Goya Foods Inc d/b/a Goya Foods

National Labor Relations Board - Board Decisions

May 17, 2012

358 N.L.R.B. 345 (N.L.R.B. 2012)

GOYA FOODS OF FLORIDA
358 NLRB No. 43
345
Goya Foods, Inc., d/b/a Goya Foods of Florida and
Southern Regional Joint Board, Workers United
a/w SEIU. Cases 12–CA–019668, 12–CA–
019765, 12–CA–019779–1, 12–CA–019945, 12–
CA–019962, 12–CA–020041, 12–CA–020099–1,
12–CA–020127, 12–CA–020233–1, 12–CA–
020233–2, 12–CA–020256, 12–CA–020426, 12–
CA–020496, 12–CA–020542, and 12–CA–020570
May 17, 2012
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On March 21, 2011, Administrative Law Judge Marga-
ret G. Brakebusch issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, the Acting General Counsel filed an answering
brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions and to remand the proceeding to the Region-
al Director for Region 12 for further appropriate action.
The question presented in this compliance proceeding
is whether the judge correctly rejected private settlement
agreements between the Respondent and two discrimi-
natees where the settlements, in addition to other terms,
required the discriminatees to “not engage in any union
activity relating to GOYA and/or its employees.” We
affirm the judge’s rejection of these settlements.
I. BACKGROUND
As explained in the judge’s supplemental decision, in
1999, the Respondent unlawfully discharged two em-
ployees, Jesus Martin and Alberto Turienzo.2 In 2006,
the Board ordered the Respondent to offer Martin and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s supplemental decision and
the entire record, we are satisfied that the Respondent’s contentions are
without merit.
2 Goya Foods of Florida, 347 NLRB 1118, 1119, and 1134 (2006),
enfd. 525 F.3d 1117 (11th Cir. 2008).
Turienzo full reinstatement and to make them whole,
with interest, for any loss of earnings and other benefits.3
During the compliance investigation that followed the
Board’s decision, the Respondent for the first time pro-
duced private settlement agreements that had been draft-
ed by the Respondent’s counsel and signed by Martin
and Turienzo in October 2000, between the close of the
underlying merits hearing and the issuance of Adminis-
trative Law Judge Lawrence W. Cullen’s recommended
decision on the merits. The settlements provided that, in
exchange for payments ($25,000 for Martin and $22,000
for Turienzo), Martin and Turienzo waived all claims
against the Respondent, including their right to further
backpay and reinstatement pursuant to a Board order. In
addition, the settlements required Martin and Turienzo
not to apply for employment with the Respondent at any
time and to “not engage in any union activity relating to
GOYA and/or its employees.”
In response, the Acting General Counsel issued a com-
pliance specification seeking an order rejecting those
private settlements. The judge granted the Acting Gen-
eral Counsel’s request, finding, based on the multifactor
analysis articulated in Independent Stave Co., 287 NLRB
740 (1987), that the settlements were repugnant to the
policies and purposes of the Act. We affirm the judge’s
finding for the following reasons.
II. THE PROHIBITION ON UNION ACTIVITY
INVALIDATES THE SETTLEMENTS
The requirement that Martin and Turienzo refrain from
engaging in any union activity relating to the Respondent
or its employees, standing alone, warrants setting aside
the settlements. In Ishikawa Gasket America, Inc., the
Board found that the employer violated Section 8(a)(1)
of the Act by entering into a separation agreement with
an employee under which the employee agreed not to
“attempt to hire, influence, or otherwise direct any em-
ployee of the Company to leave employment of the
Company or to engage in any dispute or work disruption
with the Company, or to engage in any conduct which is
contrary to the Company’s interests in remaining union-
free.”4 The Board reasoned that the separation agree-
ment was overly broad because it forced the employee to
prospectively waive her Section 7 rights.5 As the Board
explained, “[F]uture rights of employees as well as the
rights of the public may not be traded away in this man-
ner.”6

