PruittHealth Veteran Services-North Carolina, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 2020

369 N.L.R.B. 22 (N.L.R.B. 2020)

369 NLRB No. 22
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.
Pruitthealth Veteran Services-North Carolina, Inc.
and Ricky Edward Hentz. Case 10–CA–191492
February 5, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On May 4, 2018, Administrative Law Judge Keltner W.
Locke issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
and the Charging Party each filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings,1 and conclusions and to adopt his recommended Or-
der as modified and set forth below.2
ORDER
The Respondent, Pruitthealth Veteran Services-North
Carolina, Inc., Black Mountain, North Carolina, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees not to discuss their wages.
(b) Instructing employees not to express other employ-
ees’ complaints about working conditions.
(c) Issuing disciplinary notices to, demoting or trans-
ferring to less favorable work assignments, and/or dis-
charging employees because they expressed employee
complaints about racial discrimination in the workplace
against employees of color to local or corporate manage-
ment.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings. We do not rely, however, on the judge’s findings
that Tammy Ellis took notes of a telephone conversation with Ricky
Hentz regarding his complaint of a racially hostile work environment and
that such notes contradicted her testimony.
In finding that Charging Party Hentz engaged in protected concerted
activity, we rely only on the judge’s findings pertaining to Hentz’s com-
munications with other employees and to supervisors about group com-
plaints that actions by the Respondent’s management created a work-
place atmosphere of racial discrimination. We thus find it unnecessary
to pass on the judge’s findings that Hentz engaged in any other protected
concerted activity.
The Respondent has not excepted to the judge’s findings (1) that Jus-
tin Morrison, the Respondent’s administrator, unlawfully told Hentz to
(d) In any like or related manner interfering with, re-
straining, 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.
(a) Within 14 days from the date of this Order, offer
employee Ricky Edward Hentz full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Make Hentz whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(c) Compensate Hentz for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 10, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar years.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline, de-
motion, and discharge of employee Hentz, and within 3
days thereafter, notify Hentz in writing that this has been
done and that the discipline, demotion, and discharge will
not be used against him in any way.
“stay in your lane” when Hentz informed him that LPN Sigmund had
said she was unfairly treated by management in connection with her clas-
sification and scheduling; and (2) that the Respondent unlawfully told
employees not to discuss their wage rates.
2 We amend the judge’s remedy and modify the Order in several re-
spects. We shall order the Respondent to compensate Hentz for the ad-
verse tax consequences, if any, associated with receiving a lump-sum
backpay award and to file with the Regional Director for Region 10 a
report allocating the backpay award to the appropriate calendar
years. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). In ad-
dition, in accordance with King Soopers, Inc., 364 NLRB No. 93 (2016),
the Respondent shall compensate Hentz for his reasonable search-for-
work and interim employment expenses, if any, regardless of whether
those expenses exceed interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). Finally, we shall substitute a new notice to
conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(f) Within 14 days after service by the Region, post at
its facilities in Black Mountain, North Carolina, copies of
the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 10, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In addition to
physical posting of paper notices, notices shall be distrib-
uted electronically, such as by email, posting on an intra-
net or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employ-
ees by such means. In the event that, during the pendency
of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since September 9, 2016.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 10 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. February 5, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

3 If this Order is enforced by a judgment of the 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
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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 ac-
tivities.
WE WILL NOT tell you that employees may not discuss
their wages or other terms and conditions of employment.
WE WILL NOT tell you not to express other employees’
complaints about working conditions or otherwise not to
act in concert for their mutual aid or protection.
WE WILL NOT discipline, demote, or discharge any of
you for engaging in protected concerted activities by ex-
pressing other employees’ group complaints about work-
ing conditions.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
the rights described above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ricky Edward Hentz full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed
WE WILL make Hentz whole for any loss of earnings and
other benefits resulting from our discrimination against
him, less any net interim earnings, plus interest, and WE
WILL also make him whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Hentz for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region
10, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocat-
ing the backpay award to the appropriate calendar years.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful discipline, de-
motion and discharge of Hentz, and WE WILL, within 3
days thereafter, notify him in writing this has been done
and that that the discipline, demotion and discharge will
not be used against him in any way.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 3
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA,
INC.
The Board’s decision can be found at
www.nlrb.gov/case/10-CA-191492 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
Joel R. White, Esq., for the General Counsel.
Glen C. Shults, Esq. and Linda E. Vespereny, Esq., of Asheville,
North Carolina, for the Charging Party.
Jana L. Korhonen, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. After a new
administrator took command of the Respondent’s nursing home
for military veterans, the Charging Party told him that employees
believed there was racial prejudice in the workplace. Ordered to
“stay in your lane,” the Charging Party took the employees’ com-
plaint to HQ. I find that the administrator discharged him for
this protected concerted activity, thereby violating Section
8(a)(1) of the Act.
Procedural History
This case began on January 19, 2017, when the Charging
Party, Ricky Edward Hentz, filed an unfair labor practice charge
against the Respondent, Pruitthealth Veteran Services-North
Carolina, Inc., which was docketed as Case 10–CA–191492.
Hentz amended this charge on February 15, 2017.
On May 30, 2017, after investigation of the charge, the Acting
Regional Director for Region 10 of the National Labor Relations
Board, by the Acting Officer in Charge for Subregion 11, pursu-
ant to authority delegated by the Board’s General Counsel, is-
sued a complaint and notice of hearing, referred to below as the
complaint. The Respondent filed a timely answer.
On September 12, 2017, a hearing opened before me in Ashe-
ville, North Carolina. It continued on September 13 and closed
on September 14, 2017. Thereafter, the parties filed briefs,
which I have carefully considered.

1 Based upon Morrison’s testimony, I further conclude that he re-
mained the nursing home’s administrator, and therefore the
Filing and Service of Charges
The complaint alleges that Ricky Edward Hentz filed the ini-
tial charge against Respondent on January 19, 2017, the amended
charge on February 15, 2017, and that copies were served on Re-
spondent those same dates. The Respondent has admitted receipt
of the charges but has denied, for lack of knowledge, that Hentz
filed them on the dates alleged.
Based on the charges themselves and the certificates of service
of those charges, noting the Respondent’s admission it received
copies of the charges and the absence of any evidence to the con-
trary, and further noting the presumption of administrative regu-
larity, I find that the General Counsel has proven that the charges
were filed and served as alleged in complaint paragraphs 1(a)
and 1(b).
Admitted Allegations
In its answer to the complaint, and by stipulation during the
hearing, the Respondent admitted a number of allegations raised
in the complaint. Based on those admissions, I find that the Gen-
eral Counsel has proven the allegations raised in complaint par-
agraphs 2, 3, 4, and portions of complaint paragraph 5.
More specifically, I find that at all material times, Respondent
has been a corporation engaged in the operation of a nursing
home and rehabilitation facility in Black Mountain, North Caro-
lina, at which it provides long-term care and medical services for
military veterans. This facility in Black Mountain, North Caro-
lina, will be referred to below as the facility or the nursing home.
Further, based on the Respondent’s admissions, I conclude
that it meets the statutory and discretionary standards for exer-
cise of the Board’s jurisdiction, and that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act. Also, based on the Respondent’s answer, I find
that at all material times the Respondent has been a health care
institution within the meaning of Section 2(14) of the Act.
Complaint paragraph 5 alleges that a number of individuals,
identified by name, are Respondent’s supervisors within the
meaning of Section 2(11) of the Act and/or its agents within the
meaning of Section 2(13) of the Act. By stipulation, for purposes
of this proceeding and appeals arising from it, the Respondent
has admitted that some (but not all) of the individuals named in
complaint paragraph 5 are its supervisors and/or agents. Based
on these admissions, I make the following findings.
The nursing home administrator, Justin Morrison, was the Re-
spondent’s supervisor, and accordingly its agent, within the
meaning of Section 2(11) and 2(13) of the Act, respectively, at
all times from September 1, 2016, through December 13, 2016.1
The Respondent’s corporate regional human resources man-
ager, Della Mervin, was the Respondent’s agent, within the
meaning of Section 2(13) of the Act, from November 1, 2016
through December 31, 2016.
The Respondent’s human resources/payroll coordinator,
Melissa (Missy) Ellege, performed human resources-related ser-
vices for Respondent and was Respondent’s agent, within the
meaning of Section 2(13) of the Act, from September 1, 2016
through September 30, 2016.
Respondent’s supervisor and agent, at all times from December 13, 2016
through at least September 14, 2017.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Mary Ellen Shepherd, who was the director of health services
at the nursing home during the period September 1, 2016 through
October 31, 2016, was then the Respondent’s supervisor within
the meaning of Section 2(11) of the Act and, accordingly, its
agent within the meaning of Section 2(13) of the Act.
The Respondent’s director of health services, Crysta Bloom-
berg, was a supervisor of the Respondent, within the meaning of
Section 2(11) of the Act, and accordingly, its agent within the
meaning of Section 2(13) of the Act, during the time period Oc-
tober 24, 2016 through December 13, 2016. Based upon her tes-
timony at hearing, I further find that her name is now Crysta
Dickens.2
Facts
The Respondent operates 92 facilities, among them, a nursing
home in Black Mountain, North Carolina, for military veterans.
The facility’s administrator, Justin Morrison, described it as
providing a “home-like environment.” The veterans live in 4
wings named Alpha, Bravo, Charlie, and Delta.
The Respondent rates the quality of its 92 facilities. When
Morrison took command of the Black Mountain nursing home in
August 2016, it ranked near the bottom. Morrison took steps to
improve quality, including enforcing work rules more rigor-
ously. Within 1 year, the nursing home rose in the quality rank-
ings to 5th place.
A month after Morrison arrived at the nursing home, Hentz
began work there as a certified nursing assistant. Friction soon
developed between them. Hentz’ personality did not fit the mil-
itary mold. Moreover, Hentz, who is African-American, com-
plained to the corporate-level human resources department that
racial prejudice tainted the work environment, prompting an in-
vestigation.
The General Counsel alleges that when Hentz complained to
corporate-level officials, he was seeking relief not merely for
himself but also for other employees also affected by the racial
prejudice which he perceived. Therefore, the government ar-
gues, it constituted concerted activity protected by Section 7 of
the Act. The General Counsel further alleges that the Respond-
ent unlawfully discharged Hentz because he engaged in this pro-
tected, concerted activity.
The Respondent disputes that Hentz was speaking on behalf
of anyone other than himself and therefore contends that Hentz’
complaint to the corporate officials did not fall within the Act’s
protection. The Respondent further argues that, in any event, it
did not discharge Hentz because he complained to corporate of-
ficials but for failure to comply with the Respondent’s attend-
ance rules.
Complaint Paragraphs 6 and 7
The first unfair labor practice allegations in the complaint do
not focus on Hentz’ termination but charge that the Respondent’s
managers told employees not to disclose their wage rates to other
employees.3 The Respondent denies these factual allegations,

