CVS RX Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 24, 2015

29-CA-141164 (N.L.R.B. Dec. 24, 2015)

JD(NY)-48-15
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH
CVS RX SERVICES, INC.
and Case Nos. 29-CA-141164
29-CA-155028
CVS PHARMACY, INC.
and
KENNETH STERNFELD, an Individual
Lynda Tooker, Esq.,
for the General Counsel.
James N. Boudreau, Esq. and
Christiana L. Signs, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
Lauren Esposito, Administrative Law Judge. Based upon a charge in Case 29–CA–
141164 filed on November 17, 2014, and a charge in Case 29-CA-155028 filed on June 25,
2015 by Kenneth Sternfeld, an Individual, an order consolidating cases, amended consolidated
complaint, and notice of hearing issued on August 27, 2015 (the “complaint”). The complaint
alleges that CVS RX Services, Inc. (“RX Services”), a wholly owned subsidiary of CVS
Pharmacy, Inc. (“Pharmacy”), and Pharmacy violated Section 8(a)(1) of the Act by implementing
and maintaining a workplace dispute resolution program which coerces and restrains
employees in the exercise of their rights pursuant to Section 7 of the Act. RX Services and
Pharmacy filed an answer denying the complaint’s material allegations.
This case was tried before me on October 28, 2015, in Brooklyn, New York. At the
hearing the parties entered into the record a Stipulation of Facts to which they had agreed.
After the conclusion of the trial, the parties filed briefs, which I have read and
considered. Based on those briefs, and the entire record in the case, including the testimony of
the witness and my observation of his demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, RX Services has been a domestic corporation in the business of
receiving, processing, and filling medical prescriptions for CVS retail pharmacies, with its
principal office located at One CVS Drive, Woonsocket, Rhode Island, and a place of business
JD(NY)-48-15
2
located at 150 White Wagon Road, Chemung, New York. At all material times, Pharmacy has
been a domestic corporation with a principal office at One CVS Drive, Woonsocket, Rhode
Island, and with a place of business, operated by a subsidiary of Pharmacy known as CVS
Albany, LLC, located at 150 South Wellwood Avenue, Lindenhurst, New York. At all material
times, Pharmacy, through subsidiaries such as CVS Albany, LLC, has been engaged in the 5
retail sale of health products, beauty products, groceries, and other consumer products. RX
Services and Pharmacy admit and I find that they are employers within the meaning of Section
2(2), (6), and (7) of the Act. (Jt. Exh. 1, par. 3-8.) RX Services and Pharmacy shall be
collectively referred to, where appropriate, as “Respondents.”
10
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
RX Services, a wholly-owned subsidiary of Pharmacy, employs approximately 23,537 15
employees at retail pharmacies nationwide. Pharmacy operates approximately 7800 retail
stores nationwide, and directly employs approximately 29,789 employees. RX Services has
employed Charging Party Kenneth Sternfeld since approximately 2008. Since that time,
Sternfeld has been employed as a pharmacist at a CVS store operated by Pharmacy’s
subsidiary CVS Albany, LLC, located on South Wellwood Avenue in Lindenhurst, New York, or 20
at other stores operated by CVS Albany, LLC.1 (Jt. Exh. 1, par. 9-15.)
In around October 2014, RX Services and Pharmacy implemented a workplace dispute
resolution program. Respondents introduced this program to their employees, including
Charging Party Sternfeld, by asking them to complete a computer-based training course 25
describing and presenting it, entitled “Arbitration of Workplace Legal Disputes, Course 800305.”
Substantially all employees employed by Respondents as of October 2014, other than union-
represented and clinic employees, were instructed to complete this program. (Jt. Exh. 1, par.
16.) Arbitration of Workplace Legal Disputes, Course 800305, contains a link to a pdf document
entitled “CVS Health Colleague Guide to Arbitration.”2 The CVS Health Colleague Guide to 30
Arbitration contains educational material related to arbitration in general and Respondents’
arbitration policy, including the following:
Arbitration is a matter of contract between the colleague and CVS
Health. Colleagues accept the policy by continuing their 35
employment with CVS Health after becoming aware of the policy.
With that being said, we want colleagues’ participation to be
voluntary. Colleagues will be asked to acknowledge and agree to
the policy, but from the time that a colleague first views or
receives the policy, he or she has thirty days to opt out of the 40
policy. If a colleague opts out, he or she will not be obligated to go
to arbitration and can continue to use the traditional court system
as before. Likewise, if a colleague opts out, CVS Health will not be
required to arbitrate any disputes it has with that colleague.
45
How to Opt Out

1 Sternfeld also worked at stores located at 460 Montauk Highway in West Islip, New York,
and at 480 MontaukHighway in Bay Shore, New York.
2 CVS Health Corporation is the parent company of Pharmacy, and does not employ any
employees.
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In order to opt out, a colleague must mail a written, signed and
dated letter stating clearly that he or she wishes to opt out of the
CVS Health Arbitration of Workplace Legal Disputes Policy. The
letter must be mailed to CVS Health, P.O. Box 969, Woonsocket,
RI 02895. In order to be effective, the colleague’s opt out notice 5
must be postmarked no later than 30 days after the date the
colleague first views or receives the policy. Please note, sending
in a timely notice is the only way to opt out. A colleague cannot
opt out by refusing to complete training or attend meetings about
the policy. 10
CVS Health will not tolerate retaliation against any colleague who
decides to opt out.
