CVS RX Services, Inc.

National Labor Relations Board - Board Decisions

May 4, 2016

363 NLRB No. 180 (N.L.R.B. 2016)

363 NLRB No. 180
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 RX Services, Inc. and CVS Pharmacy, Inc. and
Kenneth Sternfeld. Cases 29–CA–141164 and
29–CA–155028
May 4, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On December 24, 2015, Administrative Law Judge
Lauren Esposito issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondents filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decisions in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part 808 F.3d 1013 (5th Cir. 2015), that the Re-
spondents violated Section 8(a)(1) of the Act by imple-
menting and maintaining an arbitration program that re-
quires employees, as a condition of employment, to
waive their rights to pursue class or collective actions
involving employment-related claims in all forums,
whether arbitral or judicial, unless employees individual-
ly opt out of the waiver.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3 as

1 The Respondents have requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondents contend that the opt-out provision of its arbitra-
tion program places it outside the scope of the prohibition against man-
datory individual arbitration agreements under Murphy Oil and D. R.
Horton. See D. R. Horton, 357 NLRB at 2289 fn. 28. For the reasons
stated by the judge, we reject this argument. See On Assignment Staff-
ing Services, 362 NLRB No. 189, slip op. at 1, 4–5 (2015); see also
Nijjar Realty, Inc., d/b/a Pama Management, 363 NLRB No. 38
(2015).
3 The Respondents argue that the complaint against CVS Pharma-
cy, Inc. (Pharmacy) is time barred by Sec. 10(b) because the unfair
labor practice charge against Pharmacy was filed and served more than
6 months after Pharmacy implemented the Arbitration of Workplace
Legal Disputes Policy and the CVS Health Arbitration Agreement. We
reject this argument as to the maintenance allegation, because Pharma-
cy continued to maintain the Respondents’ unlawful arbitration pro-
gram during the 6-month period preceding the filing of the charge.
Although the Respondents contend that Pharmacy did not “apply or
enforce” the policy, they do not dispute that Pharmacy’s policy and
modified below, and to adopt the recommended Order as
modified and set forth in full below.4
AMENDED CONCLUSIONS OF LAW
Substitute the following as Conclusion of Law 3.
“3(a) By implementing and maintaining a mandatory
arbitration program that requires employees, as a condi-