2 Additionally, based on her testimony, I find that she remained the
director of health services, and a supervisor of the Respondent, at the
time of the hearing in mid-September 2016.
3 In general, prohibiting employees from discussing wages or other
terms and conditions of employment interferes with two rights
raised in complaint paragraphs 6 and 7, and also denies the legal
conclusion, alleged in complaint paragraph 14, that it thereby vi-
olated Section 8(a)(1) of the Act.
Complaint paragraph 6 alleges that about September 9, 2016,
Respondent, by Mary Ellen Shepherd, in Shepherd’s office at
Respondent’s Black Mountain Veterans Home, directed employ-
ees not to engage in concerted activities for mutual aid and pro-
tection by telling employees not to discuss their wages with each
other. The Respondent denies this allegation.
When Hentz applied for work in September 2016, he spoke
with the Respondent’s director of health services (DHS), Shep-
herd. The Respondent has stipulated that during this time period,
Shepherd was a supervisor within the meaning of Section 2(11)
of the Act. Hentz testified concerning the September 9, 2016
interview at which Shepherd offered him a job as a certified nurs-
ing assistant (CNA):
Q. What, if anything, did she say about the CNA position?
A. She told me it was $14 an hour between 6:00 a.m. and
2:00 p.m. and that it would be $15 an hour from 2:00 p.m.
till roughly 5:59 a.m. I applied for the 2:00 to 10:00 shift,
so my pay would have actually been $15 an hour.
Q. Now was anything else said regarding the wage rate?
A. Yes. She told me not to discuss my wages when I come
to the floor. That previous DHSes had, to use her words,
low-balled the CNAs before her and that she was trying
to bring people in at a fair rate.
Shepherd no longer worked for the Respondent and did not
testify. Crediting Hentz’ uncontradicted testimony, I find that
Shepherd did tell him not to discuss his wages when he “came to
the floor.” The context clearly establishes that those words
amounted to a prohibition on disclosing his wages with other em-
ployees. Thus, she further explained that her predecessors had
“low-balled” nursing assistants who had been hired earlier.
Therefore, I conclude that she was explaining to Hentz that he
should not disclose his wage rate to other employees because
they were not earning as much per hour. Further, I conclude that
the General Counsel has proven the allegations raised in com-
plaint paragraph 6.
Complaint paragraph 7 alleges that about September 20, 2016,
the Respondent, by Melissa Ellege, directed employees not to
engage in concerted activities for mutual aid and protection by
telling employees not to discuss their wages with each other.
The Respondent denied this allegation.
The Respondent stipulated that Ellege, its human re-
sources/payroll coordinator during September 2016, was at that
time, its agent as defined by Section 2(13) of the Act. Accord-
ingly, I conclude that statements made by Ellege during the
course of her work duties may be imputed to the Respondent.
After Hentz began working for the Respondent, he went to
Ellege’s office to complete some paperwork and to be
guaranteed by Sec. 7 of the Act, the employees’ right to form, join or
assist a labor organization (because discussing working conditions is a
predicate to deciding whether to unionize) and the right to engage in
other concerted activities for their mutual aid or protection. See, e.g.,
Waco, Inc., 273 NLRB 746, 748 (1984).
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 5
photographed for his employee identification badge. Hentz tes-
tified that, during this process, Shepherd entered the office:
Q. When you say she had you sign, who are you referring to?
A. Missy. Missy Ellege.
Q. What, if anything, happened after Ms. Shepherd arrived
in the office?
A. She said, oh, I see you’ve already met Ricky. I think he’s
going to be great here. I think he’ll be a great scheduler.
And she said to Missy I’ve already told him what his wage
is and he knows not to discuss his wages.
Q. Did anybody respond to that?
A. Missy chimed up and she said, yeah, you don’t want to be
doing that, discussing wages on the floor because that
leads to problems.
Neither Shepherd nor Ellege took the witness stand and
Hentz’ testimony, which I credit, stands uncontradicted. There-
fore, I find that Shepherd and Ellege made the statements Hentz
attributed to them. Further, based on the Respondent’s stipula-
tions that Shepherd was its supervisor and Ellege its agent during
this time period, I impute their statements to the Respondent.
Although the Respondent did not call either Shepherd or El-
lege to testify, it did address these complaint allegations in the
testimony given by its nursing home administrator, Morrison.
Because he was not present when Shepherd and Ellege made the
statements to Hentz described above, Morrison’s testimony does
not shed light on what they said. Rather, Morrison testified that
the Respondent did not have a policy prohibiting the discussion
of wages:
Q. Does the Veterans Home maintain any policies that pro-
hibit discussions about wages?
A. No.
Q. Do you know if the facility has ever disciplined someone
for discussing wages?
A. No.
Q. No, they have not or no, you don’t know?
A. No, they have not.
Q. Has the facility ever terminated an employee to your
knowledge for discussing wages?
A. No, they have not.
However, other testimony suggests that although Morrison
might have been telling the truth, he wasn’t telling the whole
truth. The Respondent’s counsel asked Morrison if the facility
had any policy prohibiting employees from discussing their
wages, but did not ask whether the facility had a practice of for-
bidding such discussions. The record indicates that Respondent
had such a practice and that, in fact, Morrison was one of the
practitioners.
Jennifer Horton began working at the nursing home in August
2016, as a registered nurse supervisor, and then applied for an-
other position within the facility, that of “senior care partner.”
This job involved dealing with complaints raised by patients’
relatives concerning the quality of care. Horton testified that,
after learning she had been accepted for this position, she went
to Administrator Horton to obtain a job offer letter:
Q. Why were you asking about that offer letter?
A. Because I wanted my position to be down in writing.
Q. Did Mr. Morrison respond?
A. Yes. He printed it off when he got it, and he came and sat
down with me, showed me my salary.
Q. When he showed you the offer letter, did he say anything?
A. He told me my salary was confidential, not to discuss it.
Although Morrison returned to the witness stand after Horton
testified, he did not deny telling her that her salary was confiden-
tial and not to discuss it. Crediting Horton’s uncontradicted tes-
timony, I find that Morrison did make this statement.
It is significant that Morrison not only told Horton not to dis-
cuss her salary, but also said that it was “confidential.” That at
least suggests that Respondent had a practice of placing wage
information into a special category of matters not to be disclosed.
Shepherd’s statement to Ellege, that she already had told Hentz
“what his wage is and he knows not to discuss his wages,” further
indicates that Respondent had a general practice of admonishing
employees not to disclose such information.
In these circumstances, the distinction between a “policy” and
a “practice” seems somewhat artificial. Morrison’s testimony
that the Respondent had no “policy” of forbidding employees
from discussing their wages, therefore seems a bit disingenuous,
particularly because Morrison himself had instructed an em-
ployee not to reveal her salary to other workers. This testimony
also may be considered in assessing Morrison’s credibility as a
witness.
It has long been established that a rule prohibiting employees
from discussing their wage rates is unlawful. Radisson Plaza
Minneapolis, 307 NLRB 94 (1992); Heck’s, Inc., 293 NLRB
1111 (1989); and Waco, Inc., 273 NLRB 746 (1984). Accord-
ingly, I recommend that the Board find that the Respondent vio-
lated Section 8(a)(1) of the Act by the conduct alleged in com-
plaint paragraphs 6 and 7.
Hentz’ Protected Activity
At this point, it will serve clarity to follow the chronological
order of events rather than the sequence of allegations in the
complaint. Therefore, before discussing the conduct alleged in
complaint paragraph 8, it will be helpful to “set the stage” by
summarizing the Charging Party’s protected activity, described
as follows in complaint paragraph 9: “During the period from
about October through December 2016, on multiple occasions,
employee Hentz concertedly complained to Respondent about
employees’ concerns with racial discrimination, staffing, and
personnel issues.”
The Respondent denies that Hentz engaged in protected con-
certed activities. In its brief, the Respondent argues that credited
evidence fails to establish that when Hentz complained to man-
agement he was acting on behalf of anyone but himself:
To find that an employee has engaged in concerted activity for
employees’ mutual aid and protection, the Board requires the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
activity “be engaged in with or on the authority of other em-
ployees, and not solely by and on behalf of himself.” Meyers
Indus. (II), 281 NLRB 881, 885 (1986); Walmart, NLRB Div.
of Advice, No. 17‒CA‒25030 (Sept. 25, 2011) (ALJ held that
employer lawfully discharged employee because employee’s
individual gripe did not rise to concerted activity under the
Act).
In Fresh & Easy Neighborhood Market, Inc., 361 NLRB 12
(2014), a divided Board overruled Holling Press, Inc., 343
NLRB 301 (2004), holding that an employee engages in “con-
certed activity” for the purpose of “mutual aid or protection”
within the meaning of Section 7 when the employee seeks help
from coworkers in logging a sexual harassment complaint. In
Fresh & Easy, the Board recognized that, whether an em-
ployee’s activity is “concerted” depends on the manner in
which the employee’s actions may be linked to those of
coworkers. Id. The concept of “mutual aid or protection” fo-
cuses on the goal of concerted activity; chiefly, whether the em-
ployee or employees involved are seeking to improve terms
and conditions of employment or otherwise improve their lot
as employees. Id.
The General Counsel has not shown and cannot show that Mr.
Hentz’s communications to PruittHealth’s corporate office, to
Mr. Morrison, or otherwise satisfy the requirements for con-
certed activity for the purpose of mutual aid or protection as
articulated in either Meyers Industries II or Fresh & Easy. In-
deed, the record establishes that Mr. Hentz called
PruittHealth’s corporate office and complained of race discrim-
ination by the Activities Director Amy Ferguson. Tr. 420:6‒
10; 376:4‒5; 150:1‒153:14. Mr. Hentz provided the names of
Danielle Jeter and Linda Brinson, who were alleged to have
been disciplined on the same day by Ms. Ferguson, but Mr.
Hentz stated, “I’m not here to talk about them. I’m here to talk
about me.” Tr. 420:6‒10; 376:4‒5; 150:1‒153:14. During this
investigation, Mr. Hentz stated that he did not feel that Mr.
Morrison had discriminated against him, just the Activities Di-
rector. Tr. 357:4‒9. Mr. Hentz provided no written documen-
tation to Ms. Mervin. Tr. 362:12‒16. No evidence shows Mr.
Hentz sought assistance from his coworkers in submission of
any group complaint to the Veterans’ Home. No evidence
shows Mr. Hentz to have circulated any petition or to have ar-
ticulated any change in policy supported by two or more indi-
viduals and related to their working conditions. Thus, the Gen-
eral Counsel failed to establish there was any concerted pro-
tected activity for employees’ mutual aid or protection with re-
spect to Mr. Hentz’s call to PruittHealth’s corporate office.
Further, the only link to Mr. Hentz’s coworkers in the submis-
sion of any of his complaints to PruittHealth’s corporate office
is the reference to their names, and past events allegedly

