Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO. 717 Montgomery Ward & Co., Incorporated and Retail Clerks Union, Local No. 30, Retail Clerks Interna- tional Association, AFL-CIO. Case 18-CA-3721 May 20, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 24, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief supporting the Decision in response to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified below, and to adopt his recommended Order. We agree with the Administrative Law Judge's conclusion that, prior to conducting its own employ- ee poll, the Respondent had no reasonable basis for doubting the Union's continuing majority status. We further agree with his finding that the Respondent's refusal on October 23, 1973, following the poll, to bargain with the Union upon request constituted a violation of Section 8(a)(5) of the Act. The certification of a union as bargaining repre- sentative, absent unusual circumstances, creates an irrebuttable presumption of continued majority status during the year following certification.' After the certification year has elapsed, the certificate still creates a presumption of majority status by the Union, but this presumption is rebuttable.2 An employer may also lawfully refuse to bargain with the union after the lapse of the certification year, if it can be shown by objective facts that it has a reasonable basis for believing that the union has lost its majority since its certification.3 However, a showing of doubt as to a union's continuing majority status requires more than an employer's mere assertion thereof and more than mere proof of its subjective frame of mind.4 And evidence of dissatis- faction with the union, to be of any significance, must come from the employees themselves, not from the employer on their behalf.5 Applying these well-established principles to the instant case, it follows that, absent valid objective considerations justifying a belief in the Union's lack of continuing majority status , a point on which we have already expressed our agreement with the Administrative Law Judge, the Respondent was not legally entitled to seek to undercut the continuing majority status of the Union by itself initiating a poll of employee sentiment. To conduct such a poll without objective considerations casting doubt on the majority status is, thus, itself a violation of Section 8(a)(5), and it would be wholly contrary to the purposes of the Act for this Board to rely upon the fruits of an unfair labor practice to justify a dishonoring of the bargaining obligation. Hence, the Respondent's refusal to bargain, without the support of valid objective considerations, and based solely on the outcome of the polls, constituted a violation of Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Marshalltown, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' Ranch-Way, 203 NLRB No. 118; Ray Brooks v. N.L.R.B., 348 U.S. 96, 98-99 (1954). 2 Ranch-Way, supra; Celanese Corporation of America, 95 NLRB 664, 672. 3 Ranch- Way, supra; United States Gypsum Company, 157 NLRB 652, 655; Celanese Corporation of America, supra. 4 Laystrom Manufacturing Co., 151 NLRB 1482, 1484. 5 Massey-Ferguson, Inc., 184 NLRB 640; Terrell Machine Company, 173 NLRB 1480, 1482. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon charges and amended charges respectively filed on Novem- ber 9, 1972, and January 18, and February 5, 1973, by the above-named Union, a complaint dated February 6, 1973, was issued alleging that Montgomery Ward & Co., Incorporated, herein called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aXl) and (5 ) of the National Labor Relations Act, as amended. In substance, the complaint alleges that since October 23, 1972, the Respondent unlawfully has refused to negotiate with the Union as the designated collective-bargaining representative of the employees in the Company's Marshalltown, Iowa, retail store, although the Board had certified the Union as such representative on May 19, 1971, and the Company and the Union on January 13, 1972, had executed a collective- bargaining agreement which was effective for the period from October 28, 1971, through October 28, 1972. Respondent's answer to the complaint , dated February 12, 1973, denies that it has engaged in the alleged unfair labor 210 NLRB No. 120 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices. In substance, Respondent's defense is that it has a good-faith doubt that the Union continues to represent a majority of the employees in the appropriate collective- bargaining unit and so informed the Union on October 23, 1972, at which time it also informed the Union what were the factors upon which it based its alleged doubt. Among other things, they included the results of a mail ballot poll conducted by Respondent among its employees. A hearing in this proceeding was held in Marshalltown, Iowa, on March 20 and May 15, 16, and 17, 1973. Briefs have been received from each of the parties. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, an Illinois corporation, is engaged in the sale and distribution of merchandise at retail throughout the United States. During the year preceding the issuance of the complaint, Respondent's total retail sales were in excess of $10 million and during said period it purchased from sources located outside the State of Iowa and shipped to its retail store in Marshalltown, Iowa, which is the only facility of the Company involved in this case, goods valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local No. 30, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Following an election conducted by the Board on May 12, 1971, the Union was certified on May 19, 1971, as the collective-bargaining representative of all employees of the Company's Marshalltown, Iowa, retail store, including employees at the First Avenue warehouse, but excluding the store manager, operating manager, professional em- ployees, guards and supervisors as defined in the Act.' Thereafter, the Company and the Union negotiated a collective-bargaining agreement which was executed on January 13, 1972, but was effective retroactively from October 28, 1971, through October 28, 1972. The following persons were involved in the transactions which relate to this case: Jack Hanson-Operating Manager of the Marshall- town store. Hanson is immediately subordinate to Johnson. For the Union: Jack Taylor-International collective-bargaining representative who negotiated the 1971-72 contract with the Company. Robert L. Wittman-International collective-bar- gaining representative who succeeded to the position vacated by Taylor. Thomas M. Russow-International vice president. Peter Voeller-Assistant International director. Kenton Messick-International representative since April 3, 1972. Messick reports to Voeller. Clarence Thomas-Messick's predecessor. Barry Lynch, Charles Stewart, and Fern Blazi'k- Union stewards at the Marshalltown store. Helen Downey-Secretary-treasurer of Local 30. A. The Contract Discussions The spokesmen for the Company and for the Union in the negotiation of the 1971-72 collective-bargaining agreement were, respectively, John Bennett and Jack Taylor. Negotiations were completed in October 1971 and the contract was ratified by the Union on October 27, 1971. In accordance with the understanding of the negotiators the agreement became effective on the next day, October 28. Bennett undertook to draft the final agreement. Sometime in November Taylor telephoned Bennett to inquire when the contract would be ready and was told that it was being typed and would be mailed the same week. The next month Taylor again called Bennett and asked where was the contract. Bennett informed Taylor that