CVS Albany LLC d/b/a CVS

National Labor Relations Board - Board DecisionsJun 7, 2016

364 NLRB No. 21 (N.L.R.B. 2016)

364 NLRB No. 21 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–RC– 155927 June 7, 2016 DECISION ON REVIEW AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN On November 18, 2015, the Regional Director for Re- gion 29 issued a Decision and Direction to Count Two Determinative Challenged Ballots. In that decision, the Regional Director concluded that the challenges to two ballots—those of employees Debra Ellsmore and Debbie Henry-Aughton—should be overruled, but that the chal- lenge to the ballot of employee Kane Chow should be sustained.1 Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Peti- tioner filed a timely request for review, contending that the three challenges should have been sustained on the basis that all three employees are “floaters,” a category expressly excluded from the stipulated unit. The Em- ployer filed an opposition to the Petitioner’s request for review. In addition, the Employer filed a timely request for review, contending that the Regional Director erred in sustaining the challenge to Chow’s ballot, to which the Petitioner filed an opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The requests for review are granted as they raise sub- stantial issues warranting review. Having carefully con- sidered the entire record in this proceeding in light of the requests for review and oppositions, we find, contrary to the Regional Director, that all three challenges should be sustained because the employees at issue are “floaters” and therefore excluded from the stipulated unit. The petition in this case seeks a unit of employees who work at the Employer’s Flatbush Avenue store. The Stipulated Election Agreement provides that the unit includes “[a]ll regular full-time and part-time retail em- ployees, including Clerk/Cashiers, Shift Supervisor Bs and Photo Lab Supervisors, but excluding all floaters, seasonal employees and pharmacy employees, including pharmacists, pharmacy interns, inventory specialists and 1 In reaching his conclusions, the Regional Director adopted the recommendations of a hearing officer and overruled the parties’ excep- tions to those recommendations. pharmacy technicians, and guards, managers and super- visors as defined in the Act.” It is undisputed that the Employer does not have any classification specifically named “floater,” and the Stipulated Election Agreement does not define the term. The Petitioner challenged the ballots of Ellsmore, Hen- ry-Aughton, and Chow on the basis that all three are ex- cluded “floaters”; the Employer disputes this assertion. The Employer contends that the term “floater” refers to “pharmacist-floater,” which is a classification used in the pharmacy department, and, thus, that the three employees in question—all of whom are retail employees—are not “floaters.” By contrast, the Petitioner states that it under- stands the term “floater” to refer to employees whose “home store” is a CVS location other than the Flatbush store,2 but who periodically or sporadically work—i.e., “float”—at the Flatbush store. The record is clear that all three disputed employees satisfy the Petitioner’s under- standing of “floater.”3 The Regional Director analyzed this case by applying the three-prong test set forth in Caesar’s Tahoe, 337 NLRB 1096, 1097 (2002), for determining whether a challenged voter is properly included in or excluded from a stipulated unit. Under this test, the Board first deter- mines whether the stipulation is ambiguous. If the objec- tive intent of the parties is clearly and unambiguously expressed in the stipulation, the Board simply enforces the agreement. If, however, the stipulation is ambiguous, the Board attempts to determine the parties’ intent through normal methods of contract interpretation, in- cluding the examination of extrinsic evidence. If the 2 For human resource purposes, each employee has a designated home store, determined by where the employee was initially hired or permanently transferred. 3 All three employees have home stores at locations other than the Flatbush store. In his testimony, Kane Chow described himself as an “inventory specialist” who goes from store to store for a period of weeks in order to help sort out backlogs of inventory. He was directed by the District Manager to go to the Flatbush store to help them sort a surplus of inventory in the store’s basement, and he stayed there for 2 to 3 months to “clean up.” He did not work pursuant to a consistent schedule at the Flatbush store, and he has not worked at the store since the day of the election. Chow stated that he had no plans to return to the Flatbush store to work any time soon, but he may simply check up on the store in a month or two. Debra Ellsmore serves as a clerk/cashier at her home store, but works periodically at five other stores handling the stocking and maintenance of their Hallmark de- partments. She works sporadically at the Flatbush store, varying be- tween 4 and 10 hours a week, and she sets her own schedule, which she reports to the District Manager. In contrast, she has a consistent sched- ule at her home store, set by that store’s manager. Debbie Henry- Aughton also has a consistent schedule at her home store, but she reached out to the Flatbush store to pick up extra hours. Although she has consistently been scheduled at the Flatbush store 2 days a week since she began working there, the particular days that she works there vary based on the staffing needs of the Flatbush manager. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 parties’ intent still cannot be discerned, the Board deter- mines unit placement by employing its standard commu- nity of interest test. Applying this test, the Regional Di- rector concluded that the term “floater” is susceptible to multiple reasonable interpretations and is therefore am- biguous. In addition to the parties’ proffered interpreta- tions, the Regional Director also suggested that “floater” could be construed to encompass “employees who move from store to store who are not regular full-time or part- time retail employees.” Having determined that the term is ambiguous, the Regional Director also found that re- sort to extrinsic evidence did not resolve the ambiguity and that, under the Board’s community of interest test, Ellsmore and Henry-Aughton should be included in the unit, but Chow should be excluded. We agree with the Regional Director that Caesar’s Tahoe is the proper test for resolving this case. Further, we agree that the Stipulated Election Agreement is am- biguous with respect to the meaning of the excluded cat- egory of “floaters,” because the Employer does not main- tain any such job classification and the agreement itself does not define the term. Contrary to the Regional Di- rector, however, we find that this ambiguity can be re- solved through usual methods of contract interpretation, including the examination of extrinsic evidence. We find that the definitions of the term “floater” prof- fered by both the Employer and the Regional Director violate the well-established principle that no part of a contract’s language should be construed in such a way as to be superfluous. See Restatement (Second) of Con- tracts § 203(a).4 If we were to accept the Employer’s argument that “floaters” refers only to “pharmacist- floaters,” the separate exclusion of “floaters” would be rendered superfluous because pharmacist-floaters are already covered by the express exclusion of “all . . . pharmacy employees, including pharmacists, pharmacy interns, inventory specialists, and pharmacy technicians . . . .” Although pharmacist-floaters are not specifically mentioned in the stipulation’s exclusion of pharmacy employees, it is undisputed that pharmacist-floaters are, in fact, pharmacy employees. The Regional Director’s suggestion that “floater” could encompass “employees who move from store to store who are not regular full- time or part-time retail employees” is similarly problem- atic. The stipulation includes “all regular full-time and 4 Restatement § 203(a) states: “[A]n interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect”); see also 11 Williston on Contracts § 32:11 (4th ed.) (“Interpre- tations which give a contract meaning are preferred to those which render it meaningless.”). Cf. Sawmill Restaurant, 283 NLRB 537, 537, 541 fn. 7 (1987). part-time retail employees,” and therefore employees who are not regular full-time or part-time retail employ- ees are already excluded by the language of the stipula- tion.5 Accordingly, neither the Employer’s nor the Regional Director’s interpretation of “floaters” is persuasive, be- cause both readings contravene a fundamental principle of contract construction by rendering the exclusion of “all floaters” superfluous. By contrast, the Petitioner’s interpretation of the term “floaters”—all employees whose home store was not the Flatbush location but who simply worked there periodically or sporadically—does not render superfluous any other term in the stipulation. Rather, the Petitioner’s interpretation is reasonable, and it provides effective meaning to the stipulated election agreement as a whole. We therefore find that the princi- ples of contract interpretation support the Petitioner’s interpretation of the term “floater.” Further, in resolving the ambiguous stipulation, we find that extrinsic evidence in the record also favors the Petitioner’s interpretation of “floaters.” In interpreting the meaning of an ambiguous stipula- tion, the Board may consider changes in the language from the original petition to the language of the stipulat- ed election agreement. See, e.g. Gala Food Processing, 310 NLRB 1193, 1194 (1993). Here, such