4 According to Hentz, the employees who complained to him about
work-related matters included Rick Luce, Joanna Severson, Lucinda
Geter, Danielle Jeter, Linda Brinson, Brandi Sigmund, Tiffanie Robin-
son, Toya Fleming, and Marie Williams.
5 Citing Labor Board v. Electrical Workers (Jefferson Standard), 346
U.S. 464 (1953), the Respondent’s brief suggests that if an employee told
involving them, which is weak and attenuated at best, and in-
sufficient to satisfy the applicable legal standard.
Before weighing the Respondent’s legal arguments, it will be
helpful to begin by summarizing the facts. Hentz’ employment
at the Respondent’s nursing home began on September 20, 2016.
The Respondent assigned him to work as a scheduler, a job
which brought Hentz into contact with many other employees
and thus gave him the opportunity to hear their complaints about
terms and conditions of employment. Although Hentz still spent
about 10 percent of his worktime performing patient care duties,
similar to those of other CNAs, his primary responsibility in-
volved preparing schedules showing which nurses and nursing
assistants would be on duty during any particular shift.
Before Hentz could place on the schedule the names of those
to be assigned to a particular shift, he had to contact employees
to find out whether they were available for duty at that time. Of-
ten, these employees would complain to him about work-related
matters, including wages.4 A frequent, recurring complaint con-
cerned understaffing.
Each wing of the facility needed one nurse and 3 nursing as-
sistants for each shift. Operating with fewer employees in-
creased the risk to patients and also made a CNA’s job more bur-
densome. A CNA’s patient care duties include some strenuous
activities, such as lifting patients in and out of bed. The job be-
comes significantly more arduous when the shift is shorthanded.
Hentz communicated to Administrator Morrison the employ-
ees’ complaints about understaffing. However, Administrator
Morrison saw things differently. Morrison testified that there
had never been a time, to his knowledge, when the facility failed
to meet the minimum staffing requirements set by the govern-
ment. When asked about how he expected employees to com-
municate with patients’ relatives about the care provided, Mor-
rison testified as follows:
Q. What are those expectations?
A. To provide factual information to those families. If we
were to have, and this has happened on numerous occa-
sions, where I’ve had a grievance from a family, sat down
and met with them, and they’ve seen two or three CNAs
sitting in the dining room talking and their mother or fa-
ther not receive a shower that day or whatever the care
was provided, and they ask why that care wasn’t provided
and the easy out or easy answer is just to say, oh, we don’t
have enough staff.
Q. And do you believe that’s an appropriate or inappropriate
response?
A. That’s inappropriate.
Q. Why do you say that?
A. Because it paints a negative light on the facility and the
information is actually inaccurate.5
a resident’s family member that the nursing home was understaffed, it
would constitute disparagement of the Respondent’s product which fell
outside the protection of the Act. The record does not reflect that any
employee engaged in such conduct and the complaint does not include
any allegation which would raise this issue. Therefore, I do not address
it.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 7
This testimony suggests that Morrison believed employees
simply were claiming understaffing as an excuse for failing to
perform their assigned duties. Moreover, based on Hentz’ cred-
ited testimony, I conclude that Morrison did not appear to take
employees’ complaints of understaffing seriously. Hentz de-
scribed a recurring situation: As Morrison went down the hall,
Hentz would walk along beside him, relay the complaint about
being understaffed, and Morrison would reply that they were
“working on it.”
Crediting Hentz’ testimony, I find that Morrison did typically
respond by saying they were “working on it,” but this answer
calls into question Morrison’s testimony that employee com-
plaints about understaffing were “actually inaccurate.” To say,
“we’re working on it” acknowledges the existence of a problem
requiring attention. If Morrison really believed that no under-
staffing problem existed, to say “we’re working on it” would be
perfunctory, dismissive, and disingenuous.
Events in the latter part of October 2016, suggest both that
Morrison did not believe the employee complaints about under-
staffing and that a time came when he became fed up with hear-
ing them. These events began when an employee, Rick Luce,
told Hentz that the director of health services had hired four or
five CNAs to “work the floor,” that is, to perform the strenuous
patient care duties. Such welcome news reasonably would have
demonstrated to employees that Administrator Morrison had
been telling the truth when he said that management had been
“working on” the understaffing problem. Even more im-
portantly, the news would have raised the nursing assistants’ ex-
pectations that help indeed was on the way.
However, any such hope did not last long. Luce told Hentz
that the administrator had not assigned the new CNAs to “work
the floor,” as expected, but instead had given those new workers
other, lighter duties, such as taking patients to activities. Hentz
went to Morrison’s office and relayed Luce’s complaint. No one
except Hentz and Morrison were present. Hentz described the
conversation as follows:
Q. How did the conversation begin?
A. Well, I came in. I told him that I was working on the
schedule. I was trying to get people. I showed him the
schedule, as I did on a daily basis. And he said okay. And
then at that point, I addressed, I said I’ve spoken to some
of the CNAs. I didn’t tell him it was Rick Luce. I guess
he knows now. But I said I spoke with some CNAs on the
floor and they’re really upset that you took those CNAs
that Mary Ellen hired and put them in other positions ra-
ther than putting them on the floor to do work as a CNA
on the floor.
Q. Did he respond in any way to those concerns?
A. He did. I come in. He was standing up at his desk. He had
his pen and he threw the pen down, and he said this is my

6 The Board has consistently defined protected concerted activity to
encompass the lone employee acting for or on behalf of other workers.
The Act protects the employee who speaks after receiving fellow em-
ployees’ explicit authorization to express their complaint, and that pro-
tection also extends to an employee who, having heard the work-related
concerns of other employees, voices those complaints without having
building and I’ll do what the F I want.
Q. And when you say—you believe you bleeped a word.
A. I did.
Q. You don’t have to say what it was but can you in some
way indicate what it was?
A. I’m sorry, Your Honor, but I’m going to say it. I mean he
said what sounded like the word fuck.
Q. Did he actually say the word?
A. He did not. He left out the vowel sounds. He said MF,
Your Honor.
Morrison denied both throwing down his pen and swearing. He
testified:
Q. Have you ever thrown your pen while at work?
A. No.
Q. Have you ever cursed at a partner at work?
A. No, I have not.
A credibility analysis later in this decision will explain why I
conclude that Hentz’ testimony accurately reflects what Morri-
son said and did. At this point, however, the focus rests on
Hentz’ actions to determine whether he was engaging in pro-
tected, concerted activity when he reported the employees’ con-
cerns about staff assignments to Morrison.
The Respondent’s brief advocates that the Board adopt a def-
inition of “protected, concerted activity” more limited in scope
than how that term is defined by current Board precedents. How-
ever, as the Respondent’s brief acknowledges, the judge must
follow the Board’s caselaw. Doing so, I conclude that Hentz’
reporting the employees’ complaints to Morrison falls within the
protection of Section 7 of the Act.
To prove that Hentz was engaging in protected, concerted ac-
tivity, the General Counsel must show that he was acting for, or
on behalf of, other workers or was acting alone to initiate group
action, such as by bringing group complaints to management’s
attention. NLRB v. City Disposal Systems, 465 U.S. 822 (1984).6
Hentz did exactly that, bringing group complaints to manage-
ment’s attention. Thus, he told Administrator Morrison: “I spoke
with some CNAs on the floor and they’re really upset that you
took those CNAs that Mary Ellen hired and put them in other
positions rather than putting them on the floor to do work as a
CNA on the floor.”
When Hentz expressed the employees’ concerns to Morrison
in the administrator’s office, he was engaging in activity pro-
tected by Section 7 of the Act. Likewise, Hentz engaged in pro-
tected activity when he walked along with Morrison and told the
administrator about the CNAs complaints that the floors were
understaffed.
asked them for permission to do so. The Act similarly protects the indi-
vidual employee who speaks seeking to initiate group action. Kvaerner
Philadelphia Shipyard, 346 NLRB 390 (2006); NLRB v. City Disposal
Systems, above; Meyers Industries (II), 281 NLRB 882 (1986); Globe
Security Systems, 301 NLRB 1219 (1991); Alaska Pulp Corp., 296
NLRB 1260 (1989), enfd. 944 F.2d 909 (9th Cir. 1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Hentz had only a little to gain personally by conveying these
complaints to management because 90 percent of his own work
involved scheduling rather than patient care. Assigning more
CNAs to patient care would improve the working conditions for
others working “on the floor,” but nine-tenths of the time Hentz
was not working “on the floor.” He had an office. Thus, there
can be no doubt that Hentz was communicating other employees’
concerns to management and not simply speaking to benefit him-
self.
As described in greater detail below under the heading “Com-
plaint Paragraph 10,” Hentz also telephoned corporate-level
management to express employees’ concerns about racial preju-
dice in the workplace. Hentz made this call shortly after having
conversations with other employees on or around November 9,
2016.
Hentz did have some personal interest in this complaint. A
supervisor had issued him a reprimand for eating ice cream in an
area where staff were not supposed to consume food. When he
discussed this incident with other employees, he discovered that
they shared his belief that racial prejudice resulted in some em-
ployees being treated differently from others. For example,
Hentz described his conversation with another CNA, Marie Wil-
liams:
Q. When you asked her about race, did she respond in any
way?
A. She did. She said there’s definitely a difference in the way
that they are treated. She said she just keeps her head
down, she keeps going, she doesn’t really get involved
with that, she tries not to give them reason to, you know,
any reason to come to her with any kind of issues.7
Hentz spoke with other employees as well before telephoning
the corporate headquarters in Norcross, Georgia. A corporate-
level manager, Tammy Ellis, returned his call and discussed the
matter with Hentz. Her notes of that call state:
Mr. Hentz stated there was a Incident [sic] with Amy Ferguson,
activities director, on November 9, 2016 when he was given a
bowl of ice cream by the activities staff while he was on his
way to his office. Mr. Hentz stated Diane Clark, administrative
assistant, called him to the side to speak with him. Mr. Hentz
stated during that time he believes he took one or two bites of
ice cream, therefore, later in the day, Ms. Ferguson repri-
manded him for eating in the front office. Mr. Hentz stated he
has never heard this rule before and people are eating baked
cookies all the time in the front office.
Mr. Hentz stated this is a wrongful reprimand because Ms.

