Food & Commercial Workers Local 204

National Labor Relations Board - Board Decisions

Sep 25, 2002

338 N.L.R.B. 38 (N.L.R.B. 2002)

FOOD & COMMERCIAL WORKERS LOCAL 204 1
United Food and Commercial Workers Union, Local
204, a/w United Food & Commercial Workers
International Union, AFL–CIO, CLC and
Belinda Shepherd. Case 11–CA–18090
September 25, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On January 2, 2002, Administrative Law Judge George
Carson II issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
brief and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Jasper C. Brown Jr., Esq., for the General Counsel.
Joyce M. Brooks, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. I heard this
case in Winston-Salem, North Carolina, on November 13 and
14, 2001. The charge was filed on September 2, 1998, and was
amended on May 27, 1999.1 The complaint issued on May 28,
1999. The complaint alleges a threat of job loss in violation of

1 No exceptions were filed to the judge’s finding that the Respondent
did not threaten employee Belinda Shepherd with job loss in violation
of Sec. 8(a)(1) of the Act.
2 In adopting the judge’s conclusion that the Respondent did not vio-
late Sec. 8(a)(3), (4), and (1) of the Act when it laid off and failed to
recall Belinda Shepherd, we find it unnecessary to pass on the judge’s
finding that the General Counsel did not satisfy his initial burden under
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), to establish that animus
against Shepherd’s protected activities was a motivating factor in the
Respondent’s employment decision. Thus, we find that even assuming
arguendo that the General Counsel established that animus against
Shepherd’s protected activities contributed to the Respondent's decision
to lay her off, the Respondent demonstrated that the layoff was eco-
nomically motivated and that Shepherd was selected for layoff on the
basis of seniority. Accordingly, we find that the Respondent met its
burden under Wright Line to establish that it would have taken the same
action against Shepherd even in the absence of her protected activities.
Member Cowen joins his colleagues in finding that it is not legally
necessary to pass on the judge’s finding that the General Counsel did
not satisfy his initial Wright Line burden of showing that Shephard’s
protected activity was a motivating factor in the Respondent’s em-
ployment decision, given the overwhelming rebuttal evidence offered
by the Respondent. Nevertheless, Member Cohen notes that the evi-
dence in this case, taken as a whole, does not support even a prima
facie case of unlawful motivation.
1 All dates are in 1998 unless otherwise indicated.
Section 8(a)(1) of the National Labor Relations Act (the Act)
and the layoff of, and failure to recall, Belinda Shepherd be-
cause of her union activity in violation of Section 8(a)(3) of the
Act and because of her cooperation with the National Labor
Relations Board (the Board) during the investigation of an
unrelated case in violation of Section 8(a)(4) of the Act. The
Respondent’s answer denies all of the alleged violations of the
Act. I find that the evidence does not establish a violation of the
Act and shall recommend that the complaint be dismissed.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the oral argu-
ment of the General Counsel and the brief filed by the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, United Food and Commercial Workers,
Local 204, the Union, affiliated with United Food & Commer-
cial Workers International Union, AFL–CIO, CLC (the Interna-
tional), is an unincorporated association with an office in
Winston-Salem, North Carolina, engaged in the representation
of employees regarding wages, hours, and working conditions.
The Union annually remits to the International in Washington,
D.C., in excess of $50,000 in dues and initiation fees. The Re-
spondent admits, and I find and conclude, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The General Organizing Association (GOA) is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In January 1995, following a campaign and election, Brian
Murphy became president of UFCW Local 204, the Union, and
David Kennedy became secretary/treasurer. Murphy made
changes in the staff of the Union following his election. The
staff of the Union was augmented by approximately 8 to 10
employees in the special project union representative (SPUR)
program, which was administered by the International. Under
that program, union members who expressed interest were
trained in organizing and servicing local union members by
representatives of the International. Those selected were as-
signed to assist local unions on a temporary basis. On February
20, 1995, Charging Party Belinda Shepherd, a union member
and employee of the Kroger grocery chain, and seven to nine
other members were selected to assist the Union. Referred to as
“SPURs,” these members were paid and supervised by the In-
ternational, but their activities were coordinated through the
Union.
In March 1996, Shepherd ceased to be a SPUR when she
was offered, and accepted, a position as a permanent member
of the staff of the Union. In November 1996, the staff members
2 The Respondent’s motion to admit a posthearing exhibit, opposed
by the General Counsel for, inter alia, the failure of the Respondent to
tender the exhibit in accord with the explicit instructions that I stated at
the hearing, is denied. R. Exh. 9 is placed in the rejected exhibit file.