an examina- tion strengthens the distinction between “floaters” and “pharmacist-floaters.” The original petition in this case excluded “[a]ll employees in the pharmacy section of the store (including pharmacists, pharmacy interns, invento- ry specialists, and pharmacy technicians), floaters, sea- sonal employees,” etc. In the stipulation, however, the parties moved the exclusion of “all floaters” to the front of the list of excluded employees, before any mention, let alone enumeration, of pharmacy employees. This change in structure strongly suggests that the parties did not in- tend “floater” to refer to a category of employees in the pharmacy. In addition, testimony from several witnesses illus- trates how the term “floaters” is generally understood among CVS employees. In this regard, the record in- cludes two instances in which store managers used the term, in the presence of employees, in a manner that comports with the Petitioner’s definition.6 Cf. National 5 Further, the Regional Director’s interpretation appears to at least partly accept the Petitioner’s contention that “floaters” are employees who only periodically work at the Flatbush store. If this is so, the stipu- lation’s unqualified exclusion of “all floaters” (emphasis added) high- lights the implausibility of the Regional Director’s interpretation, be- cause all “floaters” are excluded from the unit, regardless of whether they are full-time or part-time employees. 6 Former employee Jason Ryan testified that his manager at the Flatbush store, Walter Rodriguez, used the term “floater” in January of CVS ALBANY, LLC 3 Public Radio, Inc., 328 NLRB 75, 75 fn. 2 (1999) (not- ing that the intent of the parties concerning the definition of job classifications to be included in the stipulated unit “may be determined by reference to the employer’s regu- lar use of the classifications in a manner known to its employees”). In addition, a number of employees, in- cluding two of the challenged voters themselves, testified about their understanding of the term “floater,” testimony that generally supports the Petitioner’s interpretation.7 For all the foregoing reasons, we agree with the Peti- tioner that the term “floater” was meant to encompass employees whose home store was a CVS location other than the Flatbush store, but who worked at the Flatbush store periodically or sporadically. Having reviewed the record, we are satisfied that employees Debra Ellsmore, 2015 to describe employees who did not have enough work at their home store, so they came to the Flatbush store to pick up more hours. We find Rodriguez’ explanation of the term particularly persuasive evidence, because Rodriguez was directly addressing Ryan’s concern about unfamiliar employees working at the Flatbush store when, Ryan thought, the Flatbush employees were not getting enough hours. Chal- lenged voter Kane Chow testified that, three to four years earlier, he had heard the store manager he was working with (apparently at a location other than the Flatbush store) use the term to describe an em- ployee who jumped from store to store based on which location needed his help and experience. 7 Shift Supervisor Adrian Caddle, an employee in the stipulated unit, testified that he considered a “floater” to be an employee who moves from one location to the next. Employee Temanie Barthelemy stated that she understood a “floater” to be someone who goes from store to store to help or to cover a shift. Challenged voter Debbie Hen- ry-Aughton defined a “floater” as an individual who is sent where she is needed, and said she would describe herself as a “floater” at the Flatbush location, which is not her home store. Challenged voter Debra Ellsmore described “floaters” as people who “come and go” to help out at a particular location, but whose home store is a different location. Chairman Pearce finds it unnecessary to rely on the testimony of witnesses concerning their understanding of the term “floater.” Debbie Henry-Aughton, and Kane Chow meet these cri- teria, are therefore “floaters,” and are excluded from the unit by the language of Stipulated Election Agreement.8 We thus reverse the Regional Director and sustain the challenges to all three ballots. ORDER This proceeding is remanded to the Regional Director for further appropriate action consistent with this Deci- sion on Review and Order. Dated, Washington, D.C. June 7, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 8 As we find that the ambiguous language of the Stipulated Election Agreement can be resolved at the second step of the Caesar’s Tahoe analysis, we find it unnecessary to proceed, as the Regional Director did, to the community-of-interest test utilized at the third step. Accord- ingly, we need not address the contentions raised in the Employer’s request for review concerning Chow’s eligibility under the third step of Caesar’s Tahoe.