Brylane, L.P.

National Labor Relations Board - Board Decisions

Nov 20, 2002

338 N.L.R.B. 538 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
Brylane, L.P., Employer-Petitioner and Midwest
Joint Board, Union of Needletrades, Industrial
and Textile Employees (UNITE), AFL–CIO–
CLC. Case 25–RM–597
November 20, 2002
ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The National Labor Relations Board has considered the
Employer-Petitioner’s request for review of the Regional
Director’s Decision and Order pertinent portions of which
are attached as an appendix. The request is denied as it
raises no substantial issues warranting review.
We agree with the Regional Director, for the reasons
he expressed, and for the reasons set forth in New Otani
Hotel & Garden, 331 NLRB 1078 (2000), that the Un-
ion’s request for a neutrality and card check agreement
did not constitute a demand for recognition within the
meaning of Section 9(c)(1)(B) of the Act.1 Thus, con-
trary to our dissenting colleague, we deny review of the
Regional Director’s decision to dismiss the Employer’s
petition for an election.

MEMBER LIEBMAN, concurring.
I join Member Bartlett in denying review of the Re-
gional Director’s decision to dismiss the Employer’s peti-
tion in this case. I agree that, under New Otani Hotel &
Garden, 331 NLRB 1078 (2000), the Union’s request for a
neutrality and card check agreement did not constitute a
demand for recognition within the meaning of Section
9(c)(1)(B) of the Act. See also the plurality opinion in
Rapera, Inc., 333 NLRB 1287 (2001) (opinion of Mem-
bers Liebman and Walsh). My dissenting colleague, how-
ever, has made other contentions that were not raised or
litigated by the parties in this case. Although it is unnec-
essary to rule on those contentions, I write separately in
order to make the following observations:
First, based on his incorrect assumption that the Un-
ion’s conduct amounts to a request for recognition by a
labor organization that does not actually represent a ma-
jority of the Employer’s employees, my colleague posits
that such a request would be unlawful. He cites no au-
thority for this proposition, however, and I know of none.
Although acceptance of recognition by a minority union
is clearly a violation of Section 8(b)(1)(A),1 there is no

of Act).

1 Member Bartlett agrees that the request for review does not raise
any issues warranting review. He does not address any additional
issues raised by the dissent. Member Bartlett expresses no view on the
correctness of the decision in New Otani. In the absence of a three-
member Board majority to reconsider that decision, however, he agrees
that it is controlling in this case and that review should be denied.
1 Ladies’ Garment Workers (Bernhard-Altmann Corp.) v. NLRB,
366 U.S. 731 (1961).
authority for the proposition that a request for recogni-
tion by a minority union would violate the Act. See
NLRB v. Teamsters Local 639 (Curtis Bros.), 362 U.S.
274 (1960) (peaceful picketing by a union which does
not represent a majority of employer’s employees to
compel immediate recognition does not violate Section
8(b)(1)(A)).
Similarly, my colleague cites no authority for his con-
tention that the Union has violated the Act by asking the
Employer to enter an agreement for neutrality and a card
check, before it has actually been certified or recognized
as the majority representative of the Employer’s employ-
ees under Section 9(a) of the Act. 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,
counterintuitive. But in any event, neither the Board nor
the courts have ever held that it is per se unlawful for a
union to negotiate or enter into any type of an agreement
with an employer simply because, at the time of the
agreement, the union does not represent the employer’s
employees under Section 9(a) of the Act. Cf. Retail
Clerks Locals 128 and 633 v. Lion Dry Goods, Inc., 369
U.S. 17 (1962) (strike settlement agreement between
employer and union which acknowledges that it does not
represent employees under Section 9(a) nevertheless en-
forceable under Section 301
Finally, my dissenting colleague contends that the Un-
ion’s request for a neutrality and card check agreement
“appears to be unlawful under Section 302 of the Labor
Management Reporting and Disclosure Act, 29 USC
186,” because such an agreement is a “thing of value” to
the Union.2 Once again, my colleague cites no authority
for this novel proposition. In fact, Section 302 is a
criminal statute that is aimed at the ills of bribery and
extortion in labor relations,3 and thus it would not appear
2 Sec. 302 provides, in pertinent part, as follows:
(a) It shall be unlawful for any employer . . . to pay, lend, or
deliver, or agree to pay, lend, or deliver, any money or other thing
of value—
(1) to any representative of any of his employees who are
employed in an industry affecting commerce; or
(2) to any labor organization, or any officer or employee
thereof, which represents, seeks to represent, or would admit
to membership, any of the employees of such employer who
are employed in an industry affecting commerce . . .