3 Id. at 1124–1125.
4 337 NLRB 175, 175–176 (2001), enfd. 354 F.3d 534 (6th Cir.
2004).
5 Id.
6 Id. at 176 (internal quotation marks omitted) (quoting Mandel Se-
curity Bureau Inc., 202 NLRB 117, 119 (1973)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
Here, the Respondent’s settlements with Martin and
Turienzo purport to indefinitely prohibit them from en-
gaging in any union activity relating to the Respondent
or its employees.7 As in Ishikawa Gasket, we will not
approve a settlement agreement that prospectively
waives employees’ Section 7 rights in such a manner.8
That reason alone suffices for us to find the settlements
void and reject them in their entirety.9
III. THE SETTLEMENTS ALSO FAIL UNDER
INDEPENDENT STAVE
Alternatively, we reject the settlements, as the judge
did, under a traditional Independent Stave analysis. Un-
der Independent Stave, the Board assesses whether ap-
proving a non-Board settlement agreement would effec-
tuate the purposes and policies of the Act, based on con-
siderations including: (1) whether the charging party, the
respondent, and any of the individual discriminatees have
agreed to be bound, and the position taken by the Gen-
eral Counsel regarding the settlement; (2) whether the
settlement is reasonable in light of the violations alleged,
the risks inherent in litigation, and the stage of the litiga-
tion; (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 settle-
ment agreements.10
We agree with the judge that the first Independent
Stave factor (whether all parties have agreed to be bound)
militates against approving the settlements. Although the
Respondent and the discriminatees have agreed to be
bound, both the Acting General Counsel and the Charg-
ing Party oppose the settlements. In addition, we find it
appropriate to accord particular weight to the Acting

7 We reject, as did the judge, the Respondent’s claim that the parties
intended the prohibition on “union activity” to prohibit Martin and
Turienzo only from disparaging the Respondent. When construing
contracts, including settlements, the Board looks to the parties’ objec-
tive intent, as expressed in the unambiguous language of the contract.
E.g., B & K Builders, 325 NLRB 693, 694 (1998); see Halsted Com-
munications, 347 NLRB 225, 225 (2006) (construing an election stipu-
lation). The broad phrase “union activity” clearly and unambiguously
encompasses more than mere disparagement of the Respondent.
8 “The law has long been clear that all variations of the venerable
‘yellow dog contract’ are invalid as a matter of law.” Barrow Utilities
& Electric, 308 NLRB 4, 11 fn. 5 (1992).
9 In affirming the judge, Member Hayes relies solely on the unlawful
inclusion of language purporting to waive the discriminatees’ rights to
engage in future Sec. 7 activities as the basis for setting aside the pri-
vate settlement agreements. Inclusion of this unlawful language ren-
dered the settlement agreements void at their inception. See Ishikawa
Gasket America, Inc., supra. He therefore finds it unnecessary to pass
on the judge’s Independent Stave analysis or her ruling revoking the
subpoena issued to former Board Agent Ross. Consequently, Member
Hayes does not join part III of this Supplemental Decision.
10 287 NLRB 740, 743 (1987).
General Counsel’s opposition in this case both because
of the Respondent’s 11th hour revelation of the settle-
ments11 and because of the provision forbidding Martin
and Turienzo from engaging in any union activity relat-
ing to the Respondent or its employees. The latter provi-
sion directly implicates the Acting General Counsel’s
duty to protect the public interest in the enforcement of
the Act, here by ensuring employees’ free exercise of
their Section 7 rights.12
Similarly, we agree with the judge that the second In-
dependent Stave factor (the reasonableness of the settle-
ments) also weighs against accepting the settlements. As
just discussed, the “yellow dog” provision in the settle-
ments is patently unreasonable.13
Further, we find, as did the judge, that the third Inde-
pendent Stave factor (the presence of fraud, coercion, or
duress) cuts against the settlements as well. Specifically,
we adopt the judge’s finding that the Respondent induced
Martin and Turienzo to sign the settlement agreements
by falsely telling them, before Judge Cullen had issued
his merits decision, that the Charging Party had lost the
case.14