338 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
of the Union signed authorization cards designating the GOA as
their collective-bargaining representative. The Union recog-
nized the GOA based on the cards and, thereafter, negotiated a
collective-bargaining agreement with the GOA that was effec-
tive by its terms from February 22, 1997, until February 22,
2000. Shepherd and James McGillberry were the shop stew-
ards. In May 1997, the GOA sent a memorandum to the Union
noting that SPURs, as temporary employees, were not covered
by the collective-bargaining agreement.
B. Facts
After assuming office, President Murphy reconsidered his
replacement of certain members of the staff of the previous
administration. Secretary/Treasurer Kennedy urged Murphy “to
get over it, to bring Mr. [Ray] Bonelli back to the Local.” Murphy
agreed. When negotiating the contract with the GOA, the GOA
“thought it was appropriate that Mr. Bonelli would maintain his
seniority from his original hire date.” Murphy recalls responding,
“If that is what you want to do, then that is what we are going to
do.” Thus, according to Murphy, Bonelli’s seniority was
“bridged” to “the time that he was first brought out of the Kroger
store,” October 17, 1994.
Although Shepherd was not involved in the negotiation of the
collective-bargaining agreement, she was aware that Bonelli’s
seniority was to be bridged. She testified that, on February 3,
1997, Murphy informed her that Bonelli, who had been rehired in
November 1995, was simply going to receive “credit for the
amount of time that he was there, like, from October of ‘94 to
January or February of ‘95,” that Murphy called the GOA in
her presence and stated, “[T]his is how I want it to be,” and that
he then informed her that “it is taken care of.” Shepherd further
testified that, at the contract ratification meeting on February
23, 1997, GOA negotiator, Carl Ariston, stated that “they were
just adding his [Bonelli’s] time together. And if people did not
agree with it, they should vote against the contract.”
The manner in which Bonelli’s seniority was bridged deter-
mines whether Shepherd was the least senior employee on the
Union’s staff at the time of her layoff in 1998. If Bonelli were
only to receive “credit for the time that he was there,” he would
have had a constructive seniority date in June or July 1995 and
Shepherd would have had greater seniority. Shepherd’s pur-
ported understanding regarding this issue is at odds with the
position of the Union and the GOA. I credit Murphy. If, as
Shepherd testified, the Union and the GOA had agreed that
Bonelli was simply to receive credit, there would have been no
reason for Murphy to have purportedly called the GOA to state
how he “want[ed] it to be.” If this matter had been “taken care
of” in that manner, it would have ceased to be an issue and
there would have been no reason for Ariston to have raised it at
the ratification meeting. Confirmation that the Union and the
GOA understood that Bonelli’s seniority was to be bridged to
“the time that he was first brought out of the Kroger store,” Octo-
ber 17, 1994, is established by the testimony of GOA Secre-
tary/Treasurer Bryon O’Neal that the October 17, 1994 date was
correct and by the failure of the GOA to pursue the grievance filed
by Shepherd in 1998 after she was laid off.
In February 1997, Chris Cooper, a SPUR, became involved
with Amway, an organization that sells household products
though individuals who recruit friends, neighbors, and ac-
quaintances as distributors. Shepherd testified that Cooper re-
cruited her and that she provided a list of 30 names to Amway,
including, according to her testimony, 12 employees of Kroger
who were in a bargaining unit that she served as business agent.
Although providing the names, Shepherd testified that she told
Amway not to use the list and that she then informed Murphy
of her actions “because I thought it might be a conflict.” Secre-
tary/Treasurer Kennedy explained that Amway is a competitor
of Kroger because it sells many of the same type products and
that giving the names of unit members to another organization
constituted a violation of Shepherd’s fiduciary duties as busi-
ness agent.
There is conflicting testimony concerning Shepherd’s in-
volvement with Amway. Kennedy testified that Shepherd ad-
mitted giving Amway names, addresses, and telephone num-
bers and that she formally apologized to the executive commit-
tee. Shepherd denied giving addresses and telephone numbers
or making any apology, but she did terminate her relationship
with Amway. Kennedy credibly testified that Cooper and
Shepherd were interviewed regarding their involvement and
that each was given a document confirming their involvement
and committing to discontinue that involvement. Cooper signed
the document on May 12, 1997. When Shepherd was presented
an identical document she did not sign it because “her story
changed, and [she] said no, I didn’t do that.” Shepherd did not
deny the foregoing testimony.
