07/09/2026: CVS Fails Again to Get Staff Pharmacists Declared Supervisors
Cannot back out of stipulated election agreement.
Nevada CVS Pharmacy, L.L.C. D/B/a CVS Pharmacy Store 08787, 28-RC-372677 (Regional Election Decision)
The regional director in this case rejected a Nevada CVS Pharmacy's attempt to keep a staff pharmacist and two "Front Store Supervisor" pharmacy technicians out of a bargaining unit sought by the Pharmacy Guild, finding that none of them qualify as supervisors under the NLRA and that the technicians share a community of interest with the rest of the unit.
The employer argued that the staff pharmacist effectively runs the pharmacy whenever the pharmacy manager is off duty, pointing to testimony that she "quarterbacks" the team of technicians and moves them between stations like drop-off, production, pick-up, and the drive-through. The regional director found this kind of shuffling did not amount to the statutory power to "assign" work, because the moves were driven by rotation, equalizing workload, or matching technicians to already-known skills, such as who is a certified immunizer, rather than by independent judgment. The decision walked through several cases the employer cited for comparison, including Acumen Cap. Partners, Entergy Miss., and RCC Fabricators, and distinguished each one on the grounds that the supervisors in those cases had authority, such as assigning employees to their overall places of work or effectively recommending discipline, that the staff pharmacist lacked here.
The employer also leaned heavily on the fact that Nevada law requires a licensed pharmacist to be present whenever the pharmacy is open, arguing this made the staff pharmacist responsible for the technicians' performance in a way that should confer supervisory status. The regional director rejected this, citing Board precedent holding that a state licensing scheme does not establish that the employer itself holds an individual accountable for others' work under the NLRA. The decision also noted a recent unpublished Board decision involving the same employer, Rhode Island CVS Pharmacy, which rejected an identical argument based on Rhode Island's pharmacy licensing law.
On discipline, the regional director found no evidence that the staff pharmacist has ever issued or recommended discipline, and testimony suggested employees have refused her requests to come in on short notice without facing any consequences. On hiring and firing, the record showed the pharmacy manager, not the staff pharmacist, interviews and hires technicians. The decision also rejected the employer's reliance on the technicians' "Front Store Supervisor" job title, since the two employees holding that title had not actually worked in the front of the store for many months and no evidence showed them exercising any supervisory authority in practice.
Turning to the composition of the unit, the regional director found that the pharmacy technicians, including the FSS-titled ones, are part of a readily identifiable group sharing a community of interest with the rest of the petitioned-for unit. All pharmacy employees report to the same pharmacy manager, work exclusively in the pharmacy, share similar pay structures and benefits, and have little contact or interchange with front-of-store staff.
The decision directs a Sonotone election, with the licensed pharmacists voting separately on whether to be included in a combined unit with the non-professional technicians before all ballots are counted together on the question of union representation.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the modern framework for analyzing supervisory status under Section 2(11), including what counts as "assignment" of work, "responsible direction," and the use of independent judgment.
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Held that the party asserting supervisory status bears the burden of proving it by a preponderance of the evidence.
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Restored the community-of-interest standard from Specialty Healthcare, requiring an "overwhelming community of interest" showing to expand a petitioned-for unit.
Buchanan Marine, L.P., 363 NLRB 523 (2015): Held that even if a government regulatory scheme would hold an individual accountable for others' conduct, that alone does not establish supervisory authority exercised in the interest of the employer.
St. Francis Medical Center-West, 323 NLRB 1046 (1997): Found that irregular, emergency-basis substitution for a supervisor, including authorizing overtime in emergencies, does not confer supervisory status.
Central Iowa Hospital Corporation D/B/a UnityPoint Health – Des Moines, 18-RC-371855 (Unpublished Board Decision)
The Board denied the Employer's request for review of the Regional Director's decision, finding it raised no substantial issues warranting review. The underlying dispute concerned the Employer's attempt to revoke or withdraw from the eligibility date the parties had agreed to in their Stipulated Election Agreement. The Board agreed with the Regional Director that this attempt fell outside the terms of that agreement. The Board noted that the Stipulated Election Agreement had expressly anticipated that the election might need to be rescheduled, but it did not provide for any change to the voter eligibility date in that event. The Board also found that the circumstances of the case were not sufficiently "unusual," nor did they amount to the "cause" required to justify setting aside the eligibility date the parties had agreed upon.
Significant Cases Cited
Tekweld Solutions, Inc., 361 NLRB 201, 201-203 (2014): Addressed the standards governing modification of terms within a Stipulated Election Agreement.
T&L Leasing, 318 NLRB 324, 325 (1995): Held that a previously agreed-upon voter eligibility date will not be set aside absent unusual circumstances or cause.