
On September 25, 2006, Goya filed a motion for reconsideration and motion to
reopen the hearing with the Board. In its motion, Goya identified a number of changes in
Goya’s management personnel, operations, and employee earnings that occurred after the
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close of the 2000 hearing. In describing the changed circumstances and in asserting that
the Board’s ordered remedy was no longer appropriate, Goya also asserted that three7 of the
four individuals that the Board had ordered Goya to pay backpay and to offer reinstatement
had signed waivers and accepted payment to release their claims to reinstatement and
backpay. Counsel for the Acting General Counsel asserts that Goya had not raised the
existence of the settlement agreements until it referenced the settlement agreements in this
2006 motion to the Board. In an order dated December 15, 2006, the Board denied Goya’s
motion.8
Goya asserts that the first factor of the Independent Stave analysis is met because
the parties agreed to be bound. There is no dispute, however, that the General Counsel and
the Charging Party Union were not parties to the settlement. Additionally, Goya
acknowledges that there was no attempt to notify the Union or the General Counsel of the
settlement agreements. Goya contends that it agreed to be bound and that it lived up to its
part of the agreements. Goya also maintains that both Turienzo and Martin agreed to be
bound when they signed the agreements. Although Goya admits that both the Union and the
Acting General Counsel oppose giving effect to the settlements, Goya treats this opposition
as less significant than the intention of Goya and Martin and Turienzo to be bound, I find this
argument without merit.
The Board has long held that the opposition of the General Counsel and the charging
party is a significant factor to be considered in determining whether a non-Board settlement
is to be accepted. Copper State Rubber, 301 NLRB 138 (1991); TNS, Inc., 288 NLRB 20, 22
(1988). Certainly, there are circumstances in which the Board has accepted settlement
agreements over the opposition of the General Counsel or the charging party. In fact, in
Independent Stave Co., 287 NLRB 740, 743-744 (1987), the Board accepted settlement
agreements entered into by the respondent and the alleged discriminatees over the General
Counsel’s opposition. The facts, however, were markedly different than those found in the
case in issue. The union not only found the proposed settlements to be “fair,” but also
encouraged the approval and effectuation of the settlement agreements. Additionally, the
settlement agreements in Independent Stave were reached only 10 days after the issuance
of the complaint. The Board noted that inasmuch as the settlement agreements provided for
immediate employment, retroactive seniority, and a reasonable payment of backpay, and in
light, of there being no evidence of fraud, coercion, or duress the Board accepted the
settlement agreements over the opposition of the General Counsel.
Goya cites the Board’s decision in BP Amoco Chemical-Chocolate Bayou, 351 NLRB
614, 615 (2007), as a case in which the Board approved a settlement agreement over the
opposition of the General Counsel and the union. As Goya points out, the Board noted that
the alleged discriminatees voluntarily agreed to be bound. In that case, however, the parties
also stipulated that the alleged discriminatees were aware of the content, advised of the
meaning, and knew that they were waiving and releasing claims against the respondent.

7 Although not specifically included in the compliance specification and notice of hearing,
Reinaldo Bravo also signed a private settlement agreement with Goya on September 26, 2000. In
receipt for $37,000, he agreed to resign from Goya. The agreement also contained a confidentiality
provision similar to those agreements signed by Turienzo and Martin and the agreement prohibited his
engaging in any union activity relating to Goya and its employees.
8 In its Order, the Board noted its agreement with the General Counsel that the matter of the
private settlements and the discriminatees’ waiver of reinstatement and payment of backpay should
properly be raised and litigated in the compliance stage of the proceeding.
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Furthermore, at the time that the agreements were signed, no charges had been filed and
the prospect of litigation was not obvious. Furthermore, the record did not reflect that all of
the alleged discriminatees had engaged in protected activity or that the respondent was
aware of it. Many of the 27 alleged discriminatees who were presented at the hearing were
not openly supportive of the position of the General Counsel or the union. More importantly,
however, there was no evidence that the agreements were fraudulent or that the alleged
discriminatees signed the agreements under duress or threat of coercion. Above at 615-616.
Thus, the facts of BP Amoco Chemical-Chocolate Bayou are markedly distinguishable from
those in the instant case.
Unlike the circumstances in Independent Stave or BP Amoco Chemical-Chocolate
Bayou, these settlement agreements were signed approximately 6 months after the
complaint issued and approximately 4 months after the unfair labor practice hearing.
Additionally, the opposition of the Acting General Counsel and the Union is even more
significant because of the content of the agreements and the evidence of fraud and
misrepresentation. Thus, the first factor in the Independent Stave analysis would not support
the Board’s acceptance of the private settlement agreements.
2. Whether the settlements are reasonable
The second factor in the Independent Stave analysis looks to whether the settlement
is reasonable given the nature of the violations alleged, the stage of the litigation, and the
risks inherent in the litigation. Goya submits that the settlement agreements were entered
into at a time when it had not been established that Goya had violated the Act. Goya is
correct that the settlement agreements were entered into 4 months prior to the ALJ’s
decision, 6 years before the Board’s decision and 8 years before the court’s decision. Goya
argues that the matter cannot be judged in hindsight and must be viewed from the
perspective of the litigants at the time of the settlement. The Acting General Counsel asserts
that although Goya had not been found to have committed unfair labor practices prior to the
execution of the private settlement agreements, Goya was later found by the Board to have
committed extensive and serious violations of Section 8(a)(1), (3), and (5) of the Act. The
Acting General Counsel further argues that since the execution of the settlement agreements
and the Board’s decision in the instant case, the Board has issued three additional decisions,
finding that Goya violated the Act. Interestingly, in a 2007 decision, the Board specifically
found that Goya violated Section 8(a)(5) and (1) of the Act by making unilateral changes in
the terms and conditions of employment of drivers, warehouse employees, and sales
employees at its Miami facility on various dates, including the precise period of time in which
Turienzo and Martin signed the settlement agreements. Despite the fact that the Board has
found that Goya has continued to violate the Act after the execution of private settlements
with Martin and Turienzo in October 2000, I agree with Goya that the validity of the
settlement agreements must be determined by the circumstances occurring at the time of the
execution and not based on Goya’s subsequent actions.
