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NLRB Nixes Brylane’s Appeal

NEW YORK — The central office of the National Labor Relations Board in Washington declined to hear Brylane L.P.’s appeal of its petition for a secret-ballot election to determine whether a majority of employees in its Indianapolis...

NEW YORK — The central office of the National Labor Relations Board in Washington declined to hear Brylane L.P.’s appeal of its petition for a secret-ballot election to determine whether a majority of employees in its Indianapolis distribution center supported UNITE’s effort to organize the center.

In August, Brylane threw a curve ball in the organizing campaign by asking the NLRB to hold a secret-ballot election, as reported. It’s unusual for employers to make such a request and UNITE officials saw the gambit as an effort to circumvent their organization campaign, which is now in its 14th month.

UNITE officials have said they’d prefer to use a card-check process, in which the NLRB appoints a neutral third party to count signed union cards to determine whether a majority of the 740 workers at the distribution center support the organization campaign.

In September, the NLRB regional office in Indianapolis struck down the petition, prompting Brylane’s appeal to the central office. There is no mechanism in place for further appeals, according to Rik Lineback, a regional attorney with the NLRB in Indianapolis.

“We’re hoping this would be the right time [for Brylane] to make a move toward settlement,” said Mary Kay Devine, the UNITE field director who’s been handling the campaign.

Audrey Wathen, senior vice president of human resources at Brylane, said, “We obviously are very disappointed that there was a refusal to review the appeal. Our position is that every single person at Brylane that works in our distribution center should express their desire and that is what we were fighting for.”

Three members of the central NLRB wrote the decision, which was dated Nov. 20. Wilma B. Liebman and Michael J. Bartlett concurred, while William B. Cowen dissented.

In making its request for an election, Brylane had to prove that UNITE had asked to be recognized as having the authority to bargain collectively on behalf of the workers. At issue was an Aug. 1 meeting attended by UNITE president Bruce Raynor, Brylane chairman and chief executive officer Russell Stravitz and their deputies.

Brylane claimed that in that meeting Raynor said a majority of employees have signed union cards, while UNITE disputes the claim. In an NLRB hearing, one Brylane executive testified that the assertion of a majority had been made, while two UNITE officials denied it.

UNITE has declined during the campaign to reveal how many employees have signed union cards out of concern they would face retaliation from Brylane management.

In his dissent, Cowen wrote, “The union here does not actually claim to be the majority representative of the employer’s employees. Under these circumstances, the union’s demand is actually a demand for recognition in the absence of majority status and as such is unlawful.”

Rebutting him, Liebman wrote, “The proposition that a labor organization cannot lawfully deal with an employer regarding the mechanism for demonstrating its majority status until it has actually demonstrated its majority status to the employer’s satisfaction is, at best, counter-intuitive.”

Doug Rhoton, a Brylane employee and union supporter, said, “The labor board has told Brylane ‘no’ twice now, so it’s time for them to stop trying to control the workers and recognize it’s us who will be the union members. It’s time for them to stand back and let us decide.”