Wayne County Neighborhood Legal Services

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 146 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 146
Wayne County Neighborhood Legal Services, Inc.
and Office and Professional Employees Interna-
tional Union, Local 42, AFL–CIO and Organ-
ized Workers of Legal Services, Local 2. Cases
7–CA–37894 and 7–RC–20650
January 31, 2001
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF RUNOFF ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 1, 1996, Administrative Law Judge Robert T.
Wallace issued the attached bench decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The complaint alleges that the Respondent rendered
unlawful assistance and support to the incumbent Union,
in violation of Section 8(a)(2) and (1) of the Act, by in-
forming employees that the incumbent would continue to
be their bargaining representative until the Board deter-
mined otherwise, and by continuing to deduct dues from
their paychecks, after the incumbent had failed to garner
enough votes in a Board election to be on the ballot in
the runoff election. The judge found that the Respondent
had not acted unlawfully and recommended that the
complaint be dismissed. The General Counsel excepts.
We find merit in the exceptions.
The facts are not in dispute. The incumbent Union,
Organized Workers of Legal Services, Local 2 (OWLS
II), was certified in 1978 to represent a unit of the Re-
spondent’s clerical and paralegal employees. The par-
ties’ last collective-bargaining agreement was effective
until October 1, 1994, but was automatically renewed for
1 year when neither party sought to modify its terms.
On July 6, 1995,2 Office and Professional Employees
International Union (OPEIU) Local 42, petitioned for an
election in a unit of the Respondent’s full-time and regu-
lar part-time nonprofessional employees. On August 18
the Regional Director ordered an election in the peti-
tioned-for unit, in which the employees would vote for
either OPEIU, OWLS II, or no union.3

1 In fn. 2 of his decision, the judge stated that the Respondent ceased
to recognize the incumbent Union in February 1995. We find no sup-
port in the record for that statement. The judge also stated that the
Respondent’s letter to its employees was sent on November 1, 1995; it
was sent several days later. We correct the errors.
2 Unless otherwise noted, all dates refer to 1995.
The election was held on September 13. Of approxi-
mately 106 eligible voters, 38 voted for OPEIU, 19 voted
for OWLS II, and 20 voted for no union. There was one
determinative challenged ballot, but no objections were
filed. On October 19 the Regional Director sustained the
challenge to the ballot in question. Because no choice
had received a majority of the valid ballots cast, the Re-
gional Director ordered a runoff election in which em-
ployees would vote on whether or not they wished to be
represented by OPEIU.
Despite the fact that OWLS II had received the fewest
votes in the election and had been eliminated from fur-
ther contention, the Respondent continued to withhold
dues from unit employees’ paychecks pursuant to the
contract with OWLS II until some time in February
1996.4 It also stated, in a letter to employees in early
November, that “[we have] been a unionized company
for more than 17 years. OWLS II is still the collective
bargaining representative of certain employees . . .
OWLS II will continue to be that representative unless
the National Labor Relations Board determines differ-
ently.” (Emphasis in the original.)
The runoff election was held on December 14. Seven-
teen votes were cast for, and 38 against, OPEIU, with 6
nondeterminative challenged ballots. OPEIU filed five
objections; four were later withdrawn, and the other was
overruled. However, the Regional Director noted that
the statements alleged to be unlawful in the unfair labor
practice case before us (which were not the subject of
objections) could have a bearing on the representation
case, and ordered the cases consolidated and set for hear-
ing.
The judge found that the Respondent’s conduct was
not unlawful. He noted that, even though OWLS II had
been eliminated from contention in the September elec-
tion, no choice received a majority of the votes cast in
that election, and a runoff was necessary to determine
whether the employees wanted continued representation
by a union. Thus, in the judge’s view, OWLS II had not
3 As the Regional Director discussed in the Decision and Direction
of Election, the petitioned-for unit was more extensive than the unit
OWLS II had been representing, and both the Respondent and OWLS
II urged that the petitioned-for unit was not appropriate. However,
there apparently was no request for review of the Decision and Direc-
tion of Election.
4 The General Counsel and the Respondent stipulated that the Re-
spondent continued to deduct OWLS II dues “from October 1995
through 8 biweekly pay periods,” a period lasting several weeks after
the runoff. The dues apparently were not remitted to OWLS II. The
employees were reimbursed for the dues deducted, and counsel for the
General Counsel stated at the hearing that in the General Counsel’s
view, the unlawful withholding of dues has been remedied.