Overall, however, the components of the second Independent Stave factor do not
support the acceptance of the settlement agreements. As discussed briefly above, the
settlement agreements were executed approximately 4 months after the parties engaged in a
13-day trial. As pointed out by the Acting General Counsel, the settlement agreements were
not executed until the General Counsel had spent significant time and resources litigating the
case before the ALJ. The strength of the General Counsel’s case had already been
disclosed and the risks of litigation were much lower than in cases where the settlement was
reached prior to litigation or in the very early stages of litigation.
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More important than the issue of the risk of litigation or the stage of the litigation is the
analysis of whether the settlement is reasonable given the nature of the alleged violations.
Relying upon Independent Stave Co., Goya asserts that a settlement agreement is not
required to “fully remedy” all charged violations. Goya submits that the Board approved a
settlement in American Pacific Pipe Co., 290 NLRB 623, 624 (1988), in which the
discriminatee was paid 50 percent of the amount calculated by the General Counsel.
Considering all the circumstances of the case, the Board determined that honoring the
parties’ agreement advanced the purposes of the Act and no public policy would be served
by addressing the backpay issue’s merits. Unlike the instant case, the settlement in
American Pacific Pipe was executed by not only the discriminate and the respondent, but
also the charging party union. Additionally, the Board noted that while the record did not
disclose precisely why the discriminatee agreed to accept only 50 percent of calculated
backpay, the record reflected that there were discussions concerning the diligence of the
discriminatee’s search for interim employment and discrepancies between the interim
employment list submitted to the unemployment office and to the General Counsel. Thus, it
would appear that the overall circumstances considered by the Board in American Pacific
Pipe were quite different than the circumstances of the instant case.
Goya asserts that the amounts paid to Turienzo and Martin were 100 percent of the
backpay putatively owed them at the time of the settlement. Goya opines that the payments
of $22,000 and $25,000 “made in 2000 dollars,” judged against future value and the
uncertainty of ever getting any money was not only reasonable but “generous.” Despite
whether the specific amounts to Turienzo and Martin were in fact sufficient, this argument
totally ignores the fact that Goya’s proposed remedy involved only these monetary
payments. As counsel for the Acting General Counsel points out, the only employee interest
addressed in the settlement agreements was the monetary remedy offered to Turienzo and
Martin. Counsel for the Acting General Counsel further submits that the settlement
agreements provided for none of the other remedies ordered by the Board including the
“cessation of the unfair labor practices; the reinstatement of Martin, Turienzo, and Galvez;
the making whole of Galvez; the making whole of Respondent’s employees in both
bargaining units for any losses of wages or other benefits they may have suffered as a result
of Respondent’s unilateral actions in assigning routes to drivers and stores to salesmen
since dates in 1998, and as a result of the disproportionate increase in the number of
temporary employees regularly employed as drivers; the making whole of Respondent’s
employees in the warehouse and driver units for any losses occasioned by the unilateral
cessation of the policy allowing employees to take company-provided radio phones home
with them; recognition of and bargaining with the Union; the rescission of unilateral changes
upon the Union’s request; and posting of a notice to employees assuring them that they have
a right to engage in Section 7 activities and that Respondent cannot violated the Act with
impunity.”
One of the most significant aspects of the Board’s ordered remedy is the posting of a
notice to employees that addresses each aspect of Goya’s unlawful conduct. In addition to
finding that the Respondent violated Section 8(a)(3) and (5) of the Act as described above,
the Board also found that Goya’s supervisors and agents violated Section 8(a)(1) of the Act
by engaging in 12 separate types of conduct that violated employees’ Section 7 rights and
included various unlawful statements, promises, and threats to employees. The Board-
ordered notice gives assurances to employees that Goya will no longer engage in such
conduct. As the Board has long recognized, the requirement that respondents post a notice
“informing employees of their rights under the Act, the violations found by the Board, the
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respondent’s undertaking to cease and desist from such unlawful conduct in the future, and
the affirmative action to be taken by the respondent to redress the violations has been an
essential element of the Board’s remedies for unfair labor practices since the earlier cases
under the Act.” J. Picni Flooring, 356 NLRB No. 9, slip op. at 2 (2010). The Board further
noted that remedial notices serve a number of important functions in advancing the Board’s
mission of enforcing employee rights and preventing unfair labor practices. Remedial notices
help to counteract the effect of the unfair labor practices by informing employees of their
rights under the Act as well as informing employees of the Board’s role in protecting their free
exercise of those rights. Ibid. Thus, the notice to employees not only lets the employees
know what a respondent is doing to correct and remedy the current violations, but also gives
employees assurances that that future violations will not occur.
Thus, the executed settlement agreements were totally unreasonable given the
nature of the alleged violations, the stage of the litigation, and the risks inherent in litigation.
3. Whether there was fraud, coercion, or duress by any of the parties
Goya asserts that there is no possibility of coercion or duress in this case inasmuch
as Martin and Turienzo had been separated from their employment with Goya for more than
a year at the time they signed the settlement agreements. Goya argues that since these
individuals were not employed with Goya, Respondent could not threaten their jobs.
Additionally, there is no evidence of any physical or economic threat to either of these
individuals. Goya asserts that because it was simply not possible for Goya to adversely
affect them, counsel for the Acting General Counsel must prove fraud to support this
Independent Stave factor.
While there does not appear to be evidence of coercion or duress, there is credible
evidence of Goya’s deception and intentional misrepresentation to Martin and Turienzo. Both
Martin and Turienzo credibly testified that at the time the agreements were presented to
them, Francisco Unanue told them that the Union had lost their cases before the ALJ.
Francisco Unanue and Robert Unanue vigorously denied that any such statement was made
to either Martin or Turienzo. There were only four witnesses who testified about the
conversations that preceded the signing of the settlement agreements. These witnesses
were Martin, Turienzo, Francisco Unanue, and Robert Unanue. On the basis of the total
record evidence, I found the testimony of Martin and Turienzo to be the most credible.