(Jt. Exh. 1, par. 17.)15
The CVS Health Colleague Guide to Arbitration also contains Respondents’ arbitration
policy, entitled “Arbitration of Workplace Legal Disputes.” The Arbitration of Workplace Legal
Disputes policy provides in part as follows:
20
SCOPE
This policy applies to and forms a mutually-binding contract between CVS Health
and all of its employees, except those employees subject to a collective
bargaining agreement (“CBA”), unless the CBA contains language recognizing 25
the applicability of policies likes this one. Covered employees are referred to in
this policy as “Employee” or “Employees.”
PROCEDURES
30
1. Mutual Obligation to Arbitrate. Under this Policy, CVS Health (including
its subsidiaries) and its Employees agree that any dispute between an Employee
and CVS Health that is covered by this Policy (“Covered Claims”) will be decided
by a single arbitrator through final and binding arbitration only and will not be
decided by a court or jury or any other forum, except as otherwise provided in 35
this Policy, This Policy is an agreement to arbitrate disputes covered by the
Federal Arbitration Act (9 U.S.C. §§ 1-16)Employees accept this Policy by
continuing their employment after becoming aware of the Policy.
2. Claims Covered by This Policy. Except as otherwise stated in this 40
Policy, Covered Claims are any legal claims, disputes or controversies that CVS
Health may have, now or in the future, against any Employee or that an
Employee may have, now or in the future, against CVS Health, its parents,
subsidiaries, successors or affiliates, or one of its employees or agents, arising
out of or related to the Employee’s employment with CVS Health or the 45
termination of the Employee’s employment.
Covered Claims include but are not limited to disputes regarding wages and
other forms of compensation, hours of work, meal and rest break periods,
seating, expense reimbursement, leaves of absence, harassment, discrimination, 50
retaliation and termination arising under the Civil Rights Act of 1964, Americans
JD(NY)-48-15
4
with Disabilities Act, Age Discrimination in Employment Act, Family medical
Leave Act, Fair Labor Standards Act, Employee Retirement Income security Act
(“ERISA”) (except for claims for employee benefits under any benefit plan
sponsored by the Company and covered by ERISA or funded by insurance),
Genetic Information Non-Discrimination Act, and other federal, state and local 5
statutes, regulations and other legal authorities relating to employment.
Covered Claims also include disputes arising out of or relating to the validity,
enforceability or breach of this Policy, except as provided in the section below
regarding the Class Action Waiver. . . .
10
6. Waiver of Class, Collective and Representative Actions (“Class Action
Waiver”). Employee and CVS Health will bring any Covered Claims in arbitration
on an individual basis only; Employee and CVS Health waive any right or
authority for any Covered Claims to be brought, heard or arbitrated as a class,
collective, representative or private attorney general action. This Class Action 15
Waiver does not apply to any claim an Employee brings as a private attorney
general solely on the Employee’s own behalf and not on behalf of or regarding
others. Notwithstanding any other provision of this Policy or the AAA rules,
disputes regarding the validity, enforceability or breach of this Class Action
Waiver will be resolved only by a civil court of competent jurisdiction and not by 20
an arbitrator. If, despite this Class Action Waiver, an Employee files or
participates in a class, collective or representative action in any forum, the
Employee will not be retaliated against, disciplined or threatened with discipline.
However, CVS Health will seek enforcement of this Policy and the Class Action
Waiver under the Federal Arbitration Act and seek dismissal of such class, 25
collective or representative actions or claims.
(Jt. Exh. 1, par. 18.)
Once employees had finished their review of the CVS Health Colleague Guide to 30
Arbitration, they were asked to complete an acknowledgement which electronically verified the
following:
 that you have carefully read the CVS Health Policy, “Arbitration of
Workplace Legal Disputes” (the “Policy”) and understand that it 35
applies to you;
 that you will raise any questions you may have about the Policy to
your supervisor or Human Resources and may seek independent
legal advice as well;
 that you can obtain copies of the Policy from your supervisor, 40
Human Resources or the CVS Health Policy & Procedure Portal;
 that you have the opportunity, for a limited time only, to opt out of
the Policy and, by doing so, not be bound by its terms;
 that, to opt out, you must mail a written, signed and dated letter,
stating clearly that you wish to opt out of this Policy to CVS 45
Health, P.O. Box 969, Woonsocket, RI 02895, which must be
postmarked no later than 30 days after the date you first received
or viewed a copy of this Policy;
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 that by being covered by the Policy and not opting out, you and
CVS Health are obligated to go to arbitration instead of court to
resolve legal claims covered by the Policy;
 that by being covered by the Policy and not opting out, you and
CVS Health are giving up the right to bring or participate in a 5
class, collective or representative action brought on behalf of or
regarding others to decide claims covered by the Policy;
 that this electronic communication satisfies any requirement that
such communication be in writing; and
 that your click of the “Yes” button creates an electronic signature 10
that is legally binding.
This acknowledgement was printed in the CVS Health Colleague Guide to Arbitration, the pdf
document, and then repeated in the Arbitration of Workplace Legal Disputes, Course 800305
training course. (Jt. Exh. 1, par. 19.)
