State County Employees AFSCME Local 1640 (Children���s Home of Detroit)

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 441 (N.L.R.B. 2005)

STATE, COUNTY EMPLOYEES AFSCME LOCAL 1640 (CHILDREN’S HOME OF DETROIT)
344 NLRB No. 53
441
Local 1640, American Federation of State, County
and Municipal Employees, AFL–CIO (Chil-
dren’s Home of Detroit) and Remonia Murphy.
Case 7–CB–13986
March 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On January 5, 2005, Administrative Law Judge Joseph
Gontram issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
1640, American Federation of State, County and Mu-
nicipal Employees, AFL–CIO, its officers, agents, and
representatives, shall take the action set forth in the Or-
der as modified.
1. Substitute the following for paragraph 2(a).
“(a) Make Remonia Murphy whole for any increase in
damages suffered as a consequence of the Respondent’s
failure to process her grievance, with interest.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(b)(1)(A) by failing to process the grievance of Remonia Murphy, we
do not rely on the statement made in the third paragraph of sec. III,A,
of his decision that the circumstances behind Murphy’s termination
“suggest that the Respondent was, at least, partially responsible for
Murphy’s termination.”
2 In accordance with the decision in Iron Workers Local 377 (Cali-
fornia Iron Workers Employers Council), 326 NLRB 375 (1998), we
shall modify the make-whole remedy set forth at sec. 2(a) of the
judge’s recommended Order by limiting the Respondent’s liability to
the portion of damages attributable to its failure to process Murphy’s
grievance.
Member Schaumber notes that the complaint also alleged the Em-
ployer, as a respondent, had the obligation, together with the Respon-
dent Union, to make Murphy whole for her losses stemming from her
termination. As explained in the judge’s decision, the complaint
against the Employer was settled. Therefore, the concerns raised by the
dissent in Iron Workers Local 377, supra, are not implicated in this
case.
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO MEMBERS
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 vio-
lated 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT process or handle grievances of any
member of the bargaining unit because of ill will or other
invidious considerations toward such member.
WE WILL NOT arbitrarily process and handle grievances
of any member of the bargaining unit.
WE WILL NOT fail to provide fair representation to any
member of the bargaining unit.
WE WILL NOT in any like or related manner restrain or
coerce members in the exercise of rights guaranteed them
by Section 7 of the Act.
WE WILL make Remonia Murphy whole for any in-
crease in damages suffered as a consequence of the
unlawful failure to process her termination grievance.
WE WILL, within 14 days from the date of this Order,
remove from our files, and ask Children’s Home of De-
troit to remove from its files, any reference to the unlaw-
ful termination of Remonia Murphy’s employment, and
within 3 days thereafter notify Remonia Murphy in writ-
ing that this has been done and that her termination from
employment will not be used against her in any way.
LOCAL 1640, AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, AFL–
CIO
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD442
Patricia A. Fedewa, Esq., for the General Counsel.
Eric I. Frankie, Esq. (Miller Cohen, P.L.C.), of Detroit, Michi-
gan, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOSEPH GONTRAM, Administrative Law Judge. This case1
was tried in Detroit, Michigan, on June 14–15, 2004. The
charge was filed October 17, 2003,2 and the complaint was
issued December 31.3 The complaint alleges that Local 1640,
American Federation of State, County and Municipal Employ-
ees, AFL–CIO (the Union or the Respondent), violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act) by
unlawfully failing and refusing to process the grievance of Re-
monia Murphy (the Charging Party) regarding the termination
of her employment. The first question is whether the Respon-
dent violated its duty of fair representation in connection with
its processing of Murphy’s termination grievance.
The employer, Children’s Home of Detroit (CHD), settled
with the General Counsel the unfair labor practice allegations
against it in the present complaint. (GC Exh. 1(k).) If the Re-
spondent presently were found to have violated its duty of fair
representation in handling Murphy’s termination grievance, it
would be unable to obtain a resolution of the grievance. The
Respondent failed to submit the grievance to arbitration, the
time for submitting the matter to arbitration has expired, and
CHD would not agree to litigate a matter it has already settled.
Accordingly, the Respondent and the General Counsel agreed
to litigate the merits of Murphy’s grievance at the unfair labor
practice proceeding, and that agreement was approved. See
Iron Workers Local 377 (Alamillo Steel Corp.), 326 NLRB 375
(1998). Thus, if the answer to the first question is affirmative,
the second question is whether Murphy’s grievance was merito-
rious.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The employer, Children’s Home of Detroit (CHD), is a cor-
poration that operates a youth mental health facility at 900
Cook Road, Grosse Pointe Woods, Michigan. During the cal-
endar year ending December 31, 2002, CHD received gross
revenues in excess of $250,000, and during that same period
purchased materials valued in excess of $50,000 from points
located outside the State of Michigan, and caused the materials
to be delivered directly to its Grosse Pointe Woods facility.

1 The transcript reflects the case number as Case 7–CA–46734.
However, that case has been severed, and Case 7–CB–13986 is the only
pending matter. The General Counsel has filed an unopposed motion to
correct the transcript, and that motion is granted.
2 All dates are in 2003 unless otherwise indicated.
3 A charge was filed against the employer, Children’s Home of De-
troit, concurrent with the charge that was filed against the Respondent.
The present consolidated complaint then issued. The charge against the
employer was settled before the hearing.
CHD has admitted and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Respondent does not dispute that it is a labor
organization. See also Renaissance West Mental Health Cen-
ter, 276 NLRB 441, 442 (1985) (in which the Respondent was
found to be a labor organization). The Respondent has a col-
lective-bargaining agreement with CHD and it represents the
employees in matters encompassing conditions of employment.