The testimony of Francisco Unanue and Robert Unanue was very precise and
consistent. Each one’s testimony closely mirrored the testimony of the other. In contrast, the
testimony of Martin and Turienzo was not polished and was much less specific. Because
they testified through an interpreter, there was not an even flow in the testimony. Frequently,
their testimony was interrupted by counsels’ objections to the interpreter’s translation and
questions had to be clarified or restated. Despite these interruptions and the awkwardness
of the question and answer process, Martin and Turienzo nevertheless presented a credible
description of the circumstances surrounding the signing of the settlement agreements.
Both Martin and Turienzo testified that prior to their signing the settlement
agreements; they were initially contacted by Francisco Unanue. Martin recalled that both
Robert Unanue and Francisco Unanue telephoned him over a 3-week period prior to his
meeting with Francisco Unanue and Robert Unanue and his signing the agreement.
Turienzo also recalled that while he had spoken with Robert Unanue before his meeting with
Francisco and Robert Unanue, there was no prior meeting with Robert Unanue. Both Martin
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and Turienzo recalled that Francisco Unanue did most of the talking concerning the
settlement agreements. Both Turienzo and Martin recalled that it was Francisco Unanue
who told them that the Union had lost the case. Martin recalled that after initially hearing this
from Francisco Unanue, he contacted Turienzo and they discussed their options. Turienzo
told him that if the Union had lost the case, they would have to sign Goya’s proposed
settlement agreements.
During the 2- to 3-week period prior to signing the agreement, Martin also received
two to three telephone calls from employee Gilberto Torres telling him that the Union had lost
the case. Torres told him that Goya was not trying to trick him and that he should sign the
settlement agreement before he lost everything. The record reflects that at the time that
Torres spoke with Martin and urged him to accept Goya’s settlement, Torres was not a
supervisor or manager. He was not promoted to a supervisory position until approximately 6
months later. The record reflects that over a period of time from 1993 through February
2009, Torres received loans and pay advances from Goya in various amounts. Torres
testified that all loans and pay advances were repaid. Counsel for the Acting General
Counsel submits, however, that Torres received a loan of $2500 approximately 1 month prior
to Martin’s signing the settlement agreement and an additional loan of $3000 only 3 days
after Turienzo signed the settlement agreement. Counsel asserts that prior to the fall of
2000, Torres had never received loans as large as those given to him in September and
November 2000 and that he did not receive any other loans as large as these until he
became a supervisor. Counsel also asserts that contrary to other9 loans that were
periodically made to Torres, the loan documentation for these two loans does not reflect any
notation showing that the repayment of the loans would be deducted from his paycheck or
have ever been repaid.
Martin testified that he believed Torres just as he believed Francisco Unanue. Martin
explained that he had considered Torres to be a friend and he had financially helped Torres
when they had worked together. Torres denied that he ever made the telephone calls to
Martin, urging him to sign the settlement agreement or telling him that the Union had lost the
case. Clearly, there is no corroborating evidence to show that Torres made the telephone
calls to Martin or that he participated in a campaign to induce Martin to sign the settlement.
The record evidence, however, strongly suggests that Torres was a friend to Martin and a
likely person to reinforce to Martin that the Union had lost the case and that Martin should
sign the settlement agreement. While there is no proof that Torres received favors from
Goya for his persuasive telephone calls to Martin, the timing of the significant loans and his
promotion is certainly suspect. Crediting Martin’s testimony, I find that Torres made the calls
to Martin. There is, however, no direct evidence that he was acting as an agent of Goya or at
the direction of Goya. Accordingly, while it is certainly most likely that Torres acted at the
direction of Goya in contacting Martin and affirming Francisco Unanue’s statements to
Martin; there is not a sufficient basis to find Torres as an agent in misrepresenting the status
of the unfair labor practice proceeding to Martin.
Even without a finding that Torres acted as an agent of Goya, the overall record
reflects that Goya intentionally misrepresented the status of the unfair labor practice
proceeding during the execution of the private settlement agreements. I base this finding
upon a number of reasons as discussed below.

9 The only other documented loan that did not include a notation on repayment was a loan of
$5000 given to Torres in February 2003 and after his promotion to supervisor.
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Francisco Unanue and Robert Unanue assert that the settlement agreements were
ultimately perfected after a number of meetings and telephone conversations with Martin and
Turienzo. Their testimony conveys a give-and-take interaction in which all parties
participated and negotiated the terms of the settlement. They further assert that these
discussions came about because Turienzo unexpectedly contacted Robert Unanue with an
unsolicited proposal to stop disparaging the Company. According to Goya, Turienzo and
Martin were not seeking reinstatement, and yet they desired strict confidentiality. It is
incredibly providential that the employees came forward proposing terms and conditions so
aligned with Goya’s interest? Goya would assert that this alleged initiative was taken by
warehouse employees who do not speak, read, or write English and who had no apparent
background in business, employment relations, or law. Goya’s explanation suggests that
despite the apparent disparity in language skills, background, and employment experience,
the discriminatees participated in negotiating a settlement on equal terms with two
accomplished businessmen who must have appeared quite formidable to these former
employees. Such a scenario is simply not realistic. There is no dispute that there were
settlement negotiations between, Goya, the Union, the Board’s Regional Office, and the four
discriminatees during the unfair labor practice hearing in the Miami office of the Board. In its
posthearing brief, Goya describes the negotiations as continuing for hours with the Board’s
attorney translating to and from English and Spanish. Even with the assistance of the
Board’s attorney as well as the Union’s attorney and others, no settlement was reached.
Thus, it is incredible that these two discriminatees negotiated a settlement on their own with
Goya and independently proposed such settlement terms as confidentiality and the cessation
of union activity or disparagement of the Company as Goya suggests.
Robert Unanue assumed the Florida operation in August 1999. He began working for
the family business in 1977 and has served in various roles with Goya since that time. As
president of Goya Foods of Florida, Robert Unanue was responsible for running the facility.