it had been mailed the previous month as promised. Because the first draft was lost in transmission the agreement was not executed until January 13, 1972. Thus, in connection with the negotiation and execution of the contract Bennett was in periodic communication with the Union from the time negotiations began through January 13, 1972. By letter dated August 24, 1972, from Richard C. Scheidt, the Company gave the Union notice of termina- tion of their contract and informed the Union that the Company was available to meet at a mutually convenient time for the purpose of negotiating a new agreement. In early October Wittman telephoned Scheidt. The latter referred Wittman to Bennett. On October 6 Wittman spoke with Bennett and they agreed upon a meeting for October 23. The same day Wittman sent the following letter to Bennett: For the Company: Richard C. Scheidt-Vice President and Labor Relations Director whose office is in Chicago, Illinois. John H. Bennett-Regional Labor Relations Man- ager whose office is in Kansas City, Missouri. Edmund C. Johnson-Manager of the Marshall- town, Iowa, store. As per our phone conversation of Friday, October 6, 1972, this will confirm our meeting date for negotia- tions of Montgomery Wards store in Marshalltown, Iowa, on October 23, 1972, at 1:30 p.m., at the Tall Corn Hotel. The October 23 meeting was attended by Bennett for the I Case 18-RC-8572 MONTGOMERY WARD & CO. Company and Wittman and Messick for the Union. After introductions were made Bennett informed the union representatives that the Company was refusing to enter into negotiations for a new agreement because it was the Company's belief that the Union no longer represented a majority of the employees in the store. According to Bennett, he reviewed with Wittman "the considerations indicating this lack of majority status," which were: (1) lack of meetings between management and the Union; (2) to the Company's knowledge the Union had held no meetings of employees; (3) the Union had posted no notices of any kind on the bulletin board which was available to the Union in the store; (4) "there had been no contact from the union" (by this Bennett meant that the Union had raised no grievances with the Company and that union representatives had made no appearances in the store); (5) although the collective-bargaining agreement had a checkoff clause, no checkoff authorizations had been submitted to the Company; and (6) finally, the Company had conducted a secret ballot poll of the employees and, of 51 ballots counted, 33 were no and 18 were yes .2 Wittman advised Bennett that the Union was still requesting that the Company negotiate with it. Before the meeting concluded Bennett stated that he would give consideration to any arguments or evidence the Union wished to present on the question of its majority status. Also, at the meeting, Bennett gave the union representa- tives a sample copy of the ballot which had been sent to the employees plus the letter of instructions, dated October 14, 1972, which accompanied the ballots.3 B. Alleged Basis for Respondent's Refusal To Negotiate Bennett testified that the final decision to conduct a poll of the employees was not made until after his October 6 conversation with Wittman. He did not cancel the meeting with the Union scheduled for October 23 because, regardless of the results of the poll, he was of the opinion that the meeting would be beneficial. According to Bennett, "If it turned out that the union continued to represent a majority of the employees, then we would be bound by the results of that poll and then we would proceed to begin negotiations on the 23rd. On the other hand, I thought that out of respect for the union's position, if the company was going to refuse to bargain that I should make myself available to answer any questions or offer to 2 The ballots asked the question, "Do you wish to continue to be represented by Retail Clerks Union, Local No. 30, for purposes of collective bargaining"" 3 On November 2, 1972, Bennett wrote to Mrs. Helen Downey, secretary-treasurer of Local 30, reaffirming that on October 23 the Company had declined to enter into negotiations for a new contract with the Union and informing Mrs. Downey that, at the October 23 meeting, "I invited and offered to discuss any contrary evidence on the question of majority status. None was offered at that time, nor has there been any subsequent offer of such evidence The purpose of this letter is to renew our offer to consider any such evidence, and also to offer our cooperation in expediting an NLRB election, if this is your desire " Having conducted its own poll at a time when the Board would not have held an election (see below) and using procedures of its own devising (which, as discussed below, were not likely to produce a representative vote) and having obtained a result which satisfied it, its offer to cooperate in expediting a Board election not only was belated but was patently insincere. 719 cooperate with the union in resolving any factual questions that they had and that a face to face meeting would be better than doing it over the telephone or by letter." Both Bennett and Johnson testified to the events which led the Company to cease recognizing the Union as the collective-bargaining representative of the Marshalltown store employees. In late September 1972 Bennett tele- phoned Johnson to discuss the contract which was about to terminate on October 28. During this conversation, according to Johnson, he told Bennett that he had come to the conclusion that the Union no longer represented a majority of the employees. Bennett asked what was the basis for this assertion and Johnson replied that "the contract is about to expire and we do not yet have a check- off list. I have not had any activity as far as the employees coming to me with problems . I have not had any activity as far as the stewards coming with problems . We had not had any grievances filed and no apparent problems with the people, the union people . Just a general lack of activity and interest among the employees, and I have no knowledge of meetings." To support his opinion that the Union did not any longer represent a majority of the employees at the Marshalltown store, Johnson testified that: (1) the Company had not received a checkoff list from the Union; (2) "I have not directly received any contact from the union agents or officials . . . in person or by mail.... I had no personal representations from stewards regarding problems in the store. I had not had any employees come to me with particular problems regarding the union"; (3) "I had no official grievance filed with me for processing in accord- ance with the terms of the contract"; (4) no union notices had been posted on the employees' bulletin board; (5) there was no union activity in the store and "I had no knowledge of meetings"; and (6) there was "a substantial turnover of people in the store," which was about 54 percent. The turnover, according to Johnson, resulted from two deaths, two or three retirements, several part-time employees having quit, and some employees having been promoted to supervisory positions. However, Johnson did not mention turnover when he spoke with Bennett in September 1972 about the Union's alleged loss of majority, and Bennett did not refer to turnover when on October 23 he gave the union representatives the reasons why the Company was refusing to negotiate . The subject of employee turnover was first raised by Johnson about a week before the hearing in this case began and in The Company's poll and its October 23 letter to the employees announcing the results of the poll served to undermine the Union's status and to create an atmosphere antithetical to the conduct of a free and fair Board election. Respondent's offer to cooperate in obtaining Board election, in the circumstances, was a self-serving and an ineffective effort to gloss over the impropriety of its poll and the invalidity of its results Appropriate here are the remarks of Circuit Judge Morgan in N.L. R. B v Schill Steel Products, Inc, 480 F.2d 586, 591 (C A 5, 1973): We note that here, as is often the case in labor cases , the employer argues valiantly for the right of the "rank and file" to be protected against the imposition of a union they did not want. Counsel for the company eloquently argues that purposes of the Act are frustrated) when a union is imposed on employees against their will What this pious statement overlooks is that there once was indeed a fair representation election in this bargaining unit and that the union was selected by a majority of the employees. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connection with the Company's preparation for the trial. Thus, turnover was not a factor upon which the Company relied when it reached its decision to withdraw recognition from the Union. Furthermore, "[h]igh employee turnover within the unit and reduced size thereof are equally of no significance, unless it is shown that a substantial number of employees have defected from the Union"4 C. The Poll Bennett testified that in their September telephone conversation he told Johnson that he wished to consider the situation in the light of Johnson's opinion that the Union no longer represented a majority of the employees. Bennett then discussed the matter with Scheidt. The two had a second conversation about October 2 during which Bennett suggested that the Company should conduct a secret ballot poll to determine whether the Marshalltown store employees still wished to be represented by the Union. Scheidt said he would think about it. The final decision to proceed with the poll was made on October 6 after Bennett's conversation with Whittman. Bennett then advised Johnson of the decision. The latter, in turn, obtained approval for the action from his district manager. The mechanics of the poll, which was conducted by mail, were planned by Bennett. Bennett drafted the ballot and the accompanying letter of instructions to the employ- ees. Bennett directed Johnson to retain the services of a prominent local attorney, who had not represented the Company or any of its management, to receive the ballots and to certify the results of the poll. Leonard L. Grimes was retained for such purpose. Bennett instructed his secretary to obtain from Hanson a list of the names and mailing addresses of the employees to whom the ballots would be sent. In that connection Hanson went through the employees' current service record cards, which are kept in a large book, and placed a checkmark upon the cards of those employees who he determined were eligible to vote and who should receive ballots. Where Hanson had a question as to eligibility he consulted either Bennett or Johnson for the answer. According to Bennett, he tried to follow as closely as possible the eligibility standards which were used in the 1971 Board election. Thus, all persons who in the earlier election were stipulated to be supervisors were deemed ineligible. Other employees who, since the election, had been promoted to allegedly supervisory positions also were not sent ballots. All employees who were challenged by the Union in the Board election likewise were deemed ineligible. On either October 11 or 12 Hanson took the service record book home with him. Hanson's wife, who is not employed by the Company, by telephone read to Bennett's secretary the names and addresses of the employees who Hanson had indicated were eligible to vote. Hanson's secretary prepared address labels for the employees who were to receive ballots. The labels, the ballots, the letters of instruction, and the preaddressed and 4 Massey-Ferguson, Inc., 184 NLRB 640. Accord. N.LR B v. The Little Rock Downtowner, Inc, 414 F.2d 1084 (C A. 8, 1969); N L.R.B. v. Small 7iibe Products, Inc., 319 F 2d 561, 563 (C.A. 3, 1963); N.L.R.B. v. John S. Swift Company, Inc, 302 F.2d 342, 345 (C.A. 7, 1962). stamped envelopes to Grimes were forwarded to Store Manager Johnson. Johnson testified that he signed the letters to the employees on Saturday, October 14, and the same night at home prepared the material to be sent to the employees. This required him to affix a label to each envelope and to stuff each envelope with a ballot, a letter of instructions, and the addressed envelope to Grimes. The next day, Sunday, October 15, after having placed postage on the letters, he deposited them at the post office about 4 p.m. According to Johnson, ballots were mailed to 93 employ- ees.5 The letter of instructions which accompanied the ballots, a copy of which is attached hereto as "Appendix A," among other things, advised the employees that "[a]bsent unusual circumstances, and in order to resolve this question without needless delay, you must have the return envelope postmarked by midnight Wednesday, October 18." On Saturday, October 21, Leonard L. Grimes reported to Johnson that he had received 51 ballots of which 33 were marked "no" and 18 "yes." This was confirmed by letter dated October 23. Despite the requirement imposed by the Company that the return envelopes with the ballots must be postmarked "by midnight Wednesday, October 18," six ballots in envelopes which were postmarked the 19th or 20th were counted plus one ballot in an envelope which carried no postmark. On October 23, the Company, under the signature Johnson, mailed to all the employees of the store the following letter: The results of the poll that we conducted among all employees last week, as certified by Leonard L. Grimes, Attorney at Law, are as follows: 33 votes for "No Union," 18 votes for the "Union." Under all of the circumstances , it is the Company's conclusion that the Union has lost its majority status, and the Company has, therefore, declined to enter into negotiations with Retail Clerks Local 30. Thereafter, on January 11, 1973, the Company filed a representation petition in Case 18-RM-832 requesting an election in the contractual unit. The petition was dismissed by the Regional Director because the complaint in this case was about to be issued . There was no appeal from the dismissal. D. General Counsel's Position The position of General Counsel and of the Charging Party is that without the poll there was no basis for the Company to doubt the Union' s continuing majority. Contrary to Johnson's testimony, the contention is that the Union actively represented the employees at the Compa- ny's Marshalltown store and insufficient facts had surfaced which could have given Respondent good-faith cause to believe that the Union had lost its majority. The poll is 5 One of the employees died before he had an opportunity to act with respect to the ballot. It is also noted that there were 123 names on the eligibility list which was used at the Board election MONTGOMERY WARD & CO. 721 attacked on two broad grounds. First, it does not fairly demonstrate that the Union had lost its majority. Using the Company's figures only 33 in a unit of 92 employees voted against the Union. As the poll was conducted by the employer and not by any governmental agency or other impartial body there was no electoral compulsion on the part of any employee to vote. It is therefore likely that many employees who supported the Union chose to ignore the opportunity to vote in the Company's election. There are many possible reasons why that would be so. Employees might have believed that the election was rigged, they might