agreement were in effect during the 10(b) period “on an ongoing basis”
as the judge found, and as established in the joint stipulation and al-
leged in the complaint. The Board has long held under these circum-
stances that maintenance of an unlawful workplace rule, such as the
Respondents’ arbitration program, constitutes a continuing violation
that is not time-barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB
No. 177, slip op. at 1 (2015); Neiman Marcus Group, Inc., 362 NLRB
No. 157, slip op. at 2 & fn. 6 (2015); and Cellular Sales of Missouri,
LLC, 362 NLRB No. 27, slip op. at 2 & fn. 7 (2015). We find merit,
however, in the Respondents’ exception with regard to the allegation
that Pharmacy unlawfully implemented the arbitration program. Be-
cause the record indicates that the charge against Pharmacy was filed
outside the 10(b) period for implementation, we find that the imple-
mentation allegation is time-barred. Accordingly, we shall amend the
judge’s conclusions of law and recommended Order to reflect that, with
respect to Pharmacy, only its maintenance of the arbitration program
was unlawful.
The Respondents raise several additional arguments, including that
the charge was improperly solicited, that the charges do not adequately
support the complaint, and that the complaint does not provide the
Respondents with adequate notice of the claims against them. We find
these arguments to be meritless for the reasons stated by the judge.
Finally, the Respondents contend that the judge erred in awarding
retroactive relief. We applied our holdings in D. R. Horton, Murphy
Oil, and On Assignment retroactively. As a result, we reject the Re-
spondents’ contention that retroactive relief here would be manifestly
unjust and deny their request that any remedy be applied prospectively
only.
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, above, slip op. at 22–35, would find that the Respondents’
arbitration program does not violate Sec. 8(a)(1), especially because the
program contains an opt-out provision. He observes that the Act “cre-
ates no substantive right for employees to insist on class-type treatment
of non-NLRA claims.” This is surely correct, as the Board has previ-
ously explained in Murphy Oil, above, slip op. at 2, and Bristol Farms,
363 NLRB No. 45, slip op. at 2 fn. 2 (2015). But what our colleague
ignores is that the Act “does create a right to pursue joint, class, or
collective claims if and as available, without the interference of an
employer-imposed restraint.” Murphy Oil, above, slip op. at 2 (empha-
sis in original). The Respondents’ arbitration program is just such an
unlawful restraint even considering its opt-out provision. See On As-
signment Staffing Services, above, slip op. at 4, 8–9 & fns. 28, 29, and
31.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the arbitra-
tion program unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 2. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
4 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language for the violations found and to
provide separate Orders for CVS RX Services, Inc. and Pharmacy. We
shall also substitute new notices to conform to the Orders as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tion 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, Respondent CVS RX Services, Inc. has violated
Section 8(a)(1) of the Act.
“(b) By maintaining a mandatory arbitration program
that 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 employ-
ees individually opt out of the waiver, Respondent CVS
Pharmacy, Inc. has violated Section 8(a)(1) of the Act.”
ORDER
A. The National Labor Relations Board orders that the
Respondent, CVS RX Services, Inc., Woonsocket,
Rhode Island, with a place of business in Chemung, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing and maintaining a mandatory arbi-
tration program that requires employees, as a condition
of employment, to waive the right to maintain class or
collective actions in all forums, whether arbitral or judi-
cial, unless employees individually opt out of the waiver.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Arbitration of Workplace Legal Dis-
putes, Course 800305, the CVS Health Colleague Guide
to Arbitration, the Arbitration of Workplace Legal Dis-
putes Policy, and the CVS Health Arbitration Agreement
in all of their forms, or revise them in all of their forms to
make clear to employees that the arbitration program
does not constitute a waiver of their right to maintain
employment-related joint, class, or collective actions in
all forums.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the Arbi-
tration of Workplace Legal Disputes, Course 800305, the
CVS Health Colleague Guide to Arbitration, the Arbitra-
tion of Workplace Legal Disputes Policy, and the CVS
Health Arbitration Agreement in any form that they have
been rescinded or revised and, if revised, provide them a
copy of the revised documents.
(c) Within 14 days after service by the Region, post a
copy of the attached notice marked “Appendix A” at all
CVS RX Services, Inc. facilities where the unlawful Ar-
bitration of Workplace Legal Disputes, Course 800305,
the CVS Health Colleague Guide to Arbitration, the Ar-
bitration of Workplace Legal Disputes Policy, and the
CVS Health Arbitration Agreement are or have been in
effect.5 Copies of the notices, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive 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 by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
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 facilities involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix A” to all current
employees and former employees employed by CVS RX
Services, Inc. at any time since October 1, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. The National Labor Relations Board orders that the
Respondent, CVS Pharmacy, Inc., Woonsocket, Rhode
Island, with a place of business in Lindenhurst, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration program that
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.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Arbitration of Workplace Legal Dis-
putes, Course 800305, the CVS Health Colleague Guide
to Arbitration, the Arbitration of Workplace Legal Dis-
putes Policy, and the CVS Health Arbitration Agreement
in all of their forms, or revise them in all of their forms to
make clear to employees that the arbitration program
does not constitute a waiver of their right to maintain

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional 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 RX SERVICES 3
employment-related joint, class, or collective actions in
all forums.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the Arbi-
tration of Workplace Legal Disputes, Course 800305, the
CVS Health Colleague Guide to Arbitration, the Arbitra-
tion of Workplace Legal Disputes Policy, and the CVS
Health Arbitration Agreement in any form that they have
been rescinded or revised and, if revised, provide them a
copy of the revised documents.
(c) Within 14 days after service by the Region, post a
copy of the attached notice marked “Appendix B” at all
CVS Pharmacy, Inc. facilities where the unlawful Arbi-
tration of Workplace Legal Disputes, Course 800305, the
CVS Health Colleague Guide to Arbitration, the Arbitra-
tion of Workplace Legal Disputes Policy, and the CVS
Health Arbitration Agreement are or have been in effect.6
Copies of the notices, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent 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 dis-
tributed 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. Reasonable 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 facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix B” to all current employees and for-
mer employees employed by CVS Pharmacy, Inc. at any
time since December 25, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 4, 1016
______________________________________
Mark Gaston Pearce, Chairman