Accordingly, I find that the Respondent is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Remonia Murphy was an employee of CHD for more than
15 years, from January 6, 1988, until September 29, 2003. She
started as an AM aide, and she advanced to the position of
childcare worker II at the time her employment ended. There
are 74 to 80 employees in the bargaining unit, and the bargain-
ing unit includes employees in mental health facilities other
than CHD. Murphy was a member of and held several posi-
tions in the Union during her employment at CHD. Murphy
was a steward in 1999, she was elected the cochair of the unit
in 2000, and she was elected to be the chairperson of the unit in
an election scheduled for January 2001.
The collective-bargaining agreement provides that “[e]m-
ployees in the unit shall be represented by the Unit Chairperson
and one steward and one alternate steward.” (GC Exh. 7, p. 9.)
The agreement forbids discharges without just cause. Griev-
ances are subject to a 4-step process, which, in summary, is as
follows:
Step 1. The employee reports the matter to his supervi-
sor in the presence of the union steward, or the steward
files the grievance on behalf of the employee, within 7
days.
Step 2. If the matter is not settled, the steward submits
the grievance to the Director of Residential Services
within 5 days thereafter. The aggrieved employee must
sign the grievance.
Step 3. If the answer of the Director of Residential
Services is unacceptable, the unit chairperson notifies the
employer, and a meeting is held with representatives of the
union and the employer. The employer submits its answer
to the grievance within 3 days thereafter.
Step 4. If the grievance is not resolved, the matter may
be submitted to arbitration within 45 days of the em-
ployer’s response in Step 3.
The January 2001 election for Local 1640 officers, although
scheduled to take place in January, was held on at least three
separate occasions. The election for president was not con-
cluded until January 31, 2002; however, the election of Murphy
as chairperson was completed approximately February 15,
2001. Arlean King was a candidate for president of the Local
in this election, and Murphy was a candidate for chairperson of
the unit. However, Murphy was running with and supporting a
slate of candidates that was opposed to King and her slate of
candidates. In the January 2001 election, Murphy supported
John Swanson who ran against King for president of the Local.
The rivalry and friction between King and Murphy during the
STATE, COUNTY EMPLOYEES AFSCME LOCAL 1640 (CHILDREN’S HOME OF DETROIT) 443
January 2001 election campaign continued and worsened dur-
ing and after the campaign. The following incidents are exam-
ples.
a. Verbal and physical confrontation. In approximately
March 2001, while King and Murphy were at the Local’s of-
fices, King cursed at Murphy, physically threatened her, and
grabbed her by the arm. The next day, Murphy went to the
local police station and filed a complaint. As a result of that
complaint, and after a hearing and an attempt at mediation,
Judge Richard Halloran of the Third Judicial Circuit, Wayne
County, Michigan, issued a personal protection order in favor
of Murphy and against King. Judge Halloran’s order, dated
June 18, 2001, prohibited King from “stalking” Murphy for a
period of 1 year.
The Respondent objected to the admission of evidence relat-
ing to the physical confrontation between King and Murphy on
the ground that the confrontation occurred more than 2 years
before the Respondent’s alleged violation of its duty of fair
representation as alleged in the complaint. However, the pro-
tection order was effective until June 2002, which was only 15
months before the Respondent’s alleged violation. Moreover,
since the evidence tends to prove a bad-faith motivation for the
Respondent’s actions and inactions regarding Murphy’s termi-
nation grievance, the objection goes more to the weight of the
evidence, rather than its admissibility.
The Respondent also objected to the evidence on the ground
that its admission would force the Respondent to relitigate the
state court proceeding. Without regard to the accuracy or rele-
vance of this claim, the Respondent failed to present any evi-
dence, including testimony from King, regarding the incident.4
King was present at counsel’s table throughout the hearing.
Murphy’s testimony is unrebutted and is credited.
b. Stipend and letter of complaint. The chairperson of the
unit usually receives a stipend from Local 1640. However,
King refused to approve a stipend for Murphy while she was
the chairperson of the unit. On May 24, 2001, Murphy sent a
letter to Albert Garrett, the president of Council 25 of
AFSCME, in which she complained of King’s refusal to pro-
vide Murphy with a stipend. Murphy also notified Garrett and
explained to him her pursuit of a personal protection order
against King.
c. Contract negotiations. The chairperson of the unit is a
part of the Union’s negotiating team for a collective-bargaining
agreement with CHD. However, King bypassed Murphy in the
negotiation of the agreement that was effective January 1, 2001.
The agreement was resolved in a manner unknown to Murphy,
and then given to Murphy to present to the members for ratifi-
cation.
d. Term of office. The normal term of office for officers of
the Union is 3 years. However, in January or April 2002, King
appointed Zazal Jones to replace Murphy as the chairperson of
the unit. This appointment supposedly was made after a new

4 I note that the Respondent’s ability to present a defense could only
be helped by being able to relitigate King’s abusive and physical attack
on Murphy because the State court proceeding was decided against
King. Nevertheless, the Respondent failed to offer any evidence relat-
ing to the verbal and physical confrontation between King and Murphy.
election called by King in January 2002. However, even Jones
could not remember when the election was held. Moreover, at
least some members of the unit were given no notice of the
election, including Murphy, Melissa Baisch, Tasha Montgom-
ery, and Shemika Boyd. Whether Jones was elected by some of
the members or appointed by King, the fact remains that Mur-
phy was replaced after serving only 1 year as chairperson of the
unit.