(b) It shall be unlawful for any person to request, demand, re-
ceive, or accept, or agree to receive or accept, any payment, loan,
or delivery of any money or other thing of value prohibited by
subsection (a) of this section.
3 “The purpose of sec. 302 is to ‘punish certain criminal activity in
the conduct of union affairs, and thereby help to drive criminals from
the labor movement.’” Central States Southeast & Southwest Areas
338 NLRB No. 65
BRYLANE, L.P. 539
to be concerned at all with this type of organizational
activity. See Wyman-Gordon Co. v. NLRB, 397 F.2d 394,
396 (1st Cir. 1968), judgment reversed on other grounds,
394 U.S. 759 (1969) (court rejects employer’s argument
that compelling it to provide an “Excelsior” list of em-
ployee names and addresses would force it to provide a
“thing of value” to the union in violation of Section 302).
A logical extension of my colleague’s argument would
be to hold that when an employer extends unlawful rec-
ognition to a minority union under Section 8(a)(2), the
recognition would also violate Section 302. To my
knowledge, however, no court has ever held that an em-
ployer that violates Section 8(a)(2) in such a manner also
commits a criminal violation of Section 302.
In any event, I prefer to address myself to the argu-
ments that were actually presented to us by the parties,
and having fully considered those arguments, I agree that
we should deny review of the Regional Director’s Deci-
sion and Order.

MEMBER COWEN, dissenting.
I would grant review and remand this case to the Re-
gional Director to reinstate and process the petition.
Midwest Joint Board, Union of Needletrades, Indus-
trial and Textile Employees (UNITE), AFL–CIO–CLC
(Union) has clearly made a demand for recognition
within the meaning of Section 9(c)(1)(B) of the Act by
requesting that the Employer enter into a neutrality/card
check agreement. By making this request, the Union
seeks to determine the method by which the Employer’s
employees will express their choice regarding union rep-
resentation. It is self-evident that such an agreement
resolves a topic of great interest to those employees, and
as such it would be a topic of mandatory bargaining if
the employees were represented by a union.
In my view, a request by a union that seeks to deal with
an employer concerning a topic that otherwise would be a
topic of mandatory bargaining is, in fact, a demand for
recognition within the meaning of Section 9(c)(1)(B) of
the Act, at least with regard to that topic. An employer
faced with such a request may either extend recognition if
it is satisfied that the union actually represents a majority
of its employees, or it may deny that request, or it may
turn to the Board to resolve this question. The Employer
here turned to the Board, and we should resolve the ques-
tion through a secret-ballot election.
As an additional matter, I note that the Union here
does not actually claim to be the majority representative

