McTague Enterprises

National Labor Relations Board - Administrative Judge Opinions

Apr 18, 2005

20-CA-032044 (N.L.R.B. Apr. 18, 2005)

JD(SF)–33–05
Eureka, Calif.

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BRANCH OFFICE
SAN FRANCISCO, CALIFORNIA

KATHLEEN AND TIMOTHY McTAGUE d/b/a
McTAGUE ENTERPRISES

and

GENERAL TEAMSTERS, PROFESSIONAL HEALTH
CARE AND PUBLIC EMPLOYEES, LOCAL NO. 137,
AFL–CIO

Cases 20–CA–32044

20–RC–17971

Micah Berul, San Francisco, California, for the General
Counsel.
Patrick W. Jordan (with Nanette Joslyn on brief), San
Rafael, California, for Respondent.

DECISION

Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge: This case was tried in Eureka,
California on December 14-16, 2004 1 and January 13, 2005 based upon a complaint issued
October 28 by the Regional Director for Region 20. The original unfair labor practice charge
was filed by General Teamsters, Professional Health Care and Public Employees, Local No.
137, AFL–CIO (the Union), on August 23 and twice amended thereafter. The complaint alleges
that Kathleen and Timothy McTague d/b/a McTague Enterprises (collectively called
Respondent) violated §8(a)(1) and (3) of the National Labor Relations Act. Consolidated with
the complaint is a Report on Challenged Ballot arising from a representation election conducted
in Case 20–RC–17971 by the Regional Director on August 26 pursuant to a stipulated election
agreement.
Issues
The principal issues are whether Respondent on July 26 discharged its employee
Amanda English because she was believed to have been a Union activist and whether it also
engaged in certain conduct which interfered with, coerced and restrained employees in the
exercise of the rights guaranteed employees by §7 of the Act. Connected to English’s
discharge is the question of whether her ballot, challenged at the election, should be counted.
The election resulted in a tie vote, four in favor of representation by the Union and four against,
with English’s ballot remaining uncounted. The challenge to that ballot will be resolved herein.
1 All dates are 2004 unless stated otherwise.

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The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to orally argue and to file briefs. The General Counsel,
the Charging Party and Respondent have all filed briefs which have been carefully considered.
Based upon the entire record of the case, as well as my observation of the witnesses and their
demeanor, I make the following:
Findings of Fact
I. Jurisdiction
According to the pleadings, Respondents Timothy (‘Tim’) and Kathleen (‘Kathy’)
McTague operate a proprietorship with an office and place of business in Eureka, California,
where they are in the business of airfreight delivery. They admit that during the 12-month
period ending June 30, 2004, in the course and conduct of their business they have provided
services valued in excess of $50,000 to DHL/Airborne Express, which meets a Board standard
for the assertion of jurisdiction on a direct basis. Accordingly, they admit they are an employer
engaged in commerce within the meaning of §2(2), (6) and (7) of the Act. They further admit
that the Union is a labor organization within the meaning of §2(5) of the Act.
II. The Alleged Unfair Labor Practices
Background
Tim and Kathy McTague are husband and wife. Since 1994, they have operated a
delivery business known as McTague Enterprises in Eureka. Initially, the business consisted
solely of serving as a delivery contractor for the United States Postal Service. That side of the
business still exists, but is separate from the air express delivery business into which they
entered in July 2003.
Airborne Express had previously served its customers in the northwestern-most counties
of California using an independent cartage contractor in Eureka known as Bigfoot
Transportation. Dissatisfied with its performance, Airborne Express sought a replacement.
Timothy McTague learned of the opportunity and in July 2003 obtained the contract to take over
the Bigfoot territory. In general, that territory encompasses Del Norte, Humboldt, and Siskiyou
counties and perhaps adjoining portions of adjacent counties such as Trinity and Mendocino.
The principal cities and towns in that territory include Eureka and neighboring Arcata, Crescent
City to the north and Garberville to the south. It also includes the Hoopa Valley Indian
Reservation to the northeast. Aside from towns on main roads, much of the territory is National
Forest, lightly populated and difficult to reach. Indeed, one route, that covering the communities
of Blue Lake, Willow Creek and Hoopa is served only once a week.
Packages to be delivered in Respondent’s territory arrive by air from Sacramento each
morning at the Arcata Airport (actually located in McKinleyville). The cartage company meets
the plane, transfers the packages into a box truck, and then brings them to the Eureka office
where the load is divided for delivery among approximately eight routes. The plane stays at the
Arcata Airport until 4:50 p.m., awaiting outbound packages which the drivers have picked up
during the day.
Airborne Express maintained a regional office and dispatch center in Redding where it
directed the delivery operations of the Eureka contractor as well as the operations of four other
contractors located in the Northern California cities of Redding, Chico and Ukiah. That office
was under the direction of David Parrish. Parrish was assisted by an office staff which included
Kimberly (Kim) Conley, a dispatcher, and at least one other assistant. Parrish managed the
contracts on behalf of Airborne Express and Conley tracked the deliveries. She also served as
a resource to assist drivers with difficult deliveries and customer locations.

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Sometime in mid-2003, Airborne Express merged with DHL and was absorbed into the
DHL system. The branding transfer took place about Labor Day of that year, only 5 weeks after
Kathleen McTague signed the cartage agreement with Airborne Express on July 24, 2003 and
4 weeks after the agreement’s effective date of August 3, 2003. Eventually, the McTagues
signed a new agreement with DHL in April 2004. The changeover from Airborne Express to
DHL did not affect the manner in which Parrish managed the five independent contractors,
including Respondent, from Redding. Nonetheless, there were some managerial changes,
although for the purposes of this case they are not particularly significant. DHL did offer
customers some express service options requiring either 10:30 a.m. or noon deliveries in certain
portions of Eureka and Arcata.
Startup capitalization for the McTagues as they took on the Airborne Express contract
involved the investment of roughly $50,000. They bought a box truck for the airport, leased six
delivery vans, and acquired office space/sorting facility/vehicle storage area; they also
purchased insurance, hand trucks for the vans and pagers for the drivers. Timothy McTague
borrowed most of the money from other family members as an advance against an inheritance
from his recently deceased mother. He serves as the operations head of the business,
responsible for the deliveries and direct supervision of the drivers. He also assists with the
10:30 a.m. express deliveries. Kathleen McTague, who has an office manager and accounting
background, performs much of the office work including certain clerical duties. Each has also
driven the routes on occasion. Both have been trained by Parrish in the operation of the
business and serve, in turn, as trainers for their drivers. The training includes the proper use of
the electronic scanner carried by all delivery personnel. Indeed, Parrish, Conley and another
Airborne employee, Darlene Palin, all came from Redding to Eureka in the summer of 2003 to
train Respondent’s entire staff. This training period lasted nearly 3 weeks. One of the drivers
who was trained during this time frame was Amanda English. The training covered a variety of
subjects, including scanner operation, proper coding, the use of attempt slips, downloading
scanner information, C. O. D. payments, manifest procedures and proper truck loading. In
addition, drivers were taught how to handle difficult addresses. The tools in those
circumstances included determining whether the package had a recipient telephone number
and calling it, calling the shipper, and calling telephone information services (dialing 411).
However, the most reliable source of information was Kim Conley in Redding. The drivers were
taught to call her directly to advise of the problem; she had access to computerized map
programs, including the familiar MapQuest and the lesser-known DeLorme Atlas. Examples of
the DeLorme Atlas's capabilities are seen in the record, in printout form, as R.Exhs. 19 and 20.2
Union Organizing and Demand for Recognition
Sometime in April 2004 some of the drivers began discussing the possibility of forming a
union. The meetings were held in Eureka at a doughnut shop (where driver Sophal “Paul or
Pahl” Ith worked at a second job), a local bowling alley and, when Teamster organizer/business
agent Gerry Flanigan met with them, the local Red Lion Hotel. During the course of these
meetings most of Respondent' s employees signed Teamster authorization cards. Amanda
English was one of these individuals. English signed her card on June 19, but it does not
appear that she was one of the principal employee organizers. Flanigan urged the employees
to keep their union activity off the clock and away from the facility. There is no evidence that
either of the McTagues were aware of the organizing until the election petition was faxed to
them.