e. Letters of complaint. On July 31, 2001, Murphy sent a let-
ter to John Seferian, chair, judicial committee, AFSCME, in
which she complained of King’s actions against her, including
King’s verbal and physical confrontation with Murphy, King’s
influence in bringing charges against Murphy resulting in Mur-
phy’s suspension for 30 days from her position as chairperson,
and King’s call to the police to remove Murphy’s supporters
from a hearing on those charges. On April 18, 2002, Murphy
sent another letter to Seferian protesting an election supposedly
held on January 25, 2002, apparently referring to the replace-
ment of Murphy by Jones. On November 18, 2002, Murphy
sent a letter to Gerald McEntee, International president of
AFSCME in which Murphy chronologically details several of
her complaints against King. (GC Exh. 14.)
f. Offensive name calling. In late August or early September
2003, Tasha Montgomery, a childcare worker at CHD and a
member of the Union, telephoned King regarding grievances
that Montgomery wanted to file. King was belligerent during
their brief conversation. King accused Montgomery of being
“in cahoots with that bitch, Remonia Murphy.” (Tr. 227.)5
King then told Montgomery, “[O]ne B[itch] is already gone.
The rest of you B[itche]s are going to be next.” (Tr. 228.)
Montgomery asked, but King did not tell her the person King
had described as being already gone. King then hung up on
Montgomery.
On September 13, Murphy filed three grievances against
CHD through Lisa Grinston-Chapman,6 the union steward.
Grinston-Chapman had been installed as the union steward as
one of the new union officers who were named when Jones
replaced Murphy as chairperson. Murphy’s grievances dealt
with compensation for employees who elected not to receive
health care coverage, violation of the collective-bargaining
agreement (or contract) relating to health care coverage, and
violation of the contract relating to layoff and recall procedures.
In approximately August, Murphy’s mother became ill, and
Murphy felt she should be with her. On August 29, Murphy
submitted a request for leave under the Family Medical Leave
Act, but by mid-September CHD had not provided her with a
response. In mid-September, Murphy discussed her situation
with her supervisor, Jaime Sampson, and Murphy mentioned
the possibility of resigning. (Sampson was Murphy’s acting
supervisor in place of Cathy Anderson who was on medical
leave.) Murphy told Sampson that she needed some time off,
but Sampson replied that she should not resign. Nevertheless,
Murphy typed a letter of resignation that she presented to

5 References to the transcript of the hearing are designated as Tr.
6 The witnesses generally referred to Grinston-Chapman as Lisa
Chapman. However, the witness stated that she prefers the name Grin-
ston-Chapman. Accordingly, that is the name used herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD444
Sampson on September 17. When Sampson received Murphy’s
resignation letter, she told Murphy to think about it, and not to
rush into it. Murphy replied that for the next several days she
was scheduled to be absent from work anyway because of
scheduled oral surgery.
While Murphy was out of work because of oral surgery, she
did think about it, and then changed her mind about, her resig-
nation letter. On September 26, Murphy telephoned Sampson
and Sampson told her to come right in. Murphy arrived at ap-
proximately 8 a.m. Murphy told Sampson that she had decided
not to resign from her position, and she gave Sampson a hand-
written letter confirming this. Sampson replied that she was
glad Murphy had decided not to resign “because we really need
you here.” (Tr. 131.) Sampson then asked Murphy if she would
stay and work that day even though it was not her scheduled
workday. Murphy stayed and worked a full 8-hour shift.
On September 27, Anderson telephoned Murphy and
thanked her for not resigning. Anderson told Murphy that she
was an asset to the employer that Murphy was doing a great
job, and that Anderson was happy and relieved Murphy had
decided not to resign her position. Murphy continued to work
full 8-hour shifts from September 26 through 29.
At the end of the workday on September 29, Sampson in-
structed Murphy to accompany her to Joseph LaFata’s office.
LaFata is CHD’s director of residential services. (GC Exh.
1(i).) When Sampson and Murphy arrived in LaFata’s office,
LaFata and Zazal Jones were already there. LaFata told Murphy
that CHD had decided against allowing her to withdraw her
letter of resignation. He then said, “It’s not me, Remonia. . . . I
had nothing to do with this. This is not my decision.” (Tr. 135,
137.) When Murphy asked LaFata for the name of the person
who made the decision, he told her to talk to human resources.
Although Jones was present throughout this meeting, she did
not say anything nor did she speak with Murphy after the meet-
ing. The next morning, Murphy came to CHD and spoke with
Kurt Larkins, the director of the human resources department.
She asked Larkins why she was not being allowed to withdraw
her letter of resignation, but he did not give her an answer.
Murphy then handed Larkins her keys and badge. Larkins, like
LaFata, did not give any reason for CHD’s actions.
The refusal of CHD to allow Murphy to withdraw her letter
of resignation was contrary to its actions in previous cases. The
collective-bargaining agreement provides that employees are
expected to give CHD 2 weeks’ notice in writing of their intent
to resign. (GC Exh. 7, p. 21.) In the past, CHD has treated such
written notices as conditional on the expiration of the full 2
weeks. That is, CHD treats the letters as notices of an intention
to resign after the passage of 2 weeks, which is exactly what the
letters are. Therefore, employees who have submitted 2-week
notices have been permitted to withdraw such notices before
the proposed resignation date. For example, in the summer of
2001, Melissa Baisch, a child-care worker and a member of the
Union, submitted to LaFata a 2-week letter of her intent to re-
sign. Between 1 and 2 weeks after she submitted that letter,
Baisch changed her mind and told LaFata she had decided to
remain with CHD. LaFata told Baisch that he was pleased she
had changed her mind. He then handed Baisch’s resignation
letter back to her, and she destroyed it.