11 See Beverly California Corp., 329 NLRB 977, 986 (1999).
12 See Clark Distribution Systems, 336 NLRB 747, 750–751 (2001)
(according considerable weight to the General Counsel’s opposition
and finding that the settlements were part of a broader strategy to elim-
inate union supporters); Flint Iceland Arenas, 325 NLRB 318, 319
(1998) (finding that the need to vindicate the public interest outweighed
the private parties’ desire to settle the litigation).
13 We therefore find it unnecessary to pass on the judge’s conclusion
that the monetary amounts paid to Martin and Turienzo were unreason-
able given the stage of the litigation or the judge’s conclusion that the
settlements’ failure to address nonmonetary remedies was unreasona-
ble.
14 We affirm the judge’s ruling granting the Acting General Coun-
sel’s petition to revoke the Respondent’s subpoena to former Board
Agent Arturo Ross. Contrary to the Respondent, the facts of this case
are distinguishable from the “cumulative effect” of the rare concurrence
of factors present in Drukker Communications, Inc. v. NLRB, 700 F.2d
727, 733 (D.C. Cir. 1983). There, because the Board was party to an
election stipulation, the Board agent’s understanding of an ambiguous
term in the stipulation had “unique value.” Id. By contrast, Ross’
testimony would be relevant only to the factual question of whether the
Respondent had told Martin and Turienzo that the Charging Party had
lost the unfair labor practice case. Other witnesses were available to
testify on that question, and the judge was able to, and did, appropriate-
ly resolve the matter by making a credibility determination. Thus, there
were no unusual circumstances here requiring the judge to contravene
the Board’s “strong and long-standing policy against Board employees
appearing as witnesses in Board proceedings.” See Laidlaw Transit,
Inc., 327 NLRB 315, 316 (1998).
In any event, the judge’s ruling was at most harmless error because,
in light of the overwhelming weight of the other factors, we would set
aside the settlements even in the absence of any fraud. See Universal
Laundries & Linen Supply, 355 NLRB 88, 88 fn. 3 (2010) (judge’s
ruling excluding testimony was, at most, harmless error where it would
not affect the Board’s conclusion).
GOYA FOODS OF FLORIDA 347
Finally, we find, contrary to the judge, that the fourth
Independent Stave factor (an employer’s history of vio-
lating the Act) also favors rejecting the settlements. By
the time Martin and Turienzo executed the settlements,
the Respondent had already engaged in a laundry list of
misconduct, which the Board later found violated the Act
in 22 different respects.15 Martin and Turienzo thus
agreed to the settlements in an atmosphere of serious,
unremedied unfair labor practices. In these circumstanc-
es, we find that the Respondent’s violations weigh
against accepting the settlements.
Conclusion
The settlements produced by the Respondent are re-
pugnant to the purposes and policies of the Act. Accord-
ingly, we reject them in their entirety.
ORDER REMANDING
IT IS ORDERED that this proceeding is remanded to the
Regional Director for Region 12 for further appropriate
action.

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 Mi-
ami, 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 de-
meanor 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, Industri-
al 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 Rela-
tions Board (the Board) issued a consolidated complaint against
Goya, alleging violations of Section 8(a)(5), (3), and (1) of the
National Labor Relations Act (the Act.)

15 See Goya Foods of Florida, 347 NLRB at 1124.
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.
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 Cul-
len 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 employ-
ees were engaged in protected concerted activities under Sec-
tion 7 of the Act and recommended their immediate reinstate-
ment with full backpay. ALJ Cullen also found that Goya un-
lawfully 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)(5), (3), and (1) 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 em-
ployees about their union membership, activities, and sympa-
thies; promised to relieve employees of disagreeable assign-
ments, solicited grievances and promised to adjust grievances if
employees ceased supporting the Union; threatened employees
with elimination of jobs, subcontracting of work, underem-
ployment, 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 dis-
close 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 with-
drawing recognition from the Union as the representative of its
warehouse employees, drivers, and sales and merchandising
employees.2 As a part of its 2006 decision, the Board also