333 NLRB No. 15
WAYNE COUNTY NEIGHBORHOOD LEGAL SERVICES 147
been decertified before the December runoff election
because not until then would the employees make their
ultimate choice between OPEIU Local 42 and no union.
In those circumstances, the judge found, it would be
“unduly harsh” to require the Respondent to cease recog-
nizing OWLS II after October 19, because that would
invalidate the existing collective-bargaining agreement
and deprive the unit employees of union representation
before they chose whether or not to have continuing rep-
resentation (by another union) in the runoff. He therefore
found that the intent of the Act would best be served by
maintaining the existing collective-bargaining relation-
ship during the period before the runoff.
1. In his exceptions, the General Counsel contends that
the results of the first election demonstrated that OWLS
II had lost the support of a majority of employees. Rely-
ing on Maramont Corp.5 and Point Blank Body Armor,6
the General Counsel argues that when OWLS II was
eliminated from contention as a result of the initial elec-
tion, the Respondent violated Section 8(a)(2) and (1) by
thereafter continuing to recognize OWLS II as the em-
ployees’ bargaining representative and continuing to de-
duct dues. We agree.
Section 7 of the Act assures employees of, among
other things, the right to bargain collectively through
representatives of their own choosing. In this context,
then, the “intent of the Act” is to assure employees that
their uncoerced choice of bargaining representative will
be honored by their employers. Accordingly, an em-
ployer may not lawfully continue to recognize a union as
the exclusive bargaining representative of its employees
when the employer has objective evidence that the union
no longer represents a majority of the employees.7 An
employer that continues to recognize a union that has lost
its majority status violates Section 8(a)(2).8 We find that
those principles govern this case.
In the September 13 election, OWLS II received only
19 out of 77 votes, compared with 38 for OPEIU and 20
for “no union.” No party filed objections. When the
lone challenge was resolved and the ballot tally became
final, it was manifest that OWLS II would no longer be
the bargaining representative of the unit employees.
True, the final outcome of the representation proceeding
was not known at that time, because not until the runoff
election had been held would it be clear whether the em-
ployees would choose OPEIU as their representative.
But as far as OWLS II was concerned, the outcome was

5 317 NLRB 1035 (1995).
6 312 NLRB 1097 (1993).
7 Maramont Corp., 317 NLRB at 1035; Point Blank Body Armor,
312 NLRB at 1097 fn. 1, and 1100.
8 Maramont Corp., 317 NLRB at 1036.
known. Three-fourths of the employees who voted, and
a majority of the 106 employees in the unit, had rejected
OWLS II as their bargaining representative. There was
no prospect that they would reconsider their decision in
the runoff, because OWLS II would not be on the ballot
in that election. As the employees had made their choice
in a valid, Board-conducted election, it is difficult to
imagine a more definitive, reliable expression of their
preferences.
In these circumstances, the judge and our dissenting
colleague would turn the “intent of the Act” on its head
by allowing (indeed, by requiring) the Respondent to
continue to recognize OWLS II as the representative of
the unit employees, and to require the employees to sup-
port OWLS II with their dues, after they have defini-
tively stated in a Board election that they no longer want
OWLS II to be their representative. While the goal of
preserving the stability of collective-bargaining relation-
ships is a laudable one, it does not warrant maintaining a
collective-bargaining relationship that has been un-
equivocally rejected by the employees themselves. Thus,
if anything would be “unduly harsh,” it would be the
result reached by the judge and our dissenting colleague.
Finally, we reject our dissenting colleague’s assertion
that our decision is flawed because it “imposes a rule of
law that would deprive the employees of union represen-
tation entirely” although “a majority of unit employees
did not vote against union representation” in the initial
election. Rather, we find that it is our dissenting col-
league’s position that is flawed.
As explained above, Section 7 of the Act guarantees
employees the right “to bargain collectively through rep-
resentatives of their own choosing.” Here, the employ-
ees in the initial election had three choices—
representation by OWLS II, representation by OPEIU,
and no union representation. In definitively rejecting
OWLS II in the intial election,9 the unit employees, in
9 As our dissenting colleague admits, this is not a case where OWLS
II could have retained its status as the exclusive collective-bargaining
representative of the unit employees as a result of the outcome of the
runoff election because OWLS II was not on the ballot in that election.