In 2000, Tasha Montgomery handed a 2-week resignation
letter to her supervisor. Her supervisor later told Montgomery
to think about it and returned the letter to Montgomery. Mont-
gomery did think about it and she withdrew her letter. Mont-
gomery notified her unit chairperson of her resignation letter
before her supervisor returned her letter of resignation. In addi-
tion, Montgomery’s coworker, Charles Brazil, told her that he
had also submitted to CHD a 2-week letter of resignation that
his supervisor allowed him to withdraw. The record fails to
disclose any instance in which CHD refused to allow a worker
to withdraw a 2-week letter of intent to resign, other than the
case of Murphy in September 2003.
In spite of Sampson’s support for Murphy’s decision to re-
voke her resignation, Sampson’s statement to Murphy that
CHD really needed her, and Sampson’s request to Murphy that
she immediately work a shift even though she was not sched-
uled to work that day, Sampson later told Montgomery that
management was quite pleased that Murphy was gone.
Sampson also told Montgomery that LaFata was pleased Mur-
phy had submitted a notice of resignation because Murphy was
such a strong leader of the employees.
The day after Murphy’s meeting with Larkins, she tele-
phoned Grinston-Chapman and asked her to file a grievance on
Murphy’s behalf. Grinston-Chapman told Murphy that CHD
had allowed other employees to withdraw their letters of resig-
nation. Murphy said that she did not want Jones to handle her
grievance at all because of Jones’ failure to speak up during the
meeting with LaFata. Grinston-Chapman said that she did not
have any grievance forms. Murphy told her that Kimberly
Grimes had grievance forms. Murphy requested Grinston-
Chapman to contact Murphy after she filed the grievance.
Grinston-Chapman spoke to Grimes and authorized her to
file a grievance for Murphy on Grinston-Chapman’s behalf.7
Grimes is a child-care worker and is a member of the Union.
Grimes was elected cochair of the unit in January 2001. How-
ever, she and Murphy were the subjects of Jones’ letter seeking
a new election of officers, and she was removed as cochair at
the same time that Murphy was removed as the chairperson.
On October 2, and in accordance with Grinston-Chapman’s
authorization, Grimes completed and submitted to LaFata a
grievance regarding CHD’s alleged wrongful termination of
Murphy. (R. Exh. 1.)
Within approximately 2 weeks of the grievance, Grimes
spoke to Jones who said that CHD was not going to do any-
thing about the grievance because Murphy had quit. Grimes
questioned this statement because Murphy had withdrawn her
resignation letter, but Jones simply repeated CHD’s position.
On October 14, Jones left a voice message on Murphy’s
home telephone stating that a meeting with CHD on Murphy’s
grievance was scheduled for Thursday, October 15, at 11 a.m.
This message was incorrect, and it confused Murphy, because
October 15 was a Wednesday. Moreover, the relationship be-
tween Murphy and Jones was acrimonious, and Murphy felt

7 Without regard to Grinston-Chapman’s credibility, she did not
deny authorizing Grimes to sign Murphy’s grievance on behalf of Grin-
ston-Chapman. Moreover, Grimes, a credible witness, testified that
Grinston-Chapman gave this authorization.
STATE, COUNTY EMPLOYEES AFSCME LOCAL 1640 (CHILDREN’S HOME OF DETROIT) 445
that the incorrect date or day that Jones gave in her voice mes-
sage likely signified that the entire message was false. Murphy
felt that Jones was “up to her games again.” (Tr. 143.) Accord-
ingly, Murphy called Sharon Donahue, the Respondent’s repre-
sentative in grievance meetings. Murphy asked Donahue if she
was aware of a meeting scheduled for any time that week on
Murphy’s grievance. Donahue said that she was not aware of
such a meeting. Indeed, Donahue said that she was not even
aware of Murphy’s grievance.
The next day, Murphy called Grinston-Chapman and asked
her whether she knew of a meeting on Murphy’s grievance.
Grinston-Chapman said that she had heard nothing from CHD
regarding the grievance, but that Jones had asked her why she
had filed the grievance in the first place. Murphy then re-
quested Grinston-Chapman to ask LaFata if there was a meet-
ing. Murphy asked Grinston-Chapman to call Murphy as soon
as she found out from LaFata the status of any meeting.
Grinston-Chapman’s statement to Murphy on October 15
that she had heard nothing from CHD regarding Murphy’s
grievance was not true. On October 8, Grinston-Chapman re-
ceived a memorandum from LaFata containing CHD’s step-1
denial of Murphy’s grievance. CHD denied the grievance be-
cause it claimed that Murphy was not terminated, but rather,
she had resigned. After Grinston-Chapman received this re-
sponse, she immediately turned it over to Jones. Grinston-
Chapman’s transfer of Murphy’s grievance to Jones was con-
trary to Murphy’s request that Jones not get involved in the
grievance, and it was the first time that Grinston-Chapman
turned over to the unit’s chairperson a grievance response that
had been given to her.
In her demeanor and in her testimony, Grinston-Chapman
was not a credible witness. She appeared to be troubled or un-
easy throughout her testimony, which was given in the presence
of King. Indeed, she often looked at King during her testi-
mony. When Grinston-Chapman was asked, “Did Remonia
ever contact you at any point directly to ask you to get involved
in her grievance?” she responded, “I don’t recall speaking to
Remonia.” (Tr. 358, 347–348, 364.) Such testimony is not
credible. Murphy had an on-going hostile relationship with
Jones, which was exacerbated by Jones’ refusal to speak or
intervene during LaFata’s meeting with Murphy. Murphy
would reasonably want Grinston-Chapman to handle her griev-
ance rather than Jones, and Murphy testified that she did speak
to Grinston-Chapman about her grievance. Moreover, Grin-
ston-Chapman was the union steward who was responsible for
handling grievances at the first step, so Murphy would likely
have talked to her about the grievance. It is not credible that
Grinston-Chapman did not talk to Murphy concerning the
grievance, and it is not credible that Grinston-Chapman did not
remember talking with Murphy about the grievance. Finally,
and perhaps most disturbingly, Grinston-Chapman signed a
false statement on October 27 saying that she had not received
a response from CHD to Murphy’s grievance. (GC Exh. 22.)