2 These exhibits have been reduced in size for ease of transmittal with the record. The
originals consisted of pieced-together 8x11½ sheets.

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The Union actually filed its election petition on July 16. The evidence shows that the
Board’s San Francisco Regional Office did not serve a copy of the petition until July 20, when it
was faxed to Respondent together with a notice of representation hearing. The petition
contained an incorrect street address for Respondent; as did the Union’s letter of July 14, in
which it demanded recognition. Respondent never received the letter, although the petition, in
box 7, asserts it had been sent. 3 Because neither of the McTagues had seen the letter, the
assertion triggered both Kathy and Tim's curiosity.
Alleged Interference with Section 7 Rights
Neither Tim nor Kathy was familiar with union organizing rules and they readily admit
that on the day they received the petition, as well as the following day, they asked most of the
employees, either as they were returning from their routes that afternoon or when they left the
next morning, whether the Union had contacted them. To a man, they either denied any contact
or did not answer. All of them confirm that thereafter neither Kathy nor Tim asked them again.
The only individual who was not asked was English who was not present on the afternoon of the
20th. 4
When Kathy spoke to the Board Agent to provide the names of the employees, she
asked him if a union could proceed with a petition if it had never contacted the employees. The
Board Agent assured Kathy that could not happen. When the Board Agent informed her that
the employee names she had just provided him matched the names the Union had submitted to
the Board, Kathy realized the organizing was not phony, even though the employees’ answers
and the Union’s unaccounted for July 14 demand seemed to so suggest. At approximately the
same time, Tim contacted Parrish in Redding who advised him to obtain the services of a labor
lawyer. On July 22, Kathy retained attorney Patrick Jordan who immediately gave them counsel
regarding what an employer should and should not do when faced with an organizing drive.
The employees' recollections are somewhat varied regarding these July 20-21
questions. Some could not place the day with great specificity, even suggesting that the
questions occurred earlier in July than they could have. 5 Three employees, Ith, Hauan and Nez
gave testimony about the questioning which also suggested that Kathy harbored some
suspicion that English was the employee responsible for the organizing. This will be dealt with
below.
In addition, employees Hoyt, Bryant and Ith gave some testimony to the effect that Tim
told them that he feared unionization would cause him to lose the DHL contract and his
investment which had come from the inheritance. Tim denied that he made such a reference.
Frankly, the three employees’ mutual corroboration here cannot be ignored. Based on
demeanor, I actually have some difficulty with those three, but they do seem somewhat more
likely than Tim's denial. Both McTagues had openly mentioned the source of their investment to
the employees. Tim had acquired it through an inheritance which was quite painful to him —
the death of his mother shortly before obtaining the Airborne express contract; in fact, he had
borrowed his share from his siblings so he could make the investment. That he would connect

3 Respondent's correct address is 820-A West Del Norte Street in Eureka. The petition
incorrectly listed the address as 120-A West Del Norte. The confusion continued through the
date of the election in August as the Board Agent conducting the election initially went to the
wrong address.
4 English had come back early at 2:43 p.m. that afternoon and likely had left by the time
Kathy began to ask.
5 For example, employee Andy Hauan placed the questioning as early as June, a virtual
impossibility.

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unionization with such a loss seems entirely reasonable to me. Accordingly, I find that Tim
connected unionization with the possibility that it could result in loss of the business through loss
of the DHL contract.
Respondent, a few weeks before the election, had hired a so-called "professional
persuader," John Cevallos. The complaint alleges that Cevallos unlawfully interrogated two
employees in early and mid-August concerning their union activities and promised them a wage
increase.
Cevallos gave some pertinent testimony which is uncontradicted. First, when he
conducted his meetings, he told the employees that they were free not to participate in the
meetings if they didn’t want to. 6 Second, he issued a guidebook regarding the National Labor
Relations Act, and described their §7 rights to them, observing that it was illegal for an employer
to make threats, promises or interrogate them with respect to affecting their union activities. He
testified further that his procedure was to become friendly to the employees, get to know them
and, hopefully, to acquire their trust. He then would try to persuade them that union
representation was not in their best interest.
Two employees gave testimony which the General Counsel asserts supports the
complaint allegations involving Cevallos. First, Pahl Ith testified that Cevallos went on two ride-
alongs with him, and then testified about what Cevallos had said:
A Basically [Cevallos] said that ‘They’re taking money out of your pocket, the Union is taking
money out of your pockets,’ and it’s basically what he said all day. I didn’t say nothing.
Q Did the subject of wages, your wages come up?
A He asked me how much I was making. I told him I make $8.25, and he said, ‘Oh, I’ll make
it … I’ll work it out for you to make $9.00 or maybe $10.00,’ and I didn’t say nothing.
Cevallos denied making the statements Ith described. His testimony was that during the
first ride-along with Ith, the two did not discuss the Union at all. 7 Furthermore, he said, it was
Ith who asked him to go on the second ride-along. He says Ith asked him about his (Ith's) future
with the company and wanted some feedback concerning his performance and whether his
route would change. Cevallos says he replied that he could make no promises and that such
matters were decisions only the McTagues could make. He denied Ith’s testimony concerning
wages:
Q (By MR. JORDAN) At any time during the course of the ride-along did you make comments
to Mr. Ith that all the union does is take your money?
A No, I did not make that comment.
6 Cevallos described this option as a Johnnies Poultry warning. Literally, of course,
Johnnie's Poultry Co., 146 NLRB 770 (1964), does not apply since the case concerns the
obligation of attorneys who are preparing to defend a Board proceeding to give specific
warnings and assurances to employees as they investigate the pertinent knowledge of those
witnesses. Cevallos was simply serving as an employer campaigner prior to a representation
election. The Johnnies Poultry procedures were not required. Nonetheless, it would appear
that Cevallos, in providing those options and offering his assurances, was being careful to avoid
interfering with or restraining the employees with respect to their §7 rights. He was certainly
familiar with those rights, having formerly served as a union organizer.
7 About the first ride-along, Cevallos said: “Just that [Ith] worked at a doughnut shop and
how he was very happy working for DHL and the McTagues, he appreciated the training that
was given to him. And that at that time he felt that he finally got enough training so he could do
his job less stressful.” They also spoke about Ith’s background as a Cambodian immigrant.
They had lunch at Ith’s sister’s restaurant.