not have wished to express their union sentiments because to do so might antagonize their employer, etc. Thus, the sentiments of those who voted do not necessarily represent in the same proportion the sentiments of the employees who did not vote. Further- more, the Company unilaterally resolved all eligibility questions which introduced another potential area of error in the election . Also, as discussed below, the mechanics of the poll are alleged to have been seriously defective. The second attack upon the poll is that the Company thereby was seeking to usurp the functions of the Board by conducting an election in circumstances where the Board itself would not have done so. E. Resolution of Facts The facts asserted by Johnson, which according to him reflected the inactivity of the Union and the absence of continuing support of the Union by the Company's employees, are demonstrably incorrect. Contrary to John- son, grievances were presented to the Company, union meetings were regularly held, and union representatives regularly visited the store and consulted with union stewards and other employees. Regarding union meetings, the uncontradicted evidence shows that on October 27, 1971, the Union held a meeting at which the proposed contract with the Company was ratified. Approximately 30 to 40 employees attended that meeting. Also, at that meeting three union stewards were elected. After the contract had been published copies were given to employees who attended subsequent union meetings and copies were also distributed in the store. Thereafter, a meeting was held in January 1972 at which the terms of the recently negotiated contract were discussed. Additional meetings of Local 30 members in the Marshalltown area were held in April, June, and July, 1972. Barry Lynch testified without contradiction that as union steward it was his duty to give the employees notice of the union meetings. It was his practice to post notices of each meeting at the two timeclock locations in the Company's premises and verbally to inform employees 6 Fern Blazik, who was a union steward, testified that she had not handled any complaints from employees and that she had been unable to answer inquiries from employees as to what the Union was doing. She testified that she wrote several letters to Voeller and later she also wrote to the president of the International on December 30, 1971, and to the division director on January 20, 1972. She was unable to remember the substance of her letters to Voeller In her December 30 letter Blazik complained that the employees were not getting their contract benefits and that the personnel manager had said that he was not going to do anything until he had to Wank also complained that the Union was not well organized and about the meetings. Approximately 10 to 15 employees attended the April, June, and July meetings. At the July meeting the employees together with International Representative Messick, who chaired the meeting, prepared proposals for submission in connection with the anticipated negotiations. These proposals were transmitted by Messick to the Union's collective- bargain- ing representative, Wittman, for use at the negotiating meeting scheduled for October 23. Thus, contrary to Johnson, union meetings of the employees were regularly held and notices of these meetings were posted in the store at the timeclocks. Despite the Company's assertion that union representa- tives did not visit the employees at the store, on cross- examination, Johnson testified that he recalled seeing Messick in the store two or three times during the contract year. Hanson testified that he remembered seeing Messick in the store in June or July. Messick testified, and I credit his testimony, that in addition to the visits he made to the store in April, May, and June, which will be discussed below, he visited the store twice in July, twice in August, and once in September 1972. It was his practice when he visited the store to inform either Johnson or Hanson that he wished to talk with the union stewards. His principal contact in the store was with Barry Lynch. Lynch corroborated Johnson. He testified that between January and April 1972, International Representative Clarence Thomas contacted him about once a month and thereafter Messick, Thomas' successor, contacted him even more frequently.6 Regarding the contention that no grievances were raised by the Union during the contract year, upon closer interrogation, Johnson modified his testimony to assert that he meant that there had been no written grievances processed. Johnson acknowledged that about April 1972 he had a meeting with Messick and Lynch at which two or three problems were raised. However, he turned the matters over to Operations Manager Hanson. During May 1972 Messick took up with Hanson a question about raises the Union contended were due to certain employees as of March 30 but which had not been given. There were two or three discussions about the subject over a period of several weeks. The grievance was resolved when the Company put into effect raises for approximately six employees. Also, in the same month, a problem concerning vacation and severance pay for an employee, George Buffalo, who was on a leave of absence, was discussed by Messick with Hanson. The matter was resolved by the Company agreeing to make the requested vacation and severance payments to Buffalo. Further, in the month of May or June 1972, an employee in the camera department complained to Union Steward Barry Lynch that she was not being given enough hours of work. Lynch discussed the subject questioned whether they were afraid of the people who run the store. In her letter of January 20, 1972, Blazik complained about Operating Manager Hanson and also said that the Company still had not implemented any benefits. While these letters indicated concern about the effectiveness of the Union, they did not show a desire to repudiate the Union. Blazik was urging more forceful action . Furthermore, the letters refer to a period prior to January 20, 1972. Messick's testimony would indicate that Blazik's complaints had ultimately been resolved . Blazik did not testify to the contrary. Finally, there is no evidence that Blazik's complaints had been communicated to the Company. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the employee's supervisor, Webb Gile. Gile explained that the employee had been offered more hours of work but that she had refused to work on the days and at the times when work was available. Upon checking with the employee and learning that the information he had received from Gile was correct Lynch advised the employee that she did not have a justified complaint and the matter was dropped. In June Messick received a complaint involving "write-offs" for commission salesmen. The grievance was that the Company had reduced the number of weeks in which the commission salesmen could meet their drawings. Messick and Union Steward Charles Stewart discussed the subject with Hanson. After Hanson explained the Company's position, Messick and Stewart spoke with the salesmen who decided that the new procedure was satisfactory. The matter was thus conclud- ed. The testimony shows tat all grievances were given attention. No evidence was adduced that any employee has been unable to obtain the assistance of the Union with respect to any grievance or complaint about terms or conditions of work. No officer of Local 30 attended any union meetings in Marshalltown or personally serviced the employees at the Company's store. However, International representatives furnished such services for the Union. Thus, International Representative Jack Taylor negotiated the collective-bar- gaining