Although Shepherd acknowledged that “it might be a con-
flict,” she claims that she was “just totally surprised” when
Murphy contacted the Union’s attorney regarding this matter.
She admitted that she was upset with the manner in which
Murphy handled the situation. Kennedy testified that, in view
of Shepherd’s changed story and reaction, he and Murphy in-
formed her that they could not “meet with her or discuss it
without counsel or a witness.” Shepherd began calling the of-
fice, “[s]ome days it was multiple times,” but Murphy and
Kennedy continued to inform her that they would not discuss
the situation without counsel being present.
In May, during the Union’s investigation of the Amway mat-
ter, Cooper requested that Shepherd represent him as shop
steward. The Union refused this request. Murphy explained to
Cooper and Shepherd that SPURs were not covered by the
collective-bargaining agreement with the GOA. Cooper ac-
knowledged that Shepherd was not his shop steward.
In November 1997, Shepherd informed GOA negotiator
Ariston that the Union had instituted work rules and com-
plained that neither Murphy nor Kennedy would return her
telephone calls. At some point, the record does not reflect the
date, James McGillberry, the other GOA shop steward, was
terminated by the Union. The GOA filed a charge, Case 11–
CA–17835, on February 23, alleging the termination of
McGillberry as an unfair labor practice. In addition, the charge
alleges the unilateral implementation of work rules by the Un-
ion and harassment of Shepherd. The record discloses no evi-
dence regarding the circumstances of the termination, the al-
leged change in work rules, or the basis for the harassment of
Shepherd who, according to her testimony, simply reported that
her telephone calls were not being returned.
FOOD & COMMERCIAL WORKERS LOCAL 204 3
Prior to the Union’s receipt of the charge, Shepherd ap-
proached Murphy and stated that a charge “had been filed with
her name and that she didn’t have anything to do with it and it was
none of her doing.” Shepherd “was pretty adamant to talk about
it,” insisting she had nothing to do with the charge. Murphy in-
formed Shepherd that he would not discuss it with her. He testi-
fied that he believed Shepherd but that he thought it “best to have
the union that was representing her, or the Board . . . to speak on
her behalf. I didn’t think it was proper to talk with her about the
charge.” Shepherd did deny stating to Murphy that she “didn’t
have anything to do with” the charge.
Shepherd testified that, after the charge was filed, Murphy’s
conduct “dramatically changed,” that he would not speak to her
at staff meetings or executive board meetings and that she made
“approximately thirty to forty phone calls during that time and
he wouldn’t return them.” Because of this, she “started calling
Butch Underwood, who was suppose[d] to be my supervisor.”
Notwithstanding the foregoing testimony regarding Murphy’s
conduct, Shepherd claims that she “was surprised” when, on
April 1, she sought to speak with Murphy and he replied, “No,
not without a witness.”
During the Board’s investigation of the charge, Shepherd
met and spoke with a Board agent. She testified that she did not
give a statement. The record does not reflect whether she re-
fused or was not asked to give a statement. The GOA withdrew
the charge on May 28.
Shepherd’s testimony that Murphy would not speak to her at
staff or executive board meetings is contradicted by another of
the General Counsel’s witnesses, Gene Davis, a former shop
steward at Kroger who served on the Union’s executive com-
mittee in 1998. Davis testified that he observed that Murphy’s
responses to Shepherd were “very precise and that was it.” The
minutes of the executive board meeting of March 30 reflect that
Shepherd raised several issues to which both Kennedy and
Murphy responded. Those minutes also reflect extended discus-
sion regarding a loss of membership of approximately 10 per-
cent due to facilities closing. Despite this, Murphy stated that
he did not want to downsize the staff.
On April 3, the GOA received a seniority list from the Un-
ion. The list includes the names of the SPURs working with the
Union as well as the names of Union Officers Murphy and
Kennedy. The list reflects that Shepherd’s seniority date is
February 20, 1995, and that Bonelli’s seniority date is October
17, 1994. Shepherd was not aware of the list or that it had been
sent.
In early June, Shepherd learned from her supervisor, Under-
wood, that Murphy was handling a third-step grievance meeting
relating to a Kroger employee that Shepherd had represented at
the first two steps. Kennedy explained that this was not un-
usual, that “when a business agent is butting heads with the
supervisor or . . . the store manager, and they couldn’t get it
settled in the first or the second step, then having them in there
is not going to help them get it settled in the third step.”