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Q Did you inquire of him as to the amount of his wages?
A No, but he did make a comment that he is making the most money that he’s ever made,
ever in a job.
Q Did he tell you what that hourly rate was?
A No, he did not tell me.
Q Did you inquire?
A No, I did not.
Q Was there a reason why you didn’t?
A There was no particular reason. I didn’t want to make Mr. Ith uncomfortable.
Q Anytime during the course of that ride-along did you make any statements to him about
getting him a $9.00 or $10.00 hourly rate?
A No, I did not.
Q In fact, at anytime did you discuss, in any context with Mr. Ith, during this ride-along, $9.00
or $10.00 wage rates?
A No, never.
The second employee relied upon by the General Counsel is Dwayne Nez. According to
Nez, during Cevallos’s first visit, in the first week of August, they went on a ride-along. During
that ride, Nez asserts that Cevallos asked whether Amanda English or Kevin Hoyt had been the
employee who started the Union. Nez also gave testimony that on August 19, at the end of the
day Nez invited Cevallos to join him for some beers at the Harbor Lanes Bowling Alley. They
met at the bowling alley and had several beers. Nez then describes a conversation having
rather astonishing features. He agrees with Cevallos that for a while, they had unrelated
conversations including covering Nez's work history, his experience in the military, and his
background as a Native American. Nez also asserts that Cevallos wanted to know whether, as
a team leader, 8 Nez could get the other drivers to vote 'no' in the upcoming NLRB election. He
says Cevallos told him that Respondent would give him a wage increase, but he would have to
wait until after the election so that it did not look like a bribe.
Nez, astonishingly, claims Cevallos then asked him how he could get hold of some
marijuana. Nez says one of the bartenders, who had overheard, suggested they go to a nearby
bar called 'Brogi’s' where they might be able to acquire some. Cevallos credibly denies such a
thing. They drove the few blocks to Brogi's where they had another round of drinks. During
their tenure at both Harbor Lanes and Brogi's, Nez says Cevallos bought all the drinks because
it was "on the McTagues." Nez testified that Cevallos again asked him whether English or Hoyt
were the individuals who had started the Union. According to Nez, Cevallos repeated his wage
increase offer in exchange for Nez’s opposition to the Union. At this point, the two departed.
There are conflicting stories regarding how the evening came to an end, but those versions are
of no interest here.
What is of interest is what happened to Nez on his way home. Nez was speeding and
his driving attracted the attention of the local police. He was stopped and the police determined
he had been drinking. He failed a breathalyzer test and was taken into custody. During the
course of the arrest, the police also learned that Nez was driving with an expired drivers license.
The following day he was given a temporary permit to drive to and from work, but for no other
purpose. He later attempted to persuade Kathy that the temporary license permitted him to
drive the vans for work, but she knew otherwise; she also had insurance concerns. As a result,
8 This is the only reference to an employee being a ‘team leader’ in the record; Nez never
said the McTagues had given him such a designation, nor is there evidence that Respondent
used a ‘team leader’ model. Use of the phrase seems out of place.

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she discharged him because he could not perform his driving duties without a valid drivers
license. At the time of his testimony in December he still had not been permitted a new one.
He did not become eligible for a drivers license until January 5, 2005.

Inexplicably, Nez blames the McTagues for his entire experience of August 19-20, as
well as for discharging him. As he testified it became apparent to me that he continued to
believe Kathy should have honored the temporary license, even though intellectually he knows
she could not have done so. His bias toward the McTagues is very strong. Indeed, his attitude
toward them is vindictive. Frankly, his testimony cannot be trusted in any way. He is willing to
get even with Respondent in any way he can. Furthermore, he believes that unionization is
something the McTagues do not want and further believes that assisting with that effort will help
him get even. That attitude easily explains his smear of Cevallos regarding the attempt to
acquire marijuana as well as the somewhat improbable inquiries Cevallos is supposed to have
made about the identity of the employees who started the Union drive. It also explains his claim
that Cevallos offered him a wage increase if he would lead the employees away from the Union.
The inquiry about the identity of the union leaders is suspect on its face. Assuming that the
McTagues had come to believe that English was behind the movement, why would Cevallos
continue the probe immediately after having told all the employees that such interrogations and
bribes were illegal? Furthermore, by August 19, the identity of the leaders was no longer
important, for the election had been set. Nez's testimony must be rejected in its entirety. It is
simply based upon his bitterness, a feeling which is entirely unjustified, given his refusal to
accept that the responsibility for his discharge rests with himself.
Similarly, Ith’s testimony leaves much to be desired. He describes the ride-along
conversation with Cevallos as including a frequently used argument used against unionization
— that union dues are an expense which is unaffordable and therefore undesirable. Assuming
that Cevallos was making that pitch, his denial notwithstanding, Ith's next description of the
conversation is that Cevallos then implicitly promised a wage increase: “I’ll work it out for you to
make $9.00 or maybe $10.00.” That is essentially a non sequitur. Furthermore, it is
inconsistent with what Cevallos had just said he could not do -- promise wage increases.
Moreover, a wage increase would make it easier for Ith to pay those same union dues, an ability
which would defeat the “dues are too burdensome” argument. It simply makes no sense for
Cevallos to behave in the inconsistent manner Ith described. It would have undermined the
trust he was trying to build. Moreover, Cevallos had no such authority; that power rested solely
with the McTagues. Ith’s testimony is entirely improbable and is therefore rejected.
The Discharge of Amanda English
Amanda English was hired on August 1, 2003 when Respondent succeeded to the
Airborne Express cartage contract for the Eureka area. Like all of the original staff, she was
trained in the delivery procedures, specifically with respect to using the scanner. She knew that
the primary purpose of her employment, the same primary purpose Respondent had, was to
deliver packages to the intended recipient. Early in her tenure, Kathy sought to utilize English
as an adjunct office worker. Occasionally she performed office work and was the only
employee who had a password to Respondent's computer system. Nevertheless, her primary
duties were to deliver packages. To that end, Respondent assigned her the Arcata delivery
route. That route was English's primary duty between her hire in August 2003 and May 2004
when she began taking chances with her job through a risky series of absences, accompanied
by some peculiar behavior. The behavior began to manifest itself shortly after Respondent
issued an employee manual in late April. English acknowledges receiving it, but is uncertain
about the date. Fellow driver Andy Hauan received his on April 23. It is reasonable to conclude
that English received her manual at the same time.

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Kathy McTague describes what happened:
I gave out the employee manual on a Friday, [English] came to work the next week, worked
three days, she was off for a week and a half, she just called in and said she was, her
medication 9 was off and she needed to take some time off. I said okay. And she said she’d
probably be in on Monday. She called on Monday and said she needed another week, they put
her on a different medicine, and it was going to take a week for it to get stabilized. I said, okay.
She came in on Monday, May 10th, and when she got back from her route that day she asked if
she could go to her mom’s for lunch on Mondays, because she had more time, and I said no.
Q (By Mr. JORDAN) Did she make any comments about the handbook or its purposes in one
of these --
A Not then.
Q All right. When did she?
A She called me, she worked three days that week, she called me approximately 7:30 in the
morning at home on the 13th, and told me that everything in the employee manual was directed
towards her, that she wasn’t doing a good job, that she could not handle the stress, and she
needed a couple days off, and basically wanted to make sure that they were excused because
the employee handbook refers to non-excused absences. And I said she could have a couple
days off. And she said she’d be to work on Monday.
Q Did she subsequently take a leave of absence, lengthy leave of absence?
A She didn’t return until June 15th.
About the same time English began exhibiting some unsettling behavior. Among other
things, she reported that employees, including Tim, were engaging in sexual harassment, that
Tim was having people spy on her, including area gardeners and her own customers. Kathy
testified Tim took some corrective steps with the other drivers. Since English had asserted that
one of the bases of the sexual harassment was employees being overly inquisitive about a
break-up with her boyfriend (a fellow driver, not identified in the record), Tim admonished all the
drivers to lay off such issues with her because she was too sensitive to handle it. Kathy knew
English’s harassment accusation against Tim was groundless, and said so; simultaneously, Tim
apologized for any offense he might have inadvertently caused her. Kathy also assured English
that nobody was spying on her, nor did they have a reason to do so. Despite those steps,
English begged off work for almost 5 weeks. Kathy was more sympathetic to English's
emotional state then Tim, but both recognized that her prolonged absence was creating a
hardship.
When, on June 15, English returned to work, Kathy and Tim asked her to meet with
them to discuss some changes. During her absence, Respondent had hired and trained
another individual to handle the Arcata route. As a result, they told English she was being
assigned to the backup Crescent City route as well as the Willow Creek route -- a route which
was run only once a week on Wednesdays. Although Respondent referred to her Crescent City
route as a "backup," that terminology is somewhat confusing. In fact it is a daily route run a few
hours behind the early morning Crescent City driver. The backup driver's duty is to haul
packages which have arrived in Eureka by plane after the first driver's departure. The two
drivers meet and split up the new load for delivery in that area. Therefore, the backup route
may more properly be described as a supplemental or second run.
9 The medication was treatment for a type of depression. English appears to have
connected the condition to stress from her job.