He testified that one of his responsibilities during the period of time between June and
October 2000 was “saving the facility from the onslaught of a very public smear campaign.”
Counsel for the Acting General Counsel asserts that it would have been rather fortuitous for
Robert Unanue if Turienzo had called him and offered to end the “smear campaign” in
exchange for a settlement. Although Turienzo acknowledges that he had publicly accused
Goya of having rats in its warehouse, the impetus was on Robert Unanue to find a way to
stop what he believed to be a smear campaign against the Company. It is simply
inconceivable that Turienzo just happened to devise a plan for settlement by which the bad
publicity could be stopped.
Goya argues that a finder of fact may consider a witness’ interest in the outcome of a
proceeding in assessing the witness’ credibility. Goya further asserts that I must consider
that Turienzo and Martin stand to gain considerably if the settlements are not given effect by
the Board as each would receive additional backpay and each would have to be offered
reinstatement. While that is certainly true, the same can be said for Francisco and Robert
Unanue. If the settlement agreement is not given effect by the Board, Goya will have to pay
the remaining net backpay that has accrued since 2000 and Goya will have to offer these
discriminatees reinstatement. Thus, the credibility of Francisco and Robert Unanue is
equally subject to scrutiny because of their interest in the outcome of this proceeding. In
posthearing brief, counsel for Goya argues that Francisco and Robert Unanue’s testimony
should be credited; describing it as consistent, calm, deliberate, and unshakeable. As I have
indicated above, their testimony was consistent and smoothly presented in contrast to the
testimony of Martin and Turienzo. Nevertheless, I found Turienzo and Martin’s testimony to
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be more credible.
Perhaps because Martin and Turienzo testified through an interpreter, there were
some instances in their testimony where there was not extensive explanation and the
testimony was abbreviated or condensed. Having heard their testimony in its entirety, it is
apparent that some inconsistencies or contradictions may have arisen because Turienzo and
Martin may have been initially confused by the questions or uncomfortable with the hearing
process. While the record is somewhat unclear as to the precise time in which Turienzo first
learned of the proposed settlement agreement and Goya’s assertion that the Union lost the
case, such ambiguity does not diminish Turienzo’s testimony in pertinent part. In light of all of
the record testimony, any minor inconsistencies in the testimony of Turienzo and Martin are
not fatal to the total credibility analysis.
Prior to the testimony of Jesus Martin, counsel for the Acting General Counsel
disclosed that Martin had been evaluated by his primary care physician on December 17,
2010. His physician diagnosed Martin as having a “mild impairment which precludes [him]
from being able to understand new material easily.” In response, Goya asserted that
Martin’s testimony must be precluded, or in the alternative, that Goya be allowed to conduct
an independent medical examination of the witness to determine the degree of mental
impairment of the witness.
Fed.R.Evid. 601 provides that every person is competent to be a witness except as
otherwise provided in the Federal Rules of Evidence. Those additional qualifications limit the
witness to matters to which he or she has personal knowledge (Fed.R.Evid 602) and requires
that the witness take an oath (Fed.R.Evid. 603). At modern common law, there is no rule
automatically excluding a person with diminished mental capacity. The test is whether the
witness has enough intelligence to make it worthwhile to hear him at all and whether he
recognizes a duty to tell the truth. McCormick, Evidence § 62 (6th ed. 2006). A witness’s
competency at most requires only a minimal ability to observe, recollect, and recount as well
as an understanding of the duty to tell the truth. Ibid. Furthermore, when a mature person of
normal appearance and demeanor is offered as a witness, he is presumed to be a competent
witness and incompetency must be shown by the party objecting to him. Henderson v. U.S.,
218 F.2d 14, 18 (6th Cir. 1955), cert. denied 349 U.S. 920 (1955). Thus, it is a well-
established principle, as based upon Fed.R.Evid. 601 that witnesses are presumed
competent to testify. U.S. v. Devin, 918 F.2d 280, 291-292 (1st. Cir. 1990).
The courts have long recognized that the competency of a witness to testify is a
determination for the trial judge. U.S. v. Hyson, 721 F.2d 856, 864 (1st. Cir. 1983); U.S. v.
Martino, 648 F.2d 367, 389 (5th Cir. 1981), cert. denied 456 U.S. 943, 949 (1982). When the
competency of a witness is challenged before testifying, it is the duty of the court to make
such examination as will satisfy it of the competency or incompetency of the witness. The
form of the examination rests in the discretion of the court. Henderson v. U.S., above at 17.
In the instant case, I allowed counsel for the Acting General Counsel to begin her
examination of Martin with a series of background and foundational questions to demonstrate
his ability to observe, recollect, and recount events, as well as his understanding of his sworn
duty to tell the truth. Counsel for Goya was given a similar opportunity to question Martin
with respect to related aspects of competency. At the exhaustion of the examination by both
the Acting General Counsel and Goya, I found that Martin was fully competent to testify
concerning substantive matters.
Martin’s testimony reflected no apparent memory deficit concerning the events
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occurring in 2000. His testimony demonstrated that he had the capacity to recall the events
of 2000 and he appeared to fully understand his duty to testify truthfully under oath. Based
upon the initial questioning by the counsel for the Acting General Counsel and counsel for
Goya, I found no basis to preclude his testimony or to require an independent medical
examination. U.S. v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982).
Accordingly, based upon the credible testimony of both Turienzo and Martin, I find
Goya intentionally misrepresented the status of the outstanding unfair labor practice case as
it induced Turienzo and Martin to sign the private settlement agreements.
1. Whether the settlement agreements were contrary to the policies
and purposes of the Act
There is no dispute that each of the settlement agreements signed by Turienzo and
Martin contained a provision requiring that the discriminatee “agrees that he will not engage
in any union activity relating to GOYA and/or its employees.” In signing the settlement
agreements, Martin and Turienzo also agreed that they would not disclose or discuss the
terms of the agreement or the circumstances related thereto with any other person other than
their attorney, accountant, or tax advisor. The Acting General Counsel submits that these
terms are repugnant to the purposes and policy of the Act.