Pension Fund v. Kraftco, 799 F.2d 1098 (6th Cir. 1986), cert. denied
479 U.S. 1086 (1987), quoting H.R. Rep. No. 741 86th Cong. 1st Sess.,
reprinted in 1959 U.S. Code Cong. & Ad. News 2433. See also S. Rep.
187, 86th Cong., 1st Sess., at 13 (1959), reprinted in 1 Leg. Hist.
(LMRDA 409).
of the Employer’s employees. Under these circum-
stances, the Union’s demand is actually a demand for
recognition in the absence of majority status, and as
such, is unlawful. Clearly, the Union has sought an
agreement with the Employer regarding the Employer’s
employees, and it is equally clear that the Union is not
currently the representative of those employees under
Section 9(a) of the Act. Since only a 9(a) representative
may lawfully deal with an employer concerning wages,
hours or other terms or conditions of employment, the
Union’s request for such dealing is unlawful.
Finally, since a neutrality/card check agreement is a
“thing of value” to the Union, and no exception appears
to apply, its request for a neutrality/card check agreement
also appears to be unlawful under Section 302 of the La-
bor-Management Reporting and Disclosure Act, 29
U.S.C. 186.
For all the forgoing reasons, I would grant review and
remand this case to the Regional Director to reinstate and
process the petition.
My concurring colleague says that a request for
recognition by a minority union would not violate the
Act. Accepting that proposition arguendo, it does not aid
my colleague’s position. My point is not that the union
request for recognition was unlawful. Rather, my point is
that there was in fact a request for recognition, and thus
the RM should be processed.
My colleague acknowledges that a grant of recognition
to a minority union would be unlawful. Thus, the Board
has two choices in this case. It can dismiss the RM peti-
tion and permit minority recognition to occur. Or, it can
process the RM petition, hold a democratic election and
thereby avoid minority recognition. I would adopt the
latter course.
My colleague also asserts that an agreement between
an employer and a minority union is lawful. She cites
Retail Clerks Locals 128 and 633 v. Lion Dry Goods,
369 U.S. 17 (1962), for this proposition. However, the
Court there dealt only with a Section 301 case. It did not
have before it the issue in the instant case. Indeed, the
Court expressly declared:

This issue does not touch upon whether minority
unions may demand that employers enter into par-
ticular kinds of contracts or the circumstances under
which employers may accord recognition to unions
as exclusive bargaining agents.

Thus, Lion Dry Goods is a far cry from a holding that a
grant of recognition to a minority union would be lawful
under Section 8(a)(2). Indeed, as discussed above, my
colleague agrees that such conduct would violate Section
8(a)(2).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
Finally, with respect to Section 302, I recognize that
the Board does not have a 302 allegation before it. How-
ever, I believe that the Board must be keenly aware of
the implications of its actions. As the Supreme Court has
repeatedly reminded us, the Board cannot ignore the
broader policies of our nation’s laws.1 One of those poli-
cies concerns the evil of an employer’s grant of a “thing
of value” to a union. Without passing on whether the
agreement sought here would constitute a violation of
Section 302, my point is simply that the processing of the
RM petition would avoid a potential 302 violation.2

APPENDIX
REGIONAL DIRECTOR’S DECISION AND ORDER
. . . .

I. THE ISSUES

The Petitioner Brylane, L.P. seeks an election within a multi-
facility unit comprised of distribution workers employed at its
two Plainfield, Indiana distribution centers and its Indianapolis,
Indiana distribution center. It is the position of the labor or-
ganization involved herein, Midwest Joint Board, Union of
Needletrades, Industrial and Textile Employees (UNITE),
AFL–CIO, CLC, that the petition should be dismissed on
grounds that no question concerning representation exists.
However, in the event it is determined that a question of repre-
sentation exists, the Union agrees that the multifacility unit for
which the Employer has petitioned, is an appropriate one for
purposes of collective bargaining, and it is willing to proceed to
an election within that unit.
II. DECISION
For the reasons discussed below, it is concluded that at no
time since the inception of its organizational campaign among
the Indiana employees of Brylane has UNITE made a request,
demand or “claim” for recognition within the meaning of Sec-
tion 9(c)(1)(B) of the Act, 29 U.S.C. § 159(c)(1)(B). Since no
question concerning representation exists, the present petition
shall be dismissed.
III. STATEMENT OF FACTS
Brylane markets and distributes retail apparel and home fur-
nishings through nine catalogs and a website. Brylane is head-
quartered in New York City and operates facilities in Massa-
chusetts, Texas, and three facilities in Indiana, which are the
subject of the instant dispute. Brylane is a subsidiary of the
French company, Pinault-Printemps-Redoute (PPR). The Indi-
ana facilities receive apparel and household furnishings from
vendors; warehouse the items as inventory, then process and fill
customer orders received from the retail public. Approximately