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English agreed to become the backup driver, saying that she did not want to face her
Arcata customers. Both McTagues told her they were concerned about her performance,
principally absenteeism, but were also concerned about her claim that the job was causing her
undue stress. The McTagues said they were going to give her another chance. All agree that
prior to her early May behavior, English had performed her job well.
Kathy rode with English to show her the Willow Creek run. As noted earlier, this route
covers some mountainous territory, including several paved roads of lesser quality,
necessitating slow-going, i.e., one-lane, pot-holed, narrow or winding. Not all of the addresses
are well marked and in combination with road conditions can interfere with timely deliveries.
Kathy emphasized that English needed to know where she was going before she left the shop
and that the customers required telephone calls to make certain the customer would be at
home. In the Hoopa region Kathy introduced her to some women who could guide her to the
proper addresses. Elsewhere, Kathy pointed out other places where directions could be
obtained and from which telephone calls could be made.
Between June 15 and Kathy's 10-day absence beginning July 6, English seemed to
perform both the Willow Creek and Crescent City backup routes in an adequate manner. On
July 6, Kathy accompanied her 12-year-old son to a leadership conference in Washington, D.C.
Almost immediately, Tim began to experience difficulties with English.
According to Tim, within a day of Kathy's departure, English began asking him to
reassign her to the Arcata route. She made that request frequently during those 10 days. She,
reluctantly, admitted to asking him twice. Tim testified he responded, “‘Amanda, if you can’t do
the easy route, how are you going to do a harder route?’ And she would say, ‘I did a good job
when I was on Arcata, I did a good job when I was on Arcata.’ I’d say, ‘Well, we need you to do
a good job on this route.’”
As Tim continued to decline her request, her performance simultaneously deteriorated.
He testified that she began returning large numbers of undelivered packages. He found her
placing packages in the delivery pile of another driver, Ernie Rocha, and also discovered that
she was sending packages back to Redding 10 after making only one delivery attempt without
calling the recipient's telephone number, checking with him at the office or calling the Redding
dispatch center. About this time, Kim Conley in Redding noticed English was no longer using
her cell phone to contact her. 11 Drivers were supposed to contact Conley each day about
1:30 p.m. to learn of pickups that needed to be made. Telephone calls were the easiest way to
accomplish that. English had frequently, even several times a day, spoken to Conley using her
cell phone, not only to learn of pickups, but to seek advice concerning various issues English
encountered where she felt the dispatch center could assist. Conley had trained her and they
had developed a good working relationship. When English stopped calling, Conley noticed.
10 Undeliverable packages were sent to Redding on the plane. In Redding, Parrish’s staff
would determine what to do with it. One option was to get a better address and try again;
another was to give it to a different carrier for delivery.
11 Like other employees, English had initially been issued a pager. She later returned it,
preferring her personally-owned cellular telephone because of its convenience. Prior to her
extended absence, she had regularly used her cell phone to contact customers, the office and
Conley in Redding for work-related questions. Indeed, Kathy maintained English’s cell phone
number on her Rolodex file and both management’s and employees’ cell phone and pager
numbers were distributed to everyone on the staff. As of June 15 English stopped using it
altogether. Tim testified that she was given a text pager when she was assigned the Crescent
City backup route. Even so, she never told the McTagues she didn’t want to use her cell phone
any more for business.

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When Tim confronted English about the returns and her placing undelivered packages in
Rocha’s pile, she claimed she had to make the afternoon plane or that she had to make
pickups. In those conversations she repeated she wanted her Arcata route back. Tim was
unimpressed with her excuses which he was fairly certain were false. He thought she was
trying to wedge her way back to her old route. He complained by telephone to Kathy in
Washington: English wasn’t working out despite her new opportunity. He said he wanted to fire
her then, but couldn’t do so in Kathy’s absence because he couldn’t cover English’s route and
be in the office at the same time.
On Tuesday, June 20, English was assigned to deliver 36 packages to 31 locations on
the Crescent City backup run. Her twelfth stop was Pelican Bay State Prison off Lake Earl
Road where she dropped off three 60 lb. boxes, scanning the packages as delivered at
1:14 p.m. Her thirteenth stop was a medication delivery 12 to a residence 13 on Moorehead
Road, 2-½ miles from the prison. This was a regular delivery. At 1:16 p.m., 2 minutes later, she
scanned the Moorehead-bound package as undeliverable, no such address. 14 Back at the
shop she placed a pink slip on the package designating it for return to Redding and put it in the
Redding pile where Tim found it the next morning. He was pretty sure there was nothing wrong
with the address and confirmed it with driver Kevin Hoyt who was nearby. 15 Kathy had already
noted the non-delivery the night before while doing her daily report 16 for Parrish. On Thursday,
Tim delivered the package to the address himself.
The next day, Wednesday, July 21, English was assigned the Willow Creek once-a-
week run. This was the sixth time she had done that route. Her first stop was in Blue Lake
about 16 miles from Eureka; she scanned her delivery as completed at 10:29 a.m. The town of
Korbel is about 2-½ miles further, not on state route 299, but down Maple Creek Road. Her
next two stops had Korbel addresses on Maple Creek Road. Both of these addresses are some
distance past Korbel itself, where the road becomes more difficult and slow. The first address is
a 20-minute drive past Korbel and the second takes an additional 15 minutes. English decided
not to make those deliveries, scanning them both as ‘no such number’ at 10:37 a.m. She
completed the remainder of her route, returned to the Eureka office and clocked out at 2:43 p.m.
That evening, when Kathy was preparing the RASU report for Parrish, she observed that
both Maple Creek deliveries had been scanned as no such number. She retrieved both
packages and saw that the first had the addressee’s telephone number on the label. She called
it and learned that the party would be willing to meet a driver the next day at the Korbel post
office. The next day, the Arcata driver was given the package and he delivered it per the
agreement. The second addressee was listed in the telephone directory. Kathy called him and
he told her he worked in Eureka and would come to Respondent’s office the next day to pick it
up. He did so.
12 Medicine deliveries are easily recognizable, packaged in special white bags.
13 I have omitted the house number here for privacy reasons.
14 It is true that the manifest printout did not show a computer-printed address. However,
the street address was on the package itself.
15 Both Tim and Hoyt had delivered medicine to that house on previous occasions and both
recognized the address.
16 This report, prepared daily in the late afternoon, is known as the RASU report. It is placed
on DHL’s computer network.

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All three scans English made were false; all the locations had visible house numbers
and were/are readily deliverable. Moreover, even though the Maple Creek Road deliveries
would have involved a round trip from Korbel and back of an hour and ten minutes, since
English had clocked out in Eureka at 2:43 p.m., that time would easily have been absorbed into
her usual workday had she made the effort to deliver them. She would have returned to Eureka
about 3:50 or 4 p.m.
On July 22, Tim and Kathy met with English to ask her to explain what had happened
regarding those three packages. Kathy asked how she could have scanned the Moorehead
Road package as a no such number only 2 minutes after scanning the packages at the prison;
believing it was physically impossible to have reached and searched that location in such a
short time. Kathy says English had no explanation. Kathy also asked why English had pink-
tagged it for Redding. English had no explanation for that, either.
With regard to the first delivery on Maple Creek Road, Kathy told English that she had
learned during her phone call with the customer that the customer had been home all day.
Since there was a phone number on the package, that fact suggests English could have called
to determine more about the delivery address. Even so, according to Kathy, English offered no
explanation to the McTagues.
Tim’s recollection was more detailed. His testimony:
(WITNESS TIMOTHY McTAGUE) [We said] “Amanda, these are all good addresses that you’re
not delivering, and we can’t have you going up there with only 20 pieces and not getting them
done, when everybody else is taking out 120, 140 pieces and they’re getting them all done. And
we’re going to go investigate these deliveries, and if they’re legitimate, you know, we just can’t,
this is not working, and we’re going to go and do an investigation and see what, if this is
legitimate addresses.”
Q (By Mr. JORDAN) What did she say in response?
A She said, “I went there, I went there.”
Q With respect to which address?
A With the Moorehead address.
Q What comments, if any, did she make about Maple Creek?
A Well, she said, “Well, I didn’t think I had to go there.” And I told her, I said, “Amanda, I gave
you, I told Ernie to give those pieces to you, you know. Why did you put them on your truck if
you weren’t even going to attempt them?”
Q What was her response, if any?
A She didn’t say anything.
Q Did she say anything else regarding that subject?
A I did tell her [on] the Moorehead one, that, “Mandy, you can’t even get out of the prison in
two minutes.”
Q What was her response to that?
A She said, “I did it, I went there.” And I was like, “I’m going to go check and see, I’ll go
investigate it.”
Q So, what had she said about her effort to look for Moorehead?
A She didn’t really say much, and then she just kind of goes, “Well, if I was back on the Arcata
route, I’d do a good job.” And I was like, I was frustrated with her, like --
Q What did you say, sir, other than your fact of internal frustration?
A I just kind of was like, “Amanda, we need -- you can’t expect to go on the Arcata route if
you’re not doing an easy route, a good job for us on an easy route.” And that’s what I said.
Q With respect to Maple Creek, was there anything else said about her explanation that she
didn’t think she had to go out to Maple Creek?
A No.
Q Other than you said, “I gave Ernie the packages to give to you?”