15
Beginning in or around October 2014, Respondents implemented a workplace dispute
resolution program for substantially all new employees, other than union-represented and clinic
employees, by presenting them with a copy of the “CVS Health Arbitration Agreement” as part
of the “on-boarding process,” their initial orientation and training.3 These new hires sign the
CVS Health Arbitration Agreement and then have 30 days to opt out of the Agreement. 20
Whether or not they opt out of the Agreement does not affect their ability to work for
Respondents.4 The CVS Health Arbitration Agreement provides in part:
1. Mutual Agreement to Arbitrate Claims. The employee named below
will be referred to here as "Employee," "You" or "Your". CVS Pharmacy, Inc., 25
including its affiliates, successors, subsidiaries and/or parent companies will be
referred to here as "CVS" or "Company". Under this Agreement, You and CVS
agree that any dispute between You and CVS that is covered by this
Agreement .("Covered Claims") will be decided by a single arbitrator through
final and binding arbitration only and will not be decided by a court or jury or30
any other forum, except as otherwise provided in this Agreement.
2. Claims Covered by this Agreement. Except as otherwise stated in
this Agreement, Covered Claims are any and all claims, disputes or
controversies that CVS may have, now or in the future, against You or that35
You may have, now or in the future, against CVS or one of its employees
or agents, arising out of or related to Your employment with CVS or the
termination of Your employment. Covered Claims include but are not limited
to disputes regarding wages and other forms of compensation, hours of work,
meal and rest break periods, seating, expense reimbursement, leaves of40
absence, harassment, discrimination, retaliation and termination arising under
the Civil Rights Act of 1964, Americans With Disabilities Act, Age
Discrimination in Employment Act, Family Medical Leave Act, Fair Labor

3 Respondents’ counsel stated at the hearing that the “on-boarding process” is the process
by which newly hired employees are informed about Respondents’ policies and training,
including the arbitration agreement (Tr. 19-20).
4 Charging Party Sternfeld was never asked to enter into the CVS Health Arbitration
Agreement.
JD(NY)-48-15
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Standards Act, Employee Retirement Income Security Act ("ERISA"), Genetic
Information Non-Discrimination Act, and other federal, state and local statutes,
regulations and other legal authorities relating to employment. Covered Claims
also include disputes arising out of or relating to the validity, enforceability or
breach of this Agreement, except as provided in paragraph 6, below, regarding 5
the Class Action Waiver. . . .
6. Waiver of Class, Collective and Representative Actions (" Class
Action Waiver"). You and CVS agree to bring any Covered Claims in
arbitration on an individual basis only; You and CVS waive any right or authority10
for any Covered Claims to be brought, heard or arbitrated as a class, collective,
representative or private attorney general action. . . .
7. Your Right to Opt Out of Arbitration. Arbitration is not a mandatory
condition of Your employment at CVS. If You wish, You can opt out of this 15
Agreement for a limited time and, by doing so, not be bound by its terms. To opt
out, You must mail a written, signed and dated letter stating clearly that You wish
to opt out of this Agreement to CVS Health, P.O. Box 969, Woonsocket, RI
02895. In order to be effective, Your opt out notice must be postmarked no later
than 30 days after the date you agree to the Agreement below.20
9. Statement of Assent and Understanding. By signing below,
You acknowledge that You have carefully read this Agreement, that
you understand and agree to its terms, that You have had the chance to
ask questions about the Agreement, and that you have had or will have25
the chance to consult with your own legal counsel before the end of
the opt out period described above. You enter into the Agreement
voluntarily and not in reliance on any promises or representations
made by CVS other than those in the Agreement itself. You
understand that by agreeing to this Agreement and not opting out,30
You and CVS are giving up the right to go to court to resolve Covered
Claims and giving up the right to bring or participate in a class.
collective or representative action brought on behalf of or regarding
others on Covered Claims.
35
(Jt. Exh. 1, par. 20-21.)
Since about October 2014, approximately 2173 of RX Services’ employees have opted
out of the Arbitration of Workplace Legal Disputes policy and/or the Arbitration Agreement,
including Charging Party Sternfeld. RX Services and Pharmacy process employees’ opt-out 40
letters so as to keep an employee’s designation with respect to the arbitration program
confidential. Access to employees’ designations is limited to human resources and other
administrative departments with a business need. Store Managers, Assistant Store Managers,
Pharmacists, Pharmacy Managers, and Pharmacy Supervisors generally have no access to
such information. (Jt. Exh. 1, par. 23-24.)45
Charging Party Sternfeld completed the Arbitration of Workplace Legal Disputes, Course
800305 on October 20, 2014. Within 30 days of completing the course, Sternfeld mailed a
written, signed, and dated letter to CVS Health, P.O. Box 969, Woonsocket, Rhode Island,
02895, stating that he “wish[ed] to Opt Out of the CVS Health Arbitration of Workplace Legal 50
Disputes Policy.” CVS received Sternfeld’s letter on October 24, 2014. (Jt. Exh. 1, par. 25-26.)
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B. Discussion and Analysis
General Counsel contends that this case is controlled by the Board’s holding in D.R.
Horton, reaffirmed in Murphy Oil USA, that an employer violates Section 8(a)(1) of the Act by
requiring employees “as a condition of their employment, to sign an agreement that precludes 5
them from filing joint, class, or collective claims addressing their wages, hours, or other working
conditions against the employer in any forum, arbitral or judicial.” D.R. Horton, 357 NLRB No.