On June 12, there was an executive board meeting. Murphy
acknowledges that he did not mention potential layoffs at that
meeting. On June 15, Murphy and Kennedy met with Shepherd
and Evattie Harrison and advised them that, due to financial
constraints, they would be laid off as of July 1. Murphy testi-
fied that “due to the decline in membership, we just financially
couldn’t do it any more, so I had to act.” The management-rights
clause in the collective-bargaining agreement between the Un-
ion and the GOA gives the Union the right “to relieve employ-
ees from duty because of financial reasons.”
Shepherd testified that she met with Kennedy and Murphy
after Harrison. Murphy showed her the seniority list. Shepherd
stated that she had not received the list. After reviewing it, she
protested that SPURs and officers were on the list and that she
did not “agree with Ray Bonelli being on the seniority list
higher than me.” Murphy told her that she had the right to file a
grievance. Shepherd was offered the option of taking a layoff
and drawing unemployment compensation or returning to her
unit position with Kroger as provided in the collective-
bargaining agreement between the Union and Kroger. In the
course of the conversation, Shepherd testified that Murphy
stated that the layoff had nothing to do with her filing charges
against him but that filing charges against a local union presi-
dent was “the same as charging a day care owner of molesting
children.” Shepherd did not state whether she would agree to
take a layoff or elect to return to Kroger. That afternoon she
called Murphy and asked what effect taking a layoff would
have on her status with Kroger and he stated that he would
check on that.
On June 18, Shepherd went on sick leave. On June 20, she
filed a grievance through the GOA. On June 26, she called
regarding her insurance and was referred to Kennedy. Shepherd
initially testified that Kennedy told her “if I didn’t stop the
grievances, I wouldn’t be able to take the layoff. I would have
to go back to work for Kroger.” When called by the Respon-
dent as an adverse witness, Shepherd testified that Kennedy
told her that she “couldn’t take a voluntary layoff because I was
filing a grievance.” Kennedy recalls that Shepherd asked him
whether, “if she took the voluntary layoff could she still grieve
it,” and that he explained that she could not “take a voluntary
layoff and at the same time grieve it and say it wasn’t a volun-
tary layoff. It was either one or the other.” I credit Kennedy.
Shepherd did not agree to take a voluntary layoff. On June
30, the Union advised Kroger that her services under a union
business leave of absence were no longer needed. Thereafter,
Shepherd filed for and received disability retirement benefits.
Kennedy testified without contradiction that the Union inter-
vened with Kroger on Shepherd’s behalf in that regard.
The GOA did not pursue the grievance filed by Shepherd.
Bryon O’Neal, secretary/treasurer of the GOA, testified that
there was no hostility in dealings between the GOA and the
Union. He had no problem with the inclusion of SPURs and
officers on the seniority list since the contract, in article 7, pro-
vides that an employee who is elected or promoted to manage-
ment has “the option to return to his or her classification [in the
unit] with no loss of seniority” and that temporary employees
who become regular employees “shall include their temporary
employment in seniority.” Upon investigation of Shepherd’s
grievance, he testified that the GOA determined that Bonelli’s
seniority date was correct.
The General Counsel presented evidence that, at a staff
meeting on September 29, 1997, Murphy announced that
Bonelli and Chris Cooper were going to be laid off for a month.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
Kennedy credibly explained that these were voluntary layoffs
unconnected to seniority, that staff members regularly took
voluntary layoffs to relieve “some of the financial burden” of
the Union and that this had been the Union’s practice for “as
long as I can remember.”
The General Counsel also presented evidence that, on May
28, the Union announced two management positions, director
of manufacturing and organizing director. Although Kennedy
testified that he sent this announcement to all staff members,
Shepherd denied receiving it. Kennedy credibly testified that
the International required that all locals create a position of
organizing director. The position was given to Lionel Shephard,
a SPUR. Isivoro Basurto, whose seniority date is in 1997, ini-
tially took the director of manufacturing position, but he trans-
ferred to the International. It appears that the position was not
filled thereafter.
Shepherd, as already discussed, asserted that her seniority
was greater than that of Bonelli. She also asserted that, al-
though her seniority date was the same as that of employee
Harrison, her seniority was superior because, according to her
recollection, she had reported to work one hour sooner than
Harrison on February 20, 1995. Kennedy testified that when
employees share the same date, seniority is alphabetical. No
representative from the Union or GOA, the parties to the con-
tract, disputed this testimony which I credit.
