372 NLRB No. 91
CVS Pharmacy
372 NLRB No. 91
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 Pharmacy and United Food and Commercial
Workers, Local 324, International Union, AFL–
CIO. Cases 21–CA–283397 and 21–RC–281619
June 8, 2023
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX
AND PROUTY
On August 26, 2022, Administrative Law Judge Dickie
Montemayor issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel and Charging Party filed answering briefs, and
the Respondent filed a reply brief. In addition, the Charg-
ing Party filed cross-exceptions with supporting argu-
ment, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings,1 and
1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
The Charging Party cross-excepts to the judge’s denial of additional
evidentiary sanctions, including an adverse inference, against the Re-
spondent for failing to fully comply with the General Counsel’s subpoe-
nas duces tecum. The judge explained that the weight of the evidence
supporting the General Counsel’s case, as well as the adverse inference
he imposed based on the Respondent’s failure to call VP of Labor Rela-
tions Rob Francin to testify, obviated the need for additional sanctions.
Under these circumstances, we find that the judge did not abuse his dis-
cretion in declining to assess additional evidentiary sanctions. See McAl-
lister Towing & Transportation Co., 341 NLRB 394, 396–397 (2004)
(explaining that the Board applies an abuse of discretion standard when
evaluating a judge’s ruling regarding whether to impose evidentiary
sanctions for a party’s subpoena noncompliance), enfd. 156 Fed. Appx.
386 (2d Cir. 2005).
2 For the reasons stated by the judge, we affirm his conclusion that
the Respondent violated Sec. 8(a)(1) of the Act and engaged in objec-
tionable conduct by announcing and granting a wage increase during an
organizing campaign at its Orange, California store. We further affirm
the judge’s recommendation to sustain the Union’s Objection 3, which
alleged that the Respondent’s election observer, Thuytien Trinh, engaged
in objectionable conduct when she told pharmacy intern Karam Odooli
to “remember, you’re going to be a pharmacist soon” as Odooli was wait-
ing in line to vote.
conclusions2 and to adopt the recommended Order as
modified and set forth in full below.3
REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found that
the Respondent violated Section 8(a)(1) by announcing
and granting wage increases to employees during an or-
ganizing campaign at its Orange, California store, we shall
order the Respondent to cease and desist from such con-
duct.
In addition, having found that the Respondent engaged
in objectionable conduct affecting the results of the elec-
tion in Case 21–RC–281619, we shall order that the results
of the election held on September 15, 2021, be set aside
and that a new election be held at a time to be established
by the Regional Director.
ORDER
The National Labor Relations Board orders that the Re-
spondent, CVS Pharmacy, Orange, CA, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
Although we do not agree that Trinh engaged in a “prolonged” con-
versation in the polling area as defined by Milchem, Inc., 170 NLRB 362
(1968), we find that the content of the conversation and its surrounding
circumstances support a finding of objectionable electioneering. In par-
ticular, Trinh’s interaction with Odooli violated the Board agent’s ex-
plicit instruction that observers should not speak to voters. Moreover,
the Union lost the election by a one-vote margin. Because pharmacists
are excluded from the unit, Trinh’s pointed remark, in context, would
reasonably be understood as a reminder that Odooli would not benefit
from union representation and should instead vote based on his future
interests as a pharmacist. We therefore find that the remark constituted
impermissible electioneering sufficient to warrant an inference that it in-
terfered with the free choice of the voters. See Boston Insulated Wire &
Cable Co., 259 NLRB 1118, 1118–1119 (1982), enfd. 703 F.2d. 876 (5th
Cir. 1983).
3 We have added a remedy section and a direction of second election,
which the judge inadvertently failed to include in his decision. The judge
recommended a broad order requiring the Respondent to cease and desist
from violating the Act “in any other manner.” We find that a broad order
is not warranted under the circumstances of this case and substitute a
narrow order requiring the Respondent to cease and desist from violating
the Act “in any like or related manner.” See Hickmott Foods, 242 NLRB
1357 (1979). In addition, the judge’s recommended order includes a
number of other extraordinary remedies, such as social media posting of
the notice and Board access. The judge failed to set forth any rationale
for these remedies. We find that the Board’s traditional remedies are
sufficient to effectuate the purposes of the Act in this matter. Accord-
ingly, we shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our decision
in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall substi-
tute a new notice to conform to the Order as modified.