184 at p. 1 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013); Murphy Oil USA,
361 NLRB No. 72 at p. 1-2 (2014), enf. denied in relevant part --- F.3d ---, 204 L.R.R.M. 3489
(5th Cir. 2015). General Counsel contends that Respondents’ Arbitration of Workplace Legal 10
Disputes policy and Arbitration Agreement,5 by requiring as a condition of employment that
employees enter into an agreement precluding them from filing joint, class, or collective claims
related to disputes arising out of their employment, violates Section 8(a)(1) pursuant to D.R.
Horton and Murphy Oil USA. General Counsel further contends that the opt-out provisions of
Respondents’ arbitration policy are insufficient to establish that the policy does not constitute a 15
mandatory condition of employment, citing On Assignment Staffing Services, 362 NLRB No.
189 (2015). However, General Counsel asserts that even if the arbitration policy were not a
mandatory condition of employment by virtue of its opt-out provisions, the policy would
nevertheless violate Section 8(a)(1). On Assignment Staffing Services, 362 NLRB No. 189 at p.
5-8.20
Respondents argue that because Sternfeld complied with the opt-out provisions of the
arbitration policy, no agreed-upon class action waiver was created in the instant case.
Respondents also contend that class action waivers which are not mandatory conditions of
employment are not prohibited by Section 8(a)(1), and argue that D.R. Horton and Murphy Oil 25
USA should be distinguished on that basis. Respondents contend that because the Federal
Arbitration Act compels the enforcement of voluntary class action waivers regardless of their
status under the National Labor Relations Act, the Board incorrectly decided this issue in On
Assignment Staffing Services. Regardless, Respondents argue that the class action waiver
here is distinct from those at issue in On Assignment Staffing Services, and is therefore 30
permissible. Finally, Respondents make several arguments based upon the charge, complaint,
and Section 10(b) of the Act. Respondents contend that the complaint is infirm, in that
Pharmacy never employed Sternfeld, and that the arbitration agreement never applied to him
given his compliance with the opt-out provision. Respondents also argue that the unfair labor
practice charges do not support the complaint, the complaint did not provide adequate notice of 35
the allegations against them, the charge against Pharmacy was improperly solicited, and the
allegations against Pharmacy are time barred.
I find that Respondents’ arbitration policy violates Section 8(a)(1) under the caselaw
discussed above. Like the arbitration policies in D.R. Horton, Murphy Oil USA, and On 40
Assignment Staffing Services, Respondents’ arbitration policy requires that all claims arising out
of the employment relationship or its termination be adjudicated via arbitration, and provides for
a waiver of all joint, class or collective claims. D.R. Horton, Inc., 357 NLRB No. 184 at p. 1;
Murphy Oil USA, Inc., 361 NLRB No. 72 at p. 1, 3, 18-19; On Assignment Staffing Services, 362
NLRB No. 189 at p. 2-4; see also Amex Card Services Co., 363 NLRB No. 40 at p. 1-2 45
(November 10, 2015). The Arbitration of Workplace Legal Disputes policy contained in the CVS

5 The Arbitration of Workplace Legal Disputes policy and the Arbitration Agreement will be
collectively referred to as Respondents’ arbitration policy, where appropriate.
JD(NY)-48-15
8
Health Colleague Guide to Arbitration provides at paragraph 1 that all Covered Claims “will be
decided by a single arbitrator through final and binding arbitration only and will not be decided
by a court or jury or any other forum.” Paragraph 2 defines “Covered Claims” as encompassing
any legal claims, disputes or controversies…an Employee may have, now or in 5
the future, against CVS Health, its parents, subsidiaries, successors or affiliates,
or one of its employees or agents, arising out of or related to the Employee’s
employment with CVS Health or the termination of the Employee’s employment.
Paragraph 6 of the Arbitration of Workplace Legal Disputes policy states that Covered Claims 10
will be brought “on an individual basis only” (emphasis in original), and may not be “brought,
heard or arbitrated as a class, collective representative or private attorney general action.”
The CVS Health Arbitration Agreement includes similar provisions defining Covered
Claims and a similar “Waiver of Class, Collective and Representative Actions” in its paragraphs 15
1, 2, and 6, respectively. The CVS Health Arbitration Agreement further provides at paragraph
9 that
You understand that by agreeing to this Agreement and not opting out, You and
CVS are giving up the right to go to court to resolve Covered Claims and giving 20
up the right to bring or participate in a class, collective or representative action
brought on behalf of or regarding others on Covered Claims.
The arbitration policy at issue here thus involves the waiver of all joint, class, or collective
claims, and violates Section 8(a)(1) pursuant to D.R. Horton and Murphy Oil USA.25
I further find that the opt-out provisions contained in Respondents’ arbitration policy do
not establish that the arbitration policy is not a mandatory condition of employment, and do not
otherwise obviate the policy’s coercive character under existing Board law. As in On
Assignment Staffing Services, the CVS Health Colleague Guide to Arbitration, the Arbitration of 30
Workplace Legal Disputes Policy, and the CVS Health Arbitration Agreement require employees
to execute an acknowledgement verifying that they have reviewed the Policy and the
Agreement. 362 NLRB No. 189 at p. 2, 3. In addition, as in On Assignment Staffing Services,
the arbitration policy provides that the waiver of an employee’s right to bring class, collective, or
representative actions will take effect unless they submit a “written, signed and dated letter” 35
opting out within a specified period of time (30 days) of having first received or viewed it. 362
NLRB No. 189 at 2, 3 (Dispute Resolution Agreement provided employees with a 10-day period
to submit a written form opting out of class action waiver). In On Assignment Staffing Services,
the Board concluded that in such circumstances an agreement waiving the right to bring
collective or class actions “does not cease to be a condition of employment simply because 40
employees are given an opportunity to opt out of it.” 362 NLRB No. 189 at p. 1, 3, 4; see also
PAMA Management, 363 NLRB No. 38 at p. 1, 2, 11 (2015).