agreement with the Company and his successor, Robert L. Wittman, sought to negotiate a renewal agreement . Meetings of members in the Marshalltown area were conducted by International Representatives Thomas and Messick. They periodically visited the Company's Marshalltown store, consulted with the employees, and sought to resolve the employees' complaints. Therefore, although the officers of Local 30 may have devoted little time to the Union's Marshalltown members, the represent- ative functions were performed for Local 30 by the Union's International representatives.7 At the hearing a letter from Messick to Union Interna- tional Vice President Thomas M. Russow, which was produced by the Union in response to a subpena, was introduced in evidence by Respondent. The letter, dated April 22, 1972, is a report by Messick made shortly after he assumed the duties of his predecessor, Clarence Thomas, on April 3, 1972. In this letter Messick states that during the week ending April 22 he and another International representative met with some company employees who told him this was their first union contact in more than 3 months and who at first displayed quite a bit of hostility towards the union representatives. However, before the meeting concluded the union representatives were able to resolve the employees' complaints. The letter also states that there are severe problems because the Company has not been forced to observe the terms of the current contract and the membership has fallen drastically, and Messick is afraid the Union could not then win an election. r Local 30 is headquartered in Des Moines and has a jurisdiction covering approximately 150 square miles Local 30 has no full-time employees. The chief executive officer , Helen Downey, is a full-time cashier at A & P, and works only part-time for the Union . For her services as chief executive officer she receives $42 a month. 8 Similarly, the fact that the Union lost a decertification election on November 10, 1972, at another store in the same shopping center could not The letter further states that Messick returned to the store later in the same week and the stewards reported to him that the employees had been impressed favorably at the meeting and now there was a lot of talk in the store about the Union. The April 22 letter does little to bolster the Company's defense because there is no evidence that the knowledge Messick might have had in April 1972 about union disaffection among the Company's Marshalltown employees had come to the attention of the Company, or that the Company knew of any dissatisfaction with the Union among its employees. Furthermore, it would seem that the situation was corrected within a reasonably short period of time. On June 10 Messick wrote to International Vice President Russow that he had spent some time at the Company's store in Marshalltown and the Company "because of our lack of activity previously has not been following the contract too closely. As a result it has taken a lot of time to get things straightened out. But as a result of the effort we are developing a strong unit there." 8 Apart from the results of the poll conducted by Respondent, four of the five reasons advanced by Bennett to the union representatives on October 23 as the basis for the Company's belief that the Union ceased to represent a majority of the Marshalltown store employees were proved to be incorrect. Thus: ( 1) as to lack of meetings between management and the Union-there were such meetings in April, May, and June. There is no evidence that any union or employee complaint arose after June so that there does not appear to have been any reason for further grievance meetings. (2) No union meetings-there were meetings in October, January, April, June, and July. (3) No union notices posted in the store-notices of the union meetings were posted. (4) No contact with the Union-at least four separate grievances or employee complaints were resolved. Also, Union International representatives regularly visited the store. The fifth factor which is that no checkoff authorizations had been submitted to the Company is correct. However, this does not tend to demonstrate loss of union support. In the absence of a union shop provision, particularly in a right-to-work State, "many employees are content neither to join the union or to give it financial support but to enjoy the benefits of its representation. Nonetheless, the union may enjoy their support, and they may desire continued representation by it."9 Furthermore, the Union made little effort to collect dues from the Company's Marshalltown employees although it continued to furnish representation- al services to the employees. In the circumstances, the failure of the Union to present checkoff cards to the Company is not indicative of the loss of employee support. I find that, without considering the results of its polls, on October 23, the Company had no reasonable basis for doubting the Union's continuing majority. I find further that the reasons given to the Union on October 23 for the Company's withdrawal of recognition were not presented have influenced the Company's decision to withdraw recognition because the referred to election took place after October 23. Furthermore, there is no evidence that Johnson . Hanson, Bennett, or any other company official was cognizant of the labor relations situation at the other store. 9 Terrell Maclune Company v. N.LR.B., 427 F.2d 1088, 1099 (C.A. 4), cert. denied 398 U.S. 929 (1970). Accord: N.LR.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5. 1966). MONTGOMERY WARD & CO. in good faith. Johnson who was the source of Bennett's information had knowledge that grievances had been processed, that union representatives had visited the store regularly, and he should have had knowledge that notices of union meetings had been posted in the store. F. Reliability of the Poll General Counsel challenges the reliability of the poll on several grounds. First, because the letter of instructions gave the employees only a relatively short period of time within which to return their ballots (the ballots were mailed to the employees on Sunday, October 15, and, according to the instructions, the employees were required to deposit the marked ballots in a post office box by midnight, Wednes- day, October 18), some employees might not have had an opportunity to vote. Agatha Gavagan testified to such effect. Second, the Company deviated from the self- imposed conditions of the election by counting six ballots which were in envelopes postmarked after the 18th and one which was in an envelope without any postmark. Third, and an even more important defect in the voting arrangement, the Company determined which employees should and which employees should not receive ballots. At the hearing, the Charging Party and the General Counsel questioned resolutions made by the Company as to the eligibility of more than 25 employees, which constituted more than 25 percent of the unit. If these eligibility questions were resolved in favor of the Union theoretically the Union might have won the election conducted by the Company. However, as there was no challenged ballots procedure it would be useless to resolve the eligibility questions because there would be no way of correcting the vote. Fourth, the General Counsel contends that the balloting was conducted without appropriate safeguards. The evidence shows that the poll was arranged in a makeshift and haphazard manner. Among other things, according to Johnson, no check was made to ascertain that a ballot was mailed to each employee who the Company had determined was eligible to vote. Also no procedure was adopted to guarantee that the ballots received by the Company had been sent by eligible voters. From strictly a mechanical point of view the Company's poll was deficient in the following respects: 1. There was no assurance that all eligible voters were mailed ballots and that all ballots received and counted were from eligible voters. 