2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Announcing and granting wage increases to em-
ployees in order to discourage them from selecting union
representation.
(b) 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) Post at its Orange, California store, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 21, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained 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 customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered 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 employees and former em-
ployees employed by the Respondent at any time since
August 27, 2021.
(b) Within 21 days after service by the Region, file with
the Regional Director for Region 21 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the election held on Sep-
tember 15, 2021, is set aside, and Case 21–RC–281619 is
severed and remanded to the Regional Director for Region
21 to direct a second election whenever the Regional Di-
rector shall deem appropriate.
Dated, Washington, D.C. June 8, 2023
______________________________________
Lauren McFerran,
Chairman
4 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notice must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed or not staffed by a substantial complement of employ-
ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no-
tice must be posted within 14 days after the facility reopens and a sub-
stantial complement of employees have returned to work. If, while
closed or not staffed by a substantial complement of employees due to
the pandemic, the Respondent is communicating with its employees by
electronic means, the notice must also be posted by such electronic
______________________________________
Gwynne A. Wilcox,
Member
______________________________________
David M. Prouty,
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 vi-
olated 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 ac-
tivities.
WE WILL NOT announce or grant wage increases to you
in order to discourage you from selecting union represen-
tation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
CVSPHARMACY
The
Board’s
decision
can
be
found
at
www.nlrb.gov/case/21-CA-283397 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
means within 14 days after service by the Region. If the notice to be
physically posted was posted electronically more than 60 days before
physical posting of the notice, the notice shall state at the bottom that
“This notice is the same notice previously [sent or posted] electronically
on [date].” 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
National 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.”
CVS PHARMACY
3
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Thomas Rimbach, Esq., for the General Counsel.
Lawrence H. Stone Esq. (Jackson Lewis P.C.), for the Respond-
ent.
Ryan Spillers, Esq., and Nicole Grinstein, Esq. (Gilbert & Sack-
man), for the Charging Party.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case
was tried before me on February 9, 2022, via the Zoom for Gov-
ernment videoconferencing platform. Charging Party filed a
charge on September 22, 2021. A complaint was issued on De-
cember 3, 2021. The complaint alleged violations by CVS Phar-
macy (Respondent) of Section 8(a)(1) of the National Labor Re-
lations Act (the Act). On December 6, 2021, pursuant to Section
102.33 of the Board’s Rules and Regulations, Election Objec-
tions were consolidated with the pending complaint. On Decem-
ber 16, 2021, Respondent filed an answer to the complaint deny-
ing that it violated the Act. On January 11, 2022, an amendment
to the complaint was filed. Respondent filed an amended answer
on January 21, 2022. The parties were given full opportunity to
participate, to introduce relevant evidence, to examine and cross-
examine witnesses, and to file briefs which were received on
March 25, 2022. I carefully observed the demeanor of the wit-
nesses as they testified, and I rely on those observations in mak-
ing credibility determinations. I have studied the whole record,
the posttrial briefs, and the authorities cited. Based on the de-
tailed findings and analysis below, I conclude and find the Re-
spondent violated the Act essentially as alleged in the com-
plaint.1
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and I find that
1 (a) At all material times, Respondent, a division of CVS
Health Corporation, a Delaware corporation, with principal of-
fices located in Woonsocket, Rhode Island and a facility located
at 4040 East Chapman Avenue, Orange, California (Orange fa-
cility), was engaged in the operation of retail pharmacies and
general goods stores.
(b) In conducting its operations during the 12-month period
ending September 22, 2021, Respondent derived gross revenues
1 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
in excess of $500,000 and during the same representative period,
purchased and received at its Orange facility goods valued in ex-
cess of $5000 directly from suppliers located outside the State of
California.