As a result, here, as in On Assignment Staffing Services, Respondents’ employees are
required to opt-out of the arbitration policy via a written statement within parameters established 45
by Respondents in order to ensure the opt-out’s effectiveness. 362 NLRB No. 189 at p. 1. The
CVS Health Colleague Guide to Arbitration provides that in order to opt out of the policy, an
employee must submit a signed letter “stating clearly that he or she wishes to opt out of the
CVS Health Arbitration of Workplace Legal Disputes Policy,” which “must be postmarked no
later than 30 days after the date the colleague first views or receives the policy,” this being “the 50
only way to opt out.” In On Assignment Staffing Services, the Board found that such a
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procedure “creates a second mandatory condition of employment,” requiring that the employee
comply with procedures imposed by the employer, which interferes with the right under Section
7 to purse collective or class litigation “by significantly burdening its exercise.” 362 NLRB No.
189 at p. 1, 4-5. In addition, Respondents’ arbitration policy, like the policy at issue in On
Assignment Staffing Services, impermissibly requires that employees “make an observable 5
choice” or “reveal their sentiments” regarding Section 7 activity, by acknowledging their review
of the policy and submitting a written statement of their desire to opt out to the employer. 362
NLRB No. 189, at 4-5, quoting Allegheny Ludlum Corp., 333 NLRB 734, 740 (2001), enfd. 301
F.3d 167 (3d Cir. 2002).
10
I further find that the opt-out procedures at issue here are not legally distinguishable
from those at issue in On Assignment Staffing Services, as Respondents contend. For
example, Respondents contend that their procedures require that employees send a letter
opting out within 30 days of having received or viewed the arbitration policy, while the
employer’s procedures in On Assignment Staffing Services required the submission of a form 15
opting out within 10 days. 362 NLRB No. 189 at p. 2, 3. Respondents also argue that in On
Assignment Staffing Services the employees were required to comply with the opt-out
provisions at the inception of their employment before a dispute had arisen, whereas here
Sternfeld had filed a wage and hour claim prior to being Respondents’ implementing their
arbitration policy, and had actually worked for RX Services for years. These distinctions are not20
legally significant given the Board’s holding in On Assignment Staffing Services that “the fact
that employees must take any steps to preserve their Section 7 rights burdens the exercise of
those rights.” 362 NLRB No. 189 at 4 (emphasis added). Nor do the procedures for the
submission and maintenance of employee opt-out letters remediate the requirement that
employees make an “observable choice” with respect to Respondents’ arbitration policy. 25
Although Respondents argue that employees’ opt out letters will be maintained separately from
their personnel files, and the policy contains assurances of nonretaliation, the Board has found
that such circumstances do not mitigate the coercive impact of an opt out procedure which
requires that the employees disclose to the employer their sentiments regarding activity
protected by Section 7. On Assignment Staffing Services, 362 NLRB No. 189 at p. 5, fn. 1230
(class action waiver’s language stating that employees who opt out “will not be subjected to any
adverse employment action as a consequence” and maintenance of completed opt-out forms in
a central location separately from employee personnel files insufficient to ameliorate waiver’s
coercive impact).
35
Furthermore, it is clear that under On Assignment Staffing Services, the “mandatory” or
“non-mandatory” nature of an agreement to resolve all employment-related disputes through
non-class arbitration is irrelevant. In On Assignment Staffing Services, the Board evaluated
whether an employer could lawfully “enter into an agreement that is not a condition of
employment with an individual employee to resolve. . . all potential employment disputes 40
through non-class arbitration rather than litigation in court,” an issue left open in D.R. Horton.
On Assignment Staffing Services, 362 NLRB No. 189 at p. 5-6, quoting D.R. Horton, 357 NLRB
No. 184 at p. 13, fn. 28 (emphasis in original). The Board concluded that such “non-mandatory
agreements” also require that employees “prospectively waive their Section 7 rights,” and are
therefore “contrary to the National Labor Relations Act and to fundamental principles of federal 45
labor policy.” On Assignment Staffing Services, 362 NLRB No. 189 at p. 6; see also PAMA
Management, 363 NLRB No. 38 at p. 2.
Respondents argue that voluntary class action waivers are permissible under the NLRA,
and that the Board’s decision to the contrary in On Assignment Staffing Services was simply 50
incorrect, citing decisions of the federal courts and NLRB Administrative Law Judges.