7 Williams did not testify. However, the truth of the matter she as-
serted—that employees were treated differently because of race—is ir-
relevant to the issue under consideration, which is whether Hentz en-
gaged in protected concerted activities. Here, I rely on Hentz’ testimony
to find that Williams expressed to him her opinion that the Respondent
treated employees differently based on their race and note that such an
opinion concerns a condition of employment. Additionally, it is appro-
priate to observe that Williams’ comment to Hentz concerned not just
how she was treated as an employee but how “they are treated,” signify-
ing an issue of concern to other employees as well. Clearly, Hentz’ con-
versation with Williams constituted protected, concerted activity.
Ferguson has a history of nitpicking African-American em-
ployees. Mr. Hentz stated, for example, one week ago, Ms. Fer-
guson reprimanded Danielle (last name unknown), activities
assistant, who is an African-American, for wearing yoga pants.
Mr. Hentz stated this happened on the exact same day that Jen-
nifer B., business office manager, who is Ms. Ferguson’s sister,
came into work wearing extremely tight pants. Mr. Hentz
stated Ms. Ferguson never did anything to penalize Jennifer.
Mr. Hentz stated both Danielle and Linda Brinson, activities
assistant, can attest to the racial discrimination they are sub-
jected too. [sic]
These notes indicate that although Hentz focused, to some ex-
tent, on the reprimand he had received, his complaint was more
general and concerned other employees as well. Thus, Ellis’
notes indicate that Hentz used the plural—employees—in stating
that a supervisor had “a history of nitpicking African-American
employees.” Similarly, her notes show that Hentz gave Ellis the
names of two employees who could “attest to the racial discrim-
ination” to which they were subjected.
In sum, even the Respondent’s records demonstrate that Hentz
complained about working conditions affecting employees other
than himself, and did so after discussing these conditions with
the other employees. I conclude that when Hentz telephoned the
corporate headquarters and spoke with Manager Ellis, he was en-
gaged in protected concerted activity.
After Hentz’ conversation with Ellis, corporate management
sent an investigator, Della Mervin, to the Black Mountain facil-
ity.8 To support its argument that Hentz was not engaged in pro-
tected concerted activity when he complained to corporate man-
agement about racial prejudice, the Respondent points to a com-
ment which Hentz supposedly made to Mervin during her inves-
tigation. Specifically, Mervin testified:
Q. Did Mr. Hentz make any statements during the investiga-
tion as to whether Ms. Brinson had asked him to raise a
complaint?
A. Mr. Hentz’s comment to me was, you know, I’m not here
to talk about them. I’m here to talk about me, but these are
other people that you can talk to because they’ve seen
things that have happened.
The Respondent points to Hentz’ supposed “I’m here to talk
about me” statement as evidence that he wasn’t acting in concert
with any other employees. The Respondent’s brief urges that no
evidence “shows Mr. Hentz sought assistance from his cowork-
ers in submission of any group complaint” and that no evidence
“shows Mr. Hentz to have circulated any petition or to have
This issue of whether Respondent’s management actually did treat
employees differently based on race is not before me, so I need not, and
do not, make any finding about it. However, it may be noted that during
the cross-examination of Registered Nurse Horton, the Respondent’s
counsel asked if Administrator Morrison made choices based on race.
Horton answered: “I do believe that he does have some prejudice.”
8 Mervin concluded that Hentz’ allegations of racial prejudice were
unsubstantiated. Her investigation will be discussed further below.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 9
articulated any change in policy supported by two or more indi-
viduals and related to their working conditions.” This argument
reveals that the Respondent underestimates the scope of activity
protected by the Act.
Respondent’s argument assumes that Hentz must seek the as-
sistance of his coworkers in submitting a group complaint. In
fact, Hentz’ coworkers were assisting him by providing him in-
formation about instances of apparent racial prejudice. In turn,
he assisted them by voicing their complaint to corporate-level
management. The assistance was mutual, and falls within Sec-
tion 7’s description of employees’ activities for their “mutual aid
or protection.” 29 U.S.C. 157.
The Respondent is correct in stating that no evidence shows
that Hentz circulated any petition. However, the Act does not
require employees to perform any such formality to enjoy its pro-
tection. The statutory language has not been construed so nar-
rowly and if it were, almost no employee discussion about work-
ing conditions would be protected.
The Respondent also underestimates the Act’s scope when it
implies that, to fall within the protection of Section 7, Hentz had
to “articulate” a “change in policy.” Almost all employers now
have some kind of written policy prohibiting racial discrimina-
tion, and I don’t doubt that the Respondent is among them.
Hentz was not protesting this policy but rather what he believed
to be the supervisor’s practice. That practice, even if contrary to
Respondent’s written policy, created the environment in which
the employees worked. Section 7 protects employees’ concerted
complaints against employment practices as well as those against
employers’ policies.
Respondent also errs in contending that Hentz did not “artic-
ulate any change,” sought by two or more employees and related
to working conditions. Hentz indeed had spoken with other
workers, who agreed with him that African American employees
were being treated differently, and he sought a change in the
workplace as vital as it was easy to understand: Stop discrimi-
nating on the basis of race.
In arguing that Hentz was engaging in unconcerted and there-
fore unprotected activity, the Respondent points to the statement
Hentz supposedly made to Mervin, “I’m not here to talk about
them. I’m here to talk about me, but these are other people that
you can talk to because they’ve seen things that have happened.”
Mervin took the witness stand after Hentz had testified, but
Hentz, as the Charging Party, was available for recall to give re-
buttal testimony. Nonetheless, the General Counsel did not re-
call him to the stand, and no testimony contradicts Mervin’s tes-
timony regarding what Hentz said.

9 For reasons discussed in the section of this decision concerning pre-
text, I conclude that Mervin came to the facility and went through the
motions of an investigation not to ascertain facts but, essentially, to re-
duce the Respondent’s exposure to liability in any employment discrim-
ination lawsuit by making it appear that the Respondent took conscien-
tious steps to address such complaints. I believe that when she testified,
Mervin likely had a similar objective in mind.
10 To establish that Hentz was engaged in protected concerted activity
when he voiced the employees’ complaints, the General Counsel does
not have to prove that the employees’ perceptions were correct. When
Hentz told the manager that employees felt they weren’t being heard,
Sec. 7’s protection does not depend on the merits of the employees’
Mervin’s phrasing indicates that she was summarizing the
substance of what Hentz said rather than quoting his exact words.
The fact that Mervin was paraphrasing is important because it
increases the opportunity to take Hentz’ words out of one context
and place them in another which distorts what he had meant.
Based on my observations of the witnesses, I have more con-
fidence in the accuracy of Hentz’ testimony than that of Mervin,
who is one of the Respondent’s corporate-level managers.
Mervin’s tone of voice and demeanor lead me to conclude that
she had not come to the courtroom to make Hentz look good but
rather to make her company look good.9
According to Mervin, Hentz gave her the names of other em-
ployees to contact “because they’ve seen things that have hap-
pened.” It is significant that Hentz did not provide these names
because the employees had witnessed what happened to him
when he received the reprimand for eating ice cream. These
other employees would be of no value to Hentz in challenging
the reprimand he had received for eating ice cream because he
freely admitted he had done so. The words are most reasonably
understood as meaning that these witnesses had seen other things
which also demonstrated the presence of racial prejudice in the
workplace.
Hentz’ testimony, which I believe quite reliable, clearly estab-
lishes that he was not the only employee who perceived an at-
mosphere of racial bias at the nursing home. It also shows that
his complaint to management concerned this hostile work envi-
ronment, which affected many employees, and not just his repri-
mand for eating ice cream.
Even Mervin’s testimony, in which I do not place quite as
much trust, supports the conclusion that Hentz’ complaint to
management concerned racial prejudice perceived by other em-
ployees as well as himself, which made their work experience
unpleasant. For example, Mervin, on cross-examination, admit-
ted that Hentz told her “the leadership does not take action. Peo-
ple do not feel that they’re being heard.” She also admitted that
Hentz said “that administrative was too busy. People feel like
they don’t matter.” Likewise, Mervin’s notes of her interview
with Hentz reflect that he told her that “people do not feel they
are being heard” and that “people feel like they don’t matter.”
Hentz did not say “I feel” but rather “people feel.” By “peo-
ple,” Hentz clearly meant other employees at the nursing home
and the context clearly conveys that these employees felt that
they were not being heard by their supervisors.10 Without doubt,
in these circumstances, Hentz was expressing to management
other employees’ complaints about a condition of employment.
Under extant and longstanding Board precedent, Hentz was
complaint. However, the record leaves no doubt that the employees were
sincere and had some basis for believing that management was not lis-
tening to them.
For example, after Hentz had repeatedly relayed to Morrison the em-
ployees’ complaints that there were not enough CNAs performing cer-
tain arduous patient care duties, and after a supervisor then hired addi-
tional CNAs, Morrison did not allow the new employees to perform
those duties but assigned them other work. Whether or not Morrison
intended this action to signal that “this is my building and I’ll do what
the F I want,” it certainly could leave employees feeling that they did not
matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
engaging in protected, concerted activity.
However, the Respondent seeks a change in Board precedent,
specifically, the Board’s decision in Fresh & Easy Neighbor-
hood Market, Inc., 361 NLRB 151 (2014). The Respondent’s
brief acknowledges that the judge must follow Board precedent
but states that the Respondent wishes to preserve its challenge to
Fresh & Easy Market for consideration by the Board itself. The
Respondent, citing Member Miscimarra’s partial dissent in that
case, argues that to constitute protected, concerted activity, an
employee’s action must be for the purpose of mutual aid or pro-
tection. The Respondent also advocates the position of Member
Miscimarra that to constitute concerted activity, the employees’
discussion must be more than mere talk and must involve or con-
template a joint endeavor to be “done or performed together in
cooperation.”
However, even before the Board’s decision in Fresh & Easy
Market, Board precedent did not require that, to be engaged in
protected activity, employees had to be planning to take some
specific concerted action, such as picketing, which involved
more than one participant. See, e.g., Compuware Corp., 320
NLRB 101 (1995), enf. 134 F.3d 1285 (6th Cir. 1998), in which
the Board found that an employee was engaged in protected con-
certed activity when, after discussing certain working conditions
with other employees, he spoke out about them. See also Allstate
Insurance Co., 332 NLRB 759 (2000), in which the Board held
that an employee who discussed working conditions with a mag-
azine reporter was engaged in protected concerted activity.
The Board’s decision in Compuware Corp. provides guidance
here. Hentz spoke with other employees about their perception
of racial prejudice in the workplace. Then he complained to
management, including management at the corporate level.
Clearly, if supervisors treat employees of a particular race differ-
ently, it affects all of them, not just one, and the remedy sought,
cessation of such unequal treatment, benefits all. Accordingly, I
reject the Respondent’s argument that Hentz was not engaged in
protected concerted activity.
Clearly, when Hentz contacted corporate management, and