(c) At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
(d) At all material times, the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
(e) At all material times, the following individuals held the
position set forth opposite their respective names and have been
supervisors of Respondent within the meaning of Section 2(11)
of the Act and agents of Respondent within the meaning of Sec-
tion 2(13) of the Act:
Holly Phuong - Pharmacy Manager
John Skinner - District Leader-Division 9, CVS Health
Karen Lynch - President and CEO, CVS Health
Bethany Richards - Pharmacist and Adviser, CVS Health
Brad Adams - Employee Relations Manager
Douglas Jordaan - District Leader
II. ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
Many of the facts in this case are undisputed. This case in-
volves CVS store number 9119 in Orange, California. It falls
under region 64 in the Company’s organizational structure. The
District Leader for region 64 is Douglas Jordaan. The store has
about 30 employees which include the employees that work the
pharmacy portion of the store. Although many CVS stores have
been unionized prior to 2021 store 9119 was not. In May of
2021, UFCW Local 324 began a union organizing campaign
which included store 9119. On or about June 16, 2021, Local
324 engaged in what it characterized as a campaign “blitz” which
involved in person store visits. As part of the “bl tz” store 9119
was visited by Union Representatives Maria Rosa Ibarra-Lopez
and Sylvia Saldana. While at the store, Ibarra Lopez spoke to
one person and dropped off six to eight what were described as
“palm cards.” “Palm cards” were small postcard size cards that
invited employees to compare for themselves the difference be-
tween union benefits. The “palm cards” contained specific wage
information for the various positions. (GC Exh. 23.) On June
24, Ibarra-Lopez visited store 9119 and thereafter from approxi-
mately June – October 2021 met with approximately 11 employ-
ees speaking with them about the Union and personally handing
out the “palm cards” to them. Soon thereafter other store em-
ployees joined the organizing efforts. Pharmacy Tech Patrice
Dei Pascua, after meeting with union representatives and fellow
employees, obtained 13 signed union authorization cards and 2
electronic signatures. Similarly, pharmacy tech Erin Clarice San
Esteban signed her own authorization card and discussed union-
ization with her fellow coworkers. In August of 2021, San
Esteban informed Pharmacy Manager Holly Phung of the union-
ization efforts telling her that, “we were in the works of getting
a petition . . . to file union.” (Tr. 67.)
consideration of the entire record for this case. My findings of fact en-
compass the credible testimony and evidence presented at trial, as well
as logical inferences drawn therefrom.
4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
While the organizing efforts were ongoing at store 9119, they
were also underway at other stores. On July 14, 2021, Local 324
filed an election petition at a store 8890 in Tustin, California. On
July 15 Local 135 filed an election petition at store 9120 in Im-
perial Beach which was later withdrawn. On July 16, 2021, Lo-
cal 324 filed an election petition at store 6770 in Rancho Mar-
gartia, California.
Very shortly after the above-election petitions were filed, on
July 20, 2021, at 1: 24 p.m., the senior director of compensation,
Chris Ashton, emailed the vice president of labor relations, Rob
Francin, and HR Business Partner Rowen Labuguen referencing
a “conversation.” The email with the subject heading of “Retail
California Non-Union Pay Rates” provided 49 job codes and
alerted Francin and Labuguen that, “we will need to know how
to handle EACH ONE of them.” (GC Exh. 49 p. 3 emphasis in
original.)
On July 20, 2021, at 8:43 p.m. Francin wrote Aston advising,
“Chris attached is our analysis of where union colleagues fall
based on our Collective Bargaining Agreement based upon their
years of service.” (GC Exh. 49.) The next day on July 21, 2021,
Lisa Dolan responded to Ashton and Francin as follows:
Thank you for the attached information. We will begin work-
ing on the analysis, applying the Union rates provided to Non-
Union colleagues across all of Division 9 for the 8 job codes
represented in Grades 005, 015, and 016, as you had indicated
that grade 001 would be excluded from this exercise—con-
firming because three job codes in Grade 001 were provided in
the excel file.
We will apply the tenure rates based on the colleagues’ Service
Date in PeopleSoft as of 8/1/2021. We are interpreting the pro-
gression in chart to be as shown below i.e. someone with a Ser-
vice date of 8/1/2019 would fall into the bucket “2 Up TO 3
years”.