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 chang-
es in terms and conditions of employment without notice to or bargain-
ing 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
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 war-
ranted.
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 en-
forcement 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 rein-
statement. 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

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 condi-
tions 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 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 com-
pleteness.
3 Goya Foods of Florida, supra.
4 NLRB v. Goya Foods of Florida, 525 F.3d 1117 (11th Cir. 2008).
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 contra-
ry to the purposes of the Act, the manner in which the settle-
ment agreements were negotiated, and the absence of agree-
ment 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 pri-
vate 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 backpay owed to them for the entire period since July 7,
1999.
Goya does not dispute that it entered into the private settle-
ment agreements with Martin and Turienzo. It asserts, howev-
er, 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 re-
strictions 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 Un-
ion. Because the agreements are written, the terms and condi-
tions 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 agree-
ments.
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, Gen-
eral 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 Re-
instatement 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 Turi-
GOYA FOODS OF FLORIDA 349
enzo’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 Tu-
rienzo contained the same textual language; only the monetary
amounts varied. Martin received $25,000 and Turienzo re-
ceived $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, includ-
ing, 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 mon-
ey 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 disclose or discuss the terms of the agree-
ment. Martin and Turienzo signed the agreements in both Eng-
lish 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 Span-
ish. 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 Turien-
zo 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 pub-
licize 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 Flor-
ida 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 re-
placed 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 iden-
tified 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 remains in that position at this time. Both Francis-
co 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 con-
tacted him approximately 2 or 3 weeks before he actually
signed the settlement agreement. He confirmed that both Fran-
cisco 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 agree-
ment. Martin testified that when he spoke with Francisco
Unanue, Unanue said, “I’ve called you because the judge de-
clared 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 con-
firmed 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

5 His testimony reflects that while he took two sabbaticals from the
Company during the period of time between 1990 and 1999, he re-
turned to the Company to assume the position of president of Goya
Foods of Florida in August 1999.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
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 settle-
ment 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 tele-
phone 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 be-
fore 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 fol-
lowing loans: (1) $85 on November 10, 1999; (2) $300 on De-
cember 1, 1999; (3) $700 on May 26, 2000; (4) $150 on June 1,
2000; (5) $2500 on September 6, 2000; and (6) $3000 on No-
vember 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 ap-
proximately 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 Novem-
ber 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 (Turi-
enzo) 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 describ-
ing 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. Turi-
enzo 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 lan-
guage. 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 re-
ceived a check for the $22,000. Turienzo testified that at 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 pre-
cluded 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 testi-
fied that he later met with Turienzo in his office. Unanue testi-
fied 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
GOYA FOODS OF FLORIDA 351
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 dis-
cussion about any specific monetary amount to be paid to Turi-
enzo.
Robert Unanue testified that he later attended a meeting with
Turienzo, Martin, Galvez, and Bravo. Robert Unanue ex-
plained that because the employees “didn’t want to create a
ruckus,” the meeting had been held in Francisco Unanue’s of-
fice and not at the Goya facility. Robert Unanue recalled that
during this meeting, there were discussions about the employ-
ees’ 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 approxi-
mate 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, how-
ever, 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.
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