1 Hoffman Plastic Compounds, 535 U.S. 137 (2002); Southern
Steamship, 316 U.S. 31 (1942).
2 I recognize that the giving of an Excelsior list is not a “thing of
value” within the meaning of Sec. 302. However, a grant of recogni-
tion is more valuable and thus may well be a “thing of value.”
740 distribution employees are currently employed within the
petitioned unit.
UNITE began its organizational campaign among employees
at Brylane’s Plainfield and Indiana distribution centers in Octo-
ber 2001. UNITE’s campaign has been multifaceted. UNITE
solicited employees to sign cards authorizing the Union to rep-
resent them; distributed handbills to employees extolling the
virtues of unionization; and held meetings for employees. On
June 25, 2002, UNITE sponsored a rally in Indianapolis at
which AFL–CIO Secretary-Treasurer Richard Trumpka ad-
dressed an assembled group of Brylane employees. There was
also reportedly a rally in front of the building occupied by Bry-
lane’s law firm in Indianapolis, and a rally in front of Brylane’s
corporate office in New York City. On an unknown date(s)
union members and allies distributed leaflets at Gucci stores
which discussed the Brylane campaign and PPR’s alleged op-
position to employees’ rights to organize.3 Handbills were also
distributed to consumers in front of a Sears store in Indianapo-
lis, seeking public support for the employees’ campaign. The
Union also mobilized sympathetic members of the local com-
munity who authored a letter to Brylane which expressed con-
cern regarding the strategy Brylane had adopted in response to
the campaign. In July 2002, UNITE also registered a complaint
with the U.S. Department of State asserting that Brylane and its
parent company had engaged in serious violations of the Or-
ganization for Economic Cooperation and Development Guide-
lines for Multinational Enterprises. Several unfair labor prac-
tice charges were also filed by the Union and/or employees
with Region 25 of the Board, alleging that Brylane had violated
the Act, but all charges were dismissed or withdrawn.
During two telephone calls in mid-October to Brylane’s
chairman and chief executive officer, Russell Stravitz, the Un-
ion’s New England director/international vice president Warren
Pepicelli, informed Stravitz of the advent of the Union’s cam-
paign among its Indiana workers; asked that the Company be-
come party to a neutrality4 agreement; asked that it agree upon
a card-check procedure; and explained the process. Stravitz
declined both requests. The Union proceeded with its organ-
izational campaign, and as early as November 20015 it made
statements to Brylane employees, the press and members of the
public, that a majority of employees had executed authorization
cards.
At the Union’s request, a meeting occurred on August 1,
2002, in New York City among representatives of the parties.
3 Gucci is also a subsidiary of PPR.
4 A neutrality agreement is one whereby an employer agrees that
during a union’s organizational campaign, it will remain neutral and not
express opposition to its employees’ selection of union representation.
According to the vice president, the card-check procedure he envi-
sioned would involve a neutral third party who would verify the au-
thenticity of cards presented by the Union, and if a majority of an Em-
ployer’s employees executed cards, the Employer would recognize the
Union as the exclusive representative of its employees.
5 The earliest evidence of record of such a claim of majority status
occurred in a leaflet distributed to employees on approximately No-
vember 1, 2002. In addition to announcing the date of a meeting for
employees, the leaflet states “Over the last few weeks, an [sic]majority
of Brylane workers have signed union cards!”
BRYLANE, L.P. 541
In correspondence between the parties which preceded the
meeting, the Union indicated the purpose of the meeting was to
discuss “Brylane’s and the union’s conduct during the course of
the campaign and dispute resolution options concerning union
representation.” Present on behalf of Brylane were CEO
Stravitz, Alain Luchez, the senior vice president of the catalog
division of PPR (called “Redcats”), and Brylane’s senior vice
president of human resources, Audry Wathen. Present on be-
half of UNITE were its President Bruce Raynor, its New Eng-
land Director/Vice President (Warren Pepicelli), and another
vice president, Mark Fleischman. The parties’ two principals,
Raynor and Stravitz, were the primary spokesmen. With few
exceptions, the parties’ descriptions of the content of this meet-
ing are consistent. Following introductions by the participants,
Stravitz asked Raynor to state the reason he requested the meet-
ing. Raynor gave a fairly lengthy description of the history of
its organizing efforts at Brylane’s Indiana centers and ex-
pressed criticism of the Company’s campaign strategy. He
stated that the Company had conducted a campaign of intimida-
tion and threats directed toward employees, as well as attacks
upon union leadership. Raynor further stated that in light of the
coercive atmosphere Brylane had created, the Union had con-
cluded that a free and fair election could not occur at this time.
Consequently, the Union believed that a neutrality agreement
with a card-check procedure was the only way a representation
question could accurately reflect true employee sentiments. At
one point during the meeting CEO Stravitz asked Raynor what
unit the Union “was interested in,” and Raynor replied that the
Union sought a unit comprised of employees of the three Indi-
ana facilities. Following the Union’s presentation, Stravitz
presented his reply. He stated that there were employees at its
Indiana centers who did not want union representation as well
as those who did, and he preferred to resolve the matter through
Board election procedures. Pepicelli commented that Brylane
enjoyed an amicable relationship with the Union in its represen-
tation of Brylane employees at its Massachusetts distribution
center, and he did not understand why Brylane would not agree
to the card check procedure for Indiana workers. The meeting
apparently ended on a amicable note, but without achieving a
consensus between the parties.
The parties’ version of the content of this meeting differs in
one respect: The Employer asserts that Raynor stated that a
majority of employees had signed union authorization cards,
while the Union denies any such thing was said. Brylane’s vice
president of human resources testified as follows:

Mr. Raynor said that he has the cards. He has prepared [sic]
the majority of the cards and he is prepared to prove it.

Later, on cross-examination she testified that “[h]e said
UNITE has the majority of the cards and I am prepared to
prove it.”
Both Raynor and Pepicelli denied that these statements (or
any similar statements) attributed to Raynor were spoken. Al-
though CEO Stravitz was present at the hearing herein and
available as a rebuttal witness, he was not called as a witness by
either party.6

6 Brylane’s CEO appeared under subpoena from UNITE.
It is undisputed that at no time during this meeting did the
Union expressly request recognition. Nor did it suggest a date
on which a new card check could occur. It did not offer the
name of an individual who might conduct a card check. It did
not offer to show authorization cards to Brylane, and it did not
ask Brylane for a list of employees.
On August 8 a second meeting occurred at the Union’s re-
quest between Stravitz and Raynor.7 According to the uncon-
tradicted testimony of Raynor, Stravitz “expressed concern
about the nature of the cards that were signed.” UNITE pro-
posed that the parties agree upon a card-check procedure which
would disregard existing cards; entail a new, 30-day period
during which Brylane would provide UNITE with a list of em-
ployees within the petitioned unit; the Union would solicit sig-
natures on new authorization cards; and Brylane would refrain
from expressing any views or engaging in any conduct anti-
thetical to the Union’s campaign. At the conclusion of this
period, if a majority of employees had executed cards, the Un-
ion could request a third party to review the cards; and if a ma-
jority of signatures were authenticated, recognition from Bry-
lane would follow. After the Union proposed this new solicita-
tion process at the August 8 meeting, Stravitz reiterated his
preference for a Board-conducted election, and the meeting
ended inconclusively.
Later that day in a telephone call to Raynor, Stravitz reiter-
ated that he was opposed to the card-check mechanism, but
would not “close the door completely” to the concept. That
same day the instant petition was filed.
IV. ANALYSIS
Section 9(c)(1)(B) of the National Labor Relations Act pro-
vides in pertinent part, that when a petition has been filed:

by an employer alleging that one or more individuals or labor
organizations have presented to him a claim to be recognized
as the representative defined in subsection (a) of this section

the Board shall conduct an investigation, 29 U.S.C. §
159(c)(1)(B). If the investigation (and/or subsequent hearing)
indicates that a question of representation exists, an election is
conducted. The Board has consistently construed the language of
this section to require evidence of a “present demand for recogni-
tion” from a union in order to process a petition under Section
9(c)(1)(B), New Otani Hotel & Garden, 331 NLRB [1078]
(2000); Windee’s Metal Industries, 309 NLRB 1074 (1992);
Albuquerque Insulation Contractor, 256 NLRB 61 (1981). This
interpretation is based not only upon the plain language of Sec-
tion 9(c)(1)(B), but also its legislative history. Congress included
the language limiting employer petitions to cases in which a un-
ion has presented a “claim to be recognized as the representative
defined in section 9(a)” in order to preclude employers from
attempting to control the timing of elections. Otherwise employ-
ers might file petitions early in organizational campaigns in an
effort to obtain a vote rejecting the union before the union has
had a reasonable opportunity to organize. Pursuant to the lan-
guage of Section 9(c)(1)(B), employers can petition for an elec-
7 This meeting, too, apparently occurred in New York City.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
tion only after a union has sought recognition as the majority
representative of its employees.
In the case at hand, it is undisputed that at no time has the
Union made an express request upon Brylane that it recognize
UNITE as the exclusive collective-bargaining representative of
any of the Company’s Indiana distribution center employees.
The Employer argues, however, that a statement made by
UNITE’s president at the August 1 meeting which indicated
that the Union enjoys majority support among unit members,
constitutes a request for recognition. This argument is rejected
for several reasons. In an RM proceeding, the burden is upon
the Employer to establish that a request for recognition has
been made. At the hearing of this case, Brylane presented one
witness who in less-than-lucid testimony asserted that Raynor
stated that the Union possessed majority support among Bry-
lane employees and was prepared to prove it. Two witnesses
presented by the Union, including the person to whom this
statement was attributed, denied any such statement was made.
The Employer had within its power the ability to rebut this
testimony by calling Stravitz as a witness since he also attended
this meeting. But it declined to do so. Therefore, the prepon-
derance of record evidence fails to establish that the statement
of majority support attributed to Raynor was spoken. Even if
the statement were said, a statement that a union enjoys major-
ity status, without more, does not constitute a demand for rec-
ognition. It is undisputed that no date for a card check was
proposed by the Union; it did not offer to show the Employer
any cards; it did not suggest the name of an individual who
might conduct a card check; and the Union did not ask Brylane
for a list of employees.8 The undersigned is aware of no case in
which the Board has held that a mere statement of majority
status, whether spoken to an employer or to third parties, con-
stitutes a request for recognition.
In its posthearing brief Brylane cites three cases which it
claims stand for this proposition: Amperex Electronic Corp.,
109 NLRB 353 (1954), Westinghouse Electric Corp., 129
NLRB 846 (1960), and Sonic Knitting Industries, 228 NLRB
1319 (1977). The Employer’s reliance upon these cases is mis-
placed, for none of them involve a situation where a union
made a statement claiming majority employee support. In Am-
perex the Board dismissed an RM petition for an election
within a unit comprised of laboratory technicians. The Union
contended that the technicians were already a part of the pro-

8 In its posthearing brief the Employer mischaracterizes the record in
this matter regarding certain statements made by Raynor at this meet-
ing. The Employer argues that the Union stated that it had totally dis-
counted an election as a vehicle for the resolution of their dispute. If
voluntary recognition is the only solution to the dispute, the argument
goes, then a request for a card check coupled with a claim of majority
status is tantamount to a demand for recognition. The record testimony
does not support the Employer’s version of this conversation. Based
upon record testimony, at no time—not at the August 1 meeting or
otherwise—has the Union said it would not seek an election under any
circumstances, Rather, Raynor explained at the meeting that it was the
Union’s opinion that Brylane’s conduct in response to its campaign had
so intimidated employees, that a free and fair election could not occur
at this time. Thus, based upon record evidence, an election remains a
viable option to the Union at some future date.
duction and maintenance unit it represented, and argued that the
parties’ contract barred further processing of the petition. The
Board concluded that the laboratory technicians were not mem-
bers of the existing unit and dismissed the petition not on con-
tract bar grounds, but on grounds that no union had made a
demand for recognition among a unit comprised only of techni-
cians. Absent a question concerning representation, no election
was warranted. In Westinghouse Electric Corp., the employer
filed an RM petition to give its professional employees an op-
portunity to vote on whether they wished to continue to be in-
cluded within a broader nonprofessional unit of employees.
The Board found that since the union persisted in its claim to
represent the professional employees in the existing broader
unit, a “claim” for recognition existed, and an election was
ordered. Lastly, in Sonic Knitting the employer had voluntarily
recognized the union as the representatives of its employees at
two locations. The employer filed an RM petition seeking an
election for the employees of only one of the facilities. The
Board dismissed the petition because the union claimed it rep-
resented the employees of both facilities, and it “has made no
demand for recognition in the petitioned-for unit.” Thus, unlike
the case at hand, none of these cases involved a statement by a
union indicating that it possessed support from a majority of an
employer’s employees. Brylane’s reliance upon some of the
dicta in these cases is misplaced. In one part of its decision in
Sonic Knitting, for example, the Board summarizes the requi-
sites of Section 9(c)(1)(B) by stating that a QCR is established
only by the “claim” of a union “that it represents a majority of
the employees.” Yet in another portion of the decision, the
Board explains that it is dismissing the employer’s petition
because “the Union has made no demand for recognition in the
petitioned-for unit.” Thus, the Board refers interchangeably to
both a “claim” made by a union and a demand for recognition.
However, nowhere does the decision hold that a union’s mere
statement that it enjoys majority employee support constitutes a
“claim” for recognition within the meaning of Section
9(c)(1)(B).
Brylane also argues that statements made by the Union
throughout its organizational campaign to third parties to the
effect that it enjoys majority status, coupled with a request that
Brylane sign a neutrality/card check agreement, constitute a
demand for recognition upon Brylane.9 The Employer cites no
case law in support of this proposition, however. And the un-
dersigned is aware of none. Even in Rapera, Inc., 333 NLRB
1287 (2001), Members Truesdale and Hurtgen did not consider
statements of majority status made to third parties in the con-
text of a neutrality/card-check request, sufficiently reliable
evidence upon which to base a finding that a demand for recog-
9 The Employer placed various documents into the record (some of
which were authored by the Union and some of which were not), as
evidence of the Union’s claim for recognition. For purposes of the
analysis of this argument, only those documents which were authored
by UNITE and/or agents thereof, or which are otherwise attributable to
Union have been considered. These include E. Exhs. 1, 2, 4, 5, 6, 7, 8,
11, and 13 (and its accompanying stipulation of the parties). Other
documents are deemed of no evidentiary value since no agency rela-
tionship has been established between the author of the documents or
assertions contained therein, and UNITE.
BRYLANE, L.P. 543
nition had occurred. Like the case at hand, in Rapera the union
made statements in letters to specific individuals, as well as in
campaign fliers and newspaper articles, that it enjoyed the sup-
port of a majority of the employees in the petitioned unit.
Members Truesdale and Hurtgen did not rely upon these state-
ments to third parties as evidence of demand for recognition.
Rather, they regarded an affidavit of a union official indicating
that the union enjoyed majority support, which had been filed
in United States District Court in an unrelated matter, as reli-
able evidence upon which to find that a demand had occurred.
Moreover, Members Truesdale and Hurtgen expressed their
concurrence with case precedent which requires that a demand
must be made directly upon the employer.10 Therefore, even
under the Truesdale/Hurtgen analysis, no demand for recogni-
tion would be found in this case.
In Rapera all members of the Board acknowledged that
statements of majority status made to third parties during a
campaign, coupled with a neutrality/card-check request, do not
constitute a demand for recognition upon an employer. They
also recognized that often statements made by both parties dur-
ing a campaign, including statements boasting of employee
support, may be mere “puffery,” Id. at [1288]. In other con-
texts, too, the Board has recognized that during an organiza-
tional campaign both parties are prone to exaggeration, and the
Board no longer recognizes a claim of misrepresentation as
objectionable conduct warranting the setting aside of an elec-
tion, Midland National Life Insurance Co., 263 NLRB 127
(1982) (readopting the principals of Shopping Kart Food Mar-
ket, 228 NLRB 1311 (1977)). As the Board stated in Shopping
Kart: “. . . we believe that Board rules in this area must be
based on a view of employees as mature individuals who are
capable of recognizing campaign propaganda for what it is and
discounting. Id. at 1313.
In the present case, public statements of majority support
made by UNITE suggest that it, too, may have engaged in a fair
amount of puffery. In a handbill distributed to Brylane em-
ployees only a month after the advent of its campaign, UNITE
boasted that “[o]ver the last few weeks, an [sic] strong majority
of Brylane workers have signed union cards!” (emphasis
added). While it is possible that the Union obtained signed
cards from over 370 employees within a few weeks’ time, it is
equally possible that the handbill was infected with a bit of
puffery. On balance, therefore, one cannot conclude that
statements made to third parties indicating that UNITE enjoyed
majority support, coupled with a request that Brylane agree to a
neutrality agreement and card check procedure, are tantamount
to a demand for recognition upon Brylane.
In contrast to these statements of majority status, Brylane as-
serts that one statement contained in a newspaper article (enti-
tled “Indy Info”) authored by a UNITE organizer constitutes a
present demand for recognition upon Brylane.11 The article
begins with a report on a demonstration in front of a Sears store

10 In Rapera Truesdale and Hurtgen found this direct connection to
the employer through an inference that “[i]t was reasonably foreseeable
that the Union’s sworn court statement . . . would become known to the
Employer, Id. at [1288] fn. 8.
11 This document is E. Exh. 8.
in Indianapolis seeking public support for Brylane employees’
organizational efforts. This is followed by a description of the
“unjust” terms and conditions of employment under which
Brylane employees work, and their need for representation.
The article proceeds with an assessment of the improvements
which can be expected from the collective-bargaining process.
It further points out that Brylane is the only distribution center
owned by PPR which is not unionized. Lastly, the article dis-
cusses forms of support Brylane employees have received from
around the country, including the distribution of leaflets to
customers of Gucci in Chicago and Sears in Indianapolis, and
the visits from workers from Chadwick’s of Boston and from
France who supported the campaign. Lastly, the article states:

Brylane has been called upon to answer to their employees’
demands and negotiate a contract with them. The workers
will not let Brylane stand in their way as they exercise their
legal rights to organize the workplace.

Viewed in the context of the article, it cannot be concluded
that this one statement constitutes a demand for recognition
directed by UNITE to Brylane. First, the article is written from
the perspective of Brylane employees. It is they who are asking
that Brylane respect their right to organize. It is their demands
for which the employees seek redress, and it is they who urge
Brylane to negotiate with them. The phrase “employee de-
mands” is also ambiguous and open to several interpretations.
For these reasons it cannot be concluded that this sentence con-
stitutes a “claim” for recognition under Section 9(c)(1)(B).
Lastly, Brylane argues that the content of literature authored
by UNITE during its campaign “are at least worthy of treatment
no different than that given to informational picketing, because
they are designed to communicate the Union’s position, beliefs
or assertions to third parties.” It is true that at times picketing
which appears at first blush to be informational or area stan-
dards in character may, upon closer examination, be found to
have a recognitional object. Here, however, the issue is not
whether the Union’s campaign had a recognitional object—all
campaigns do—but rather, whether the Union has made a pre-
sent demand for recognition upon Brylane. Thus, the picketing
analogy proposed by the Employer is inapplicable.
The facts in New Otani Hotel & Garden, 331 NLRB 1078
(2000), appear most analogous to the facts in the case at hand.
There, the Board affirmed a Regional Director’s dismissal of an
RM petition on grounds that no request for recognition had
been made upon the employer. In New Otani the union had
engaged in informational picketing and urged a boycott of the
employer’s hotel for 4 years. Like the case at hand, it too had
requested that the employer enter into a neutrality/card-check
agreement. The Board rejected the employer’s assertion that
picket signs which said that the hotel “does not have a contract”
with the union and “has substandard working conditions” con-
stitute a demand for recognition. The Board reiterated the ra-
tionale for 9(c)(1)(B)’s enactment:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
Thus, the Act contemplates that a union which is not presently
majority representative may decide when or whether to test its
strength in an election by its decision as to when or whether to
request recognition or itself petition for an election, Id. at
[1288].

So, here, too, absent a “present demand” for recognition by
UNITE, it is the Union’s prerogative to decide when and
whether to test its strength in an election or otherwise.
. . . .