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June 7 — Three employees who sporadically traveled from their home stores to work at a New York pharmacy where a National Labor Relations Board election was conducted were “floaters” not eligible to participate in the vote on union representation, the NLRB determined, reversing a regional director ( CVS Albany, LLC, 2016 BL 180892, 364 N.L.R.B. No. 21, 6/7/16 ).
Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran wrote June 7 that an election agreement between CVS Albany LLC and a Retail, Wholesale and Department Store Union local was ambiguous.
But they found it did not support the employer's claim that an exclusion of floaters from voting only applied to pharmacists, rather than to three nonprofessional employees whose votes were challenged by the union.
While the employer and union offered differing views of the agreement, the board followed its own interpretation of the document and the circumstances to answer the dispute over the employees' right to vote.
CVS didn't have any employees who were formally classified as floaters, but the board said the general understanding of employees and the content of the parties' agreement for a secret ballot election showed the employees fell outside the agreed voting unit.
According to the decision and NLRB records, CVS and the union entered a stipulated election agreement for an election on union representation at its Flatbush Ave. store in New York.
The agreement provided “regular full-time and part-time retail employees,” including several specific categories, would be eligible to vote. The agreement excluded other classifications, including pharmacists and “all floaters.”
Four employees voted for union representation and three against. Three employees were challenged by the union, and their ballots were segregated and secured by the NLRB pending a decision on their eligibility.
The union argued the three workers were “floaters” who were ineligible to vote under the terms of the election agreement, while CVS contended the term floater was used only in the employer's pharmacy department to refer to pharmacists who moved from store to store.
The regional director and the board agreed the case should be analyzed under Desert Palace, Inc., 337 N.L.R.B. 1096, 170 LRRM 1344 (2002), which held that if an election agreement is ambiguous, the board will use normal methods of contract interpretation, including extrinsic evidence, to determine the parties' intent.
If the parties' intent still cannot be determined, the NLRB applies its traditional community of interest standards to resolve a voter eligibility issue.
The regional director interpreted the term “floaters” to refer to employees moving from store to store who did not have regular full-time or part-time status. But the board said such employees were already ineligible under the election agreement.
Employee testimony supports the union's argument that the three disputed employees were ineligible to vote, the members said.
They concluded “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.”
Finding the evidence clearly showed that the three disputed employees met the definition of the exclusion contained in the election agreement, the board ruled they were ineligible to vote.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_CVS_Albany_LLC_dba_CVS_364_NLRB_No_21_2016_BL.
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