In the runoff election, the employees were asked only whether or not
they wanted to be represented by OPEIU. Accordingly, there can be no
justification for retaining OWLS II as the collective-bargaining repre-
sentative of the unit employees pending the outcome of the runoff
election. W. A. Krueger, 299 NLRB 914 (1990), is distinguishable on
this basis. In that case, the incumbent union was the arithmetic loser of
the election. The union filed objections. The Board held that the em-
ployer was required to continue recognition until the results were certi-
fied. Until that time, there was a chance that the election would be set
aside and the incumbent would remain the representative. By contrast,
in the instant case, there being no objections to the September 13 elec-
tion, and therefore no chance that the incumbent would remain the
representative, the presumption of majority status was definitively
rebutted at that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 148
effect exercised their Section 7 right to no longer be rep-
resented by that union. Our decision today vindicates
that Section 7 right. By contrast, our dissenting col-
league ignores that Section 7 right by requiring continued
recognition of OWLS II even after the unit employees
have chosen otherwise. While our dissenting colleague
asserts that such a result furthers the policy goal of bar-
gaining stability, we do not agree that that goal may
properly be achieved by sanctioning a minority union’s
representation of employees who have expressed their
desire through a Board-conducted election to no longer
be represented by that union.
Similarly, our colleague says that continued represen-
tation by OWLS II “would do no appreciable harm to
anyone or to the purposes of the Act.” We disagree. In
our view, continued representation by OWLS II would
do appreciate harm to the Section 7 rights of employees,
a majority of whom definitively expressed, in the Sep-
tember election, that they did not want to be represented
by OWLS II.
For all these reasons, we find that the Respondent was
no longer entitled to continue to recognize OWLS II as
the employees’ bargaining representative or to continue
to collect dues payable to OWLS II.10 By doing so, the
Respondent unlawfully provided support to OWLS II, in
violation of Section 8(a)(2) and (1).11
2. The General Counsel also contends that the results
of the runoff election should be set aside because of the
Respondent’s unlawful conduct. We reject that conten-
tion.
The Board’s normal policy is to direct a new election
when an unfair labor practice is committed during the
critical period, because “conduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an elec-
tion.”12 The only exception to this policy is for violations
as to which it is virtually impossible to conclude that
they could have affected the election results.13 We find
that the Respondent’s conduct in this case falls within
that exception.

10 Although the contract automatically renewed on October 1, it be-
came null and void on October 19, when the final results of the Sep-
tember election were announced and OWLS II was no longer the em-
ployees’ collective bargaining representative. See RCA del Caribe, 262
NLRB 963, 966 (1982). It was unlawful for the Respondent to deduct
dues, even though it apparently never remitted the dues to OWLS II.
Maramont Corp., 317 NLRB at 1035–1036.
11 Id.
12 Establishment Industries, 284 NLRB 121, 130 fn. 17 (1987), enfd.
mem. 838 F.2d 1217 (9th Cir. 1988), quoting Super Thrift Markets, 233
NLRB 409, 409 (1977), and Dal-Tex Optical Co., 137 NLRB 1782,
1786–1787 (1962).
13 Establishment Industries, 284 NLRB at 130 fn. 17.
As we have found, the Respondent unlawfully assisted
OWLS II by announcing to the employees that OWLS II
was still their collective-bargaining representative and
would remain such unless the Board determined differ-
ently, and by continuing to deduct OWLS II dues, after
the employees had rejected OWLS II as their representa-
tive in the September election. However, OWLS II was
not on the ballot in the runoff, and therefore it could not
possibly have benefited in the runoff election from the
Respondent’s conduct. Moreover, although the Respon-
dent’s statement appeared in a memorandum disparaging
OPEIU, we do not think that OPEIU would have been
adversely affected in the runoff by that statement. We
recognize that the Respondent’s statement was unlawful
because it announced a violation of Section 8(a)(2).