Please let me know if you have any questions or whether I have
misinterpreted any of the\information. (GC Exh. 49.)
On August 4, 2021, CVS President and CEO Karen Lynch
sent a letter announcing that beginning September 5, 2021, the
minimum starting hourly wage for CVS employees would rise to
$13 an hour. And again to $15 an hour by July 2022. The an-
nouncement also notified that “anyone making below $13 would
be brought up to the new level and that “some colleagues may
receive higher increases depending on their tenure and pay range
for their role. Everyone who will be receiving an increase will
hear from their leaders by early September.” (R. Exh. 9.) On
that same date, CVS issued a press release announcing the wage
increases indicating that it was “making a significant investment
in its employees by raising the minimum enterprise hourly wage
to $15 and hour effective July 22, with incremental increases to
the Company’s hourly rates.” (R. Exh. 12.)
On August 9, 2021, the HR Business Partner Estaer Taylor
notified division leaders of “market adjustment” wage increases
that were to take effect in various regions including the entire
state of California. (R. Exh. 1.) These rates are set forth in the
table below.
(R. Exh. 1).
At 6
Months
Up to 1
Year
1 UP TO
2 years
2 UP TO
3 years
3 UP TO
4 years
4 UP TO
5 years
5 UP TO
6 years
Market ‘A’:
10-20%
above National
Min
Mid
Max
+$2.00
Long Island,
Phoenix, State of
CA, State of MA
‘A’
New Min
$16.25
Operations
Manager
A012
$14.25
$19.00
$23.75
Health Service
Leadership
A016
$15.50
$18.75
$23.00
$17.50
Health Service
Tech
A015
$14.00
$15.75
$19.50
$16.00
Store Leadership
A005
$14.00
$15.50
$18.00
$16.00
Store Associate
A001
$12.00
$14.00
$16.00
$12.00
CVS PHARMACY
5
After the “market adjustments” were implemented some
16,000 employees received wage increases. (Tr. 200.)
The “market adjustments” that were seemingly meant to apply
across the board in California were altered midstream. For five
or six CVS store locations in California there was a “pause on
moving forward or doing anything in those particular locations
because of union consideration.’ (Tr. 208–209.)
Rather than apply the “market rate adjustment” uniformly cer-
tain locations were targeted for what was called “published
rates” which referred to union rates. (Tr. 285.) The “published
rates” or union rates, were higher than the market adjustment
rates. (Tr. 291–294.) This divergence was the direct result of
the “conversation” and email communication on July 20 and 21
referenced above in which Dolan specifically referenced “apply-
ing the union rates.” (GC Exh. 49.)
On August 17, 2021, store 9119 Pharmacy Manager Holly
Phung sent a text message to San Esteban notifying her that her
wage would increase from $19.69 to $23.40 the exact same pay
she would receive if the store was unionized. (Tr. 72, GC Exh.
28, 23.) This is true despite the fact that earlier in August
Esteban talked to Phung about a raise and was told to apply for
the lead position which would make her eligible for a $2 an hour
raise and would bring her from $19.69 to $22. Esteban in fact
applied for a lead position but withdrew her application after re-
ceiving the $23.40 raise. (Tr. 48.)
On August 18, 2021, the Union filed a representation petition
for store 9119. The petitioned-for bargaining unit included all
full-time and regular part-time store associates, pharmacy store
associates (or “store associate Rxs”), inventory specialists,
clerks, cashiers, pharmacy clerks, pharmacy technicians, phar-
macy lead technicians, shift supervisors, shift supervisor train-
ees, pharmacy student interns, and pharmacy graduate interns.
The bargaining unit excluded all other employees, all types of
managers (including store team leaders), pharmacists, nurse
practitioners, physician assistants, office clerical employees,
professional employees, managerial employees, guards, and su-
pervisors defined in the Act. (GC Exh. 7.)
