CVS Albany, LLC d/b/a CVS

National Labor Relations Board - Board Decisions

Sep 15, 2016

364 NLRB No. 122 (N.L.R.B. 2016)

364 NLRB No. 122
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
CVS Albany, LLC d/b/a CVS and Local 338 Retail,
Wholesale and Department Store Union
(RWDSU), United Food and Commercial Work-
ers International Union (UFCW). Case 29–CA–
179095
September 15, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on June 27, 2016,
by Local 338, Retail, Wholesale and Department Store
Union (RWDSU), United Food and Commercial Work-
ers International Union (UFCW) (the Union), the Gen-
eral Counsel issued the complaint on July 8, 2016, alleg-
ing that CVS Albany, LLC d/b/a CVS (the Respondent)
has violated Section 8(a)(5) and (1) of the Act by refus-
ing the Union’s request to recognize and bargain and to
furnish relevant and necessary information following the
Union’s certification in Case 29–RC–155927. (Official
notice is taken of the record in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations in the com-
plaint, and asserting affirmative defenses.
On July 28, 2016, the General Counsel filed a Motion
for Summary Judgment. On August 3, 2016, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent filed a response.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain and to
provide information but contests the validity of the certi-
fication of representative based on the Board’s disposi-
tion of three challenged ballots in the underlying repre-
sentation proceeding.1
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine

1 364 NLRB No. 21 (2016).
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).2
We also find that there are no factual issues warranting
a request for a hearing with respect to the Union’s re-
quest for information. The complaint alleges, and the
Respondent admits, that about June 23, 2016, the Union
requested in writing that the Respondent furnish it with
the following information: (1) the address, phone number
and email address for all current unit employees; (2)
work schedules for all unit employees; (3) rate of pay for
all unit employees; (4) information regarding benefits
received by unit employees, including paid and unpaid
time off, insurance, pension, and 401(k); and (5) a copy
of all company policies and/or manuals relating to the
terms and conditions of employment for unit employees.
It is well established that the foregoing type of infor-
mation concerning the terms and conditions of employ-
ment of unit employees is presumptively relevant for
purposes of collective bargaining and must be furnished
on request. See, e.g. Metro Health Foundation, Inc., 338
NLRB 802, 803 (2003). The Respondent has not assert-
ed any basis for rebutting the presumptive relevance of
the information. Rather, the Respondent denies that the
Union was properly certified, and on this basis denies
that the Union is entitled to the requested information.
We find, therefore, that the Respondent unlawfully re-
fused to furnish the information sought by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a do-
mestic corporation with its principal office located at
One CVS Drive, Woonsocket, Rhode Island, and with a
retail store located at 1070 Flatbush Avenue, Brooklyn,
New York, and has been engaged in the retail sale of
consumer convenience products, pharmaceuticals, and
related goods.
During the year prior to the issuance of the complaint,
which period is representative of its operations generally,
through the course and conduct of its business opera-
tions, the Respondent derived gross revenues in excess of

2 Member Miscimarra agrees that summary judgment is appropriate
in this unfair labor practice case because the Respondent has not pre-
sented any new matters that were not previously resolved in the prior
representation case (supra fn. 1). Member Miscimarra did not partici-
pate in the prior representation case, and does not reach or pass on the
merits of the Board’s decision in that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
$500,000 and purchased and received goods and materi-
als valued in excess of $5000 directly from points locat-
ed outside the State of New York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on August
7, 2015, the Union was certified on June 20, 2016, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
INCLUDED: All regular full-time and part-time retail
employees, including Clerk/Cashiers, Shift Supervisor
Bs and Photo Lab Supervisors.
EXCLUDED: All floaters, seasonal employees and
pharmacy employees, including pharmacists, pharmacy
interns, inventory specialists, and pharmacy techni-
cians, and guards, managers, and supervisors as defined
in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About June 23, 2016, the Union, by letter, requested
that the Respondent recognize it as the exclusive collec-
tive-bargaining representative of the unit and bargain
collectively with the Union as the exclusive collective-
bargaining representative of the unit. Since about June
24, 2016, the Respondent has failed and refused to rec-
ognize and bargain with the Union.
About June 23, 2016, the Union requested in writing
that the Respondent furnish it with the information set
forth above that is necessary for, and relevant to, the Un-
ion’s performance of its duties as the exclusive collec-
tive-bargaining representative of the unit. Since about
June 24, 2016, the Respondent has failed and refused to
furnish the Union with the requested information.
We find that these failures and refusals constitute an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since June 24, 2016, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit and to furnish the Union with requested
information regarding the terms and conditions of em-
ployment of unit employees, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to recognize and bargain on request with the Un-
ion and, if an understanding is reached, to embody the
understanding in a signed agreement. We shall also or-
der the Respondent to furnish the Union with the infor-
mation it requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, CVS Albany, LLC d/b/a CVS, Brooklyn,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local 338, Retail, Wholesale and Department Store Un-
ion (RWDSU), United Food and Commercial Workers
International Union (UFCW) as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) Failing and refusing to furnish the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of the Respondent’s unit em-
ployees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
CVS ALBANY, LLC D/B/A CVS 3
INCLUDED: All regular full-time and part-time retail
employees, including Clerk/Cashiers, Shift Supervisor
Bs and Photo Lab Supervisors.
EXCLUDED: All floaters, seasonal employees and
pharmacy employees, including pharmacists, pharmacy
interns, inventory specialists, and pharmacy techni-
cians, and guards, managers and supervisors as defined
in the Act.
(b) Furnish the Union in a timely manner the infor-
mation requested by the Union on June 23, 2016.
(c) Within 14 days after service by the Region, post at
its facility in Brooklyn, New York, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since June 24, 2016.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. September 15, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Local 338, Retail, Wholesale and Department Store
Union (RWDSU), United Food and Commercial Work-
ers International Union (UFCW) as the exclusive collec-
tive-bargaining representative of our employees in the
bargaining unit.
WE WILL NOT fail and refuse to furnish the Union with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:
INCLUDED: All regular full-time and part-time retail
employees, including Clerk/Cashiers, Shift Supervisor
Bs and Photo Lab Supervisors.
EXCLUDED: All floaters, seasonal employees and
pharmacy employees, including pharmacists, pharmacy
interns, inventory specialists, and pharmacy techni-
cians, and guards, managers and supervisors as defined
in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL furnish the Union in a timely manner the in-
formation requested by the Union on June 23, 2016.
CVS ALBANY, LLC D/B/A CVS
The Board’s decision can be found at www.nlrb.gov/case/
29-CA-179095 or by using the QR code below. Alterna-
tively, you can obtain a copy of the decision from the Exec-
utive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.