The charge herein was filed on September 2. Shepherd also
filed a claim with the Equal Employment Opportunity Com-
mission (EEOC). In filing with the EEOC on January 23, 1999,
Shepherd stated, “I believe I have been discriminated against
because of my sex.” Although the foregoing statement is not
inconsistent with the allegations of the complaint, it establishes
that Shepherd believed there was this additional reason for her
layoff.
C. Contentions
The General Counsel argues that Murphy’s refusal to talk
with Shepherd alone after the charge was filed, his handling of
the third-step grievance of the Kroger employee in June, and
his statement equating the filing of charges with accusing a day
care owner with child molestation justify an inference of ani-
mus. I do not agree. Murphy’s decision not to engage in a one-
on-one conversation with an individual alleged as a discrimina-
tee in an unfair labor practice charge would have been reason-
able under the best of circumstances. It is even more under-
standable in view of Shepherd’s changed story regarding the
Amway matter. Kennedy credibly explained the rationale for
having different personnel at the third step of a grievance. The
statement relating to child molestation, as counsel for the Gen-
eral Counsel correctly argued, reflects that “this was a serious
matter to him [Murphy].” The statement is not alleged to vio-
late the Act. It contains no threat, and it does not, standing
alone, establish animus.
The General Counsel next addresses the circumstances sur-
rounding the layoff, noting the creation of two management
positions that purportedly would have protected two junior
employees, the absence of any mention of layoffs at the execu-
tive board meeting on June 12, and Bonelli’s seniority. If the
failure of Murphy to bring up the matter of layoffs at the June
12 executive board meeting or the creation of two positions
provided any basis for arguing the merit of Shepherd’s griev-
ance, I am satisfied that the GOA would have pursued the
grievance. Even if I assume some sinister motive regarding the
creation of the two management positions, Lionel Shephard
was a SPUR and Basurto, with less seniority than Shepherd,
transferred before the layoff. Thus, Shepherd’s unit seniority at
the time of the layoff was not affected. Counsel for the General
Counsel argues that Bonelli, not Shepherd, was laid off in 1997,
but he does not address the testimony of Kennedy that staff
members regularly took voluntary layoffs to relieve “some of
the financial burden” of the Union or the testimony of GOA
Secretary/Treasurer O’Neal that, after investigation, the GOA
determined that Bonelli’s seniority was correct.
The Respondent argues that there is no evidence of animus,
noting that Murphy and Kennedy refused to deal with Shepherd
without a witness after she changed her story regarding her
Amway involvement in 1997, well before the 10(b) date of
March 2. Counsel for the Respondent points out that Shepherd
was laid off in accord with seniority and that the Union and the
GOA agree on Bonelli’s seniority date. The Respondent argues
that there has been no failure to recall Shepherd since she is
receiving disability retirement benefits.
D. Analysis and Concluding Findings
The minutes of the March 30 executive board meeting reflect
a decline in membership due to various closings. Although
Murphy did not reduce staff at that time, the General Counsel
presented no evidence contradicting his testimony that, in June,
“we just financially couldn’t do it any more, so I had to act.” I
find that the layoffs were dictated by economic circumstances,
thus the only issue before me relates to the selection of Shepherd
for layoff.
I have credited Secretary/Treasurer Kennedy’s testimony
that he informed Shepherd of the inconsistency in taking a vol-
untary layoff and filing a grievance asserting that her layoff
was involuntary. He made no threat. Such sound advice does
not constitute a violation of Section 8(a)(1) of the Act, and I
shall recommend that this allegation be dismissed.
In assessing the evidence relating to the Section 8(a)(3) alle-
gation under the analytical framework of Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find
that Shepherd did engage in union activity and that the Respon-
dent was fully aware of that activity. There is, however, no
evidence that the Respondent bore animus towards union activ-
ity or Shepherd’s involvement in that activity. I have credited
Kennedy and shall recommend that the single 8(a)(1) allegation
be dismissed. The only action that the record reflects that Shep-
herd took in her capacity as shop steward of the GOA prior to
June 15 was attempting to represent a SPUR who was not in the
bargaining unit. The Union was not obligated to deal with the
GOA with regard to nonunit employees. Murphy’s failure to
accord the GOA representational rights that it did not possess
does not establish animus.