On August 19, 2021, the day after the election petition was
filed Phung notified employees Di Pasqua and Encarnacion of
wage increases and that the increase would be retroactive to the
pay period they were working. Thereafter in a series of in person
one on one meetings District Leader John Skinner and another
CVS representative met with employees to inform them of the
wage increase and to “understand what—what things [CVS]
could do to better support the colleagues in the store.” (Tr. 380.)
This was the first time in over 6 years that any person from HR
had come to store 9119 to meet with employees individually. (Tr.
153). The meetings were followed up by a series of return visits
one of which included Sarah Brady whose specific task was to
answer any employee questions regarding the union campaign.
On August 27, 2021, CVS granted wage increases to 16 of the
19 employees that were eligible to vote. Four Pharmacy techni-
cians received to the top union wage rate of $23.40. This
amounted to large percentage increases for many of the employ-
ees. For example, Encarnacion’s increase amounted to 37
2 Di Pascua’s testimony regarding the events is unrebutted in the rec-
ord. I also found her testimony to be credible. At all times her calm
percent, Segura’s and Di Pasqua’s amounted to 20 percent and
San Esteban 19 percent. Each $23.40 pay rate increase exceeded
the “market adjustment” rate which topped out at $19.50 per
hour. (R Exh. 1.) Others received wage increases. Three shift
supervisors received $21 raises instead of the $18 maximum of
the “market adjustment.” Pharmacy Lead Tech Thuytien Trinh
was given a raise to $24.20 which amounted to 5 cents more that
the top union rate and more than the $23 “market adjustment”
rate. (R. Exh. 1.) Among those who received increases at store
9119 were pharmacy interns who under the “market adjustment”
were not slated for any increase. The rates of increases ranged
from a high of $4 to an increase of $1. For one intern his hourly
rate increased nearly 25 percent. (GC Exhs. 7, 55, 73.) Other
employees in the petitioned for unit also received increases in-
cluding employees Placencia, Lam, Reyes, Nguyen, and Chan.
(GC Exh. 7.)
It is undisputed that the wage increases were not provided to
employees based upon any performance reviews which had in
the past been standard practice for the process of granting wage
increases. (Tr. 3.)
On September 15, 2021, the Board conducted the election at
store 9119. Thuytien Trinh the lead pharmacy tech was the ob-
server designated by CVS. Di Pascua served as the observer for
the Union. Prior to the election, the Board agent explained the
election rules and provided the observers with a written version
of the rules of conduct. The rules, as communicated by the Board
agent, specifically directed that the observers were prohibited
from talking to voters at the polls. (Tr. 164–165.) While voting
was ongoing, and in direct contravention of the Board agent’s
admonition against talking to voters, Trinh, the Respondent’s ob-
server engaged in a conversation with pharmacy intern Karam
Odooli. The conversation occurred while Odooliwas “a couple
of feet from the voting booth” prior to voting. (GC Exh. 13.) Di
Pascua described the conversation as follows:
Well, when Kamran entered the room, Thuy said, Hi Kamran,
and she went on to tell him that -- or congratulate him on being
in his last year of pharmacy school, and congratulate on him
that, and remember, you’re going to be a pharmacist soon.
Kamran said, well, thank you. He really didn’t say much. You
know.
(Tr. 166.)2
After the brief encounter Odooli proceeded to immediately
cast his vote. (Tr. 166–167.) After all the ballots were cast, the
final tally of the ballots revealed that eight votes were cast in
favor of the union and nine were cast against. The union lost the
vote by a one vote margin. (GC Exh. 7.)
Analysis
In NLRB v. Exchange Parts, 375 U.S. 405 (1964), the Su-
preme Court held that “the conferral of employee benefits while
a representation election is pending, for the purpose of inducing
employees to vote against the union,” interferes with the employ-
ees’ protected right to organize. “Similarly, an employer cannot
time the announcement of the benefit in order to discourage un-
ion support, and the Board may separately scrutinize the timing
demeanor and the sincerity of her testimony was indicative of the believ-
ability and underlying truthfulness of her testimony.