However, even if such a statement might cause employ-
ees to vote in favor of a “Section 8(a)(2)” union, it is
difficult to see how the statement would affect employ-
ees in an election that does not involve that union.14 Fur-
ther, we do not believe, given the choices on the ballot,
that the statement could have been interpreted by reason-
able employees as suggesting that if they voted against
OPEIU in the runoff, they would still be able to have
representation by OWLS II.15 We therefore find that the
runoff election should not be set aside, and we shall cer-
tify its results.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. OWLS II and OPEIU Local 42 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By continuing to recognize OWLS II as the exclu-
sive collective-bargaining representative of certain of its
employees, and by continuing to deduct OWLS II dues
14 Our dissenting colleague accuses us of seeking to have it “both
ways” because while we have found that the Employer unlawfully
favored the “incumbent” Union by continuing to recognize it and by
requiring the employees to support it with their dues, we also find that
that conduct “did not interfere with an election in which another Union
unsuccessfully sought to replace the incumbent.” As explained above,
the “incumbent” Union, OWLS II, was no longer the “incumbent” after
the initial election and, indeed, this was the basis for our finding of the
8(a)(2) violation. In these circumstances, our dissenting colleague is
simply incorrect when she states that in the runoff election, OPEIU
“sought to replace the incumbent.” Further, since OWLS II was not on
the ballot in the runoff election, we cannot find, as our dissenting col-
league would have us do, that the Respondent’s unlawful support of
OWLS II influenced an election in which that union did not participate.
15 Although the statement that OWLS II would remain the bargain-
ing representative until the Board determined otherwise may have
implied that the outcome would be decided by government fiat rather
than by the employees’ free choice, we find that it was at worst a mis-
representation of Board actions that should not invalidate the election.
See Riveredge Hospital, 264 NLRB 1094, 1095 (1982), modified on
other grounds 789 F.2d 524 (7th Cir. 1986).
WAYNE COUNTY NEIGHBORHOOD LEGAL SERVICES 149
from employees’ compensation, after the final tally of
ballots from the September 13, 1995 election had issued,
the Respondent provided unlawful support to OWLS II
in violation of Section 8(a)(2) and (1) of the Act.
REMEDY
Having found that the Respondent violated the Act as
alleged, we shall order the Respondent to cease and de-
sist from its unlawful conduct and to take certain af-
firmative actions necessary to effectuate the purposes of
the Act. Specifically, we shall order the Respondent to
withdraw recognition from OWLS II as the representa-
tive of its employees unless and until OWLS II demon-
strates its majority status among employees in an appro-
priate bargaining unit in a Board-conducted election.
Because the dues unlawfully deducted have been re-
funded to the employees, we find that no affirmative ac-
tion is necessary to remedy that violation.
ORDER
The National Labor Relations Board orders that the
Respondent, Wayne County Neighborhood Legal Ser-
vices, Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns shall
1. Cease and desist from
(a) Recognizing Organized Workers of Legal Services,
Local 2 (OWLS II) as the exclusive collective-bargaining
representative of its employees, or deducting OWLS II
dues from employees’ compensation, unless and until
OWLS II demonstrates its majority status among the
employees in an appropriate bargaining unit in a Board-
conducted election.
(b) In any like or related manner interfering with, re-
straining, 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) Withdraw and withhold recognition from OWLS II
as the exclusive collective-bargaining representative of
its employees unless and until OWLS II demonstrates its
majority status among the employees in an appropriate
bargaining unit in a Board-conducted election.
(b) Within 14 days after service by the Region, post at
its facilities at Wayne County, Michigan, copies of the
attached notice marked “Appendix B.”16 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent

16 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.”
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 the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since October 19,
1995.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for any labor organization in either the
original or the runoff election conducted in Case 7–RC–
20650, and that no labor organization is the exclusive
representative of these bargaining unit employees.

MEMBER LIEBMAN, dissenting in part.
Unlike my colleagues, I would not find the Respondent
to have committed an unfair labor practice by continuing
to recognize the incumbent Union, Organized Workers of
Legal Services, Local 2 (OWLS II) between the initial
and runoff elections. I agree with the judge that requir-
ing the Respondent to discontinue its longstanding col-
lective-bargaining relationship with OWLS II before the
Board has certified the outcome of the runoff election is
not sound policy. I therefore dissent.
The Organized Workers of Legal Services, Local 2
(OWLS II), has represented the Respondent’s employees
since 1978 under successive collective-bargaining
agreements. Pursuant to a petition filed by the Office and
Professional Employees International Union, Local 42
(OPEIU), an election was held on September 13, 1995.