Goya takes the position that the Acting General Counsel’s concerns are misplaced,
contending that the wording “union activity” meant something entirely different to the parties.
Goya asserts that the sole direct evidence in the record of the meaning of the phrase “union
activities” as it is used in the settlements is the testimony of Robert and Francisco Unanue.
Francisco Unanue testified that the intent of this phrase was to prohibit Turienzo and Martin
from “disparaging the company.” He went on to explain that he believed that the phrase
relating to union activity was meant to prohibit the individuals disparaging Goya. Robert
Unanue testified that the wording dealing with union activity represented the “spirit” of Goya’s
agreement with Turienzo and Martin and he contended that the intent of the language was to
prohibit disparaging Goya. Both Francisco and Robert Unanue contended that the language
was included in the agreements because it was first brought up by Turienzo.
Relying upon the testimony of Francisco and Robert Unanue, counsel for Respondent
argues that it is fundamental law that the meaning of a contract, including contracts settling
unfair labor practice charges, is the intent of the contracting parties. In support of this
argument Respondent cites cases in which the Board or a court dealt in part with the intent of
contracting parties in order to determine the meaning of contract language. These cases,
however, dealt with agreements between unions and employers10 and one case even dealt
with language that had been included in an informal Board settlement executed by the
respondent employer, the union, and a Regional Director for the Board.11 Clearly, all of the
cases cited by Goya dealt with contracting parties who fully participated in the negotiation of
the terms of their agreements. There is no credible evidence that such a similar negotiation
occurred in the execution of these agreements. Francisco and Robert Unanue assert that

10 Flint Glass Workers v. Beaumont Glass Co., 62 F.3d 574, 78 (3d Cir. 1995), in which the court
denied summary judgment and dealt with the interpretation of a settlement agreement between the
union and the employer; Allied Mechanical Services., 352 NLRB 662, 663-664 (2008), wherein the
Board looked to the language of a settlement agreement between the employer and the union to
determine the nature of the parties bargaining relationship.
11 Park-Ohio Industries, 283 NLRB 571, 572 (1987).
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there were a number of meetings that occurred in which Turienzo, Martin, and Bravo met and
discussed the terms of the agreements. When asserting that union activity meant
disparaging Goya, Robert Unanue testified:
And that’s the intent, that’s the spirit of this agreement. And it was discussed
at meetings. So what the document represents is the summation of the spirit
and the discussions of the parties, including Goya Foods, including the four
parties.
In contrast, Turienzo credibly testified that he did not prepare the settlement
agreement that he signed and he did not suggest the language that was included in the
document. Turienzo explained that he was not an attorney, had never attended law school,
or drafted a legal document. He testified that he does not write in English and would not
know how to draft a legal document. He recalled that he attended only one meeting with
Francisco and Robert Unanue and he denied attending any meetings with any other
employees concerning the settlement agreements. Martin testified that he signed the
settlement agreement given to him by Francisco Unanue without reading the document. He
testified that Francisco Unanue actually read the document to him.
In describing their meetings with Martin and Turienzo, Robert and Francisco Unanue
depict a negotiation in which all “parties” exchange information and positions and ultimately
come to a mutual agreement. Based upon the overall testimony, such a scenario is simply
not credible. As discussed more fully above, the overall evidence reflects that Turienzo and
Martin met with Goya at Goya’s direction. Martin and Turienzo were presented with a
prepared settlement agreement with terms and conditions drafted by, and for the benefit of
Goya. Turienzo testified that he understood that in receiving the $22,000, Goya did not want
him “talking bad about Goya.” There is no doubt that Francisco and Robert Unanue made it
very clear to Martin and Turienzo that they could not disparage the Company and receive the
money paid to them. There is, however, no credible evidence that the meaning of the term
“union activity” was discussed by the four individuals or that there was an agreement by the
“four parties” that union activity would be used in the document to mean disparagement of
the company as Robert Unanue suggests.
Goya argues that Martin and Turienzo voluntarily and knowingly signed the
agreement containing the “union activities” clause and, thus, the Board should defer to the
free choices made by these men. Although these men may have signed the agreements
voluntarily, the record evidence does not indicate that they did so with full knowledge or
understanding of the terms. Even if they had understood and agreed to the prohibition
against their participating in union activity, such agreement could not serve as a waiver of
these statutory rights. Goya submits that the Board has noted that unions may waive
statutory rights of employees and that such waivers will be given effect. In support of that
argument, Goya cites the Board’s decision in Postal Service, 300 NLRB 196, 197 (1990), in
which a union accepted a settlement in a grievance proceeding over the objection of an
employee. The Board opined that the employee had authorized the union to settle the
dispute when he invoked the contractual grievance procedure. Goya also cites the Board’s
decision in Springfield Terrace LTD., 355 NLRB No. 168, slip op. at 1 (2010), in which the
Board denied an employer’s request for review of a regional director’ decision and direction
of election and the regional director’s order denying a motion to reopen the record for
hearing. In doing so, the Board noted that the evidence failed to establish that the union
waived its right to represent a specific group of employees based on its current collective-
bargaining agreement with the employer covering a different group of employees. In citing
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these two cases involving a union’s waiver of rights, Goya asserts that “a waiver of statutorily
protected rights by an individual can be given no less dignity.” I find Goya’s argument to be
without merit.
Regardless of whether Martin and Turienzo knew and understood the terms of the
settlement agreements, the undisputed language of the agreement precludes employees
from engaging in activities protected by Section 7 of the Act. Each of the agreements
contains a provision that states that the discriminatees agree that they will not engage in any
union activity relating to Goya and/or its employees. Goya asserts that the clause is valid
because its intent was to address conduct that disparages Goya. The plain language of the
agreements, however, specifically prohibit all union activity and makes no reference to
disparaging or “bad mouthing” the Company. The agreements waive not only the future
Section 7 rights of Martin and Turienzo, but also waive a public right that is central to the
core of the protection of the Act. As such, these overly broad terms are clearly repugnant to
the purposes and policies of the Act. Ishikawa Gasket American, Inc., 337 NLRB 175, 176
(2001), enfd. 354 F.3d 534 (6th Cir. 2004).