6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the benefit announcement to determine its lawfulness.” The
court explained, “the danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet glove.” Id.
at 409. See also Mercy Hospital Mercy Southwest Hospital, 338
NLRB 545 (2002). The analysis of Exchange Parts applies not
only to promises or conferral of benefits after a representation
petition has been filed but also during an organizational cam-
paign before a representation petition has been filed. Hampton
Inn NY—JFK Airport, 348 NLRB 16, 17 (2006), (citing Cur-
wood Inc., 339 NLRB 1137, 1147–1148(2003) enfd. 397 F.3d
553–554 (7th Cir 2005) (holding that a prepetition announce-
ment and promise to improve benefits during an organizing cam-
paign violated Section 8(a)(1) where the respondent was reacting
to knowledge of union activity among its employees).
Under well-established Board precedent, “[a]bsent a showing
of a legitimate business reason for the timing of a grant of bene-
fits during an organizing campaign, the Board will infer im-
proper motive and interference with employee rights under the
Act.” Yale New Haven Hospital, 309 NLRB 363, 366 (1992);
Kanawha Stone Co., 334 NLRB 235 fn. 2 (2001), citing Mari-
posa Press, 273 NLRB 528, 544 (1984). Register Guard, 344
NLRB 1142 (2005).
However, the Board has also noted that “[I]t is clear that an
employer’s right to recite for employees the benefits bestowed
upon them prior to the union’s appearance includes the right to
announce the culmination of any nonunion related efforts to im-
prove those benefits when such efforts naturally come to term,
even in the period of an organizing campaign.” The announce-
ment becomes perilous, however, when the employer has, and
exercises, discretion in choosing the time for the announcement;
timing may not be manipulated to heighten the impact of a new
benefit, a subject to which employees are keenly sensitive.
Waste Management of Palm Beach, 329 NLRB 198, 199 fn. 4
(1999) (citing Speco Corp., 298 NLRB 439, 443 (1990). Further,
it is the employer’s burden to show that the announcement would
have been made at the same time even if there had been no union
activity.” Id. at 198.
The Board has also generally held that benefits granted during
an election campaign are not unlawful if the employer shows that
its action was governed by factors other than the pending elec-
tion. Noting that the employer can meet its burden by showing
the benefits granted were part of an already established company
policy and the employer did not deviate from that policy upon
the advent of the union. American Sunroof Corp., 248 NLRB
748, 748–749 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981). But an employer cannot time the announcement
of increased benefits to employees in order to dissuade their un-
ion support. Reno Hilton, 319 NLRB 1154, 1154–1155 (1995);
Capitol EMI Music, 311 NLRB 997, 1012 (1993), enfd. 23 F.3d
399 (4th Cir. 1994).
In this case, the wage increases were announced on August
17, 2021, and received by employees in their pay by August 27,
2021. Respondent at the time it informed employees of the wage
increases and at the time the wage increases became effective
was fully aware of the organizing campaign, and in fact had sent
company representatives to talk directly to employees. It is un-
disputed (as evidenced by the information in the “palm cards”
distributed by union representatives) that wages were an issue
that the union campaign was focused on. The wage increases
were not similar to other performance-based increases employ-
ees had received in the past. The wage increases were received
weeks prior to the election. The employees would reasonably
view and did view the wage increases as directly related to the
wage issues raised by the union in the campaign. In fact, San
Esteban noted the relationship upon learning of the wage in-
crease stating, “I thought it was related to our Union organizing
effort because it was the exact same wage rate that the lead techs
received under the Union contract for CVS stores that were al-
ready unionized and represented by Local 324.” (Tr. 68.) Em-
ployees receiving these wage increases would reasonably view
the wage increases as an attempt to interfere with the employees’
choice in the campaign. These facts provide sufficient eviden-
tiary bedrock to support the finding of a violation absent the em-
ployer’s showing of a legitimate reason for the wage increase.
Respondent takes the position that it had a legitimate business
reason for the wage increases which was tied directly to the “na-
tionwide” “market adjustment” increases that had been an-
nounced by CEO. It asserts that in granting the pay changes it
was just following through on an analysis of market wage con-
ditions and the appropriateness of a market-driven pay adjust-
ment that it had begun long before the advent of the union cam-
paign. Respondent argues that that the pay adjustments reflected
the many months of work that had come before, and simply had
no connection to the Union whatsoever.