6 Although Bravo had not lost his job with Goya, there was discus-
sion about his receiving some money and then leaving the Company.
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 em-
ployees, he met again with Martin and Turienzo and an agree-
ment 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 Fran-
cisco 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 inter-
pret or explain the settlement documents to the employees dur-
ing any of his meetings with the employees. He asserted, how-
ever, 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 re-
sponded, “Yes.”
Robert Unanue asserted that Goya did not disclose the con-
tents 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 agree-
ments 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 con-
fidential. 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 con-
firmed that he attended only one meeting with Francisco and
Robert Unanue. He denied that he attended any meetings with
Goya and the other employees.
II. CONCLUSIONS
Goya asserts that the Board should give effect to the settle-
ment agreements between Goya and Turienzo and Martin
whereas the Acting General Counsel maintains that the settle-
ment agreements should be rejected. Both Goya and the Acting
General Counsel cite the Board’s decision in Independent Stave
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
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 pri-
vate “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 an-
ticipate each and every factor which would have relevance to a
review of non-Board settlements and thus did not find it neces-
sary to provide an exhaustive list of all the factors that may be
relevant in individual cases. In the alternative, the Board ex-
plained that it would examine all the surrounding circumstanc-
es. Such analysis would include, but not be limited to (1)
whether the charging party or parties, the respondent(s), and
any of the individual discriminatee(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 litiga-
tion, 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 set-
tlement 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
discriminatees 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 reconsid-
eration and motion to reopen the hearing with the Board. In its
motion, Goya identified a number of changes in Goya’s man-
agement personnel, operations, and employee earnings that
occurred after the close of the 2000 hearing. In describing the
changed circumstances and in asserting that the Board’s or-
dered 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 rein-
statement and backpay. Counsel for the Acting General Coun-
sel asserts that Goya had not raised the existence of the settle-
ment 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 Charg-
ing Party Union were not parties to the settlement. Additional-
ly, 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 Turi-
enzo 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 argu-
ment without merit.
The Board has long held that the opposition of the General
Counsel and the charging party is a significant factor to be con-
sidered 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 circum-
stances 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 mark-
edly 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 Inde-
pendent Stave were reached only 10 days after the issuance of
the complaint. The Board noted that inasmuch as the settle-
ment agreements provided for immediate employment, retroac-
tive 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 opposi-
tion 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

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 confi-
dentiality 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 Coun-
sel 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.
GOYA FOODS OF FLORIDA 353
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 vol-
untarily 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 waiv-
ing and releasing claims against the respondent. Furthermore,
at the time that the agreements were signed, no charges had
been filed and the prospect of litigation was not obvious. Fur-
thermore, the record did not reflect that all of the alleged dis-
criminatees had engaged in protected activity or that the re-
spondent was aware of it. Many of the 27 alleged discrimi-
natees who were presented at the hearing were not openly sup-
portive 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 in-
herent 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)(5), (3), and (1) of the Act. The Act-
ing General Counsel further argues that since the execution of
the settlement agreements and the Board’s decision in the in-
stant case, the Board has issued three additional decisions, find-
ing that Goya violated the Act. Interestingly, in a 2007 deci-
sion, 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 cir-
cumstances 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 agree-
ments 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 liti-
gating the case before the ALJ. The strength of the General
Counsel’s case had already been disclosed and the risks of liti-
gation were much lower than in cases where the settlement was
reached prior to litigation or in the very early stages of litiga-
tion.
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 viola-
tions. 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 circum-
stances 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 is-
sue’s merits. Unlike the instant case, the settlement in Ameri-
can 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 cal-
culated backpay, the record reflected that there were discus-
sions 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 spe-
cific 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 mone-
tary 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;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
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 bene-
fits they may have suffered as a result of Respondent’s unilat-
eral actions in assigning routes to drivers and stores to salesmen
since dates in 1998, and as a result of the disproportionate in-
crease in the number of temporary employees regularly em-
ployed as drivers; the making whole of Respondent’s employ-
ees 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; recogni-
tion of and bargaining with the Union; the rescission of unilat-
eral 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 violate 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)(5) and (3) of the Act
as described above, the Board also found that Goya’s supervi-
sors and agents violated Section 8(a)(1) of the Act by engaging
in 12 separate types of conduct that violated employees’ Sec-
tion 7 rights and included various unlawful statements, promis-
es, 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 require-
ment that respondents post a notice “informing employees of
their rights under the Act, the violations found by the Board,
the 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 prac-
tices since the earlier cases under the Act.” J. Picini Flooring,
356 NLRB 11, 12 (2010). The Board further noted that remedi-
al notices serve a number of important functions in advancing
the Board’s mission of enforcing employee rights and prevent-
ing 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
future violations will not occur.
Thus, the executed settlement agreements were totally unrea-
sonable 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 separat-
ed 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 Inde-
pendent Stave factor.
While there does not appear to be evidence of coercion or
duress, there is credible evidence of Goya’s deception and in-
tentional misrepresentation to Martin and Turienzo. Both Mar-
tin and Turienzo credibly testified that at the time the agree-
ments 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 wit-
nesses 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 mir-
rored the testimony of the other. In contrast, the testimony of
Martin and Turienzo was not polished and was much less spe-
cific. 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. De-
spite these interruptions and the awkwardness of the question
and answer process, Martin and Turienzo nevertheless present-
ed 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 and Turienzo recalled that
Francisco Unanue did most of the talking concerning the set-
tlement 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 agree-
ment, 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
GOYA FOODS OF FLORIDA 355
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 settle-
ment 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 certain-
ly 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 affirm-
ing 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 mis-
represented 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.
Francisco Unanue and Robert Unanue assert that the settle-
ment agreements were ultimately perfected after a number of
meetings and telephone conversations with Martin and Turien-
zo. 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 pro-
posing terms and conditions so aligned with Goya’s interest?
Goya would assert that this alleged initiative was taken by