11 Because I believe Horton to be a more accurate witness than Mor-
rison, I resolve conflicts in their accounts by crediting Horton’s testi-
mony and discrediting Morrison’s. Accordingly, my findings of fact are
based on Horton’s version.
My conclusion that Horton’s testimony is reliable particularly rests on
her answers to questions during cross-examination. When Respond-
ent’s counsel asked her whether she believed that Morrison made em-
ployment decisions based on race, Horton replied that she did believe
that Morrison “had some prejudice.” The Respondent then confronted
her with a presumably prior inconsistent statement, namely, that when
Morrison had asked her if she thought he was a racist, she said no. How-
ever, she readily admitted that her reply to Morrison had not been truth-
ful.
Horton’s straightforward acknowledgement that she had been less
than candid with Morrison increases my confidence that she was testify-
ing truthfully on the stand. Morrison had placed Horton in a difficult
position when he asked her “Do you think I’m a racist?” Simply out of
politeness, almost anyone asked that question would deny having that
opinion of the questioner. Moreover, Morrison was Horton’s boss at the
time. The fact that she did not reveal her true opinion to Morrison under
such circumstances does not reduce my confidence in her truthfulness on
the witness stand.
when he was interviewed by Mervin, he was speaking not only
on his own behalf but also voicing the work-related complaints
of other employees. Therefore, I conclude that, in doing so, he
enjoyed the Act’s protection.
Respondent’s Knowledge of the Protected Activity
Without doubt, the Respondent was aware of Hentz’ protected
activity because that activity consisted of expressing to manage-
ment the employees’ complaints about terms and conditions of
employment. Moreover, it is clear that Hentz’ complaint to cor-
porate management unsettled the nursing home administrator.
Registered Nurse Horton credibly testified11 that when the in-
vestigator from corporate headquarters visited the facility, Ad-
ministrator Morrison asked Horton “what the hell” was going on.
When Horton asked Morrison what he meant, he responded by
asking Horton if she thought he was racist. Such a question sug-
gests that Morrison took Hentz’ complaint personally. Morrison
also remarked that Hentz thought that he, Morrison, was a racist,
again suggesting that Hentz’ complaint to the corporate level
stung Morrison personally.
Horton’s testimony also establishes that Morrison was aware
of how much time Hentz spent with the investigator. On the in-
vestigator’s last day at the nursing home, Morrison commented
to Horton that Hentz would not let the investigator leave, “that
he keeps talking.”
Complaint Paragraph 8(a)
Complaint paragraph 8(a) alleges that in October 2016, Ad-
ministrator Morrison told employees “this is my building, and
I’ll do what the fuck I want.” Paragraph 8(a) further alleges that
Respondent, through this statement, “informed its employees
that it would be futile for them to engage in concerted activities
for mutual aid and protection.” Complaint paragraph 14 alleges
that the Respondent thereby violated Section 8(a)(1) of the Act.
The Respondent denies these allegations.
These allegations pertain to an exchange between Morrison
and Hentz, in Morrison’s office, in the latter part of October
2016. The testimony of Hentz and Morrison about this incident
Additionally, it impressed me that in her conversation with Morrison,
Horton did more than simply say “no” when Morrison asked if she
thought he was a racist. When Morrison then said that Hentz believed
him to be a racist, Horton replied “that sometimes that that is something
that someone will say because they don’t feel like they’re not being
heard.” She then suggested that perhaps Morrison should talk to Hentz.
Thus, Horton’s response to Morrison’s questioning was not simply a de-
nial that she held such an opinion of him but rather included a gentle
suggestion which could help improve communication between Morrison
and Hentz. This tactful answer avoided accusing Morrison of any racial
prejudice while, at the same time, encouraging him to listen to what
Hentz was trying to tell him.
Horton gave a similarly nuanced answer when Respondent’s counsel
asked her if she believed that Morrison made employment decisions
based on race. Her reply, that she believed Morrison did “have preju-
dice,” stopped short of saying that she thought Morrison was a racist or
that he based his decisions solely on race. Rather, it indicated a belief
that racial prejudice was a factor affecting his decision-making. This
carefulness in her testimony contributes to my conclusion that Horton
was a trustworthy witness intent on testifying accurately.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 11
appears above in the discussion of Hentz’ protected, concerted
activities. For the following reasons, I credit Hentz’ account ra-
ther than Morrison’s.
Hentz testified in detail concerning what was said, but Morri-
son only gave a general denial that he had ever cursed an em-
ployee or thrown a pen at work. Because of this vagueness, I
have less confidence in Morrison’s testimony.
Additionally, as discussed above, when Hentz would inform
Morrison of an employee’s complaint about understaffing, Mor-
rison typically replied that they were “working on it.” However,
the record indicates that this stock answer did not reflect the
truth. Morrison’s testimony suggests that he believed employees
were using “understaffing” as an excuse for not doing their jobs.
Morrison also appeared to indulge in exaggerations. For ex-
ample, he testified that he received “five to six letters under my
door every day that I came in” from staff members complaining
about Hentz’ performance as a scheduler. On its face, that claim
arouses skepticism. If Morrison really had received five or six
complaints about Hentz every workday, it must be wondered
why Morrison didn’t discharge him immediately.
No proof supports this extravagant claim. Although Morrison
supposedly was receiving between 25 and 30 such complaints
about Hentz each week, the Respondent did not offer even one
of them into evidence. On cross-examination, Morrison testified
as follows:
Q. You had—I believe you testified you had four to five let-
ters submitted under your door.
A. Correct.
Q. Complaints about Mr. Hentz’s scheduling?
A. Yes.
Q. You don’t have any of those documents.
A. That’s not something that I keep on a permanent basis.
Q. You don’t have any of those documents, correct?
A. Correct. I don’t keep documents that people slide under
my door.
Which of Morrison’s claims is hardest to believe? (1) That
Hentz’ performance so greatly offended his fellow employees
they did not consider it sufficient to complain orally but instead
took the time to write letters and slip them under the boss’s door?
Or (2) that up to a half dozen employees were so upset each
workday by Hentz that they took the time to write such com-
plaints? Or (3) that for some unexplained reason, Morrison had
the unusual policy of not retaining documents that were slipped
under his door?
Morrison’s testimony that he discarded all these letters is par-
ticularly unbelievable because he admitted on cross-examination
that he had gone through the Respondent’s training for adminis-
trators and had been told that it was important to document an
employee’s poor performance. Moreover, he offered no good
reason for disregarding this training. To the contrary, the reason

12 In considering whether communications from an employer to its
employees violate the Act, “the Board applies the objective standard of
whether the remark tends to interfere with the free exercise of employee
he gave for discarding the letters makes no sense:
Q. And yet you never kept a single letter that you said was
put under your door, four to five a day, about Mr. Hentz’s
scheduling performance, correct?
A. That’s correct, that was sent to me on a daily basis.
Q. And you didn’t keep a single one of them.
A. Half of my office—
Q. You didn’t keep a single one of them?
A. No.
Q. Why?
A. Because it’s speculation.
It seems highly unlikely that someone would write a letter to
the administrator which merely speculated about Hentz’ job per-
formance. An actual complaint almost certainly would be based
on some specific action which Hentz took, or should have taken
but did not, which caused a difficulty for the letter writer.
In other parts of his testimony, Morrison resorted to generali-
ties, often using “multiple” or “a multitude of” rather than being
more specific. Not only is such testimony vague, it is also self-
serving, leading me to conclude that Morrison either made up or
greatly exaggerated Hentz’ supposed shortcomings. Because I
do not trust Morrison’s testimony, I do not credit it when it con-
flicts with that of other witnesses.
Accordingly, I credit Hentz’ account of his meeting with Mor-
rison sometime in the latter part of October 2016. However, it
may be noted that Hentz’ testimony does not fully support the
allegation in complaint paragraph 8(a) that Morrison told an em-
ployee “this is my building, and I’ll do what the fuck I want.”
Hentz testified that Morrison did not fully say the vulgar exple-
tive:
Q. You don’t have to say what it was but can you in some
way indicate what it was?
A. I’m sorry, Your Honor, but I’m going to say it. I mean he
said what sounded like the word fuck.
Q. Did he actually say the word?
A. He did not. He left out the vowel sounds. He said MF,
Your Honor.
Nonetheless, omitting the vowel sound does not change the
message conveyed any more than it would, in writing, to substi-
tute asterisks for letters. The message remains an emphatic proc-
lamation that Morrison felt free to do as he pleased.
Complaint paragraph 8(a) further alleged that Morrison’s
words communicated to employees that it would be futile for
them to engage in concerted activities for mutual aid and protec-
tion. In considering this allegation, I will apply an objective
standard, taking into account the totality of circumstances, to de-
termine how an employee reasonably would understand what
Morrison said.12
rights. The Board does not consider either the motivation behind the
remark or its actual effect.” Scripps Memorial Hospital Encinitas, 347
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
The General Counsel cites South Jersey Sanitation Corp., 357
NLRB 1446, 1450–1451 (2011), in which the Board found that
an employer’s threat to “burn down the company before he let
anyone extort him” was unlawful under the circumstances of that
case. However, those circumstances differ significantly from
those present here.
In South Jersey Sanitation Corp., the company’s owner asked
an employee about a representation petition which another em-
ployee had circulated. The owner told the employee that the cir-
culator of the petition was “no longer with us.” Then, he added
that he would “burn the company down” before he would let an-
yone extort him. Even apart from the “burn the company down”
remark, the owner violated the Act when he interrogated the em-
ployee about the representation petition and when he implied that
the circulator of the petition had been discharged because of his
union activity.
Because the owner made the “burn the company down” state-
ment while questioning an employee about the union organizing
drive, and along with an implied threat to discharge other em-
ployees participating in the campaign, employees who heard that
statement reasonably would understand that the owner was talk-
ing about the union. In this context, the owner’s reference to
someone extorting him reasonably would be understood to refer
to a strike or other action the union might take to put economic
pressure on the company during bargaining. The owner’s “burn
the company down” remark therefore conveyed the message that
the owner would go to any length necessary to avoid agreeing to
the union’s terms. In other words, bargaining would be futile.
However, the allegation being considered here differs in both
circumstances and substance. There was no union organizing
campaign and, in fact, no union. There is no evidence to suggest
that, during Hentz’ conversation with Morrison, the subject of
unions and collective bargaining even came up.
Hentz simply told Morrison that he had spoken “with some
CNAs on the floor and they’re really upset that you took those
CNAs that Mary Ellen hired and put them in other positions ra-
ther than putting them on the floor to do work as a CNA on the
floor.” Someone hearing those words would be unlikely to con-
clude that these employees were thinking about joining or form-
ing a union and demanding to bargain. Such an inference would
have been reasonable in the South Jersey Sanitation Corp. case
because there, the employees were circulating a representation
petition and the conversation concerned that petition. In the pre-
sent case, where there is no organizing drive or even talk about
a union, such an inference would not be reasonable.
In the absence of a union or even any mention of a union, it
would not be reasonable to believe that Morrison was making
any kind of statement concerning what he would be willing to do
to avoid agreeing to a union’s demands. Moreover, unlike the
owner in South Jersey Sanitation Corp., who said he would
“burn the company down,” Morrison did not say he would do
anything at all. He simply said, “this is my building and I’ll do
what the F I want.”
In the absence of a union or a bargaining obligation which
would constrain unilateral action, the statement that he would do