Respondent’s argument falls short for several reasons. In the
first instance it ignores the fact that wage increases at store 9119
deviated from the nationwide wage structure that fell within the
umbrella of the “market adjustment.” It is undisputed that Re-
spondent did not uniformly implement an across the board “mar-
ket adjustment.” Instead, some locations were singled out for
higher than “market adjustment” wage increases using what Re-
spondent’s officials characterized as “applying union rates.”
Many of the wage increases given were exactly identical to the
union rates in effect at the time. Respondent’s argument is also
not persuasive because it fails to establish that the timing was
grounded in legitimacy. Granting wage increases mere days
away from the September 15, 2021 election was not mandated
by law, past practice, policy or custom. Respondent could
simply have waited a few days before implementing its wage in-
crease but it chose not to. The Board has specifically held that
an employer may avoid liability by postponing action relating to
the wage increase until after an election, provided the employer
gives employees certain assurances. See Ansul, Inc., 329 NLRB
935 (1999) (employer lawfully informed employees that it was
delaying the announcement of the results of its wage review until
after the election). It should be noted that company representa-
tives met with employees in person beginning the day after the
petition was filed and the record is devoid of any evidence to
suggest that there was any effort to disclaim the connection of
the wage increase to the upcoming vote. A reasonable inference
from this evidence is that Respondent’s motive for the manner,
timing, and size of the wage increases was to dissuade and di-
minish support for the union in the upcoming election. General
Counsel distilled the motivation in simple terms noting, “em-
ployees would simply believe it was not necessary to vote for or
CVS PHARMACY
7
join the union . . . since the “union rates” had already been
granted.” (GC Br. at 53.)
The decision to grant the “union rate” increases was made by
Francin, who did not testify. Thus, there was no business justi-
fication offered by the decision maker why store 9119 was sin-
gled out for higher rates, the rationale for the announcement and
timing of the increases, why the rates closely mirrored the union
rates, why the rates mirrored “top rates,” or why the rates chosen
differed from the market adjustment rates. All of which directly
relate to Respondent’s burden of showing that the decision to
give the wage increases when it did was the product of a legiti-
mate business decision unrelated to the union campaign. The Re-
spondent has failed to shoulder that burden. Mercy Hospital, 338
NLRB 545, 545–546 (2002) (employer failed to meet its burden
of showing legitimate basis for wage increase when its only wit-
ness on the subject had no knowledge of or participation in the
timing of the wage increase announcement).34 On this record,
the inference of improper motive and interference of rights under
the Act compels the finding that the Respondent’s announce-
ment and implementation of the wage increases, was violative of
Section 8(a)(1) of the Act.
The Election Objections
On September 22, 2021, the Union filed objections to conduct
affecting the results of the election. The first two objections were
identical to the allegation of unfair labor practices alleged in the
complaint that the Respondent both announced and granted wage
increases during the critical period prior to the election. The
third objection alleged that the Respondent’s observer had a pro-
longed conversation and/or engaged in electioneering with an
employee waiting to vote.
The Union argues, that because the objectionable conduct of
granting wage increases constitutes an unfair labor practice set-
ting aside the election and directing a second election is war-
ranted. (See generally U. Br. At 106). The Board and the Courts
have repeatedly recognized that among the benefits most im-
portant to workers are the wages they receive, and the granting
of wage increases designed to influence the outcome of the elec-
tion is “highly coercive.” Scott ex rel. NLRB v. Stephen Dunn &
Associates, 241 F. 3d 652, 666 (9th Cir. 2001 See also NLRB v.
Anchorage Times Pub. CO., 637 F. 2d 1359 (1981). Analyzed
as a whole, considering, the coercive nature of the wage in-
creases, the proximity of the conduct to the election, and the
closeness of the final vote, all these factors weigh heavily in fa-
vor of concluding that the misconduct could have affected the
election results thus the election results should be set aside, and
a new election conducted.
The third objection standing alone also warrants setting aside
the election and directing that a second election be conducted.