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A No.
Q Now, other than you said I gave Ernie the packages to give to you --
A No.
Q -- was there any conversation about her having called either of the consignees on Maple
Creek Road?
A I remember Kathy saying to her, Amanda, and I told her before, she knew, she worked for
us a long time --
Q No, what was said, sir?
A “You have to call dispatch on Willow Creek, Maple Creek routes because they’re only
serviced once a week. If you don’t get it at that time, it will be a whole other week before there’s
even another chance to deliver it. So, it will sit on the dock for a whole other week. You have to
call dispatch and find out where they are and deliver every piece that we take out that way.”
Q What, if anything, did she say in response to that statement?
A She said nothing.
Q Anything else you can recall being said that day or during that meeting … excuse me?
A That’s about it.
Q You’ve exhausted your recollection?
A Yes.
Q At any time during the course of that meeting did she say words to the effect, “The road was
too windy?”
A No.
Q Did she say, “I didn’t go because it was too far and I couldn’t make my next deliveries?”
A No.
Q Did she say she was concerned about fuel consumption?
A No.
Q Did she say, “I would have called them but I don’t use my personal cell phone for business
matters?”
A No.
I have quoted the pertinent testimony of the McTagues, principally because it is far more
credible than that provided by English. English was a most unimpressive witness and was
transparently disingenuous in a number of areas. I shall concern myself with only a few.
Moreover, her own testimony includes admissions that she was not doing her job properly. The
first example, containing elements of both, is her description of her handling the Moorehead
Road delivery. She gave the following testimony on direct:
Q (By Mr. BERUL) Were you aware of what package they were talking about?
A Yes, because that was the only package that I couldn’t find the address for.
Q Okay. And do you recall the date where you couldn’t find an address?
A Yes, it was the 20th in Crescent City.
Q Okay. And where were you trying to deliver this package to, what --
A I believe it was on Moorehead, right close by the jail there.
Q Okay. Did you attempt to deliver it?
A Yes. I actually attempted to deliver it but I did not see the address there.
Q What did you do to try to deliver this?
A I actually went on the street, went down and up and looked on both sides of the street and
couldn’t locate the address.
Q Okay. And did you make a scanner entry for that?
A Yes, I put no such number, which really meant I couldn’t find that number, it didn’t match.
Q Did you believe that was a bad address?
A Yes.

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On cross, she gave a variety of other explanations. These included a claim that she had
written an erroneous street number on her handwritten routing guide. Yet, she admitted she
never checked the package itself, which she concedes she kept next to her and might even
have shown a phone number had she looked. She claims to have driven up and down
Moorehead Drive looking for the house, but couldn’t find it. Yet the house number is clearly
visible as seen in the photograph. Even so, the most telling fact is that the house is some 2-½
miles from the prison. There is simply no way she could have exited the prison, driven the
distance north on Lake Earl Road, searched for the house by driving up and down Moorehead --
all in the 2-minute time frame between the prison scan and her no such number scan for the
address. Indeed, the prison exit procedure from the receiving dock, involving a sign-out stop,
slow speed limits, speed bumps, and stop signs would probably prevent her from getting to the
gate within two minutes, not to mention the additional time spent driving from the prison gate to
the Lake Earl Road turn. The conclusion here is inescapable. She did not tell the truth to the
McTagues and she did not tell the truth to me.
The next instance is the non-deliveries to the addresses outside Korbel. English admits
she made very little effort here, her second and third deliveries of the day. She claims she
drove down Maple Creek Road about a mile from Korbel and then concluded it was too far. She
said on cross:
Q (By Mr. JORDAN) . . . Now, as I understood your testimony earlier, you made a conscious
decision not to deliver the two packages on Maple Creek Road, because you thought that would
interfere with the rest of your day, is that right?
A I wasn’t sure if I’d get back in time to make it for the plane.
Q But, we see that you in fact returned at 2:43?
A Yes, I wasn’t sure how long it would take me to get to those addresses.
Q I see. So, based upon your uncertainty about that, you made a decision to blow off two
deliveries?
A Not blow off.
Q Well, you didn’t even try to make them?
A Yes, I did. I went up the road.
Q How long?
A Probably a mile up the hill.
Q Then you made a decision for the company that it was too far to go, is that right?
A Based on my knowledge, I did.
English was well aware that Respondent wanted to see deliveries made, and did not
want packages to be loaded into a van only to have the driver make no attempt whatsoever. A
‘no attempt’ was recorded by DHL as a negative against the contractor. The McTagues, as well
as DHL’s Parrish had issued strong admonitions to avoid ‘no attempts.’ 17 Somehow, perhaps
by employee legend, she “knew” if a driver made an attempt (or claimed to have made an
attempt), it could be given a different code, such as ‘no such number.’ For that reason she has
given testimony that she ‘had made an attempt’ when she went down Maple Creek Road about
a mile and also when she said she went up and down Moorehead several times. For some
reason, she lost sight of the very purpose of her employment — deliveries, not attempts, were
an essential function of her job. Of course, both Korbel addresses were good numbers; had she
driven to them she would have found them easily for they were well-marked. Her ‘no such
number’ scanner entries were false.
17 The record reflects that ‘no attempts’ were one of the reasons Bigfoot Transportation had
lost the contract.