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Respondents argue on the same basis that the Federal Arbitration Act compels the enforcement
of voluntary class action waivers, even if the NLRA invalidates them. However, both of these
positions have been considered and rejected by the Board. The Board held in On Assignment
Staffing Services that voluntary class action waivers violate Section 8(a)(1), rejecting the
contention that any conflict with the FAA would otherwise compel their enforcement. 362 NLRB 5
No. 189 at p. 5-8. Although Respondent cites to decisions of the Fifth and Ninth Circuits at odds
with the Board’s position, it is well settled that the Board generally applies a “non-acquiescence
policy” with respect to contrary views of the federal Courts of Appeal. See D.L. Baker, Inc., 351
NLRB 515, 529, fn. 42 (2007); Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). Thus, an
NLRB Administrative Law Judge is required to “apply established Board precedent which the 10
Supreme Court has not reversed.”6 Pathmark Stores, Inc., 342 NLRB at 378 fn. 1; see also Gas
Spring Co., 296 NLRB 84, 97-98 (1989), enfd. 908 F.2d 966 (4th Cir. 1990). Furthermore,
decisions of other NLRB Administrative Law Judges are not binding or persuasive in light of
contrary decisions of the Board itself. See, e.g., Neiman Marcus Group, 362 NLRB No. 157, at
p. 8 (2015).15
Respondents make several additional arguments in their Post-Hearing Brief which are
unavailing. Respondents argue that the record does not establish an agreed-upon class action
waiver, because Sternfeld, by opting out of Respondent’s arbitration policy, never accepted
Respondent’s offer to enter into such an agreement. Respondents contend that because the 20
Board’s holdings in D.R. Horton and Murphy Oil USA involved situations where an agreement
actually existed, they are inapposite. This argument is premised on the assumption that
Sternfeld’s having exercised the opt-out provision somehow obviates the existence of the
Arbitration of Workplace Legal Disputes policy itself. To the contrary, the opt-out provision is an
integral part of Respondents’ arbitration policy, and Sternfeld would never have been faced with 25
the necessity of complying with its requirements – requirements which, as discussed above,
impinged upon his Section 7 rights in and of themselves – were it not for the policy’s existence.
Respondents further contend that the unfair labor practice charge against Pharmacy was
improperly solicited by the Board, and should therefore be dismissed. Respondents assert that 30
Sternfeld was never employed by Pharmacy, and that the Board improperly informed RX
Services that if it did not stipulate to the addition of Pharmacy as a Respondent the Region
would solicit a charge against that entity from Sternfeld. As General Counsel notes, however,
Section 102.9 of the Board’s Rules and Regulations states that “A charge that any person has
engaged in or is engaging in any unfair labor practice affecting commerce may be made by any 35
person,” not solely an employee of the Charged Party. Indeed, in previous cases applying D.R.
Horton, the Board has rejected assertions that charges filed by former employees and legal
representatives are invalid on this basis. Leslie’s Poolmart, Inc., 362 NLRB No. 184, at fn. 2
(2015) (charge filed by former employee of Respondent); PJ Cheese, Inc., 362 NLRB No. 177,
at fn. 1 (2015) (charge filed by employee’s attorney). Nor do I find that the charge against 40
Pharmacy was improperly solicited, because Respondents have not established that the Board
acted “so completely outside of the situation which gave rise to the (original) charge that it may
be said to be initiating the proceeding on its own motion.” NLRB v. Reliance Steel Products
Co., 322 F.2d 49, 53 (5th Cir. 1963); see also Alberici-Fruin-Conlon, 226 NLRB 1315, 1316
(1976), enfd. 567 F.2d 833 (1977); Allis-Chalmers Corp., 224 NLRB 1199, 1218, fn. 30 (1976), 45
enfd. in relevant part 563 F.2d 674 (5th Cir. 1977). Respondents stipulated here that in or

6 The Board has repeatedly held that the Supreme Court’s decision in American Express Co.
v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013), cited by Respondents, does not constitute
contrary precedent under the FAA in this respect. Murphy Oil USA, 361 NLRB No. 72 at p. 2, 8-
9; see also Chesapeake Energy Corp., 362 NLRB No. 80 at p. 3 (2015).
JD(NY)-48-15
11
around October 2014, they implemented a workplace dispute resolution program containing the
arbitration policy, including the class action waiver and opt-out provisions, applicable to all
current and new employees, and that while Sternfeld was not employed by Pharmacy, he
worked at CVS stores operated by a Pharmacy subsidiary. As a result, the solicitation of a
charge against Pharmacy was not so utterly extraneous to the situation engendering Sternfeld’s 5
charge against RX Services that the Board could be viewed as “initiating the proceeding on its
own motion.” See Alberici-Fruin-Conlon, 226 NLRB at 1316 (charge against employer alleging
discharge in violation of Section 8(a)(3) not improperly solicited, where original charge against
union alleged unlawful attempt to cause employer to discriminate against Charging Party in
violation of Section 8(b)(2)); see also NLRB v. Laborers International Union of North America, 10
567 F.2d at 835.
Respondents next argue that the complaint’s allegations to do not provide adequate
notice of the claims asserted against them, and are not factually related to the unfair labor
practice charges. Respondents contend that the complaint does not provide adequate notice of 15
the claims against them because it construes Respondents and Sternfeld as having entered into
an agreement in the context of Respondents’ Arbitration of Workplace Legal Disputes policy.
Respondents argue that in order to provide adequate notice, the complaint should have alleged
that Respondents violated Section 8(a)(1) by merely requesting that Sternfeld and other
employees enter into a waiver of class or collective claims. As discussed above, Sternfeld’s 20
compliance with the Arbitration of Workplace Legal Disputes policy’s opt-out provision did not
obviate the existence of the arbitration policy itself as applied to him, or to any other employee.
As a result, this argument is not persuasive.