Under the principles outlined in Milchem, Inc. 170 NLRB 362
(1968), regardless of the content of the remarks “prolonged
3 In the alternative, the failure of Francin to testify warrants the im-
position of an adverse inference that the wage increases were announced
and implemented to discourage store 9119 employees from supporting
the Union. See Flexsteel Industries, Inc., 316 NLRB 745 (1995).
4 General Counsel sought the imposition of evidentiary sanctions
predicated upon the Respondent’s failure to produce subpoenaed docu-
ments. Given the overwhelming evidence that Respondent has not met
conversation by representatives of any party with prospective
voters in the polling area “constitutes conduct which will invali-
date an election. Milchem emphasized the important underlying
principle that, “the final minutes before an employee casts his
[her]vote should be his [her]own, as free from interference as
possible.” Id. at 362. Milchem recognized a de minimis excep-
tion to the rule which excepted “chance isolated and innocuous
comments.” Id. at 363. In a similar vein, the Board has held that
electioneering in and of itself is improper. NLRB v. Carrol Con-
tracting and Ready Mix, 636 F.2d 111 (5th Cir. 1981).
Respondent argues that the conversation that occurred be-
tween Respondent’s representative Trinh and Odooli was innoc-
uous and therefore should not invalidate the election results un-
der the principles set forth in Milchem. I disagree. In the first
instance, the conversation took place in direct contravention of
the Board agent’s direction that representatives were prohibited
from conversing with voters at the polls. Secondly, the content
of the conversation was not on a topic wholly unrelated to work.
Rather it was directly related to Odooli’s future professional ca-
reer, and his future career was directly referenced by Trinh. As
succinctly stated by the Union in their brief, “conversations
about one’s schooling status and professional aims” . . . “are in-
timately connected to whether one will reap the benefits of a un-
ion. . . .” (U. Br. at 114.) I also find that the timing of the con-
versation was anything but “mere chance.” Trinh could have
waited until after Odooli voted to speak with him about his edu-
cational status but in open disregard of the Board agent’s admon-
ition timed the statements to occur moments before he voted.
The timing and the disregard of the Board agent’s directives
leads to the conclusion that Trinh was intent on attempting to
improperly influence Odooli’s vote. Applying the principles set
forth in Milchim against the facts presented warrants setting
aside the election and directing that a new election be conducted.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Food and Commercial Workers, Local
324, International, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By informing employees of and granting wage increases
for employees at store 9119 the Respondent violated Section
8(a)(1) of the Act.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
Having found Respondent has engaged in certain unfair labor
practices, I find Respondent must be ordered to cease and desist
its burden, along with the already imposed adverse inference, applying
other sanctions would be unnecessarily legally redundant, and I decline
General Counsel’s invitation to do so. (See GC Br. at 55).
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and to take certain affirmative action designed to effectuate the
policies of the Act
1. Cease and desist from
(a) Announcing and/or granting wage increases during a un-
ion organizing campaign in order to dissuade employees from
supporting United Food and Commercial Workers, Local 324, or
any other union or labor organization.
(b) In any other manner restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the
Act.
2. The election held on September 15, 2021, shall be set aside
and a new election shall be conducted at an appropriate time and
place as determined by the Regional Director.
3. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at the
Respondent’s facility located at 4040 East Chapman Avenue,
Orange, California, where notices are customarily posted, copies
of an appropriate Notice to Employees in English, maintained
free from all obstructions and defacements.
(b) In addition to the physical posting of paper notices, the
Notices shall be distributed electronically by e-mail, by text mes-
sage or any text-based messaging platform, and by posting on
social media websites and on any internal apps used by the Re-
spondent to communicate with its employees.
(c) Grant agents of the Board reasonable access to the Re-
spondent’s jobsite and facility referenced above in paragraph
3(a) in order to monitor compliance with the notice posting re-
quirement.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT announce or grant wage increases during a union
organizing campaign in order to dissuade employees from sup-
porting United Food and Commercial Workers, Local 324, or
any other union or labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights listed above.
CVSPHARMACY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-283397 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.