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Yet she could not even stop herself. She also testified variously that she didn’t believe
she had to make such a run because it was too far; that it was too hard a drive; that she
wouldn’t be able to make the plane at the end of the day; that it could be given to another carrier
(United Parcel Service); 18 that she was saving fuel for Respondent; that she was saving wear
and tear on the van and that she had no way to call either Respondent, the Redding dispatch
center or the customer. 19 She went so far as to say she had stopped by a business in Korbel
Continued
18 In fact, UPS was not available as a backup on this and at least one other route, but
English never asked the McTagues to educate herself on the point. I regard her testimony here
as disingenuous. If she loaded packages on her van, and here she was specially asked to do
so, she was expected to deliver them and she knew it. Respondent had every right to expect
her to deliver them.
19 English’s testimony:
Q BY MR. JORDAN: What were the reasons again why you decided not to make that delivery or those
two deliveries, or even those attempts?
A Because it was too far, the gas, and there was no houses around up on that hill. I know that there’s a
road in Arcata that goes out all the way down south, and if I was to deliver this one at 9000, it would have
been way too far to deliver it. So, I took it upon myself to decide not to deliver it.
Q Now, you were aware at that time, were you not, that you could have called Kim and have her look
on Map Quest to assist you in determining what the distance might be?
A I didn’t think of that.
Q But, you were -- you had that knowledge available to you that Kim had the capability and did use Map
Quest to assist drivers in determining distances and locations?
A I didn’t know it determined distances.
Q I see. And you made no effort to find out if Kim could assist you in that way, did you?
A No, I didn’t.
Q Now, as I understand your prior testimony from your affidavit, you decided, you considered the
distance, is that right?
A Yes.
Q The time?
A Yes.
Q The windy [winding] road?
A Yes.
Q And gas?
A Yes.
* * *
Q Okay. Now, as to the gas, I take it that part of your consideration was that you felt it would be
appropriate to conserve gas, is that right?
A Yes, because Mrs. --
Q I didn’t ask you why. I asked you whether or not --
ADMINISTRATIVE LAW JUDGE KENNEDY: Okay. Just answer the question as it’s put.
Q BY MR. JORDAN: -- you thought -- okay, I got your answer. Now, did Kathy McTague ever tell you
that if you have to go five miles further than you thought you might have to, that that would be an
improper consumption of fuel?
A No.
Q Did she ever give you a break point, in other words, you shouldn’t go more than five miles or ten
miles because that’s using too much gas?
A No.
Q So, you made a decision, as you told us here under oath, that a factor was that this was going to
consume gas, is that right?
A Yeah, it was going to consume gas.
Q Okay. And I take it this is because at some point you contend that Kathy McTague told you that she
was concerned about the mileage on the vehicles used to deliver packages?
A Yes.
Q And you relied upon that, on July 21st, when you made your decision not to try to make those two

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_________________________
(apparently Simpson Timber) for a personal reason, but didn’t want to ask if she could borrow
their phone. And, she said she was no longer using her personal cell phone for business
purposes. Her testimony about ceasing her cell phone use, either before me, or perhaps in her
investigative affidavit, was the first time she ever made that announcement to anyone. She
certainly never informed the McTagues. 20
It is obvious that everything English said about the Maple Creek deliveries, whether to
the McTagues in the first instance, or to me, only evidences her effort to explain away her failure
to perform her job. In essence, she has prevaricated about why she didn’t perform it properly. I
doubt she even went the mile up the road she claims. More likely she looked at the road,
decided it was too hard to drive, and as counsel suggested, just “blew it off”. Her remaining
explanations fare no better. Her claims that she didn’t have to make the run, that she was
saving fuel, that the road was too winding, that she couldn’t make the plane, that Kathy might
not have been in the office if she had called, that she didn’t think of calling Redding all serve to
show that she cannot be trusted as a witness. She makes things up as she goes along.
At the end of the meeting, the McTagues advised English that she was suspended while
deliveries?
A Yes.
* * *
ADMINISTRATIVE LAW JUDGE KENNEDY: Well, what were you saying to yourself?
THE WITNESS: I was thinking that was too far away and usually we give it to UPS if it’s too far away.
ADMINISTRATIVE LAW JUDGE KENNEDY: Is that your judgment to make or is that the company’s
judgment to make?
THE WITNESS: Last time I asked Kathy about it, because I knew this one was too far. And I couldn’t ask
her judgment then.
ADMINISTRATIVE LAW JUDGE KENNEDY: So, you decided to use your judgment at that point?
THE WITNESS: With my knowledge, yes.
ADMINISTRATIVE LAW JUDGE KENNEDY: I see.
Q BY MR. JORDAN: And why was it that you couldn’t contact Kathy to let her have some judgment on
this decision?
A She might have not been at the office.
Q But, you didn’t know, because you didn’t call?
A No, because I didn’t have a phone to use.
Q You did have your cell phone?
A I wasn’t going to use it for that.
Q So, you decided that because it’s your personal cell phone, you would take the risk that there might
be a disagreement between you and Kathy McTague as to whether you should try to make that delivery,
is that correct?
A Well, what if I didn’t have my cell phone?
Q You did have your cell phone though, didn’t you?
A Yes, I did.
Q All right. So, let’s try my question again. You made a conscious decision to take the risk that you
were making the wrong decision, without getting any input from your superiors?
A I wasn’t taking a risk.

20 While there is no record evidence, one way or the other, a comparison of her capacity to
use her cell phone on the Arcata route with that on the Crescent City and Willow Creek routes
would be somewhat unfair. Arcata is within an area populous enough to provide regular cellular
service. Away from both Eureka/Arcata and Crescent City proper, the more remote areas no
doubt provide uncertain cellular telephone service. However, English never claimed that
traveling off her network was an issue. Instead, she simply stopped using her cell phone for
business without informing anyone of the change.

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Tim checked out her story concerning the Moorehead delivery. English was not scheduled to
work again until the following Tuesday, July 27. On the intervening Sunday, the McTagues
consulted the recently-retained Jordan about the matter and on Tuesday morning they
discharged her. Kathy described the reasons for the discharge: “It had become a habit of hers
to not do deliveries and send them to Redding for them to deliver them. And in that week she
started scanning them no such number, falsifying the scanner, and so we terminated her.”
Tim testified similarly to Kathy. When counsel asked him why they had fired English, he
said:
A (WITNESS TIMOTHY McTAGUE) For not doing her job. She wouldn’t take pieces from
Trinidad, she refused to call dispatch, she was bringing – I’d get my messages every day and I’d
get about ten or 12 of them, and eight or nine of them would be on Amanda’s route. [21] And
when I’d ask her what was going on, or ask her about it, she just would shrug me off and she’d
come in and hide her packages in other people’s routes, and I’d say you can’t be hiding
packages in other people’s routes, you know you’re not supposed to do that. She would make
absolutely no attempts to contact the person that she couldn’t find the package to anymore,
which she never did that before. And that’s what we said to her.
Q What impact did these two events, Moorehead Road and Maple Creek have?
A I told her that it just kind of made the final straw was that, you know, you’re not even going
there and you’re falsifying your scanner now on top of that. And –
Q When you say you told her, what do you mean by that, who are you talking to?
A To Amanda.
Q And when were you talking to her?
A On that Wednesday.
Q When she was terminated or on the 22nd?
A No, when she was terminated I said that to her.
Q Okay. You explained that to her?
A Yes.
The discharge was effected after Tim had the opportunity to actually go to Crescent City
(where he delivered the medicine to the customer English had skipped) and checked out
English’s story concerning the drive from the prison loading dock to the Moorehead Road
address. His findings confirmed what he had come to believe. English wasn’t doing her job and
was lying about it.
Although English was discharged on July 26, she cast a challenged ballot during the
August 26 representation election. The outcome of that election depends on resolution of her
ballot.
III. Analysis and Conclusions
Despite the obvious shortcomings of its evidence concerning English, the General
Counsel continues to assert that it has proven that English was discharged for reasons
prohibited by §8(a)(3) of the Act. It makes that assertion based on its assessment of what is
commonly called disparate treatment evidence. It avers that what English did, falsifying her
scanner, was something employees regularly did without suffering discipline. The General
21 Tim is referring here to customers who could track the shipments on-line with their
computers. If the delivery didn’t match the on-line information, customers would call.