2. Employees may not have been given sufficient time within which to return their ballots. 3. The Company departed from the announced election procedures. 4. Almost half the employees in the unit, as determined by the Company, did not vote and it may well have been because of fear or suspicion engendered by the Company's action. 5. The Company unilaterally resolved all eligibility questions. 10 8 NLRB Ann Rep 45 (1943); Naumoff, Evolution of the NLRB Contract Bar Doctrine, 10 Lab. L.J. 687 (Apr. 1959), Feldesman, Contract Bar to Representation Elections, 29 Geo Wash. L. Rev. 450 (1960-61). 11 8 NLRB Ann Rep 48 (1943); 10 NLRB Ann Rep. 21 (1945); Brooks 723 G. Legal Objections to the Poll In essence, General Counsel argues that at the time the Company conducted its poll the Board would not have possessed a representation petition had the Company then filed one and the Board would not then have conducted an election. Thus, by polling its employees the Company was improperly usurping a Board function. To sanction the Company's poll in these circumstances would undermine the administration of the Act. The legal problem with respect to the Company's poll develops from the tension incorporated in the basic structure of the Act between the right of employees freely to select their collective-bargaining representative and the encouragement of continuous, stable collective-bargaining relationships.10 Various principles have been adopted by the Board to reach an accommodation between these conflicting considerations. One is the contract-bar doc- trine, including the insulated period concept, which protects a contractual relationship from indiscriminate attack particularly from rival labor organizations. Another are the presumptions regarding continuing majority status as reflected by Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954), and by Celanese Corporation of America, 95 NLRB 664. Absent special circumstances, a union enjoys an irrebutta- ble presumption of majority status for 1 year after certification.li After the first year the certificate still creates a presumption of majority status but the presump- tion is normally rebuttable by an affirmative showing that the union no longer commands a majority. Where the certificate is more than 1-year old an employer may refuse to bargain further with the incumbent union without violating the Act and insist that the union reestablish its representative status if, based on reasonable and objective considerations, the employer has a good-faith doubt of the union's continuing majority.12 Such doubt "must rest on a reasonable basis and may not depend solely upon unfounded speculation or a subjective state of mind." N. L. N.L.R.B. v. Gulfmont Hotel Co., 362 F.2d 588, 589 (C.A. 5, 1966). More than an employer's assertion of his good faith and more than proof of the employer's subjective frame of mind is necessary to rebut the presumption of continuing majority. What is required is a "rational basis in fact."13 The surest means of verifying a union's continuing majority is by a Board-conducted election. The most appropriate parties to initiate a proceeding leading to such election are the employees, who may file a decertification petition, as it is their designation of their bargaining agent which will be decided by the election. However, the employer may also have a legitimate concern regarding the union 's continuing majority. (An employer who continues to recognize and to bargain with an incumbent union after the initial certification year has elapsed normally is shielded against the charge that he is dealing with a minority representative by the presumption that the union's majority continues beyond the certifica- tion year.) In a proper case the employer too may initiate a proceeding leading to a Board-conducted election. In order v. N. L. R B., supra. 12 Celanese Corporation of America, supra. 13 N L R. B v Frick Company, 423 F.2d 1327 (C.A. 3, 1970), and cases there cited 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to minimize the interruption and impairment of a bargain- ing relationship and the opportunity for a recalcitrant employer, who only with reluctance accedes to the bargaining strictures of the Act, from keeping the bargain- ing relationship in a recurrent state of turbulence by periodically compelling the union to reestablish its majori- ty, the Board places limitations upon the right of the employer to secure an election. The criteria which must be met in any such case before an election upon the petition of an employer will be directed are essentially the same as those that determine whether the employer may withhold continuing recognition from an incumbent union. This equation eliminates any reason for the employer or the union to maneuver for a procedural advantage in a contest to ascertain whether the union continues to enjoy majority support. United States Gypsum Company, 157 NLRB 652.14 I have found above that as of October 23 when the Company refused to bargain with the Union, apart from the poll it had conducted, the Company had no basis for questioning the Union's continuing majority. For two reasons the Board then would not have conducted an election had the Company filed a representation petition. First, the standards of The United States Gypsum Company case were not met. Second, the poll was conducted during the contract's insulated period when under Board princi- ples the Board would not have processed a representation petition filed by the employer.15 ". . . [F ]or the period during which the contract was a bar and no question concerning representation might validly be raised, the Respondent was under an obligation to recognize and bargain with the Union." Otherwise, we should have the anomalous result of an employer being permitted unilaterally to redetermine his employees' bargaining representative at a time when the Board would refuse to make such redetermination because the time is inappropriate for such action.16 If the Board would not have conducted an election there is no basis for accepting the results of a private poll conducted by the employer without the advantages of impartial supervision and without the many Board safe- guards designed to insure a fair election. From the early days of the Act the Board has looked with disfavor upon employer sponsored elections.17 A poll of employees :iy their employer as to whether they wish to be represented by a labor organization is an intrusion upon the employees' statutory right freely to select a collective- bargaining representative without employer interference. In at least one situation, however, an employer may legitimately desire to ascertain the views of his employees regarding unionism. That case arises when a labor organization has demanded recognition and the employer is willing voluntarily to recognize the labor organization without the preface of a Board-conducted election if the employer can satisfy himself that the labor organization genuinely represents a majority.18 While there may be 14 See also Emerson Manufacturing Company, Inc, 200 NLRB No. 33 15 Nelson Name Plate Company, 122 NLRB 467 16 Hexton Furniture Company, I I I NLRB 342, 344 11 The Heller Brothers Company of Newcomerstown, 7 NLRB 646, 3 NLRB Ann Rep 138 (1938) more preferable ways for an employer to verify a union's majority claim, a poll of his employees will be permitted if he observes