For all of these reasons, Grinston-Chapman was not a credible
witness.
As the union steward, Grinston-Chapman was responsible
for the handling of grievances at the first step. She admitted
that she interviewed no witnesses concerning that grievance. In
addition, there is no evidence that the Respondent at any time
interviewed any witnesses, including Murphy, looked at any
documents, or did any investigation regarding the merits of
Murphy’s grievance.
It is unclear whether a meeting between the Respondent and
CHD on Murphy’s grievance was held. Grinston-Chapman
testified that she went to a meeting with Jones, but she did not
describe who, if anyone, was present at the meeting, the date or
day the meeting was supposedly held, or what, if anything,
occurred. Moreover, the meeting Grinston-Chapman referred to
was scheduled to take place at 1 p.m., which was 2 hours later
than the time of 11 a.m. that Jones gave in her voice mail mes-
sage to Murphy. Grinston-Chapman did not advise Murphy of
this meeting, assuming it occurred.
On October 16, Murphy again called Grinston-Chapman.
Grinston-Chapman said that she went to LaFata’s office, but he
was not there. Grinston-Chapman repeated that she still had
heard no response from CHD on Murphy’s grievance, which, of
course, was not true. Grinston-Chapman did not tell Murphy
about any scheduled meeting on the grievance. The last time
anyone from the Respondent contacted Murphy was October 14
when Jones left a voice mail message for Murphy. Other than a
possible meeting on October 16, the record fails to disclose any
further action taken by the Respondent or CHD on Murphy’s
grievance.
In October, Sampson told Baisch that CHD was pleased
Murphy was gone because she had been such a strong, forceful
person and leader of the employees. Murphy had been a
“headache.” In a different conversation involving LaFata, Sally
Savage, the director of finances, and supervisor Rebecca Park-
inson, LaFata said that Murphy was terminated, and added,
“Yeah, the mouth is gone now.” (Tr. 65.)
III. ANALYSIS
A. Duty of Fair Representation
A union owes a duty of fair representation to all the employ-
ees it represents. Vaca v. Sipes, 386 U.S. 171 (1967). This
duty extends to the union’s enforcement of the collective-
bargaining agreement, such as the filing and processing of
grievances. A union breaches this duty and violates Section
8(b)(1)(A) of the Act when its conduct toward a member of the
unit is arbitrary, discriminatory, or in bad faith. Id.; Teamsters
Local 553 (Miranda Fuel Co.), 140 NLRB 181 (1962). When a
union files a grievance on behalf of a member, “but decides to
abandon the grievance short of arbitration, the finding of a vio-
lation turns not on the merit of the grievance but rather on
whether the union’s disposition of the grievance was perfunc-
tory or motivated by ill will or other invidious considerations.”
Bottle Blowers Local 106 (Owens-Illinois), 240 NLRB 324
(1979).
There is substantial evidence of union hostility and animus
toward Murphy. The hostility germinated in the political oppo-
sition of Murphy against King and Jones for union offices. The
hostility is reflected in King’s cursing at and physically threat-
ening Murphy, Murphy’s obtaining a State court, protection
order against King, King’s refusal to pay Murphy the stipend
that had been paid to the former unit chairperson, King’s re-
fusal to include Murphy in the negotiations for the collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD446
bargaining agreement, Murphy’s various complaints to higher
union officials regarding King, Jones’ replacement of Murphy
as the unit chairperson, which was accomplished with King’s
assistance, King’s calling Murphy a bitch within 2 months of
Murphy’s termination, and Jones’ failure to say anything to
Murphy or to LaFata during the meeting in which LaFata in-
formed Murphy that her employment was terminated.
Indeed, when LaFata told Murphy her employment was ter-
minated, he protested that “[i]t’s not me, Remonia. . . I had
nothing to do with this. This is not my decision.” Jones was
already in LaFata’s office when Murphy arrived, and she said
nothing to Murphy or to LaFata throughout the meeting. These
circumstances suggest that the Respondent was, at least, par-
tially responsible for Murphy’s termination. Nevertheless, and
without regard to the Respondent’s responsibility for encourag-
ing or obtaining Murphy’s termination, there is ample evidence
in this record of the Respondent’s hostility towards Murphy.
The Respondent has offered no explanation for failing to
process Murphy’s grievance. (Although the Respondent did not
prepare and file Murphy’s grievance, it authorized Grimes to do
so. The agreement does not prohibit such authorizations, and
there is no evidence that CHD objected to this procedure.) The
Respondent failed to investigate the grievance. The record fails
to establish that a step-3 meeting was held on the grievance.
Moreover, if a meeting were held, the Respondent failed to
notify Murphy of the proper date and time of the meeting.
“[T]he Union’s duty of fair representation imposed on it the
duty not to ‘purposely keep [the grievant] uninformed or misin-
formed concerning’ her grievance.” Auto Workers Local
417(Falcon Industries), 245 NLRB 527, 534 (1980), quoting
Groves-Granite, 229 NLRB 56, 63 (1977). In addition, the
Respondent failed to submit the grievance for arbitration as
provided by step 4 of the grievance procedure.