OPEIU received 38 votes, 19 were cast for OWLS II and
20 for “no union.” Since there were 106 eligible voters,
no choice received a majority of votes cast, and the
Board directed a runoff election in which unit members
would vote for OPEIU or “no union.” Prior to the runoff
vote, Respondent continued to deduct dues from the pay-
checks of employees represented by OWLS II, and in a
letter sent on November 1, it stated: “[We have] been a
unionized company for more than 17 years. OWLS II is
still the collective bargaining representative for certain
employees . . . [it] will continue to be that representative
unless the National Labor Relations Board determines
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 150
differently.” On December 14 a runoff was held and a
majority of employees chose “no union.”
Reversing the judge, the majority finds that the Re-
spondent, by this conduct, violated Section 8(a)(2) and
(1) of the Act, reasoning that the initial vote demon-
strated that OWLS II had lost the support of a majority of
employees. It holds that, since it was clear that OWLS II
had been eliminated from further contention, the Re-
spondent could no longer continue to recognize it as the
exclusive majority representative, not even until the elec-
tion outcome was decided. In my view, this approach is
both impractical and unsound policy.
True, the initial election did take OWLS II out of the
running. However, the first vote results were inconclu-
sive and left the question concerning representation
completely unresolved. The flaw in the majority’s rea-
soning is that a majority of unit employees did not vote
against union representation. The initial election did not
demonstrate that the employees preferred no union repre-
sentation to some union representation. And, it certainly
did not show that a majority of them rejected union rep-
resentation even for the period when the election process
was wending its way to a conclusion. Yet, based on the
vote of only 20 employees who chose “no union” in the
first election, the majority imposes a rule of law that
would deprive the employees of union representation
entirely—and with it their contractual benefits—pending
the final tally of the runoff election.
Under the majority’s approach, had OPEIU ultimately
won the runoff (which it did not), the employees would
have had OWLS II representation until September 13, no
representation from then until the runoff on December
14, and then OPEIU representation would commence.
That result makes no sense. Imposing a no-union inter-
regnum by compelling the employer prematurely to
cease recognition of OWLS II between September and
December, and then to recognize OPEIU, achieves no
statutory goal, only needless disruption. The hindsight
fact that OPEIU did not win does not change my view.
A hiatus period of continued representation would do no
appreciable harm to anyone or to the purposes of the Act,
but, to the contrary, would further stability, a central aim
of the Act. It also would likely be more efficient. Even
in that case, however—where the ultimate outcome is no
union representation—forcing an early no-union regime,
before the results of the runoff are known, serves no pol-
icy or practical purpose.
In my view, the wiser course is for the incumbent un-
ion to remain the representative of the employees, even if
it loses an initial election, until the representation ques-
tion is resolved and a certification issued. During that
interim period, any contract between the employer and
the incumbent union would remain in effect. The em-
ployees—who once freely chose to be represented by a
union—would retain the benefits of representation, as
well as those contained in the contract, until their final
choice in the runoff was known and certified. This ap-
proach best preserves stability pending the outcome of
the runoff and avoids the disruption that would otherwise
result from the majority’s approach.
The approach I advocate is also consistent with the
Board’s longstanding treatment of an employer’s obliga-
tions in cases where an election has been held but the
certification has not yet issued. The Board has long held
that an employer is privileged, indeed obligated, to con-
tinue to recognize and bargain with an incumbent union,
even if an election has been held in which that union did
not receive a majority of the votes cast, if the election
results are not final due to pending objections. W. A.
Krueger Co., 299 NLRB 914 (1990); Trico Products
Corp., 238 NLRB 1306 (1978).
The well-established rule concerning election results is
that they are not effective until certification. To hold
otherwise is to invite instability during the transition
period when the employees’ choice of representative is
in doubt. Election results are not always determinative.
If the status of the parties were to change immediately
upon the tally of ballots, the possibility of sustained ob-
jections and rerun elections might lead to a number of
changes in the collective-bargaining relationship before
a representative is finally certified. The general rule
that the election results are not effective until certifica-
tion lends certainty and stability to the process, since
the parties may safely maintain the status quo until the
representation question is conclusively resolved by the
Board.