the safeguards set forth in Struksnes Construc- tion Co., Inc., 165 NLRB 1062. As there stated, the rules are "designed to effectuate the purposes of the Act by maintaining a reasonable balance between the protection of employee rights and legitimate interests of employers." One of the criteria of the Struksnes case is that "the purpose of the poll is to determine the truth of a union's claim of majority." As a poll is presumed to be violative of the Act, the burden is upon the employer to establish that he has observed all the required safeguards and falls within the exception approved in Struksnes. Heck's Inc., 174 NLRB 951; Nu-Southern Dyeing & Finishing, Inc., 179 NLRB 573. The Struksnes case is directed to a union's initial claim for recognition (as also was Blue Flash Express, Inc., 109 NLRB 591). The Board has not specifically extended the principle of the Struksnes case to situations where an employer seeks to question a union's continuing majority. Among the reasons for the Board's hesitation to do so are the significant differences between a union's request for initial recognition and for continued recognition. In the first instance, the union properly should be called upon to demonstrate its majority claim . In the second instance, the union's majority is presumed. It would contravene a basic objective of the Act, that is, guaranteeing employees the right to bargain collectively through representatives of their own choosing, if the employer is given an unrestricted license to search for proof of the union's loss of majority because "the evidence of dissatisfaction with a validly recognized incumbent union must come from the employ- ees themselves, not from the employer on their behalf." Massey-Ferguson, Inc., 184 NLRB 640. Also, different considerations apply to the determination that an employ- er initially shall be required to recognize and to bargain with a union and, after having recognized a union, that he shall continue such recognition . Pertaining to the latter instance, the Supreme Court stated in Franks Bros. Company v. N. L. R. B., 321 U.S. 702, 705-706 (1944), "A bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed. . . . After such a reasonable period the Board may, in a proper proceeding and upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships." Further, an employer who files a representation petition in response to a union 's initial recognition claim indicates that he is seeking a quick resolution of the question concerning representation raised by the union and is not seeking to gain additional time within which he might engage in activities directed towards undermining the union's support. Thus, filing a petition in such case tends to confirm the genuiness or good faith of the employer's asserted doubt regarding the union's majority claim. See 116 U. Pa. L. Rev. 709, 721. On the other hand, the effect 18 Thus, as stated in Atlantic Technical Services Corporation, 202 NLRB 169, "where an employer undertakes to determine a union's majority status by means of a poll, under conditions of its own choosing, it cannot thereafter disclaim the results because it finds them distasteful . Sullivan Electric Co, 199 NLRB 809 " MONTGOMERY WARD & CO. 725 of filing a representation petition by an employer who questions the continuing majority of an incumbent union is the opposite. By filing such petition, the employer, not the union nor the employees, raises a question concerning representation (which had been resolved earlier by a Board-conducted election), interrupts the collective-bar- gaining relationship, and gains time to campaign against the union and to undermine its support. Similarly, in situations contemplated by the Struksnes decision, an employer sponsored election may reflect a good-faith desire to determine the validity of a union's initial claim of majority, but that can almost never be the case with respect to an employer sponsored election or poll to test the majority status of an incumbent union. There are only four cases that have come to my attention in which an employer was charged with unfair labor practices by withdrawing recognition from an incumbent union based, in part, on the results of an employer conducted poll. The first is Rohlik, Inc., 145 NLRB 1236. In that case a union had been certified more than a year before the employer acquired the business. In an address to the predecessor's employees, who were applying for jobs with the employer, the latter asked them to poll themselves on whether they wanted to continue with union representa- tion. The vote was 39 to 15 against the union. The Board noted that asking employees to declare themselves in a poll with respect to their desires for continued union represent- ation at a time when they are applying for employment inherently restrains and coerces employees in the exercise of their rights under the Act. Further, the employer "had no legitimate purpose in asking for a poll of the employees." The union's majority status had been deter- mined by the Board in a representation election a little more than a year before the employer had purchased the business and the employer had not received any indication that there had been a change in employee sentiment. Thus, the Board rejected the results of the vote as giving rise to a good-faith doubt of the union's continuing majority status and justifying the employer's refusal to bargain with the union. The second case is H. P. Wasson & Company, 170 NLRB 293, enforcement denied 422 F.2d 558 (C.A. 7, 1970). In the Wasson case the Board found that the poll was conducted in a coercive manner and therefore was unlawful. The Board also found a violation of Section 8(a)(5) as no other valid grounds were advanced for believing that the union's majority had been dissipated. The third case is Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801. There the Board dismissed the complaint. However, the decision was reached in the context of an unusual congeries of circumstances. First, the union was certified in 1948 and the poll in issue was taken 22 years later on December 7, 1970. Second, following the 1948 certification there were three changes of ownership before the respondent became the employer by reason of a purchase made in April 1964. Third, the collective-bargain- ing agreement which was extant when the Respondent became the employer expired on September 30, 1965, and was extended by mutual agreement only until December 1965. The contract was never renewed, although Respon- dent continued to recognize and to bargain with the union. Thus, when the poll was taken there had been no contract between the parties for about 5 years. Fourth, in dismissing the complaint, the Board relied not only on the results of the poll (11-11 vote of 28 in the unit) but also on employee expressions of dissatisfaction, in activity of the union, and extremely high turnover (about 500 percent in a 2-year period). Fifth, the Board specifically noted that General Counsel did not assert that the union had a majority and "from an evaluation of the entire record such majority status would appear to be in serious doubt." Thus, without consideration being given to the results of the poll, the employer had established a good-faith doubt of the union's continuing majority within the standards of the Celanese principle. The fourth case is Dimarc Broadcasting Corporation d/b/a KCKC, 204 NLRB No. 47. In that case, during a period when the parties were negotiating with respect to the renewal of their expired contract, the employer requested the Union to prove its current majority status. Unlike the other cases discussed above, the Union, according to the Board's findings, accepted the employer's