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Counsel principally points to evidence given by driver Kevin Hoyt and a practice related to
express and noon deliveries whereby a delivery time was ‘locked into’ the scanner before the
delivery deadline, even though the delivery occurred a few minutes afterwards.
With respect to the ‘lock-ins’ as supposed scanner falsification, assuming that it was a
frequent practice, an assumption the record does not really support, 22 the fact is that the
deliveries were actually made in every single case. That is a significant distinction from what
English was found doing. One can argue, but without much persuasive force, that the two
circumstances both qualify as ‘falsifying’ the scanner, but the argument is really an apples-
oranges matter; the two are not comparable. In English’s case, she was falsifying to cover up a
non-attempt. Moreover, the reasons for her discharge went well beyond simple scanner
falsification. She was not following the standard package delivery procedures, was becoming
uncooperative and was doing some peculiar things, such as placing her packages in someone
else’s delivery pile. She topped that off with lying to the McTagues about it.
In the lock-ins, the driver was simply recording a delivery a little bit earlier than it was
accomplished. That was done to preserve a revenue source, not cover up a performance
dereliction. Preserving a revenue source in this manner might offend some other rule or law,
but has no bearing on English’s misconduct.
The other disparate argument comes from Hoyt’s circumstance, some employee
testimony and an argument from a supposedly applicable DHL bonus policy.
First, the General Counsel has presented some evidence that Hoyt was not discharged
when he received a write-up for a missed delivery at the Wal-Mart store in Crescent City on
August 4 and then falsified his scanner. In this instance, Hoyt had missed his Wal-Mart
deliveries out-bound, but went there when he learned of a pick-up inbound. There, he
discovered his error but couldn’t make the drop because the Wal-Mart receiving department had
closed for the day. Upon arriving at the Arcata airport he scanned the packages as ‘business
closed.’ Hoyt later explained the situation to the McTagues, who, after consulting with attorney
Jordan, gave him a written admonishment for falsifying his scanner. It is quite clear that Hoyt’s
circumstances are significantly different from English’s. His was an honest mistake, not a
deliberately missed delivery. His error was claiming on the scanner that he had made an
attempt, when he had not. He had not been a problem before and the admonishment fit the
offense. 23 That the McTagues would consult with their attorney before taking such steps is not
only reasonable, but wise, given the upcoming election. Indeed, no one has suggested that the
admonishment was aimed in any fashion at the election. The only complaint about it is the
General Counsel’s assertion that it is evidence of disparate treatment.
But Hoyt’s testimony went further. Hoyt asserted that Respondent regularly encouraged
employees to miscode unattempted deliveries as ‘no such address or business closed.” He
also asserted ‘everyone’ false scans. He initially made that claim at the time he was given his
written admonishment. Despite Kathy’s response to him that that was not the case because
22 “Lock-ins’ could only affect a single delivery. And, given the on-line tracking frequently
performed by customers, were not credible if the delivery occurred more that 2 or 3 minutes
late. Most customers are forgiving of such a near miss.
23 Hoyt, who is sympathetic to English’s plight, also gave some not-credible testimony that
consultant Cevallos told him that the McTagues should not have given him the write-up, that
Jordan was trying to create a paper trail to justify firing English, the McTagues weren’t running
the business very well, they were acting on impulse, and that English should not have been fired
for what she did. Cevallos denied such a conversation occurred and it certainly does not seem
plausible that he would have said what Hoyt attributes to him.

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she reviewed all deliveries each night and knew otherwise, he continued to hold to his belief and
gave such testimony at the hearing. Curiously, however, his August 4 manifest, the day of the
Wal-Mart miss, shows he had scanned 11 deliveries as not attempted, a full 25 percent of his
load. The number was high that day because the plane arrived late in McKinleyville. Hoyt said
that was a change because the drivers were aware of what had happened to English the week
before. Oddly, he had just admitted he didn’t learn why English had been fired until August 5.
And, cross-examination revealed he had little basis for his opinion, which was based on his
casual observation that drivers often returned to the shop with undelivered packages.
Yet, there is some corroborative support for Hoyt’s opinion. Matthew Bryant testified that
he remembered a conversation with Tim early in his employment, which he interpreted as Tim’s
suggestion that he scan undelivered packages as ‘attempts’, but does not say that Tim told him
to falsify. Even so, Bryant said he never falsified. If he scanned a package as ‘no such
number/closed’ it was because he’d actually made an attempt to find an address or no one was
home. 24 Bryant’s actual practice suggests he knew the company policy was not to falsify. The
discredited Nez and English herself are the other witnesses who offered support on the issue.
Neither of them is trustworthy and their testimony is rejected.
In addition, the General Counsel argues that Respondent urged miscoding, not only to
avoid a negative DHL rating, but also to qualify for a DHL bonus. As it turns out, because its
service relied upon a frequently late morning plane, Respondent could not have qualified for the
bonus under DHL’s rules concerning timeliness percentages and the McTagues well knew it.
There was no positive advantage for Respondent arising from miscoding and therefore no built-
in impetus to do so. The General Counsel’s argument here is unpersuasive.
On the other hand is the testimony of drivers Andy Huaun, Joshua Stilwell and Ernie
Rocha who all said they never falsified and were never told to do so. 25 In addition, there is no
doubt that Respondent had posted instructions to deliver packages and had provided all sorts of
means through which difficult deliveries could be made. Therefore, despite some conflicting
evidence, I find that the General Counsel’s evidence is insufficient to prove Respondent
condoned or encouraged drivers to falsify their scanners. That the McTagues would do so is
highly unlikely for it would simply be a self-destructive business practice.
Moreover, there is really no doubt that falsifying the scanner was an offense for which
discharge could be expected. During the early training period, an incident occurred in Ukiah
where one of the subcontractors there had discovered an employee falsifying his scanner
records and was summarily discharged. Parrish told Tim McTague about it and both of them
passed that word on to the McTague employees as a cautionary tale.
I conclude that the General Counsel’s disparate treatment argument is without merit and
that English was not treated more harshly than anyone else whose behavior was as
unacceptable as hers. Not only had she falsely scanned, she had deliberately failed to do her
work and had lied about it.
24 If no one was home, the driver was supposed to leave a tag on the door advising the
customer of the attempt.
25 Stillwell, who now works elsewhere, gave an affidavit supporting the General Counsel, but
recanted it, saying he’d thought more carefully about the issue and had concluded what he had
said in his affidavit was not correct. The General Counsel asserts that Tim McTague has
corrupted Stillwell’s testimony based on some facts which I have considered but choose not to
recite. He makes a similar argument about Rocha, again based on facts I have considered but
deem unnecessary to recite..

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This leaves the case in a posture where Respondent, upon receiving the representation
petition, committed some improper interrogation and made a statement which employees could
reasonably construe as Tim’s threat that unionization might lead to the loss of the DHL contract
and with that, loss of the inheritance money he had invested. Insofar as intent is concerned, I
find that Tim had no such intent; yet what he said nevertheless had the reasonable tendency
upon employees as to interfere with, restrain and coerce them with respect to their §7 rights.
The test is, as has been said many times, “whether the employer’s conduct may reasonably be
seen as tending to interfere with the free exercise of employee rights under the Act.” See,
American Freightways Co., 124 NLRB 146, 147 (1959); El Rancho Market, 235 NLRB 468, 471
(1978); Williamhouse of California, 317 NLRB 699, 713 (1995). Therefore, Respondent
committed, in the first days before receiving the advice of counsel, two unfair labor practices,
neither of which supplied much malice. The interrogations appeared have been the product of
confusion and curiosity and the threat was mainly a concern for an advance loan against his
inheritance, all arising from a painful personal loss.
The next question is whether the General Counsel has made out a prima facie case that
Respondent fired Amanda English because of reasons prohibited by the Act. The record is
nearly devoid of any credible evidence that either Tim or Kathy knew English’s union
propensities. First, her union activities were minimal, only signing an authorization card. 26
That was entirely unknown to the McTagues. Indeed, when Kathy called the Board Agent in
response to the Regional Director’s letter accompanying the election petition, she learned only
that the names the Union had provided the Regional Office matched the list she had read to the
Board Agent. English was just one of many on the list and there is no showing that the Board
Agent revealed the names of the card-signers; he only said the names matched.
Even so, there are two places in the record where employees testified that English might
have been under suspicion as a lead organizer.
The first is the mutually corroborative testimony of drivers Duane Nez, Andy Hauan and
Pahl Ith. All of them, on the day the petition arrived, say Kathy first asked if the Union had
contacted them and, getting no answer, heard her wonder aloud if it might have been English,
since she had had a better opportunity to do so (being off work) than the other drivers.
The second is Nez’s discredited conversations with Cevallos. As previously described,
Nez claims, while barhopping with Cevallos, Cevallos twice asked if English or Hoyt might be
behind the union organizing. Given Nez’s strong bias, combined with the improbability that
Cevallos would ask such questions, I have previously rejected, on credibility grounds, Nez’s
testimony.
I think it is fair to conclude that Kathy, on one occasion wondered aloud whether English
was behind the organizing. Accordingly, the element of Respondent’s knowledge (or at least,
suspicion) of English’s involvement with the Union has been established.
Second, there seems to be a temporal connection to English’s discharge. The petition
arrived by fax from the Regional Office at 12:31 p.m. on Tuesday, July 20. 27 On that day,
English was on the Willow Creek run during which she refused to deliver to the Maple Creek
addresses outside Korbel. The following day, English engaged in the Moorehead Road
26 The General Counsel has offered evidence that English had expressed even earlier, in
November 2003, an interest in union representation. That evidence is too sketchy to warrant
any discussion. Certainly there is no suggestion that the McTagues were aware of it.
27 The petition was actually filed on Wednesday, July 14. As noted earlier, the Union had
provided an incorrect address. General Counsel’s Exh. 2, the formal petition file, does not
suggest service was attempted any sooner than the July 20 fax.