Nor is dismissal of the complaint warranted on the grounds that it is not adequately 25
supported by the unfair labor practice charges filed by Sternfeld. It is well-settled that in order to
be adequately supported by the underlying charge, a complaint allegation must be “factually
related” to the allegations in the charge itself. When making such a determination, the Board
considers whether the complaint allegations involve the same legal theory and arise from the
same factual circumstances or sequence of events as the charge, and whether a respondent 30
would raise similar defenses to both sets of allegations. Nickles Bakery of Indiana, 296 NLRB
927, 928 (1989); Tasty Baking Co., 330 NLRB 560, 563 (2000), enfd. 254 F.3d 114 (D.C.Cir.
2001). That standard is satisfied here, as both the charges and the complaint allege that
Respondents’ arbitration policy, as contained in the Arbitration of Workplace Legal Disputes
policy and Arbitration Agreement, restricts the exercise of employees’ Section 7 rights.7 35
Respondents contend that the charges against RX Services and Pharmacy both allege that the
arbitration policy is “overbroad” or “overly broad” in impact – a theory which is qualitatively
distinct from an assertion that the arbitration policy violated Section 8(a)(1) by requiring a waiver

7 The charge against RX Services alleged that “In October 2014, CVS instituted a
nationwide ‘Guide to Arbitration,’ containing unlawfully, overbroad restrictions on the rights of
their employees” (GC Exh. 1(a).) The charge against Pharmacy alleged that “Since about
October 2014 [Pharmacy] and its subsidiaries have implemented and maintained an overly
broad dispute resolution policy that interferes with, restricts, and coerces employees in the
exercise of their Section 7 rights” (GC Exh. 1(s)).
The complaint alleges that by its conduct with respect to the Guide to Arbitration and
Arbitration Agreement, Respondent “has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act” (GC Exh. 1(x), par. 16).
JD(NY)-48-15
12
of the right to bring class or collective actions. However, the both the charge against Pharmacy
and the complaint allege that the arbitration policy violates Section 8(a)(1) by restricting and
coercing employees in the exercise of their Section 7 rights. Thus the charge against Pharmacy
was adequate to support the complaint’s allegations against it. See Nickles Bakery of Indiana,
296 NLRB at 928, fn. 5 (“similar legal theories” alleged in charge and complaint need not involve 5
the same section of the Act); Redd-I, Inc., 290 NLRB 1115, 1118 (1988) (retaliatory discharge
allegation “of the same class” as other allegations of layoffs and discharges in retaliation for
union activity). Both the Pharmacy charge and complaint allegations involve the same
sequence of events – Respondents’ implementation of the arbitration policy – and would
engender similar defenses. Furthermore, Lotus Suites, Inc. v. NLRB, 32 F.3d 588 (D.C. Cir. 10
1994), cited by Respondent, is inapposite. That case involved a charge containing retyped
“boilerplate” language, printed on every unfair labor practice charge form, alleging violations of
Section 8(a)(1) and (3), with no factual information whatsoever. Lotus Suites, 32 F.3d at 591-
592; Embassy Suites Resorts, 309 NLRB 1313, 1313-1315, 1317-1318 (1992) (“We recognize
that the sole difference between this case and Nickles Bakery is that, in this case, the broad 15
language has been typed by the Union in the body of the charge form in addition to having been
preprinted by the Board on the bottom of it”). That clearly is not the case here. Thus the record
does not establish that the charge against Pharmacy fails to adequately support the relevant
Complaint allegations.
20
Finally, Respondents’ assertion that the charge against Pharmacy is precluded under
Section 10(b) is unfounded. Respondents contend that the complaint’s allegations against
Pharmacy are solely based on the implementation of the arbitration policy in October 2014, and
thus the charge against Pharmacy, filed on June 25, 2015, is time barred. However, the
complaint alleges at paragraph 14 that “Beginning around October 2014, Respondents 25
implemented their workplace dispute resolution program for new employees by presenting new
employees with a copy of the ‘CVS Health Arbitration Agreement,’ as part of Respondents’ on-
boarding process.” As a result, the complaint alleges, and the Stipulation of Facts entered into
by the parties provides, that both Respondents have applied the arbitration policy, including the
Arbitration Agreement, to new employees on an ongoing basis. It is well-settled that the 30
maintenance of an unlawful work rule within the 10(b) period constitutes a continuing violation.
See, e.g., Pama Management, 363 NLRB No. 38 at p. 1; On Assignment Staffing Services, 362
NLRB No. 189 at p. 2, fn. 6. As a result, the allegations against Pharmacy are not time barred.
For all of the foregoing reasons, I find that Respondents’ arbitration policy, as contained 35
in the Arbitration of Workplace Legal Disputes, Course 800305, the CVS Health Colleague
Guide to Arbitration including the Arbitration of Workplace Legal Disputes policy, and the CVS
Health Arbitration Agreement, impermissibly requires that employees waive their right under
Section 7 to pursue collective or class actions. As a result the arbitration policy violates Section
8(a)(1) of the Act.40
CONCLUSIONS OF LAW
1. Respondent CVS RX Services, Inc., is an employer engaged in commerce within the 45
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent CVS Pharmacy, Inc., is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
50
JD(NY)-48-15
13
3. By implementing and maintaining a workplace dispute resolution program which requires
employees, as a condition of employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial, unless employees individually opt out of the
waiver, Respondents CVS RX Services, Inc. and CVS Pharmacy, Inc. have violated Section
8(a)(1) of the Act.5
4. The above violation is an unfair labor practice affecting commerce within the meaning of
Sections 2(6) and (7) of the Act.