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional 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.”
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues find that the Respondents’
CVS Health Arbitration Agreement and Arbitration of
Workplace Legal Disputes Policy, including the Arbitra-
tion of Workplace Legal Disputes, Course 800305 and
CVS Health Colleague Guide to Arbitration (the Pro-
gram), violate Section 8(a)(1) of the National Labor Re-
lations Act (the Act or NLRA) because the Program
waives the right to participate in class or collective ac-
tions regarding non-NLRA employment claims. I re-
spectfully dissent from this finding for the reasons ex-
plained in my partial dissenting opinion in Murphy Oil
USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, I disagree with my colleagues’ finding that Section
8(a)(1) of the NLRA prohibits agreements that waive
class and collective actions, and I especially disagree
with the Board’s finding here, similar to the Board ma-
jority’s finding in On Assignment Staffing Services, 3 that
class-waiver agreements violate the NLRA even when
they contain an opt-out provision. In my view, Sections
7 and 9(a) of the NLRA render untenable both of these
propositions. As discussed in my partial dissenting opin-
ion in Murphy Oil, NLRA Section 9(a) protects the right
of every employee as an “individual” to “present” and

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015). Because I would find the Program
lawful, I find it unnecessary to reach the issues addressed by the ma-
jority in fn. 3 of their opinion.
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
“adjust” grievances “at any time.” 4 This aspect of Sec-
tion 9(a) is reinforced by Section 7 of the Act, which
protects each employee’s right to “refrain from” exercis-
ing the collective rights enumerated in Section 7. Thus, I
believe it is clear that (i) the NLRA creates no substan-
tive right for employees to insist on class-type treatment
of non-NLRA claims;5 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;6 (iii) en-
forcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);7 and (iv) for the reasons stated in my

4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
5 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D.R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
6 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil, Inc., USA
v. NLRB, above; D.R. Horton, Inc. v. NLRB, above. The overwhelming
majority of courts considering the Board’s position have likewise re-
jected it. See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 96 F.Supp.3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco
USA, Inc., 99 F.Supp.3d 1072 (N.D. Cal. 2015), motion to certify for
interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
of prior determination that class waiver in arbitration agreement violat-
ed NLRA); but see Totten v. Kellogg Brown & Root, LLC, No. ED CV
14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal. Jan. 22, 2016).
7 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
dissenting opinion in Nijjar Realty, Inc. d/b/a Pama
Management, 363 NLRB No. 38, slip op. at 3–5 (2015),
the legality of such a waiver is even more self-evident
when the agreement contains an opt-out provision, based
on every employee’s Section 9(a) right to present and
adjust grievances on an “individual” basis and each em-
ployee’s Section 7 right to “refrain from” engaging in
protected concerted activities. Although questions may
arise regarding the enforceability of particular agree-
ments that waive class or collective litigation of non-
NLRA claims, I believe these questions are exclusively
within the province of the court or other tribunal that,
unlike the NLRB, has jurisdiction over such claims.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. May 4, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 vio-
lated 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
activities.
WE WILL NOT implement or maintain a mandatory ar-
bitration program that requires our employees, as a con-
dition 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 you in the exercise of the rights
listed above.

forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
CVS RX SERVICES 5
WE WILL 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 Agree-
ment in all of their forms, or revise them in all of their
forms to make clear that the arbitration program does not
constitute a waiver of your right to maintain joint, class,
or collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to 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 in any form that
they have been rescinded or revised and, if revised, WE
WILL provide them a copy of the revised documents.
CVS RX SERVICES, INC.
The Board’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 Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
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 vio-
lated 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
activities.
WE WILL NOT maintain a mandatory arbitration pro-
gram that requires our employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive 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 you in the exercise of the rights
listed above.
WE WILL 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 Agree-
ment in all of their forms, or revise them in all of their
forms to make clear to employees that the arbitration
program does not constitute a waiver of your right to
maintain joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to 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 in any form that
they have been rescinded or revised and, if revised, WE
WILL provide them a copy of the revised documents.
CVS PHARMACY, INC.
The Board’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 Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 subsidi-
ary 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 re-
strains employees in the exercise of their rights pursuant to
Section 7 of the Act. RX Services and Pharmacy filed an an-
swer 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 fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times, RX Services has been a domestic cor-
poration in the business of receiving, processing, and filling
medical prescriptions for CVS retail pharmacies, with its prin-
cipal office located at One CVS Drive, Woonsocket, Rhode
Island, and a place of business 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, Lin-
denhurst, New York. At all material times, Pharmacy, through
subsidiaries such as CVS Albany, LLC, has been engaged in
the retail sale of health products, beauty products, groceries,
and other consumer products. RX Services and Pharmacy ad-
mit 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.”
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
RX Services, a wholly-owned subsidiary of Pharmacy, em-
ploys approximately 23,537 employees at retail pharmacies
nationwide. Pharmacy operates approximately 7,800 retail
stores nationwide, and directly employs approximately 29,789
employees. RX Services has employed Charging Party Ken-
neth 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 at
other stores operated by CVS Albany, LLC.1 (Jt. Exh. 1, par.
9–15.)

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.
In around October 2014, RX Services and Pharmacy imple-
mented 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 describing and presenting it, entitled: “Arbitra-
tion of Workplace Legal Disputes, Course 800305.” Substan-
tially 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.) Arbi-
tration 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
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
employment with CVS Health after becoming aware of the
policy. With that being said, we want colleagues’ participa-
tion 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 policy. If a colleague opts out, he or she will not be
obligated to go to arbitration and can continue to use the tradi-
tional 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.
How to Opt Out
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 col-
league’s opt out notice 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.
CVS Health will not tolerate retaliation against any colleague
who decides to opt out.
(Jt. Exh. 1, par. 17.)
The CVS Health Colleague Guide to Arbitration also con-
tains Respondents’ arbitration policy, entitled: “Arbitration of
Workplace Legal Disputes.” The Arbitration of Workplace
Legal Disputes policy provides in part as follows:
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 the
applicability of policies likes this one. Covered employees
are referred to in this policy as “Employee” or “Employees.”

2 CVS Health Corporation is the parent company of Pharmacy, and
does not employ any employees.
CVS RX SERVICES 7
PROCEDURES
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 this Policy, This Policy is an
agreement to arbitrate disputes covered by the Federal Arbi-
tration 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 Policy, Covered Claims are any legal claims, disputes
or controversies that CVS Health may have, now or in the fu-
ture, against any Employee or that an Employee may have,
now or in the future, against CVS Health, its parents, subsidi-
aries, successors or affiliates, or one of its employees or
agents, arising out of or related to the Employee’s employ-
ment with CVS Health or the termination of the Employee’s
employment.
Covered Claims include but are not limited to disputes regard-
ing wages and other forms of compensation, hours of work,
meal and rest break periods, seating, expense reimbursement,
leaves of absence, harassment, discrimination, retaliation and
termination arising under the Civil Rights Act of 1964, Amer-
icans with Disabilities Act, Age Discrimination in Employ-
ment 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 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. . . .
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 ba-
sis only; Employee and CVS Health waive any right or au-
thority for any Covered Claims to be brought, heard or arbi-
trated as a class, collective, representative or private attorney
general action. This Class Action 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, en-
forceability or breach of this Class Action Waiver will be re-
solved only by a civil court of competent jurisdiction and not
by an arbitrator. If, despite this Class Action Waiver, an Em-
ployee files or participates in a class, collective or representa-
tive 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, collective or representative ac-
tions or claims.
(Jt. Exh. 1, par. 18.)
Once employees had finished their review of the CVS Health
Colleague Guide to 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 “Pol-
icy”) and understand that it 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, Human Resources or the CVS Health Pol-
icy & 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 Health, P.O. Box 969, Woonsock-
et, RI 02895, which must be postmarked no later than
30 days after the date you first received or viewed a
copy of this Policy;
 that by being covered by the Policy and not opting
out, you and CVS Health are obligated to go to arbi-
tration instead of court to resolve legal claims cov-
ered 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 class, collective or repre-
sentative action brought on behalf of or regarding
others to decide claims covered by the Policy;
 that this electronic communication satisfies any re-
quirement that such communication be in writing;
and
 that your click of the “Yes” button creates an elec-
tronic signature that is legally binding.
This acknowledgement was printed in the CVS Health Col-
league Guide to Arbitration, the pdf document, and then repeat-
ed in the Arbitration of Workplace Legal Disputes, Course
800305 training course. (Jt. Exh. 1, par. 19.)
Beginning in or around October 2014, Respondents imple-
mented a workplace dispute resolution program for substantial-
ly 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. Whether or not they opt out of the