request and agreed to reprove its majority status. As the union then was unable to prove it represented a majority the Board held that the "Union having agreed to re-prove its status, we cannot find that Respondent `refused to bargain' by making a request that was in fact accepted." The case stands for the proposition that if the two parties to the negotiations agree upon a vote they are bound by their agreement. Conclusions It is unnecessary to a determination of the issue here to reach the question of whether the poll conducted by the Company constituted a violation of the Act. It is sufficient to find, as I do, that it does not furnish the Company with a valid basis for doubting the Union's continuing majority. In reaching this conclusion I rely principally on two grounds discussed above. One is that the poll was conducted at a time when the Board would not have held an election had a representation petition been filed by Respondent. To countenance such usurption of the Board's representation functions would serve to undermine the administration of the Act.19 It would render meaning- less the rules established by the Board in United States Gypsum Company, 157 NLRB 652, and Nelson Name Plate Company, 122 NLRB 467.20 Second, there were sufficient deficiencies in the procedures used by the Company in conducting its poll that the results are unreliable and 19 Ray Brooks v N L R. B, 348 U.S. 96, 103-104 (1954) It is contended that since a bargaining agency may be ascertained by methods less formal than a supervised election, informal repudiation should also be sanctioned where decertification by another election is precluded This is to make situations that are different appear the same. 90 N. L R B v Ray Brooks, 204 F.2d 899, 906-907 (C.A. 9), affd. 348 U S 96(1954)- We are of the opinion that the right of employees to bargain through representatives of their own choosing must be, and was intended to be, restricted to the extent necessary to make workable and effective the administrative scheme devised for the protection of that right and for the promotion of the other objectives of the Act. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot be accepted as indicative of the employees' representation desires. In addition, the Company had no legitimate purpose for sponsoring its election except to manufacture a basis- which otherwise did not exist-for questioning the Union's majority and for refusing to discharge its statutory obligation of engaging in collective bargaining with its employees' statutory representative. I find that the Company had no acceptable reason for refusing to negotiate with the Union and, therefore, as alleged in the complaint, it has violated Section 8(a)(1) and (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occuring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. REMEDY "[T]he unlawful refusal of an employer to bargain collectively with his employees' chosen representative disrupts the employees' morale, deters their organizational activities, and discourages their membership in unions." Franks Bros. v. N.L.R.B., 321 U.S. 702, 704 (1944). Accordingly, having found that the Company has engaged in such unfair labor practices, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Since October 23, 1972, by failing and refusing to bargain collectively with the Union as the duly designated collective-bargaining representative of the Company's employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 2. By the foregoing conduct, the Company also has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record of this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2I Respondent, Montgomery Ward & Co., Incorporated, Marshalltown, Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Retail Clerks Union Local No. 30, Retail Clerks International Associa- tion, AFL-CIO, as exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit: All employees of the employer's Marshalltown, Iowa, retail store, including those employees at The First Avenue Warehouse; excluding Store Manager, Operat- ing Manager, professional employees, guards and supervisors as defined in the NLRA, as amended. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment , and other terms and conditions of employment with Retail Clerks Union, Local No. 30, Retail Clerks International Association, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above and, if an agreement is reached, embody it in a signed contract. (b) Post at its store located in Marshalltown, Iowa, copies of the attached notice marked "Appendix B."22 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 21 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." October 14, 1972 APPENDIX A Dear Wards Employees: Most of you are aware that, as the result of an election conducted on May 12, 1971, Retail Clerks Union, Local No. 30, was certified as the exclusive collective bargaining representative of employees in the Mar- shalltown store. Subsequently, as a result of negotia- tions, a collective bargaining agreement was entered MONTGOMERY WARD & CO. 727 into between the Company and Local 30, with respect to the Marshalltown store and its employees. This contract expires on October 28, 1972. Local 30 has requested the commencement of negotia- tions for a new contract, based on a claim of continued representative status. Under the law, the Company is obliged to engage in collective bargaining with the union if the union continues to represent a majority of the employees. However, the Company is not obliged to bargain with the union if it has lost its majority status. All employees are encouraged to vote, in order that a representative result can be obtained. Your cooperation is appreciated. Yours very truly, E. C. Johnson Store Manager Encls. APPENDIX B In order to determine the truth of the union's claim of majority status, we are conducting a poll of the employees in the store. This poll will be by secret ballot. We absolutely assure you that under no circumstances will there be any reprisals or retaliation by the Company based on whether or not you vote, or the way you vote. To further assure the integrity and confidentiality of this poll, we have arranged with Mr. Leonard L. Grimes to receive and count the ballots and certify the results. Mr. Grimes is a prominent local attorney, who does not represent Wards or any of our local manage- ment. Instructions for the use of the attached ballot are as follows: 1. If you wish to vote for continued representa- tion by Retail Clerks Local 30, make an "X" in the YES box. 2. If you wish to vote against continued repre- sentation by Retail Clerks Local 30, make an "X" in the NO box. 3. Do not sign your name or otherwise indicate your identity on the ballot. 4. Place the completed ballot in the enclosed stamped, preaddressed envelope, seal the enve- lope, and deposit it in a mail box. 5. Absent unusual circumstances, and in order to resolve this question without needless delay, you must have the return envelope postmarked by midnight Wednesday, October 18. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Retail Clerks Union, Local No. 30, Retail Clerks Internation- al Association, AFL-CIO, as the exclusive representa- tive of all the employees in the appropriate unit described below and, if an agreement is reached, embody it in a signed contract. The appropriate unit is: All employees at our Marshalltown, Iowa, retail store, including those employees at the First Avenue warehouse; excluding Store Manager, Operating Manager, professional employees, guards and supervisors as defined in the NLRA, as amended. MONTGOMERY WARD & CO., INCORPORATED (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611.