Trico Products Corp., supra at 1307. Thus, in either a de-
certification election or an election involving more than one
union, even if the election results show that the incumbent
union no longer enjoys majority support, the employer does
not act unlawfully by continuing to recognize and bargain
with the incumbent until the election results are finally certi-
fied. Heritage at Norwood, 322 NLRB 231, 233 fn. 5
(1996); W. A. Krueger, supra, 299 NLRB at 916.
I recognize, as my colleagues point out, that these
cases are not precisely apposite because in this case there
were no objections filed by any party, and thus no party
contended that the initial vote, in which OWLS II did not
receive sufficient votes to remain on the ballot, was inva-
lid. Nevertheless, there is still a “transition period when
the employees’ choice of representative is in doubt”
(Trico Products, supra, 238 NLRB at 1307), and, in my
view, there is a similar need for stability during that pe-
riod, even if no party has challenged the validity of the
WAYNE COUNTY NEIGHBORHOOD LEGAL SERVICES 151
first election. A question concerning representation is
still pending, and a majority of the employees have not
said that they do not wish to be represented by a union.
In these circumstances, stability is better served by re-
quiring the maintenance of the status quo, just as we re-
quire the parties to maintain the status quo while the em-
ployees’ choice is still uncertain due to pending objec-
tions. At a time when the outcome of the election is still
in doubt, it would be more disruptive to yank the em-
ployees’ bargaining representative away from them,
along with all of their contractual benefits, than to simply
allow them to continue to be represented pending a certi-
fication of the final results of the election.
Under this analysis, I would not find that the Respon-
dent violated Section 8(a)(2) and (1) by informing the
employees, after the initial election results were known,
but before the runoff, that it would continue to recognize
OWLS II until the Board determined that OWLS II was
no longer their representative, or by continuing to deduct
dues for OWLS II. Both actions were lawful because,
during that period, OWLS II remained the employees’
representative and the checkoff provisions of the contract
remained in effect.1 For this reason, I would not find that
the Respondent’s conduct interfered with the results of
the runoff election. However, had I agreed with the ma-
jority in finding the Respondent’s conduct to be unlaw-
ful, I would certainly disagree with their conclusion that
this conduct was not objectionable. The appearance that
the Employer favored OWLS II certainly might interfere
with the employees’ selection of OPEIU as their repre-
sentative. The Employer’s conduct, if indeed unlawful,
would furnish grounds to hold a new election. The ma-
jority, however, seeks to have it both ways, by holding
that the Employer unlawfully favored the incumbent Un-
ion by continuing to recognize and bargain with it in vio-
lation of Section 8(a)(2), but at the same time did not
interfere with an election in which another union unsuc-
cessfully sought to replace the incumbent.
Accordingly, I would hold that the Employer acted
lawfully by simply maintaining the status quo during an
uncertain transition period, and thus it did not improperly
favor the incumbent. I would also conclude that there
was no interference with the election.

1 I agree with the majority, however, that the Respondent violated
Sec. 8(a)(2) and (1) by continuing to deduct dues for OWLS II after the
final tally of ballots from the runoff was issued.
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT recognize Organized Workers of Le-
gal Services, Local 2 (OWLS II), as the exclusive collec-
tive-bargaining representative of our employees, or de-
duct OWLS II dues from employees’ compensation,
unless and until OWLS II demonstrates its majority
status among employees in an appropriate bargaining
unit in an election conducted by the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw and withhold recognition from
OWLS II as the exclusive collective-bargaining represen-
tative of our employees unless and until OWLS II dem-
onstrates its majority status among employees in an ap-
propriate bargaining unit in a Board-conducted election.
WAYNE COUNTY NEIGHBORHOOD
LEGAL SERVICES, INC.
Amy Roemer, Esq., for the General Counsel.
Theresa Horner, for Intervening Union (OWLS II) Chui Ka-
rega, Esq., for Respondent Employer.
Robert Garvin, for the Charging Union (OPEIU).

BENCH DECISION
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Detroit, Michigan, on April 8, 1996. The
charge was filed on November 13, 1995,1 and the complaint
issued on February 13, 1996.
Respondent, a nonprofit corporation with offices in Metro-
politan Detroit, including Highland Park, Inkster, and Detroit,
provides legal services to indigents. It admits, and I find: (1)
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Labor Relations Act
1 All dates are in 1995 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 152
and (2) that OPEIU and OWLS II are labor organizations
within the meaning of Section 2(5) of the Act.