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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Agreement does not affect their ability to work for Respond-
ents.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., including its affiliates, suc-
cessors, 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 fi-
nal and binding arbitration only and will not be decided
by a court or jury or 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 that 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 of 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
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, ex-
cept as provided in paragraph 6, below, regarding the Class
Action Waiver. . . .
6. Waiver of Class, Collective and Representative Ac-
tions (“Class Action Waiver”). You and CVS agree to
bring any Covered Claims in arbitration on an individual ba-
sis only; You and CVS waive any right or authority for any
Covered Claims to be brought, heard or arbitrated as a
class, collective, representative or private attorney general ac-
tion. . . .
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 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.
9. Statement of Assent and Understanding. By signing
below, You acknowledge that You have carefully read

4 Charging Party Sternfeld was never asked to enter into the CVS
Health Arbitration Agreement.
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 have 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, You and
CVS are giving up the right to go to court to resolve
Covered Claims and giving up the right to bring or par-
ticipate in a class. collective or representative action
brought on behalf of or regarding others on Covered
Claims.
(Jt. Exh. 1, par. 20–21.)
Since about October 2014, approximately 2,173 of RX Ser-
vices’ employees have opted out of the Arbitration of Work-
place Legal Disputes policy and/or the Arbitration Agreement,
including Charging Party Sternfeld. RX Services and Pharma-
cy process employees’ opt-out letters so as to keep an employ-
ee’s designation with respect to the arbitration program confi-
dential. 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.)
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 Work-
place Legal Disputes Policy.” CVS received Sternfeld’s letter
on October 24, 2014. (Jt. Exh. 1, par. 25–26.)
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 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 2277 (2012), enf. denied
in relevant part 737 F.3d 344 (5th Cir. 2013); Murphy Oil USA,
361 NLRB No. 72 at 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 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, vio-
lates Section 8(a)(1) pursuant to D. R. Horton and Murphy Oil
USA. General Counsel further contends that the opt-out provi-