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.
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 employ-
ment experience, the discriminatees participated in negotiating
a settlement on equal terms with two accomplished business-
men 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 discrimi-
natees 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 attor-
ney and others, no settlement was reached. Thus, it is incredi-
ble that these two discriminatees negotiated a settlement on
their own with Goya and independently proposed such settle-
ment 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 pres-
ident of Goya Foods of Florida, Robert Unanue was responsible
for running the facility. He testified that one of his responsi-
bilities during the period of time between June and October
2000 was “saving the facility from the onslaught of a very pub-
lic 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’ in-
terest in the outcome of a proceeding in assessing the witness’
credibility. Goya further asserts that I must consider that Turi-
enzo and Martin stand to gain considerably if the settlements
are not given effect by the Board as each would receive addi-
tional backpay and each would have to be offered reinstate-
ment. 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 re-
maining 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 pro-
ceeding. 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 testi-
mony to be more credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
Perhaps because Martin and Turienzo testified through an in-
terpreter, 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 contradic-
tions 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 testimo-
ny 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 physi-
cian 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.
Federal Rules of Evidence 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 intelli-
gence 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 com-
petent 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 be-
fore testifying, it is the duty of the court to make such examina-
tion 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 founda-
tional 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 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 inde-
pendent medical examination. U.S. v. Lightly, 677 F.2d 1027,
1028 (4th Cir. 1982).
Accordingly, based upon the credible testimony of both Tu-
rienzo 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.
4. 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 re-
pugnant 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 disparag-
ing Goya. Robert Unanue testified that the wording dealing
with union activity represented the “spirit” of Goya’s agree-
ment with Turienzo and Martin and he contended that the intent
of the language was to prohibit disparaging Goya. Both Fran-
cisco and Robert Unanue contended that the language was in-
cluded 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
GOYA FOODS OF FLORIDA 357
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 con-
tracting 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 there
were a number of meetings that occurred in which Turienzo,
Martin, and Bravo met and discussed the terms of the agree-
ments. 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 repre-
sents 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 pre-
pare the settlement agreement that he signed and he did not
suggest the language that was included in the document. Turi-
enzo 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, Rob-
ert 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 testimo-
ny, 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 Turien-
zo 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.

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).
Goya argues that Martin and Turienzo voluntarily and know-
ingly 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 prohibi-
tion 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 statuto-
ry rights of employees and that such waivers will be given ef-
fect. In support of that argument, Goya cites the Board’s deci-
sion 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 951
(2010), in which the Board denied an employer’s request for
review of a Regional Director’s decision and direction of elec-
tion 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 these two cases involv-
ing 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 under-
stood 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 discrimi-
natees 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, how-
ever, specifically prohibit all union activity and makes no refer-
ence 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).
5. 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
heavily toward the rejection of these private settlement agree-
ments.
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 pur-
poses 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 CFR § 102.66(c) of the Board’s Rules and
Regulations, Series 8, as amended, Ross filed a petition to re-
voke Goya’s subpoena. On December 21, 2010, counsel for the
Acting General Counsel filed a petition to revoke Ross’ sub-
poena pursuant to Section 102.118(a)(1) of the Board’s Rules
and Regulations.
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, ad-
ministrative 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 du-
ces 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 administra-
tive agency of the United States, or of any State, territory, or
the District of Columbia, or any subdivisions thereof, with re-
spect to any information, facts, or other matter coming to that
person’s knowledge in his or her official capacity or with re-
spect to the contents of any files, documents, reports, memo-
randa, 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 supervi-