2. Whether Goya has engaged in a history of violations of the Act or has
breached previous settlement agreements resolving unfair labor practices
At the time that these settlement agreements were executed in 2000, Goya did not
have a history of violating the Act and there was no evidence that Goya had breached any
previous settlement agreements. Thus, this Independent Stave factor is not an issue with
respect to the analysis. While this factor in the analysis may not support the rejection of
these settlement agreements, the remaining factors as discussed above weigh heavily
toward the rejection of these private settlement agreements.
B. Summary of Conclusions
On the basis of the entire record and as described above in the analysis of the
Independent Stave factors, I find the private settlement agreements are insufficient to waive
reinstatement or to toll backpay for Martin and Turienzo. Finding the private settlement
agreements to be repugnant to the policies and purposes of the Act, I have determined that
these agreements must be rejected in their entirety.
C. Goya’s Subpoena to Former Board Agent Arturo Ross
1. Background
Arturo Ross (Ross) was employed as an attorney with the Board’s Region 12 office
from July 24, 1994, to June 30, 2001.12 During his tenure with the Board, he represented the
Board in the Board’s litigation proceedings against Goya from 1998 to 2001. On December
17, 2011, counsel for Goya served a subpoena ad testificandum on Ross, compelling his
testimony at the hearing in this matter scheduled for January 11, 2011. Pursuant to 29
C.F.R. § 102.66(c) of the Board’s Rules and Regulations, Series 8, as amended, Ross filed a
petition to revoke Goya’s subpoena. On December 21, 2010, counsel for the Acting General
Counsel filed a petition to revoke Ross’ subpoena pursuant to Section 102.118(a)(1) of the
Board’s Rules and Regulations.

12 Arturo Ross’ Petition to Revoke filed on December 22, 2010.
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In his petition to revoke Goya’s subpoena, Ross asserts that his testimony is
precluded by Rule 102.118 of the Board’s Rules and Regulations which prohibits current and
former Board employees from testifying pursuant to a subpoena. In relevant part, Rule
102.118(a)(1) provides:
no present or former Regional Director, field examiner, administrative law
judge, attorney, specially designated agent, General Counsel, Member of the
Board or other officer or employee of the Agency shall produce or present any
files, documents reports, memoranda, or records of the Board or of the
General Counsel, whether in response to a subpoena duces tecum or
otherwise, without the written consent of the Board or the Chairman of the
Board if the document is in Washington, D.C., and in the control of the Board;
or of the General Counsel if the document is in a Regional Office of the
Agency or is in Washington, D.C, and in the control of the General Counsel.
Nor shall any such person testify in behalf of any party to any cause pending
in any court or before the Board, or any other board, commission, or other
administrative agency of the United States, or of any State, territory, or the
District of Columbia, or any subdivisions thereof, with respect to any
information, facts, or other matter coming to that person’s knowledge in his or
her official capacity or with respect to the contents of any files, documents,
reports, memoranda, or records of the Board or of the General Counsel,
whether in answer to a subpoena or otherwise, without the written consent of
the Board or the Chairman of the Board if the person is in Washington, D.C.,
and subject to the supervision or control of the Board or was subject to the
supervision or control when formerly employed at the Agency; or of the
General Counsel if the person is in a Regional Office of the Agency or is in
Washington, D.C., and subject to the supervision or control of the General
Counsel or was subject to such supervision or control when formerly
employed at the Agency. A request that such consent be granted shall be in
writing and shall identify the documents to be produced, or the person whose
testimony is desired, the nature of the pending proceeding, and the purpose to
be served by the production of the document or the testimony of the official.
Whenever any subpoena ad testificandum or subpoena duces tecum, the
purpose of which is to adduce testimony or require the production of records
as described hereinabove, shall have been served on any such person or
other officer or employee of the Board, that person will, unless otherwise
expressly directed by the Board or the Chairman of the Board, or the General
Counsel, as the case may be, move pursuant to the applicable procedure,
whether by petition to revoke, motion to quash, or otherwise, to have such
subpoena invalidated on the ground that the evidence sought is privileged
against disclosure by this rule.
On December 28, 2010, Goya submitted a written request to the Acting General
Counsel, requesting consent for Ross’ testimony. In its request, Goya asserts that it expects
that Ross will testify that he spoke with “the leader of the discriminatees” subsequent to the
close of the hearing before the judge in the above-referenced cases. Goya further asserts
that Ross will testify that such person told him that the disciminatees had been offered
private settlement agreements and that this individual asked Ross whether he thought that
the Union and the General Counsel would win the case. Goya also asserts in its written
request that Ross would testify that he told this individual that it could be a long time before
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the cases were resolved. Goya further asserts that Ross would testify that the “leader of the
discriminatees” did not ask whether the judge had reached a decision, or whether the judge
had decided against the discriminatees. Additionally, Goya asserts that Ross could discuss
the details of settlement discussions that occurred during the course of the unfair labor
practice hearing and his testimony would establish Board knowledge of the settlement
discussions during and after the trial.
In its written request, Goya contends that Ross’ testimony goes to its defense of
estoppel against the Board’s raising of this issue at this time and years after the fact. Goya
also asserts that Ross’ testimony would rebut expected testimony by the Acting General
Counsel’s witnesses and show that the discriminatees never mentioned the alleged
statements by Goya and instead asked questions that would not have been asked if the
discriminatee believed or was doubtful that the ALJ had already ruled or had ruled against
him.
On January 4, 2010, the office of the Acting General Counsel issued a written
response to Goya’s December 28, 2010 request concerning the testimony of Ross. Citing
the rationale and the supporting case law, Associate General Counsel Richard A. Siegel
explained that absent a showing of most unusual circumstances, it is the policy of the Office
of the General Counsel not to permit current or former Board agents to testify as witnesses
with respect to the processing of unfair labor practice and representation cases. Associate
General Counsel Siegel further clarified that Goya’s request did not present a compelling
basis to deviate from this longstanding policy. Specifically, Associate General Counsel
Siegel pointed out that there were other witnesses such as Goya’s negotiators and the
employees themselves who would be able to testify regarding the settlement discussions
occurring after the unfair labor practice trial.