5 The Arbitration of Workplace Legal Disputes policy and the Arbi-
tration Agreement will be collectively referred to as Respondents’
arbitration policy, where appropriate.
CVS RX SERVICES 9
sions of Respondents’ arbitration policy are insufficient to es-
tablish that the policy does not constitute a 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, supra, at 5–8.
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. Respond-
ents also contend that class action waivers which are not man-
datory conditions of employment are not prohibited by Section
8(a)(1), and argue that D. R. Horton and Murphy Oil USA
should be distinguished on that basis. Respondents contend
that because the Federal Arbitration Act compels the enforce-
ment 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. Regard-
less, Respondents argue that the class action waiver here is
distinct from those at issue in On Assignment Staffing Services,
and is therefore permissible. Finally, Respondents make sever-
al 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 compli-
ance 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 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 case law discussed above. Like the arbitration
policies in D. R. Horton, Murphy Oil USA, and On 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., supra at 2277; Murphy Oil USA, Inc., 361 NLRB No. 72,
slip op. at 1, 3, 18–19; On Assignment Staffing Services, supra,
at 2–4; see also Amex Card Services Co., 363 NLRB No. 40,
slip op. at 1–2 (2015). The Arbitration of Workplace Legal
Disputes policy contained in the CVS 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 the future, against CVS Health, its par-
ents, subsidiaries, successors or affiliates, or one of its em-
ployees or agents, arising out of or related to the Employee’s
employment with CVS Health or the termination of the Em-
ployee’s employment.
Paragraph 6 of the Arbitration of Workplace Legal Disputes
policy states that “Covered Claims” will be brought “on an
individual basis only” (emphasis in original), and may not be
“brought, heard or arbitrated as a class, collective representa-
tive 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
1, 2, and 6, respectively. The CVS Health Arbitration Agree-
ment 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 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.
I further find that the opt-out provisions contained in Re-
spondents’ arbitration policy do not establish that the arbitra-
tion 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
Workplace Legal Disputes Policy, and the CVS Health Arbitra-
tion Agreement require employees to execute an acknowl-
edgement verifying that they have reviewed the Policy and the
Agreement. 362 NLRB No. 189, slip op. at 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” opting out within a
specified period of time (30 days) of having first received or
viewed it. 362 NLRB No. 189, slip op. at 2, 3 (Dispute Resolu-
tion 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 collec-
tive or class actions “does not cease to be a condition of em-
ployment simply because employees are given an opportunity
to opt out of it.” 362 NLRB No. 189, at slip op. 1, 3, 4; see also
PAMA Management, 363 NLRB No. 38, slip op. at 1, 2, 11
(2015).
As a result, here, as in On Assignment Staffing Services, Re-
spondents’ employees are required to opt-out of the arbitration
policy via a written statement within parameters established by
Respondents in order to ensure the opt-out’s effectiveness. 362
NLRB No. 189, slip op. at 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 post-
marked no later than 30 days after the date the colleague first
views or receives the policy,” this being “the only way to opt
out.” In On Assignment Staffing Services, the Board found that
such a procedure “creates a second mandatory condition of
employment,” requiring that the employee comply with proce-
dures imposed by the employer, which interferes with the right
under Section 7 to purse collective or class litigation “by signif-
icantly burdening its exercise.” 362 NLRB No. 189, slip op. at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
1, 4–5. In addition, Respondents’ arbitration policy, like the
policy at issue in On Assignment Staffing Services, impermissi-
bly requires that employees “make an observable choice” or
“reveal their sentiments” regarding Section 7 activity, by ac-
knowledging their review of the policy and submitting a written
statement of their desire to opt out to the employer. 362 NLRB
No. 189, at slip op. 4–5, quoting Allegheny Ludlum Corp., 333
NLRB 734, 740 (2001), enfd. 301 F.3d 167 (3d Cir. 2002).
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, Re-
spondents 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 opting out within 10 days. 362 NLRB No. 189, slip op. at
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 not legally significant given the
Board’s holding in On Assignment Staffing Services that “the
fact that employees must take any steps to preserve their Sec-
tion 7 rights burdens the exercise of those rights.” 362 NLRB
No. 189, slip op. 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. Alt-
hough 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 employ-
ees disclose to the employer their sentiments regarding activity
protected by Section 7. On Assignment Staffing Services, 362
NLRB No. 189, slip op. at 5, fn. 12 (class action waiver’s lan-
guage 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 amelio-
rate waiver’s coercive impact).
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 law-
fully “enter into an agreement that is not a condition of em-
ployment with an individual employee to resolve . . . all poten-
tial employment disputes 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, slip op. at 5–
6, quoting D. R. Horton, 357 NLRB 2277, 2287 fn. 28 (empha-
sis in original). The Board concluded that such “non-
mandatory agreements” also require that employees “prospec-
tively waive their Section 7 rights,” and are therefore “contrary
to the National Labor Relations Act and to fundamental princi-
ples of federal labor policy.” On Assignment Staffing Services,
362 NLRB No. 189, slip op. at 6; see also PAMA Management,
363 NLRB No. 38, slip op. at 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
incorrect, citing decisions of the federal courts and NLRB Ad-
ministrative Law Judges. 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 No. 189, slip op. at 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 ap-
plies 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 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). Fur-
thermore, 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, slip op. at 8 (2015).
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 arbi-
tration policy, never accepted Respondent’s offer to enter into
such an agreement. Respondents contend that because the
Board’s holdings in D. R. Horton and Murphy Oil USA in-
volved 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 the necessity of
complying with its requirements—requirements which, as dis-
cussed 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 Sternfeld was never employed by Pharmacy, and that the