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misconduct in Crescent City. On Thursday, she was suspended for those transgressions and
on the following Tuesday, July 27, Respondent discharged her. Timing, therefore, is a double-
edged sword. It favors both the General Counsel and Respondent, the former for an unlawful
motive and the latter for a lawful one.
The third element, union animus, can only be supplied by the §8(a)(1) conduct
previously discussed. There is no doubt concerning either the fact that the conduct occurred or
the fact that the conduct came not from actual resistance to unionization, but from curiosity,
disbelief and a sense that a recent inheritance, acquired under emotional circumstances, was
perhaps susceptible to uncertainties not previously foreseen. The General Counsel has, in my
opinion, overstated Tim McTague’s reaction.
Aside from these instances, there is nothing in the record which suggests how the
McTagues would react to union organizing. Even if they breached §8(a)(1) due to their naïveté,
it does not necessarily follow that they were also motivated to discharge employees to prevent
unionization. Certainly the McTagues uttered no threats to fire anyone nor did they make any
notable anti-union remarks. Their only commentary was in the nature of puzzlement and
disquietude. Accordingly, the element of union animus is present but not very strong.
As the Board stated in Naomi Knitting Plant, 328 NLRB 1279 at 1281 (1999) all the
General Counsel is required to show by a preponderance of the evidence is that animus against
the protected conduct was a motivating factor in the employer's conduct. Once this showing
has been made, the burden shifts to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct. The question thus raised is
whether the General Counsel has shown via these imperfect elements, a prima facie case
which Respondent needs to rebut. Or, put another way, does Respondent’s evidence
effectively rebut the thin prima facie case presented by the General Counsel?
At the hearing, I denied Respondent’s motion to dismiss based on insufficient evidence
to support a prima facie case. Indeed, I was tempted to grant it, since it had become apparent
to me that a number of the General Counsel’s witnesses were not credible. That was certainly
true of English and Nez. Others, such as Ith and Hoyt had some infirmities, but I concluded that
the ‘pointer’ evidence — where Respondent supposedly singled English out as a target, was
sufficient to require Respondent to defend. Consistent with that ruling, I shall allow the General
Counsel his prima facie case here.
Having reached that stage, the burden shifts to Respondent to demonstrate that it would
have reached the same decision absent the employee’s protected conduct. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB
v. Transportation Management, 462 U.S. 393 (1983).
In this, it is clear that Respondent has the far better argument. The evidence is very
strong that English’s behavior after June 15 deteriorated to the point where something had to be
done. Even before that, her absenteeism, tolerated for a reasonable time, still meant she had
dug herself a hole from which she needed to climb by virtue of good performance. I have no
difficulty in crediting the McTagues that they told English she needed to perform well after her
return, particularly since she had told them that job-related stress was a problem for her. In
response, they gave her two routes which were far less stressful, to allow her to overcome
whatever self-generated impediments she was facing. Oddly, however, she denied to me, and
probably to herself, that the McTagues were providing her with an opportunity and imposing a
condition upon her. The condition, of course, was not very great — prove you can resume
doing your job.
Prior to her absences, English had exhibited peculiar behavior, claiming the handbook
was specifically directed at her and accusing Respondent of spying on her via both customers
and an imagined cadre of gardeners perceived to be subject to Tim’s power. She had also

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accused Tim and her fellow drivers of sexual harassment. After she returned to work and
during Kathy’s 10-day trip to Washington, D.C., English began a new pattern of behavior: failing
to deliver, sending packages back without following policy, and putting packages in another
driver’s pile. When Tim called her on it, she responded by pressuring him to return her to the
Arcata route. After Kathy returned, she remained sufficiently emboldened to continue to
perform poorly. 28 Then, when called upon to explain her unethical performances of July 20 and
21, she lied to the company owners. 29 That was the final straw and Tim and Kathy decided
they had had enough.
I have no difficulty in finding that Respondent has demonstrated that it would have fired
her even absent their believing she had been involved with union organizing. This aspect of the
case will be dismissed.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. That undertaking will include an order to post a
notice to its employees advising them of their rights and describing the steps it will take to
remedy the unfair labor practices which have been found.
On the above findings of fact, I make the following
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of §2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning of §2(5) of the Act.
3. Respondents Timothy and Kathy McTague violated §8(a)(1) of the Act when, on or
about July 20-21, 2004, they coercively interrogated their employees regarding union
organizing activity.
4. Respondent Timothy McTague violated §8(a)(1) of the Act when, on or about
July 20, 2004, he made a statement which employees could reasonably perceive to
be a threat to shut down the business in the event its employees became
represented by a union.
5. Respondent did not violate the Act when it discharged its employee Amanda English
on July 27, 2004, nor did it commit any other unfair labor practice alleged in the
complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 30
28 Tim’s assessment that English was performing poorly to bully him to regain the Arcata
route seems entirely probable.
29 As noted, her mendacity continued before me.
30 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.

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ORDER
Respondents, Timothy and Kathy McTague, d/b/a McTague Enterprises, their agents,
successors, and assigns, shall
1. Cease and desist from
a. Coercively interrogating its employees concerning their union activities,
including their seeking union representation.
b. Making statements which employees could reasonably perceive to be a
threat to shut down the business in the event its employees became
represented by a union.
c. In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. Within 14 days after service by the Region, post at its office in Eureka,
California copies of the attached notice marked “Appendix.”31 Copies of the
notice, on forms provided by the Regional Director for Region 20, after being
signed by Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed
by Respondent at any time since July 20, 2004.
b. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
IT IS FURTHER ORDERED that the remainder of the complaint’s allegations be
DISMISSED.
31 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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Recommendation Concerning Challenged Ballot
With respect to the challenged ballot cast by Amanda English at the representation
election of August 26, 2004, (Case 20-RC-17971) I recommend that the challenge be sustained
as this voter had been discharged a month earlier for reasons unrelated to any activity protected
by the Act. Her discharge was for cause as defined by §10(c) of the Act. A Certificate of
Results should issue.

James M. Kennedy
Administrative Law Judge

Dated: April 18, 2005

23
JD(SF)–33–05
Eureka, Calif.
“Appendix”

Notice to Employees

Posted By Order of the

National Labor Relations Board

An Agency of The United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

♦ Form, join or assist a union
♦ Choose representatives to bargain with us on your behalf
♦ Act together with other employees for your benefit and protection
♦ Choose not to engage in any of these protected activities.

WE WILL NOT coercively interrogate you concerning your union activities, including asking if
you are seeking union representation.
WE WILL NOT make statements which you could reasonably understand to be a threat to shut
down our business in the event you become represented by General Teamsters,
Professional Health Care and Public Employees, Local No. 137, AFL–CIO or any
other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
KATHLEEN AND TIMOTHY McTAGUE d/b/a
McTAGUE ENTERPRISES
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5138.