12 Arturo Ross’ Petition to Revoke filed on December 22, 2010.
sion 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 supervi-
sion or control of the General Counsel or was subject to such
supervision or control when formerly employed at the Agen-
cy. 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 pro-
ceeding, 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 pur-
pose of which is to adduce testimony or require the produc-
tion 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’ tes-
timony. 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 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 discrim-
inatees. 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 discrim-
inatees 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 Coun-
sel 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 Rich-
ard A. Siegel explained that absent a showing of most unusual
circumstances, it is the policy of the Office of the General
GOYA FOODS OF FLORIDA 359
Counsel not to permit current or former Board agents to testify
as witnesses with respect to the processing of unfair labor prac-
tice 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 prac-
tice trial.
With respect to the settlement discussions occurring during
the trial, Associate General Counsel Siegel explained that wit-
nesses 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’ tes-
timony, 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 Coun-
sel’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 opportuni-
ty 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 Gen-
eral Counsel concluded her case, Goya requested that I recon-
sider my ruling on the grounds previously argued and also as-
serted 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 argu-
ment, Goya cites the decision of the Eighth Circuit Court of
Appeals in Stephens Produce Co. 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 testi-
mony is not always necessarily sufficient to bring the privilege
into effect. The court further noted, however, that the respond-
ent was given all of the witness statements pursuant to the
“Jencks rule” 29 CFR § 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 re-
spondent’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
takes something more than the mere hope or surmise that im-
peaching 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 em-
ployer ultimately challenged the representative status of the
union and asserted that the certification was invalid. The em-
ployer 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 stipula-
tion was signed. The administrative law judge denied the em-
ployer’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 deci-
sion, 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 chal-
lenged 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 partici-
pated in the process by assisting the parties to arrive at the stip-
ulation. The court viewed his participation as a means to en-
sure that the stipulation, properly understood, was worthy of the
Board’s approval, in order that he could recommend the stipu-
lation. 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 certi-
fication 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
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
case or mentioned that Goya had told him anything regarding
the case. Goya also asserts that Ross would testify that Turien-
zo asked him how he felt about the chances of success in the
case. Goya asserts that Ross’ testimony would discredit Turi-
enzo’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 confidenti-
ality 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 discus-
sions, 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 dis-
closure of the terms or circumstances. Keeping with that provi-
sion, he would not have been allowed to disclose to Ross any
details of the settlement agreement or the discussions surround-
ing 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 Turi-
enzo 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 signifi-
cant 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 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 493, 495 (1991), the Board reversed the judge’s ruling
with respect to a subpoena that was served by both the respond-
ent 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 bal-
ance, 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 Fran-
cisco and Robert Unanue did not make statements attributed to
them by Turienzo. Because Ross was not a party to the settle-
ment and did not participate in any of the settlement discus-
sions, such a premise can be nothing more than mere specula-
tion 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 ar-
gument is based upon the hypothesis that if Board Attorney
Ross knew that Goya entered into a private settlement agree-
ment 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 violat-
ed 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 un-
lawful 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 rele-
vant.
Having heard the testimony in its entirety, I do not find unu-
sual circumstances that warrant the testimony of Ross.
GOYA FOODS OF FLORIDA 361
Therefore, on these findings of fact and conclusions of law
and on the entire record, I issue the following recommended13
ORDER
IT IS HEREBY ORDERED that Goya Foods Inc., d/b/a Goya
Foods of Florida, Miami, Florida, its officers, agents, succes-
sors, and assigns, shall take the following actions
1. Immediately offer Alberto Turienzo and Jesus Martin re-
instatement to their former positions or substantially equivalent

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
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.