The Respondent’s failure to explain its actions in the han-
dling of Murphy’s grievance leaves its hostility toward Murphy
as the unchallenged reason for such actions. The evidence
compels the conclusion that the Respondent’s failure to process
Murphy’s grievance—including the failure to accurately notify
Murphy of the step-3 grievance meeting, the failure to present
the merits of Murphy’s grievance at a step-3 meeting, the fail-
ure to conduct any investigation of the merits of the grievance,
and the failure to submit the grievance to arbitration—was in
bad faith and was motivated by personal animus against Mur-
phy emanating from Murphy’s political opposition to the Lo-
cal’s leaders. See Communications Workers Local 3410 (Bell-
South Telecommunications), 328 NLRB 920 (1999) (the union
violated its duty of fair representation when its actions in han-
dling a grievance were motivated by the grievant’s political
activities in opposition to the union’s leaders).
In addition, the Respondent handled Murphy’s grievance in
an arbitrary manner. As the Board stated in Teamsters Local
315 (Rhodes & Jamieson), 217 NLRB 616, 618 (1975):
[I]f a duty to avoid arbitrary conduct, as part of an affirmative,
fiduciary responsibility, means anything, it must mean at least
that there be a reason for action taken. Sometimes the reason
will be apparent, sometimes not. When it is not the circum-
stances may be such that we will have no choice but to deem
the conduct arbitrary if the union does not tell us what it is.
The Respondent proposes alternative reasons in its posthear-
ing brief for its conduct (or lack of conduct) in processing Mur-
phy’s grievance. These reasons are considered below. How-
ever, there is no evidence from a union official or anyone else
that such reasons actually motivated the Respondent in its proc-
essing of Murphy’s grievance. Under the facts of this case, the
reason for the Respondent’s actions is not apparent, other than
its personal hostility toward Murphy. Accordingly, and in the
absence of an explanation from the Respondent for its actions, I
conclude that the Respondent also acted arbitrarily in process-
ing Murphy’s grievance. See also Service Employees Local
3036 (Linden Maintenance), 280 NLRB 995, 997 (1986) (the
union abandoned the unit member’s grievance, but offered no
explanations for its actions; the Board held that the union’s
“continued nonaction, despite statements to the contrary,
amounted to a willful failure to pursue the grievance, and was
therefore perfunctory”).
The Respondent argues that it did not pursue Murphy’s
grievance because CHD’s rejection of Murphy’s attempt to
revoke her letter of resignation is not grievable. However, the
collective-bargaining agreement does not exclude such a rejec-
tion by the employer from the grievance procedure. The Re-
spondent also cites the agreement, article V, Grievance Proce-
dure, page 14, which provides in part as follows:
Nothing in this agreement is intended to limit the Employer’s
right to supervise and direct its work force, including the right
to establish new jobs, increase or decrease the number of jobs,
increase or decrease its services, change working methods,
therapy programs, and schedules, hire, rehire, recall, transfer
or layoff employees according to the Employer’s needs and
discharge employees for cause which includes, the inability of
an employee to relate to children.
The Respondent argues that, pursuant to this provision,
CHD’s rejection of Murphy’s attempt to revoke her letter of
resignation is a matter committed to the discretion of manage-
ment and, therefore, is not grievable. However, the foregoing
provision specifically lists the matters committed to CHD’s
managerial discretion, but notably omits any reference to
CHD’s rejection of an employee’s resignation letter. Under the
maxim that the expression of some items in a list of related
matters excludes items not mentioned (“expressio unius est
exclusio alterius”), the cited provision of the agreement equally
supports the conclusion that such an action by CHD is subject
to the grievance process. Accordingly, I reject the contention
that the agreement renders CHD’s action not grievable.
I also reject a contention that the word “rehire” in the forego-
ing provision applies to Murphy’s grievance or situation. Mur-
phy’s letter was a 2-week notification of an intention to resign.
If she were allowed to revoke or withdraw the letter, CHD
would simply destroy the letter or return it to her, as it has done
with other employees in the past. CHD does not treat such a
revocation as a rehire and it does not engage in any sort of for-
malized or other process to reinstate the employee. Employees
who change their minds regarding these notices to resign sim-
ply stay on the job as they had always done.
STATE, COUNTY EMPLOYEES AFSCME LOCAL 1640 (CHILDREN’S HOME OF DETROIT) 447
The Respondent argues that Murphy’s grievance was im-
proper because neither Murphy nor Grinston-Chapman signed
the grievance. However, both Murphy and Grinston-Chapman
authorized Grimes to sign the grievance for them. Grinston-
Chapman did not have grievance forms at the time Murphy’s
grievance was filed and she was not available to file it. More-
over, CHD did not raise the signatures on the grievance as an
issue or defense in its response to the grievance.
The Respondent asserts that there is nothing in the agreement
that requires CHD to allow an employee to withdraw a letter of
resignation. However, this does not mean that CHD may, with
impunity, do anything resulting in an employee’s discharge that
is not expressly forbidden in the agreement. In any event, the
agreement does provide that an employee cannot be discharged
except for just cause, and the immediate result of CHD’s action
was the termination of Murphy’s employment. In the circum-
stances of this case, there is no practical difference between
CHD’s refusal to accept Murphy’s withdrawal of her letter of
resignation and CHD’s discharge of Murphy. See, e.g., Sycor,
Inc., 223 NLRB 1091 (1976) (the employer’s refusal to accept
the employee’s rescission of her 2-week notice of resignation
was treated as a discharge with all attendant remedies).