OWLS II has represented Respondent’s clerical and parale-
gal employees since 1978 under successive collective-
bargaining agreements, including automatic renewals of an
agreement which otherwise would have expired on October 1,
1994.
Pursuant to a representation petition filed by OPEIU in Case
7–RC–20650, a Board ordered election was held on September
13. The results as set forth in a Board order dated October 19
were: 38 votes for OPEIU, 19 for OWLS II, and 20 votes for
“no union.” Since there are 106 eligible voters in the unit, no
choice received a majority of the votes cast and the Board di-
rected a runoff election in which unit members would vote for
or against representation by OPEIU.2
Respondent continued to deduct from paychecks of employ-
ees represented by OWLS II; and, in a letter sent to all non-
professional employees on November 1, it stated in pertinent
part:

[We have] been a unionized company for more than 17
years. OWLS II is still the collective bargaining represen-
tative for certain employees . . . [and it will continue to be
that representative unless the National Labor Relations
Board determines differently.

At issue is whether Respondent’s continued recognition of
OWLS II and deduction of dues after October 19 constituted
assistance and support to a labor organization in violation of
Section 8(a)(1) and (2) of the Act. I find no violation for the
reasons stated by me on the record at the conclusion of trial. In
effect, I have found that while OWLS II, as a result of the elec-
tion on September 13, was eliminated from contention in the
runoff election set for December 14, it was not decertified dur-
ing the interim. This is because the question of whether Re-
spondent’s employees would opt for representation by another
union (OPEIU) would not be determined until the runoff. Dur-
ing the interim, the intent of the Act is best served by favoring
continued maintenance of an existing collective-bargaining
relationship.
This decision is made under Section 102.35(a)(10) of the
Board’s Rules and Regulations; and, in accordance with Sec-
tion 102.45 thereof, I certify the accuracy of my rationale re-
ported on pages 70 through 74 of the trial transcript; and I at-
tach as an Appendix A the gist thereof.

2 The runoff election was held on December 14. OPEIU received 17
votes and 38 unit employees voted against OPEIU. The Board an-
nounced that result on February 14 but withheld further action pending
determination of objections, the scope of which parallel issues raised in
the instant complaint proceeding. On or about that time Respondent
ceased to recognize OWLS II and refunded union dues collected from
employees.
CONCLUSION OF LAW
I find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act; that
OWLS II and OPEIU are labor organizations within the mean-
ing of Section 2(5); and that Respondent is not shown to have
violated the Act in any way.
[Recommended Order for dismissal omitted from publica-
tion.]
APPENDIX A
JUDGE WALLACE: The basic issue is whether Respondent
violated the Act by stating in a document (GC Exh. 3) that it
would continue to recognize OWLS II notwithstanding the
September 14th election and the Board’s decision with respect
thereto dated October 19. There is no dispute that Respondent
issued the document to employees in early November.
The second issue is whether Respondent acted unlawfully by
continuing to deduct union dues from employees wages after
the election result was announced by the Board on October 19.
Here too there is no factual issue, only a legal one.
General Counsel cites Point Blank Body Armor, 312 NLRB
1097 (1993) in support of the alleged unlawfulness. I find the
decision inapposite.
In that case, the Board held unlawful an employer’s contin-
ued recognition of a union after it had been presented with a
petition wherein a majority of unit employees declared they no
longer desired to be so represented.
Here, the election on September 13 elicited 38 votes for the
challenging union (OPEIU), 19 for the incumbent union
(OWLS 2), and 20 for “no union.” This out of a unit composed
of 106 employees.
In ordering a runoff election between OPEIU and OWLS II,
the Board acted precisely because there was no majority and
the purpose of the runoff was to see whether employees wanted
continued representation by a union.
In these circumstance, to find that the Board’s announcement
of October 19 required the employer to decertify OWLS II
would be unduly harsh because that action would invalidate the
existing collective bargaining agreement, and unit employees
would be without union representation prior to the runoff elec-
tion in which they were to decide whether they wanted contin-
ued representation, albeit by another union.
I find nothing unlawful in Respondent’s continued recogni-
tion of OWLS II during the interim.
Essentially the same reasoning applies to the withholding of
dues. In doing so Respondent simply carried out the terms of
the collective bargaining agreement.
In light of these determination, it follows that there is no ba-
sis for the objections in the “RC” case.