REMEDY10
Having found that Respondent engaged in an unfair labor practice, I shall order it to
cease and desist from such conduct and to take certain affirmative action designed to effectuate
the policies of the Act.
15
I have found that Respondents implemented and maintained a mandatory workplace
dispute resolution policy which requires employees, as a condition of employment, to waive the
right to maintain class or collective actions in all forums, whether arbitral or judicial, unless
employees individually opt out of the waiver. I therefore recommend that Respondents be
ordered to rescind the Arbitration of Workplace Legal Disputes, Course 800305, the CVS Health 20
Colleague Guide to Arbitration, the Arbitration of Workplace Legal Disputes Policy and the CVS
Health Arbitration Agreement, and to provide the employees with specific notification that these
documents have been rescinded. I recommend that Respondent be ordered to alternatively
revise the Arbitration of Workplace Legal Disputes, Course 800305, the CVS Health Colleague
Guide to Arbitration, the Arbitration of Workplace Legal Disputes Policy and the CVS Health 25
Arbitration Agreement to clarify that they do not constitute a waiver in all forums of the
employees’ right to maintain employment-related class or collective claims, and to notify the
employees of the revised documents, including providing the employees with copies of the
revised documents. Because Respondents applied the workplace dispute resolution program to
all of their employees as a condition of their employment, I will recommend that Respondents30
post a notice in all locations where the Arbitration of Workplace Legal Disputes, Course 800305,
the CVS Health Colleague Guide to Arbitration, the Arbitration of Workplace Legal Disputes
Policy and the CVS Health Arbitration Agreement were utilized. On Assignment Staffing
Services, 362 NLRB No. 189 at p. 10; D.R. Horton, Inc., 357 NLRB No. 184 at p. 13; U-Haul
Co. of California, 347 NLRB at 375, fn. 2; see also Guardsmark, LLC, 344 NLRB 809, 812 35
(2005), enfd. in relevant part, 475 F.3d 369 (D.C.Cir. 2007).
On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended8
40
ORDER
The Respondents, CVS RX Services, Inc. and CVS Pharmacy, Inc., their officers,
agents, successors and assigns, shall
45
1. Cease and desist from

8 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all
purposes.
JD(NY)-48-15
14
(a) Implementing and maintaining a workplace dispute resolution program which
requires employees, as a condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral or judicial, unless
employees individually opt out of the waiver.5
(b) In any like or related manner, interfering with, restraining, 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.10
(a) Rescind the Arbitration of Workplace Legal Disputes, Course 800305, the CVS
Health Colleague Guide to Arbitration, the Arbitration of Workplace Legal
Disputes Policy and the CVS Health Arbitration Agreement, or revise these
documents to make clear to employees that they do not constitute a waiver in all 15
forums of the employees’ right to maintain employment-related class or collective
actions.
(b) Notify the employees of the rescission or the revised Arbitration of Workplace
Legal Disputes, Course 800305, CVS Health Colleague Guide to Arbitration, 20
Arbitration of Workplace Legal Disputes Policy and CVS Health Arbitration
Agreement, and provide them with a copy of the revised documents or specific
notification that the documents have been rescinded.
(c) Within 14 days after service by the Region, post, all locations where the 25
Arbitration of Workplace Legal Disputes, Course 800305, the CVS Health
Colleague Guide to Arbitration, the Arbitration of Workplace Legal Disputes
Policy and the CVS Health Arbitration Agreement were utilized, copies of the
attached notice marked “Appendix.”9 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondents’30
authorized representative, shall be posted by the Respondents and maintained
for 60 consecutive days in conspicuous places, including all places where notices
to employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as email, posting on an
intranet or an internet site, and/or other electronic means, if Respondents35
customarily communicate with employees by such means. Reasonable steps
shall be taken by Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, Respondents have gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate 40
and mail, at its own expense, a copy of the notice to all current employees
employed by Respondents at any time since October 1, 2014.
(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 45
attesting to the steps that the Respondent has taken to comply.

9 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 Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-48-15
15
Dated, Washington, D.C., December 24, 2015
__________________________
Lauren Esposito
Administrative Law Judge5
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 the National Labor Relations Act
and has ordered us to post and abide by 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 benefits and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain a workplace dispute resolution program which requires employees, as
a condition of employment, to waive the right to maintain class or collective actions in all forums,
whether arbitral or judicial, unless employees individually opt out of the waiver.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind or revise our Arbitration of Workplace Legal Disputes, Course 800305, CVS
Health Colleague Guide to Arbitration, Arbitration of Workplace Legal Disputes Policy and CVS
Health Arbitration Agreement to make clear to employees that these documents do not require a
waiver of their right to maintain employment-related class or collective actions in all forums.
WE WILL notify employees of the rescinded or revised Arbitration of Workplace Legal Disputes,
Course 800305, CVS Health Colleague Guide to Arbitration, Arbitration of Workplace Legal
Disputes Policy and CVS Health Arbitration Agreement, and provide them with a copy of the
revised documents or specific notification that these documents have been rescinded.
CVS RX Services, Inc.
(Employer)
Dated By
(Representative) (Title)
CVS Pharmacy, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-141164 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER.