CVS Albany, LLC d/b/a CVS

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 BOARD 2 $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 BOARD 4 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.