With respect to the settlement discussions occurring during the trial, Associate
General Counsel Siegel explained that witnesses other than Ross would be available to
Goya. As far as Goya’s defense of estoppel raised in the December 28, 2010 request,
Associate General Counsel Siegel opined that there were also witnesses other than Ross
that were available to Goya to assist in establishing the predicate of Goya’s legal claim.
After addressing all of Goya’s bases for requesting Ross’ testimony, the Office of the
Acting General Counsel concluded that the request for Ross’ testimony did not present any
unusual circumstances warranting a departure from the General Counsel’s longstanding
policy and denied the request to authorize Ross to testify at the scheduled hearing.
At the beginning of the trial, I gave the parties an opportunity to present their
arguments concerning this issue. After due consideration of the parties’ arguments, I
granted the petitions to revoke Ross’ subpoena. After counsel for the Acting General
Counsel concluded her case, Goya requested that I reconsider my ruling on the grounds
previously argued and also asserted that the testimony given was in direct contradiction to
the proffer of Ross’ testimony. I denied Goya’s motion.
2. Whether there are unusual circumstances warranting Ross’ testimony
Goya does not dispute that Rule 102.118(a)(1) prohibits the testimony of a current or
former Board employee without the written consent of the Board or the General Counsel.
Goya argues, however, that the Board and the courts have recognized this as creating a
“limited” privilege. In support of this argument, Goya cites the decision of the Eighth Circuit
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Court of Appeals in Stephens Produce Co., Inc. v. NLRB, 515 F.2d 1373 (1975), in which the
respondent claimed that it had been denied a fair hearing in a Board proceeding because it
was not allowed to subpoena and question the Board field investigator who had conducted
the initial investigation of the unfair labor practice charges. The court noted that there is a
limited evidentiary privilege which protects the informal investigatorial and trial-preparatory
processes of regulatory agencies such as the Board. Id at 1375. The court even went so far
as to point out that the “mere incantation” of the policy precluding Board agent testimony is
not always necessarily sufficient to bring the privilege into effect. The court further noted,
however, that the respondent was given all of the witness statements pursuant to the “Jencks
rule” 29 C.F.R. § 102.118(b)(1) and the respondent was able to, and did, utilize these
documents to cross-examine the Board’s witnesses. The court was not persuaded by the
respondent’s argument that the witnesses made statements to the investigator that were
inconsistent with the formal written statements. The court also opined that under the
circumstances the respondent could assert nothing more than the mere surmise that Board
witnesses had made earlier inconsistent statements which might be used to impeach them.
With respect to the case before it, the court noted that while the asserted privilege is not a
broad one and cannot be used indiscriminately to hide all nominally “investigative materials”
from public scrutiny, “it take something more than the mere hope or surmise that impeaching
evidence will be found in the investigatory file or in the questioning of the agency investigator
to overcome it.” Id at1377.
Goya argues that the “best and most cogent exposition of circumstances in which this
limited privilege should not apply” is the court’s decision in Drukker Communications v.
NLRB, 700 F.2d 727 (D.C. Cir. 1983). In Drukker, the employer and the union entered into a
stipulation concerning the employees that were to be included in a collective-bargaining unit.
The conference was not only attended by a Board agent, but the written stipulation was
signed by the Board agent. The employer ultimately challenged the representative status of
the union and asserted that the certification was invalid. The employer argued that a group
of employees erroneously voted in the election because there was an oral understanding by
the parties in conjunction with the stipulation that these employees would be excluded from
the bargaining unit. The employer subpoenaed the Board agent who was present when the
stipulation was signed. The administrative law judge denied the employer’s motion to
compel the Board agent’s testimony and granted the General Counsel’s motion to quash the
subpoena. Goya points to the fact that upon review of the Board’s decision, the court
determined that the privilege was not applicable to the case.
While the court may have found the privilege inapplicable, the circumstances of the
case were distinguishable from those in the present case. Finding that the testimony of the
Board agent was central to the case, the court opined that if there had been an oral
agreement, there would have been no basis to count the challenged ballots. Without the
votes of the challenged ballots, the union would not have won the election, the certification
would have been invalid, and there would have been no unfair labor practices in issue. The
court noted that there was uncontradicted evidence that the Board agent participated in the
process by assisting the parties to arrive at the stipulation. The court viewed his participation
as a means to ensure that the stipulation, properly understood, was worthy of the Board’s
approval, in order that he could recommend the stipulation. In finding that the privilege did
not apply, the Drukker court also noted that the Board’s leading case giving effect to an oral
agreement varying the content of a stipulation for certification emphasized the fact that the
agreement was made “in the presence of a “Board agent.” Banner Bedding, Inc., 214 NLRB
1013, 1013-1014 (1974). Thus, while the testimony of the Board agent in Drukker was
arguably central to the case before the Board and the court, Ross’ testimony, as proffered, is
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not.
Goya asserts that Ross would testify that Turienzo contacted him before he signed
the settlement and that Turienzo never told Ross that he had been told that there was a
decision in his case or mentioned that Goya had told him anything regarding the case. Goya
also asserts that Ross would testify that Turienzo asked him how he felt about the chances
of success in the case. Goya asserts that Ross’ testimony would discredit Turienzo’s
testimony. Unlike the circumstances viewed by the court in Drukker, Ross’ testimony is not
key to resolving the merits of this case. Assuming that Ross testified exactly as Goya
proffered, such testimony would not provide the clear rebuttal of Turienzo’s and Martin’s
testimony as Goya asserts. First of all, there is no dispute that the settlement agreement
drafted by Goya’s representatives provided for full confidentiality of the agreement. The
agreement provided that Turienzo and Martin would “not disclose or discuss the terms of the
Agreement or the circumstances related thereto with any other person.” The only exception
was their attorneys, accountant, or tax advisors. The record reflects that Turienzo or Martin
did not show this document to any other person. Although Goya might make the argument
that Ross could have served as an “attorney” within the meaning of the settlement
agreement, there is no basis for such argument. While Ross may have represented the
General Counsel in the earlier trial, he did not, and could not, personally represent these
discriminatees in a private settlement agreement.