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,
slip op. at 2, 8–9; see also Chesapeake Energy Corp., 362 NLRB No.
80, slip op. at 3 (2015).
CVS RX SERVICES 11
Board improperly informed RX Services that if it did not stipu-
late 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 person,” not solely an employ-
ee 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, slip op.
at 1 fn. 2 (2015) (charge filed by former employee of Respond-
ent); 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 Pharmacy was improperly solicited, because
Respondents have not established that the Board acted “so
completely outside of the situation which gave rise to the (orig-
inal) 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); Al-
lis-Chalmers Corp., 224 NLRB 1199, 1218 fn. 30 (1976), enfd.
in relevant part 563 F.2d 674 (5th Cir. 1977). Respondents
stipulated here that in or around October 2014, they imple-
mented 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 charge
against RX Services that the Board could be viewed as “initiat-
ing the proceeding on its own motion.” See Alberici-Fruin-
Conlon, 226 NLRB at 1316 (charge against employer alleging
discharge in violation of Sec. 8(a)(3) not improperly solicited,
where original charge against union alleged unlawful attempt to
cause employer to discriminate against Charging Party in viola-
tion of Section 8(b)(2)); see also NLRB v. Laborers, 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 the claims against them because it
construes Respondents and Sternfeld as having entered into an
agreement in the context of Respondents’ Arbitration of Work-
place 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 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 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
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 poli-
cy and Arbitration Agreement, restricts the exercise of employ-
ees’ Section 7 rights.7 Respondents contend that the charges
against RX Services and Pharmacy both allege that the arbitra-
tion policy is “overbroad” or “overly broad” in impact—a theo-
ry which is qualitatively distinct from an assertion that the arbi-
tration policy violated Section 8(a)(1) by requiring a waiver 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 Indi-
ana, 296 NLRB at 928 fn. 5 (“similar legal theories” alleged in
charge and complaint need not involve 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. Fur-
thermore, Lotus Suites, Inc. v. NLRB, 32 F.3d 588 (D.C. Cir.
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 whatsoev-
er. Lotus Suites, 32 F.3d at 591–592; Embassy Suites Resorts,
309 NLRB 1313, 1313–1315, 1317–1318 (1992) (“We recog-
nize that the sole difference between this case and Nickles Bak-
ery is that, in this case, the broad 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 clear-
ly is not the case here. Thus the record does not establish that
the charge against Pharmacy fails to adequately support the