Moreover, CHD had established the practice of allowing
employees to withdraw letters of resignation before the expira-
tion of the 2-week notice in the letters, and there is no evidence
in this record that CHD had ever before refused to do so. See
also Union de Obreros de Cemento Mezclado (Betteroads As-
phalt), 336 NLRB 972, 973 (2001) (“The Union’s interpreta-
tion of the contract provision becomes even less tenable in light
of record evidence [of] the Employer’s past practice.”). CHD’s
previous practice also tends to prove that it treated Murphy
differently from other, similarly situated employees. Such
disparate treatment would tend to prove, in turn, that CHD did
not have just cause in refusing to allow Murphy to withdraw
her letter of resignation. In short, under the facts of this case,
CHD’s refusal to accept Murphy’s withdrawal of her letter of
resignation constituted a violation of the agreement and was
grievable.
The Respondent relies on Postal Workers (Postal Service),
327 NLRB 759 (1999), for the proposition that a union’s deci-
sion against processing a grievance based on its belief that it
could not represent a grievant who had resigned from employ-
ment does not violate the union’s duty of fair representation to
the grievant. Postal Service is inapposite. In that case, the un-
ion presented testimonial evidence, credited by the administra-
tive law judge, of its good-faith belief that it could not represent
the grievant because the grievant had resigned from his posi-
tion. The judge concluded that the union “reasonably believed
that it could not file a grievance on [the employee’s] behalf.”
Id. at 767. In the present case, no such finding has been made,
and the Union has not presented any evidence that it believed
Murphy’s alleged resignation prevented it from representing
Murphy in the grievance. Nor has the Union presented any
evidence of its good-faith belief in the propriety of its actions in
handling Murphy’s grievance. Moreover, a claim that the Re-
spondent believed it could not represent Murphy would be con-
tradicted by Grinston-Chapman’s authorization for Grimes to
file the grievance on behalf of Murphy.
The Respondent also points to an October 26 letter (R. Exh.
8) by Murphy to the General Counsel as proof that Murphy’s
only claim in the present case is against CHD. But this argu-
ment is misplaced and it does not prove enough. First, the
General Counsel (as opposed to the charging party) brings
complaints of unfair labor practices. Second, Murphy’s letter
states that her claim against CHD is based only (“solo”) on
CHD’s retaliation against Murphy because Murphy had filed
grievances against CHD. However, the letter does not expressly
exclude Murphy’s claim against the Respondent. Moreover,
Murphy had already filed a charge against the Respondent
when she wrote that letter, and the letter does not dispute or
disavow that charge.
The Respondent argues that King and Jones are not alleged
to have done anything wrong in the handling of Murphy’s
grievance. Even if this were true,8 it is irrelevant. The com-
plaint charges that the Union (not any particular individual)
violated the Act by failing and refusing to process Murphy’s
grievance, and that this failure was due to unlawful and arbi-
trary reasons. Moreover, it is not so much what the Union did
in the present case, but what it failed to do. A union may not
refuse or fail to process a grievance “without reason, merely at
the whim of someone exercising union authority.” Teamsters
Local 315 (Rhodes & Jamieson), 217 NLRB 616, 617–618
(1975), enfd. 545 F.2d 1173 (9th Cir. 1976), quoting Griffin v.
Auto Workers, 469 F.2d 181, 183 (4th Cir. 1972). The Respon-
dent failed to properly advise Murphy of an alleged step-3
meeting concerning her grievance, it failed to take part in a
step-3 meeting (at least insofar as the record shows), it failed to
perform any investigation of the merits of the grievance, and it
failed to submit the grievance to arbitration. These failures
were deliberate and were motivated by the Union’s personal
animosity against Murphy.
In short, the Respondent arbitrarily and in bad faith failed to
process Murphy’s grievance. The Respondent violated its duty
of fair representation to Murphy. Accordingly, the Respondent
violated Section 8(b)(1)(A) of the Act.
B. Merits of the Grievance
The parties agreed at the hearing to litigate the merits of
Murphy’s grievance in the present proceeding, and no objection
was raised to this procedure in the parties’ posthearing briefs.
Accordingly, and after having determined that the Respondent
violated Section 8(b)(1)(A) of the Act by failing to provide fair
representation to Murphy in the handling of her grievance, the
merits of that grievance will now be addressed. See Iron Work-
ers Local 377 (Alamillo Steel Corp.), 326 NLRB 375 (1998);
Rubber Workers Local 250 (Mack–Wayne), 290 NLRB 817
(1988).
The remedy for the Respondent’s unfair labor practice de-
pends on the merits of the grievance. Before the Respondent
can be required to compensate Murphy for her losses resulting
from the failure to process her grievance, the General Counsel

8 Jones said nothing when LaFata informed Murphy, in effect, that
he was not allowing her to withdraw her letter of resignation. In addi-
tion, Jones informed Murphy of the alleged meeting date by telling her
the wrong day or the wrong date, as well as the wrong time. Thus, it
cannot be said that Jones did nothing wrong.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD448
must show that Murphy would have prevailed if the grievance
had been properly processed. Iron Workers Local 377, supra at
377. The General Counsel must make this showing by a pre-
ponderance of the evidence. Id. at fn. 10. Insofar as the Re-
spondent’s unfair labor practice arises from its failure to submit
Murphy’s grievance to arbitration, the General Counsel’s bur-
den of proof follows the party having the burden of proof in the
foregone arbitration. For example, if the employer would have
had the burden of proving the propriety of its action, the Gen-
eral Counsel is required to show under that standard the arbitra-
tor would have found in favor of Murphy. And, if the Respon-
dent would have been required to prove that CHD’s action was
in violation of the agreement, the General Counsel is required
to show that Murphy would have prevailed under that standard.
Id. at 377. I need not resolve which party would have had the
burden of proof in the foregone arbitration because under either
standard Murphy would have prevailed.
As noted above, in cases previous to Murphy’s, CHD treated
employees’ 2-week resignation letters not as actual resigna-
tions, but as conditional resignations, conditioned on the pas-
sage of the 2 weeks’ advance notice.9 The letters were treated
as notices that at the end of the 2-week period, the employee
would, at that time, resign. Accordingly, when such an em-
ployee changed her mind before the expiration of the 2-week
period about her intent to resign, CHD simply returned the
letter to the employee who then continued working as if noth-
ing had occurred.
Indeed, this is exactly how CHD’s supervisors treated Mur-
phy. Nine days after Murphy submitted her notice of resigna-
tion, she telephoned her acting supervisor, Sampson. Sampson
told Murphy to come immediately into work. After Murphy
arrived, she told Sampson that she had changed her mind about
resigning, and she gave Sampson a confirming handwritten
letter. Sampson treated Murphy like CHD had treated other
employees in similar situations. Moreover, she welcomed
Murphy, told Murphy that she was needed in the job, and asked
Murphy if she was available to work right away. In other
words, Sampson did not attempt to reinstate or rehire Murphy
or to institute such a process. She treated Murphy as if she had
never resigned (which, in fact, Murphy had not), and she put
Murphy to work right away. (Murphy had been out of work for
several days before this because of a medical condition).
In addition, the next day, on September 27, Murphy’s super-
visor, Anderson, telephoned Murphy and thanked her for not
resigning, showing that Anderson also did not consider that
Murphy had resigned. Murphy continued to work regular shifts
for 4 days, just as if nothing had happened, until LaFata, sud-
denly and without any warning, told Murphy that CHD had
decided against allowing her to withdraw her letter of resigna-
tion. LaFata did not explain why CHD had taken this action,
and neither did Larkins, CHD’s director of human resources.

9 There is no evidence that CHD took any action in reliance on Mur-
phy’s notice of resignation, such as advertising for the position or inter-
viewing candidates. Accordingly, I need not and do not decide whether,
under different circumstances, CHD would otherwise have been privi-
leged to abandon or change its previous practice in the handling of
notices of resignation.
CHD had established a practice of allowing employees to
withdraw letters of resignation within the 2-week period of the
letters, and Murphy is the only employee who was not allowed
to withdraw her letter of resignation. Moreover, although an
unlawful motivation need not be shown in order to prove a
violation of the agreement, the evidence establishes that CHD’s
motivation for its action was, at least in part, due to Murphy’s
strong and forceful advocacy on behalf of unit employees, ac-
tivity which is protected by Section 7 of the Act.
If the Respondent had investigated Murphy’s grievance and
was armed with the evidence of CHD’s past practice,10 it could
have convinced CHD in a step-3 meeting to grant Murphy’s
grievance. Moreover, the Respondent’s position would have
been strengthened at such a meeting with the evidence of
CHD’s unlawful motivation. If the Respondent were not suc-
cessful at the third step, it should have submitted the grievance
to arbitration, and it would have prevailed at the arbitration. I
find that Murphy “‘would have won on the merits’ if the griev-
ance had been ‘properly pursued’ by the Union.” Iron Workers
Local 377, supra at 380. Accordingly, I will order make-whole
relief for Murphy.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. By arbitrarily and in bad faith failing to process Murphy’s
grievance, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(b)(1)(A)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated its duty of fair
representation in handling Murphy’s termination grievance, and
that the grievance was meritorious and would have prevailed if
it had been handled properly, the Respondent is responsible for
making Murphy whole for any loss of earnings and other bene-
fits resulting from the violation of its duty. Iron Workers Local
377 (Alamillo Steel Corp.), supra at 378. Such losses shall be
computed as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent’s liability for
backpay shall continue until Remonia Murphy obtains substan-
tially equivalent employment to her employment at CHD.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11

10 An investigation would, at least, have confirmed what the Re-
spondent already knew. The Respondent’s prior knowledge is demon-
strated by Grinston-Chapman’s statement to Murphy, on or about Oc-
tober 1, that CHD had allowed other employees to withdraw their let-
ters of resignation.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
STATE, COUNTY EMPLOYEES AFSCME LOCAL 1640 (CHILDREN’S HOME OF DETROIT) 449
ORDER
The Respondent, Local 1640, American Federation of State,
County and Municipal Employees, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Processing and handling grievances of any member of the
bargaining unit because of ill will or other invidious considera-
tions toward such member.
(b) Arbitrarily processing and handling grievances of any
member of the bargaining unit.
(c) Failing to provide fair representation to any member of
the bargaining unit.
(d) In any like or related manner restraining or coercing
members in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Remonia Murphy whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the
decision.
(b) Within 14 days from the date of this Order, remove from
its files, and ask CHD to remove from its files, any reference to
the unlawful termination of Remonia Murphy’s employment,
and within 3 days thereafter notify Remonia Murphy in writing
that this has been done and that her termination from employ-
ment will not be used against her in any way.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Within 14 days after service by the Region, post at its un-
ion office in Detroit, Michigan, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(d) Within 14 days after service by the Region, deliver to the
Regional Director for Region 7 signed copies of the notice in
sufficient numbers to be posted by Children’s Home of Detroit
at its Grosse Pointe Woods, Michigan facility, in all places
where notices to employees are customarily posted, if it is will-
ing to do so.
(e) 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 the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”