In evaluating alleged discrimination in violation of Section
8(a)(4) of the Act, the Board utilizes the Wright Line analytical
framework. Williamhouse of California, Inc., 317 NLRB 699,
715 (1995). Shepherd was named in a charge. Notwithstanding
FOOD & COMMERCIAL WORKERS LOCAL 204 5
her inclusion in the charge, she informed Murphy that she had
nothing to do with the charge. The complaint alleges that the
Respondent discriminated against Shepherd for cooperating
with the Board in the investigation of the charge. Shepherd
testified that she did not give a statement to the Board. The
record does not reflect whether she was asked to do so and
refused or whether no statement was requested. The charge was
withdrawn by the GOA. There is no evidence that the Union
had knowledge that Shepherd cooperated in the investigation.
There is no independent allegation relating to animus, thus
animus must be inferred. There is no probative evidence that
Shepherd cooperated in the investigation or that the Respondent
had any reason to believe that she did so. The record establishes
only that a charge was filed and withdrawn. Shepherd told
Murphy that she did not have “anything to do with” the charge
and Murphy, although reasonably refusing to speak with her
one-on-one, credibly testified that he believed her. Although
equating employee charges against a local union president with
child molestation at a day care center, Murphy specifically told
Shepherd that the charge was not related to her layoff. The
General Counsel may not establish a prima facie case on the
basis of inferences. The Board has long held that “[i]nferences
must be founded on substantial evidence upon the record as a
whole” and, since an inference is not substantial evidence, “an
inference based on an inference” is impermissible. Steel-Tex
Mfg. Corp., 206 NLRB 461, 463 (1973); Diagnostic Center
Hospital Corp., 228 NLRB 1215, 1216 (1977). In order to es-
tablish a prima facie case on this record, one must discredit
Murphy’s testimony that he believed Shepherd’s protestation
that the charge was none of her doing and infer that he assumed
she cooperated in the investigation, despite the absence of any
evidence that she did so. One must then believe the exact oppo-
site of what Murphy told Shepherd, that her layoff was not
related to the charge, and infer the Respondent laid off Shep-
herd because of her assumed cooperation in the investigation,
notwithstanding that the charge was withdrawn. The foregoing
compilation of inferences defies logic. The logical inference is
that, having informed Murphy that she had no involvement in
filing the charge, Shepherd did not cooperate with the Board.
Upon being advised that there was no evidence to support the
charge, the GOA withdrew it. There is no evidence of animus.
Even if an inference of animus were made, an inference that the
Respondent acted on such inferred animus because of its in-
ferred belief that Shepherd cooperated with the Board would be
impermissible.
This record establishes a dysfunctional relationship between
the leadership of the Union and Shepherd. That dysfunctional
relationship was not a product of her activity on behalf of the
GOA or the filing of a charge or cooperation in an investiga-
tion. It stemmed from Shepherd’s disruptive behavior begin-
ning with her changed story regarding her Amway involvement
and her multiple telephone calls after Murphy and Kennedy had
told her that they would not discuss that matter further without
witnesses. It was exacerbated by her making “approximately
thirty to forty phone calls” after Murphy informed her that he
would not discuss the charge that she denied having “anything to
do with” in the absence of her representative. Dissention within
the staff of the Union would constitute protected activity if it
were concerted, but there is no evidence of concert. Despite the
dysfunctional relationship, the Union accorded Shepherd her
rights under the collective-bargaining agreement with the GOA
and assured that she received her entitlements under the collec-
tive-bargaining agreement with Kroger when she returned to
the bargaining unit. Even if I were to have found that the Union
attempted to manipulate the seniority list and staged the layoff,
I would have further found that those actions were motivated
by Shepherd’s disruptive behavior that was neither concerted
nor protected. There is no evidence of animus towards Shep-
herd because of any protected activity in which she engaged.
In the absence any probative evidence of animus towards
Shepherd because of activities on behalf of the GOA, I shall
recommend that the 8(a)(3) allegations be dismissed. There is
no evidence that Shepherd cooperated in a Board investigation
or that the Respondent had any reason to believe that she did
so. In the absence of any evidence of animus towards Shepherd
because of the filing of charges or her assumed cooperation in a
Board investigation, I shall recommend that the Section 8(a)(4)
allegations be dismissed.
CONCLUSION OF LAW
The Respondent did not threaten the Charging Party or lay
her off and refuse to recall her because of her union activities or
filing of charges or cooperation in a Board investigation in
violation of Section 8(a)(1), (3), and (4) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.