Assuming that Turienzo contacted Ross, as asserted by Goya, the proffer does not
include any assertion that Turienzo divulged any terms of the agreement or shared anything
about the discussions with Goya. Interestingly, Goya’s proffer does not assert that Turienzo
disclosed some of settlement discussions, but not others. The proffer simply asserts that
Turienzo disclosed nothing about the circumstances of the settlement, which is fully
consistent with the terms of the settlement agreement. There is no reason to believe that
Turienzo did not understand the provision of the settlement that prohibited disclosure of the
terms or circumstances. Keeping with that provision, he would not have been allowed to
disclose to Ross any details of the settlement agreement or the discussions surrounding the
agreement.
Goya asserts that Turienzo asked Ross his opinion about the success of the case.
Goya asserts that Turienzo would not have done so if Goya had already told him that the
Union lost the case. Francisco and Robert Unanue testified that Turienzo took the lead in
initiating the settlement and even offered some of the terms of the settlement. As I have
indicated above, I do not find this testimony credible. Nevertheless, assuming that Turienzo
was proactive as depicted by Francisco and Robert Unanue, it is also reasonable that he
was aware that the Board process did not stop with the ALJ decision. Even though he had
been told that the Union lost the case before the ALJ, it is reasonable that he may have
sought Ross’ opinion as to the ultimate success of the case as it proceeded through the
Board process. As it turns out, the ALJ decision was not the final action in this case and the
case continued to be unresolved through the Board process and even after the court’s
decision. Despite the court’s decision, the resolution of the case remains in issue as
evidenced by this compliance proceeding.
Furthermore, there is no basis to conclude that Turienzo would have shared with
Ross all the details or even a significant number of details about his conversations with
Goya. Thus, Ross’ testimony that Turienzo failed to mention the ALJ decision does not
establish that the decision was not mentioned by Goya. As I noted in my earlier ruling at
hearing, Goya seeks to prove a negative through Ross’ testimony. The premise of Goya’s
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argument is that the failure of Turienzo to disclose his discussions with Francisco and Robert
Unanue must prove that they did not tell him that the case had been lost before the ALJ.
This premise is flawed.
In its decision in Sunol Valley Golf & Recreation Co., 305 NLRB 473, 495 (1991), the
Board reversed the judge’s ruling with respect to a subpoena that was served by both the
respondent and the charging party on a Board agent. In balancing the policy reasons for not
involving Board employees as witnesses in Board litigation, the Board found that balance
weighed against requiring the agent to testify. In determining this balance, the Board noted
the “mere speculation” related to the Board agent’s testimony. In the instant case, Goya
asserts that Ross’ testimony would discredit Turienzo and prove that Francisco and Robert
Unanue did not make statements attributed to them by Turienzo. Because Ross was not a
party to the settlement and did not participate in any of the settlement discussions, such a
premise can be nothing more than mere speculation and insufficient for me to make a finding
of fact.
Furthermore, Ross’ testimony is irrelevant with respect to Goya’s argument that the
Acting General Counsel is estopped from raising this issue at this time. It appears that
Goya’s argument is based upon the hypothesis that if Board Attorney Ross knew that Goya
entered into a private settlement agreement in 2000, the Acting General Counsel is now
estopped from opposing the validity of the settlement agreements. I do not find this
argument to be persuasive.
The Board has previously rejected the argument that the General Counsel or the
Board is estopped from processing the allegations of a complaint because the respondent
acted on advice received from Board agents in the Board’s Regional Office. Capitol
Temptrol Corp., 243 NLRB 575 fn. 59 (1979), enfd. 622 F.2d 574 (2d. Cir. 1980). In
response to an analogous estoppel argument, the Board has also determined that it is not
bound by informal or personal advice received by respondents from Board agents, especially
when employee rights are violated pursuant to that advice. Stokely-Van Camp, Inc., 130
NLRB 869, 871 (1961). Thus, assuming that Ross was informed of the private settlements
on or about the time they were executed, such knowledge does not bind the Acting General
Counsel or prevent the opposition to these private settlement agreements. The Board has
already ordered Goya to reinstate Turienzo and Martin and to pay them backpay for the
period from their unlawful discharges until they are offered reinstatement. The decision of
the Board was affirmed by the United States circuit court of appeals. Goya has declined to
follow either the Board or the court order. Ross’ knowledge or lack of knowledge in 2000
cannot constitute a waiver of Goya’s responsibility under the Act or as a waiver of these
discriminatees’ rights under the Act. Accordingly, Ross’ testimony in this regard is not
relevant.
Having heard the testimony in its entirety, I do not find unusual circumstances that
warrant the testimony of Ross.
Therefore, on these findings of fact and conclusions of law and on the entire record, I
issue the following recommended13

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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ORDER
It is HEREBY ORDERED that Goya Foods Inc., d/b/a Goya Foods of Florida, Miami.
Florida, its officers, agents, successors, and assigns, shall take the following actions:
1. Immediately offer Alberto Turienzo and Jesus Martin reinstatement to their former
positions or substantially equivalent positions, without prejudice to their seniority or other
rights and privileges.
2. Pay Alberto Turienzo the remaining net backpay owed to him and other reimbursable
sums for the period of time from his unlawful discharge on July 7, 1999, until the date of a
valid offer of reinstatement, less the $22,000 paid to him on October 31, 2000.
3. Pay Jesus Martin the remaining net backpay owed to him and other reimbursable
sums for the period of time from his unlawful discharge on July 7, 1999, until the date of a
valid offer of reinstatement, less the $25,000 paid to him on October 4, 2000.
Dated, Washington, D.C., March 21, 2011.
Margaret G. Brakebusch
Administrative Law Judge