7 The charge against RX Services alleged that “In October 2014,
CVS instituted a nationwide ‘Guide to Arbitration,’ containing unlaw-
fully, 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 inter-
fering 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
relevant complaint allegations.
Finally, Respondents’ assertion that the charge against
Pharmacy is precluded under Section 10(b) is unfounded. Re-
spondents contend that the complaint’s allegations against
Pharmacy are solely based on the implementation of the arbitra-
tion policy in October 2014, and thus the charge against Phar-
macy, filed on June 25, 2015, is time-barred. However, the
complaint alleges at paragraph 14 that “Beginning around Oc-
tober 2014, Respondents implemented their workplace dispute
resolution program for new employees by presenting new em-
ployees with a copy of the ‘CVS Health Arbitration Agree-
ment,’ as part of Respondents’ on-boarding process.” As a
result, the complaint alleges, and the Stipulation of Facts en-
tered into by the parties provides, that both Respondents have
applied the arbitration policy, including the Arbitration Agree-
ment, to new employees on an ongoing basis. It is well settled
that the maintenance of an unlawful work rule within the 10(b)
period constitutes a continuing violation. See, e.g., Pama
Management, 363 NLRB No. 38, slip op. at 1; On Assignment
Staffing Services, 362 NLRB No. 189, slip op. at 2 fn. 6. As a
result, the allegations against Pharmacy are not time barred.
For all of the foregoing reasons, I find that Respondents’ ar-
bitration policy, as contained 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 Agree-
ment, impermissibly requires that employees waive their right
under Section 7 to pursue collective or class actions. As a re-
sult the arbitration policy violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent CVS RX Services, Inc., is an employer en-
gaged in commerce within the 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.
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 em-
ployees individually opt out of the waiver, Respondents CVS
RX Services, Inc. and CVS Pharmacy, Inc. have violated Sec-
tion 8(a)(1) of the Act.
4. The above violation is an unfair labor practice affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
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.
I have found that Respondents implemented and maintained
a mandatory workplace dispute resolution policy which re-
quires 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 Colleague Guide to Arbitra-
tion, 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 Dis-
putes, Course 800305, the CVS Health Colleague Guide to
Arbitration, the Arbitration of Workplace Legal Disputes Poli-
cy and the CVS Health 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, includ-
ing providing the employees with copies of the revised docu-
ments. Because Respondents applied the workplace dispute
resolution program to all of their employees as a condition of
their employment, I will recommend that Respondents post a
notice in all locations where the Arbitration of Workplace Le-
gal Disputes, Course 800305, the CVS Health Colleague Guide
to Arbitration, the Arbitration of Workplace Legal Disputes
Policy and the CVS Health Arbitration Agreement were uti-
lized. On Assignment Staffing Services, 362 NLRB No. 189,
slip op. at 10; D. R. Horton, Inc., 357 NLRB 2277, 2287; U-
Haul Co. of California, 347 NLRB at 375 fn. 2; see also
Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in rele-
vant 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
ORDER
The Respondents, CVS RX Services, Inc. and CVS Pharma-
cy, Inc., their officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Implementing and maintaining a workplace dispute reso-
lution 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 em-
ployees individually opt out of the waiver.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the Arbitration of Workplace Legal Disputes,
Course 800305, the CVS Health Colleague Guide to Arbitra-
tion, the Arbitration of Workplace Legal Disputes Policy and
the CVS Health Arbitration Agreement, or revise these docu-
ments to make clear to employees that they do not constitute a
waiver in all forums of the employees’ right to maintain em-
ployment-related class or collective actions.
(b) Notify the employees of the rescission or the revised Ar-

8 If no exceptions are filed, as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purpos-
es.
CVS RX SERVICES 13
bitration of Workplace Legal Disputes, Course 800305, CVS
Health Colleague Guide to Arbitration, Arbitration of Work-
place Legal Disputes Policy and CVS Health Arbitration
Agreement, and provide them with a copy of the revised docu-
ments or specific notification that the documents have been
rescinded.
(c) Within 14 days after service by the Region, post, all loca-
tions where the Arbitration of Workplace Legal Disputes,
Course 800305, the CVS Health Colleague Guide to Arbitra-
tion, 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’ authorized representa-
tive, 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 inter-
net site, and/or other electronic means, if Respondents custom-
arily 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, Re-
spondents have gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees 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 attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., December 24, 2015
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 be-
half
Act together with other employees for your benefits
and protection
Choose not to engage in any of these protected activi-
ties.

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 Na-
tional 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.”
WE WILL NOT maintain a workplace dispute resolution pro-
gram 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 individu-
ally 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 guar-
anteed them by Section 7 of the Act.
WE WILL rescind or revise our Arbitration of Workplace Le-
gal Disputes, Course 800305, CVS Health Colleague Guide to
Arbitration, Arbitration of Workplace Legal Disputes Policy
and CVS Health Arbitration Agreement to make clear to em-
ployees 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 Arbi-
tration of Workplace Legal Disputes, Course 800305, CVS
Health Colleague Guide to Arbitration, Arbitration of Work-
place Legal Disputes Policy and CVS Health Arbitration
Agreement, and provide them with a copy of the revised docu-
ments or specific notification that these documents have been
rescinded.
CVS RX SERVICES, INC.
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.