NLRB 52 (2006); Miller Electric Pump & Plumbing, 334 NLRB 824
(2001).
what he wanted does not imply any intention to violate the law.
It does not constitute any kind of threat. No one reasonably
would interpret this statement to mean that the Respondent
would take some action to make collective bargaining futile.
Accordingly, I recommend that the Board dismiss the allega-
tions raised by complaint paragraph 8(a).
Complaint Paragraph 8(b)
Complaint paragraph 8(b) alleges that about October or No-
vember 2016, the Respondent, by Administrator Morrison, di-
rected employees not to engage in concerted activities for mutual
aid and protection by telling employees, “Stay in your lane,”
with respect to other employees’ concerns about staffing and per-
sonnel issues. Complaint paragraph 14 alleges that this conduct
violated Section 8(a)(1) of the Act. The Respondent denies these
allegations.
In his work as scheduler, Hentz spoke with Brandi Sigmund,
a licensed practical nurse working at the nursing home full-time.
Sigmund also was taking courses to become a registered nurse.
She had a scheduling problem because some of her nursing clas-
ses were at the same time she was supposed to be at work. The
nursing home recently had started an on-call program and Sig-
mund believed that working as an on-call (or PRN) nurse would
solve the scheduling conflict. Therefore, she asked Hentz to be
placed on the on-call list.
However, Hentz did not have authority to change Sigmund
from full-time to on-call status. So, he went to Morrison and
explained the problem. Morrison told Hentz to speak with
Melissa (Missy) Ellege, who was the nursing home’s human re-
sources/payroll coordinator. Hentz did. He described his con-
versation with Ellege as follows:
Q. Other than the two of you was anyone else present.
A. No, just me and Missy.
Q. What was said at that point?
A. She said that I could not schedule a PRN employee. She
said that it didn’t work that way. Brandi wanted to set up
I guess sort of like a rotating schedule on weekdays, I
don’t know, for example, like every week Monday and
Wednesday. And Missy said you can’t do that because
you’re scheduling her and so in fact she would not be a
PRN employee, but a part-time employee.
Perhaps Ellege’s denial of the request is based on a reason
weightier than bureaucratic inflexibility, but Ellege did not tes-
tify. It remains unclear why Ellege did not simply designate Sig-
mund a “part-time employee” and allow her to work Mondays
and Wednesdays. After Hentz spoke with Ellege, he went back
to Sigmund with the bad news. He described that conversation
with Sigmund as follows:
Q. Do you recall where the conversation took place?
A. It was at her cart, in the hall.
Q. Was anybody else involved in the conversation?
A. No, it was just her. And I asked her if she wanted to go
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 13
into the nurse’s station. She said, no, that she was fine,
that we could talk right there.
Q. What was said during that conversation?
A. I said, well, I went to Justin. He sent me to Missy. Missy
says that you can’t do that because that is scheduling you.
And she replied what the F. She said John Unger (ph.)
used to do it.
Q. Who is John Unger?
A. He is a nurse. I can’t remember if he is an RN or LPN. I
think he’s an RN that works—he’s PRN as needed.
Q. Was anything else said in that conversation?
A. She was just saying how he got to choose what days he
wanted to work. She didn’t feel like it was fair to her that
she was not able to do the same.
Quite understandably, the Respondent’s denial of Sigmund’s
request upset her. She had no explanation for why the Respond-
ent had allowed a man to work a schedule similar to the one she
requested. Moreover, the reason Ellege gave for denying Sig-
mund’s request seemed trivial at best: If Sigmund were placed
on the PRN roster she could not have regular hours because if
she did, then she truly could not be considered “on call.”
Sigmund’s reason for not wanting to work at certain times was
legitimate and in fact admirable: At those hours, she would be
in nursing classes which would increase her professional
knowledge and, ultimately, qualify her for a promotion. Ellege’s
explanation for denying the request simply ignored Sigmund’s
reason as if it were unimportant. Moreover, the explanation
proffered by Ellege did not suggest that the nursing home needed
her at the hours she would be in class and did not point to any
problem which would result if Sigmund were not present.
For example, if Ellege had said that the nursing home had been
unable to find someone else with Sigmund’s qualifications will-
ing to work on the days Sigmund would be in class, it would have
taken some of the sting out of the denial. Instead, Ellege gave
an explanation which did not claim that the nursing home had a
good reason for denying Sigmund’s request but which, to the
contrary, appeared to be little more than wordplay.
After he spoke with Sigmund, Hentz went back to Adminis-
trator Morrison’s office where he spoke with Morrison alone.
Hentz testified about their brief discussion:

13 Morrison testified that his face often gets red even when he is not
angry. However, in this instance, Morrison’s own testimony —that Hentz
should not be telling department heads what to do—suggests that Morri-
son felt irritation. Even if Hentz had testified that Morrison’s skin had
no more red in it than a dead fish, from the rest of Hentz’ description of
Morrison, and from Morrison’s own testimony, I would conclude that he
indeed was more than a little annoyed at this time.
14 The Respondent noted in its brief that “There is no evidence offered
that Mr. Hentz’ statement was expressed as a group complaint or that
Brandi or anyone else was disciplined in any way.” However, Hentz had
nothing to gain for himself when he told Morrison about Brandi Sig-
mund’s request to work a schedule similar to that of a male employee.
The fact that Hentz was not seeking any modification which would help
himself personally, but rather was voicing to management the concerns
of another employee, Sigmund, leaves no doubt that Hentz was engaged
Q. What was said during that conversation?
A. I came back and I said Brandi is really upset. She feels
like John is getting to do something that she is not, to
which he replied, Ricky, just stay out of it, stay in your
lane, those are Brandi’s problems, tell her to go see Missy,
tell her to go see Mary Ellen, you just stay out of it.
Q. Was anything else said in that conversation?
A. I just said okay, showed him the schedule that I was work-
ing on, and I went back to my office.
Q. What was Mr. Morrison’s demeanor at that time?
A. He was annoyed. I mean he was kind of red faced and just
not being very welcoming. I mean it was obvious he
didn’t want to deal with it.13
For the reasons discussed above, I have concluded that Hentz’
testimony is more reliable than Morrison’s, and here I fully credit
Hentz’ account. However, in this instance, Morrison corrobo-
rates Hentz:
Q. Did you ever make a statement to Mr. Hentz to the effect
of stay in your lane?
A. Yes.
Q. What was that in reference to?
A. I think that’s my—kind of my military terminology but
this was his job, this was his area of—his job was to work
on the schedule, not to tell department heads what to do
and to call people and threaten them and do multitudes of
things that is not in his scope of practice.
Morrison’s explanation implies that Morrison believed Hentz
had told “department heads what to do.” If Morrison had given
the “stay in your lane” instruction while counseling Hentz not to
“call people and threaten them” or not to “tell department heads
what to do,” then arguably the “stay in your lane” instruction
could have carried the message Morrison described. However,
Morrison was not giving Hentz counseling for supposedly threat-
ening people or telling department heads what to do. He did not
tell Hentz to “stay in your lane” as part of such a counseling ses-
sion. Rather, he gave this order after Hentz had told Morrison
about his fellow employee’s request for a different schedule, a
request that the director of health services had denied.14
in concerted activity protected by the Act. The employees acting in con-
cert were Sigmund and Hentz speaking on her behalf.
Moreover, for purposes of analyzing whether a manager’s statement
interferes with the exercise of employee rights, it is not necessary for any
employees already to have exercised those rights at the time the manager
made the statement. Rather, the harm lies in the chilling effect such
statement could produce on employees’ willingness to exercise their
rights in the future. A statement made to even one employee violates
Sec. 8(a)(1) if its effect reasonably would be to interfere with, restrain or
coerce that employee in the exercise of Sec. 7 rights. Therefore, even
assuming, incorrectly, that Hentz was not engaging in protected activity
when he urged Morrison to grant Sigmund’s request, it would not affect
whether or not Morrison’s “stay in your lane” instruction violated the
Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Moreover, the credited evidence does not support Morrison’s
implied claim that Hentz had told any department head or other
manager what to do. Of course, it is true that the person imme-
diately under Morrison in the chain of command, Director of
Health Services Ellege, had denied Sigmund’s schedule request
and Hentz was taking the matter over her head to the administra-
tor.15
Strictly speaking, doing so was not telling a department head
what to do but rather seeking to get her decision reversed. How-
ever, although a lawyer might roughly characterize Hentz’ action
as an “appeal” of Ellege’s decision, someone with a military
mindset might consider it the disobedient refusal of a soldier to
accept his orders, an insubordinate attempt to have them coun-
termanded by an officer of higher rank. The response of the an-
noyed senior officer might well be an angry “stay in your lane.”
Morrison’s use of what he called “kind of my military termi-
nology,” as well as his angry reaction, suggests that he was still
applying notions of military protocol to a civilian employment
situation. If a sergeant gives a private an order, the private
doesn’t often reply that he wants to check with the captain first.
However, notwithstanding that the nursing home may have
been providing services to veterans under government contracts,
and even though its wings were named Alpha, Bravo, Charlie,
and Delta, it was not part of the military and its employees were
not soldiers. In civilian life, Hentz did not have to preface his
comments with a request for “permission to speak freely, sir,”
and what Hentz said was neither rude nor insubordinate. Rather,
in speaking up for another employee about a work-related mat-
ter, Hentz was engaging in activity protected by Section 7 of the
Act.
In considering the message which Morrison’s words reasona-
bly would communicate, the Board takes into account the totality
of circumstances. Those circumstances certainly include Morri-
son’s vexed demeanor, which added an imperative tenor to the
order “stay in your lane.” A typical employee who observed
Morrison’s demeanor reasonably would conclude that the ad-
ministrator intended for his instructions to be followed and might
impose discipline for failure to do so. In this context, it carries
an implied threat.
Additionally, under all the circumstances, an employee rea-
sonably would understand the words “stay in your line” to mean
that the employee was not to protest how a supervisor had treated
a fellow employee. Thus, it amounted to an instruction not to
engage in activity protected by Section 7 of the Act.
Therefore, I recommend that the Board find that the Respond-
ent violated Section 8(a)(1) of the Act by the conduct alleged in
complaint paragraph 8(b).

Additionally, the fact that no one was disciplined is irrelevant to
whether or not Morrison’s statement constituted an unfair labor practice.
15 It may be noted that Hentz later went over Morrison’s head, voicing
to corporate management employee complaints about working condi-
tions at the nursing home. Then, as in the instance under discussion here,
Morrison became upset.
Thus, there is a parallel between Morrison’s reaction when Hentz
went over Ellege’s head to voice employee Sigmund’s complaint, and
Morrison’s reaction when Hentz later went over his head to corporate
Complaint Paragraph 10
Complaint paragraph 10 alleges that about November 28,
2016, the Respondent disciplined employee Hentz by issuing
him a final counseling. Complaint paragraph 13 alleges that the
Respondent took this action because of Hentz’ protected activi-
ties. Respondent denies these allegations and the related allega-
tion, in complaint paragraph 14, that this conduct violated Sec-
tion 8(a)(1) of the Act.
The relevant events began almost 3 weeks earlier, on Novem-
ber 9, 2016. As discussed above, on that date Hentz spoke with
two other nursing assistants, Linda Brinson and Danielle Jeter.
All three of them had received disciplinary warnings from one
supervisor, Amy Ferguson, and all believed that Ferguson
treated African American employees differently from the way
she treated other workers. After his discussion with Brinson and
Jeter, Hentz spoke with a number of other employees concerning
racial prejudice by management. These conversations fall within
the protection of Section 7 of the Act. So does what Hentz did
next, communicating the employees’ concerns to the nursing
home administrator.
Administrator Morrison was not at the facility at the time, but
Hentz contacted him by telephone. Hentz told Morrison, “I feel
like Amy definitely treats African Americans differently than
she do others, and I’m not the only one. I’ve had that conversa-
tion with other people as well who felt like there definitely was
a discrepancy in the way that she treated African Americans. I
mean she was very standoffish and whatnot. And I told him that
I was going to go to corporate.”
Morrison told Hentz that he had the option of calling the cor-
porate office if he wished to do so. Hentz did, using the Re-
spondent’s toll-free “hotline” to the corporate headquarters.
As discussed above under the “Hentz’ Protected Activity”
heading, a corporate-level manager, Ellis, later returned Hentz’
call about his complaint. Although I have resolved testimonial
conflicts by crediting that of Hentz rather than Ellis, the two wit-
nesses really do not disagree much about the facts, even though
their opinions about the conversation differ sharply. Hentz tes-
tified that the conversation began as follows:
Q. What was said?
A. She introduced herself, I’m Tammy Ellis. I’m calling re-
garding your call to corporate and the complaints. I said
thank you. She said can you tell me about it? I told her
that myself as well as some other staff members there felt
like Amy and some other staff members were definitely
racists. I mean it was the way they treated you was totally
different. I mean, Karen Shook witnessed. You know, it
was very obvious.
management. In each instance, Hentz was expressing other employees’
complaints about employment discrimination.
Employee Sigmund had requested a schedule similar to that which a
male employee was working. Ellege’s denial thus created an issue of
possible sex discrimination, which Hentz took to Morrison. When Hentz
later contacted corporate management, he voiced employees’ concerns
about racial discrimination at the nursing home. Again, Morrison be-
came angry.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 15
Q. Who is Karen Shook?
A. Karen Shook is an LPN that works on Delta.
As Hentz described the problem to Ellis, he was not satisfied
with her responses. He testified that she was defensive:
Q. Why do you say that?
A. Just she was trying to refute everything that I was saying.
She was trying to explain it away. And finally I was like,
look, we’re here, we’re experiencing this, I know what I
know. I know what I see and what I feel. I know what I’ve
experienced. And she said, well, I’m going to come do an
investigation. And I said to her, well, I don’t feel you can
be impartial. I feel like no matter what you’re going to
take Justin’s side.
Ellis’ testimony paints a similar picture, although it focuses
more on Hentz’ frustrated reaction to her skepticism about his
claim of racism. When she dismissed his concerns, he responded
with frank language which offended her. She testified:
Q. And what do you remember from that conversation?
A. During that conversation, he raised concerns. He felt that
there had been some racial discrimination at the facility
by another partner. When we spoke about what his con-
cerns were, and the issues that had happened, the exam-
ples he gave me didn’t lead me to believe that it was racial
discrimination, and when I asked him for more infor-
mation, he got slightly upset during the conversation.
Q. You perceived him to be upset?
A. I perceived him to be upset.
Q. Why did you—on what basis?
A. Because when I explained to him that the two examples
he gave, which the examples were eating ice cream in an
area that you’re not supposed to eat ice cream, and the
other example was not saying good morning in the hall-
way, he got a bit aggressive and said, I’m sorry, she didn’t
call me the N word, though he said the full word to make
it easy for me to see that it was racial discrimination.16
Q. Can you spell the N word for us?
A. N-i-g-g-e-r.
Q. And that was the full word that he used?
A. That is the full word he used.
Q. As a regional partner services manager, did you have a
point of view on whether it was appropriate for Mr. Hentz

16 However, Ellis’ notes of her telephone conversation establish that
Hentz did more than tell Ellis about his reprimand and a failure to say
good morning. Hentz actually gave Ellis an example of perceived dis-
parate treatment of white and black employees. Ellis’ notes record that
Hentz told her of a specific instance in which an African American em-
ployee received a reprimand for wearing tight yoga pants and another
specific instance of a white employee who wore similarly tight pants
without being reprimanded.
17 Whether or not such a dismissive attitude runs deep in Respond-
ent’s corporate culture, Ellis certainly wasn’t the only manager to display
to make that statement?
A. I thought it was very inappropriate.
Q. Why did you feel that way?
A. It’s inappropriate language. It’s inappropriate language
for anyone to be using in our workplace. Even when filing
a grievance, that would be inappropriate and would lead
to disciplinary action.
Q. Did you have an opinion as to whether Mr. Hentz’s state-
ment was respectful or disrespectful?
A. I felt it was disrespectful.
In sum, Ellis’ notes and her testimony show that after Hentz
described what he considered a racially hostile work environ-
ment, and after he told her about a specific instance in which
black and white employees were treated disparately, she none-
theless dismissed what he had said as unimportant. Hentz, taken
back by Ellis’ response, replied to the effect that there could be
racial prejudice in the nursing home even if people didn’t go
around uttering a particularly vile epithet. This certainly was a
legitimate point because prejudice doesn’t always result in hard-
to-ignore symptoms any more than an infection necessarily
causes a 104 degree fever.
It should be stressed that Hentz did not call or refer to anyone
with the vulgar epithet but only used the word to illustrate an
extreme and unmistakable symptom of racial prejudice. In other
words, prejudice should not have to be that open, noxious, and
unmistakable for management to recognize it.
From Hentz’ perspective, Manager Ellis seemed more inter-
ested in denying the existence of prejudice than in dealing with
it. Perhaps most revealing is Ellis’ testimony concerning her re-
action to Hentz’ complaint of racial prejudice. She thought
Hentz was disrespectful and could be disciplined.17
In general, the testimony of Hentz and Ellis, together with her
notes, form a consistent picture of their conversation. However,
to the extent that any conflict exists, my observations of the wit-
nesses lead me to resolve such a conflict by crediting Hentz’ ac-
count.
Based on Hentz’ credited testimony, I find that he told Ellis
“that myself as well as some other staff members there felt like
Amy and some other staff members were definitely racists.”
Those words leave no doubt that he was expressing the work-
related concerns of other employees as well as his own. Simi-
larly, the instance of disparate treatment which Hentz gave, as
reflected in Ellis’ notes, illustrates that Hentz was describing a
work environment hostile to other employees of color, not just
to himself.
it. Indeed, one of the employees’ complaints, as Hentz told investigator
Mervin, was that “people do not feel they are being heard.” And when
Hentz relayed to the nursing home administrator the employees’ com-
plaints about understaffing, Morrison disingenuously replied “we’re
working on it” even though he believed there was no staffing shortage.
Likewise, when Hentz told the administrator about employee Sigmund’s
scheduling need, Morrison did not react by sympathizing or even ac-
knowledging the problem but instead, vexed, told Hentz to butt out, to
“stay in your lane.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
In this regard, Ellis’ notes of her telephone conversation with
Hentz contradict her testimony that Hentz only mentioned, as ex-
amples of discrimination, his reprimand for eating ice cream and
a failure to say good morning in the hallway. Rather, Ellis’ notes
establish that Hentz told her of a specific instance in which an
African American employee received a reprimand for wearing
tight yoga pants and another specific instance of a white em-
ployee who wore similarly tight pants without being repri-
manded.
The Board has consistently defined concerted activity as en-
compassing the lone employee who is acting for or on behalf of
other workers, or one who has discussed the matter with fellow
workers, or one who is acting alone to initiate group action, such
as bringing group complaints to management’s attention.
Kvaerner Philadelphia Shipyard, 346 NLRB 390 (2006), citing
NLRB v. City Disposal Systems, 465 U.S. 822 (1984). Hentz’
complaint to Respondent’s corporate-level management, on be-
half of other employees as well as himself, clearly falls within
the protection of Section 7 of the Act.
Section 7 does not include any requirement that an employee
have a good faith belief in the merits of his complaint and there-
fore I do not consider that question here. However, it may be
noted that the record includes some evidence consistent with
Hentz’ concerns.18 Additionally, my observations of Hentz
when he testified clearly leave no doubt that Hentz was acting
earnestly and in good faith when he reported to corporate man-
agement that local managers were treating employees differently
because of race.
When Hentz spoke with Ellis, he had asked that someone else
conduct the investigation because he did not believe she could
be impartial. The Respondent sent another manager, Mervin.
She arrived at the nursing home on November 21, 2016.
On that day, but before Mervin’s arrival, Morrison came to
Hentz’ office. Hentz credibly testified that Morrison shut the
door and said, “Ricky, I’ve heard that there is someone coming
to my building to do an investigation. Do you want to tell me
what it’s about?” Hentz replied “you know there’s some staff
that has some concerns here.”19
Hentz testified that Morrison then said, “do you want to tell
me what that’s about? I said, well, I don’t really know. At that
point he became visibly upset. He snatched his things up, opened
the door, and he left.”
That exchange occurred on the day Mervin arrived at the fa-
cility. Morrison also demonstrated his distress later, on the day
Mervin left the facility. Registered Nurse Horton credibly testi-
fied that, before Mervin’s departure, Morrison remarked that
Hentz kept talking to her. Horton also testified about a conver-
sation with Morrison, whose first name is Justin, which took
place a day or two later:
Q. When you went into Mr. Morrison’s office, who was

18 For example, while cross-examining Registered Nurse Horton, the
Respondent’s counsel asked her if she believed Administrator Morrison
made choices based on race. Horton answered, “I do believe he does
have some prejudice.”
19 Hentz’ response constitutes further evidence that he had com-
plained to corporate management not only on his own behalf but also on
behalf of other employees.
present in the office?
A. Crysta Bloomberg, Justin Morrison, and myself.
Q. Was anybody else present?
A. No.
Q. When you arrived, what, if anything, did you see?
A. Justin was very angry. He was red. His fist was clenched,
forehead wrinkled. He was very visibly upset.
Q. After you went in the office, was anything said?
A. I asked him if he was okay. He said I’m tired of Ricky’s
shit. It’s always something with him.
Morrison denied making this remark and Bloomberg, whose
last name is now Dickens, denied hearing it. For reasons dis-
cussed above, I have concluded that Horton is a very reliable
witness. In contrast, I believe Morrison’s testimony does not de-
serve this level of trust.20 Based on my observations of the wit-
nesses, I do not credit Dickens’ testimony to the extent it con-
flicts with Horton’s. Accordingly, I find that Morrison did say
“I’m tired of Ricky’s shit.”
Further, based on the credited testimony of Hentz and Horton,
I find that the investigator’s visit to the nursing home made Mor-
rison visibly angry. Even though Morrison claimed that his face
sometimes reddened when he wasn’t angry, he did not assert that
he clinched his fist at other times. Clinching a fist while using
vulgar language, does not suggest a state of beneficent tranquil-
ity.
Horton had come to Morrison’s office in search of Dickens,
whom she wanted to see about an unrelated matter. Horton and
Dickens left Morrison’s office and, while walking down the hall
to Dickens’ office, had a brief conversation. Horton testified
about it as follows:
Q. As you proceeded to her office was anyone else with you
other than Ms. Bloomberg?
A. No, it was just her and myself.
Q. What, if anything, was said on the way to her office?
A. I asked Crysta what was going on. She told me that cor-
porate had told them to let him go slowly because he can
be dangerous and to document appropriately.
Q. Did you know who she was referring to?
A. Ricky.
Q. How do you know that?
A. Because it was a continuing conversation from Justin’s
office. I was trying to find out why he was so upset.
Q. And was anything else said in that conversation?
20 As discussed above, Morrison testified, in effect, that every morn-
ing he found that 5 or 6 letters complaining about Hentz had been slipped
under his door. However, he could not produce any of them and testified
that he did not keep them. Morrison’s credibility will be discussed fur-
ther below in connection with evidence indicating that the Respondent’s
proffered reasons for discharging Hentz were pretextual.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 17
A. Yes.
Q. What else was said?
A. She told me that Justin had to be careful because this is
the second complaint about race.
Dickens denied making the statements attributed to her. How-
ever, based on my observations of the witnesses, I credit Horton.
Therefore, I find that Dickens did tell Horton that “corporate had
told them to let [Hentz] go slowly because he can be dangerous
and to document appropriately.” Further, I find that Dickens also
said that Morrison had to be careful because it was the second
complaint about race.
The Respondent has stipulated that, during this time period,
Dickens was its supervisor within the meaning of Section 2(11)
of the Act. Additionally, Dickens, as director of health services,
was a high-ranking manager at the nursing home, presumably
second only to Morrison in authority. Therefore, I conclude that
Dickens’ statements are imputable to the Respondent and consti-
tute an admission by the Respondent.
Both Morrison’s statement that he was “tired of Ricky’s shit”
and Dickens’ statement to Horton that corporate management
had told Morrison to discharge Hentz but to do it slowly and with
documentation took place 1 or 2 days after the investigator had
left the nursing home. That was less than a week before the Re-
spondent issued Hentz the “final warning” under consideration
here. The timing, I conclude, is significant.
Employees must “punch” in and out when arriving and depart-
ing, including for lunch breaks, and these punches are recorded
electronically. Employees also have to take a full 30-minute un-
paid lunchbreak or receive permission from a supervisor to take
less time, which also would be documented. Morrison retrieved
this documentation pertaining to Hentz. The record suggests that
Morrison did so on November 21, 2016, the same day that the
investigator arrived at the nursing home.
Morrison then issued Hentz a written warning labeled “Per-
formance Document-Discipline 3-Final.” That word “final” was
portentous. It signified that discharge would be the penalty for a
future infraction. The warning stated:
Partner has multiple attendance occurrences. Missed punches,
missed lunch reports. 10/11, 10/25, 11/10, 11/14, 11/15.
Morrison signed this warning and dated it November 21,
2016. Director of Health Services Dickens, whose last name was
then Bloomberg, also signed it as a witness, and dated her signa-
ture November 21, 2016. However, Hentz testified that he re-
ceived it “the Monday after Della Mervin came, so I would say
that was November 28, 2016.”
Mervin testified that she visited the nursing home on Novem-
ber 21, 2016, and her interview notes bear that date. The next
Monday after that visit was November 28, 2016. Crediting
Hentz’ testimony, notwithstanding that the signatures of Morri-
son and Bloomberg on this warning are dated November 21, I
conclude that they gave the warning to Hentz a week later.
Therefore, I will refer to this document as the November 28,
2016 warning.
Based on the documentary evidence and credited testimony, I
find that the General Counsel has proven that about November
28, 2016, Respondent disciplined employee Hentz by issuing
him a final counseling, as alleged in complaint paragraph 10.
Now, I must determine whether this action violated Section
8(a)(1) of the Act, as alleged in complaint paragraph 14.
Wright Line Analysis
The Respondent asserts that it disciplined Hentz for attend-
ance infractions and not, as the General Counsel alleges, because
of Hentz’ protected activities. Therefore, I must determine to
what extent, if any, the Respondent considered those protected
activities and to what extent they influenced Respondent’s deci-
sion to impose discipline.
To do so, I will follow the analytical framework which the
Board set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Under the Wright Line test, the General
Counsel has the initial burden of establishing that employees’
protected activity was a motivating factor in the Respondent’s
taking action against them. The General Counsel meets that bur-
den by proving protected activity on the part of employees, em-
ployer knowledge of that activity, and animus on the part of the
employer. See Willamette Industries, 341 NLRB 560, 562
(2004) (citations omitted).
If the General Counsel makes this initial showing, the burden
then shifts to the Respondent to prove as an affirmative defense
that it would have taken the same action even if the employees
had not engaged in protected activity. Id. at 563; Manno Elec-
tric, 321 NLRB 278, 280 fn. 12 (1996). See El Paso Electric
Co., 350 NLRB 151 (2007). However, if the Respondent’s
claimed reason for taking the disciplinary action is found to be
pretextual, it cannot show that it would have taken the same ac-
tion in any event. Rood Trucking Co., 342 NLRB 895 (2004);
Austal USA, LLC, 356 NLRB 363, 364 (2010).
Hentz’ protected activities include discussing working condi-
tions with fellow employees and expressing their concerns about
those conditions to management, both at the local and corporate
level. The Respondent’s management clearly knew about these
activities because Hentz management officials obviously were
present when he told them about his fellow employees’ concerns.
The Respondent’s brief contends that “the overwhelming pre-
ponderance of the evidence shows that Mr. Hentz did not engage
in protected, concerted activity; that the decision-maker, Mr.
Morrison, had no knowledge of Mr. Hentz’ alleged protected,
concerted activity prior to issuing him a final warning for attend-
ance and terminating his employment after he continued to vio-
late the Attendance Policy; and no credible evidence shows Mr.
Morrison took such action based on any unlawful animus.”
At another point, the Respondent’s brief states: “No evidence
shows Mr. Hentz sought assistance from his coworkers in sub-
mission of any group complaint to the Veterans’ Home. No ev-
idence shows that Mr. Hentz circulated any petition or to have
articulated any change in policy supported by two or more indi-
viduals and related to their working conditions.”
A discussion under the heading “Hentz’ Protected Activity,”
above, explained why I have rejected the Respondent’s argument
that Hentz’ activities were not protected. Therefore, I will return
to that issue only briefly here.
The Respondent’s argument both understates the scope of ac-
tivity protected by Section 7 and misunderstands what Hentz
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
actually did. An employee does not have to circulate a petition
or propose a change in policy “supported by two or more indi-
viduals” to be protected by the Act. Hentz spoke with other em-
ployees about their work-related concerns and communicated
those concerns to management. That is enough.
Section 7 does not require an employee to articulate a change
in policy. Whatever the Respondent’s policy might have been
concerning racial prejudice, Hentz voiced a complaint not about
Respondent’s policy but about Respondent’s perceived prac-
tices.
The assertion that Hentz engaged in no protected, concerted
activity is simply wrong. The credited evidence clearly shows
that he expressed to management, both at the nursing home and
at the corporate level, the concerns of employees other than him-
self. As noted above, Morrison told Hentz to “stay in your lane”
immediately after Hentz had urged Morrison to allow another
employee to change her work schedule. Hentz had nothing per-
sonally to gain by advocating on behalf of this other employee.
When Hentz complained to management at the corporate
level, he voiced not only his own concerns about racial prejudice
at the nursing home but also expressed the similar concerns of
other employees. Indeed, Hentz gave the management investi-
gator the names of other employees to contact concerning this
matter.21 Even a nurse supervisor, Jennifer Horton, expressed
the opinion that the nursing home administrator had “some prej-
udice,” so the employees’ perceptions of prejudice cannot be dis-
counted as unfounded and their complaints about it cannot be
dismissed as frivolous. If the top management official at the
nursing home harbored prejudice, it would affect the working
conditions not only of Hentz but of all African-American em-
ployees at that facility.22 I find that Hentz made his complaint of
racial prejudice not only on his own behalf but for other employ-
ees as well, and further conclude that his complaint constituted
concerted activity protected by Section 7 of the Act.
The Respondent’s brief also asserted that Morrison “had no
knowledge of Mr. Hentz’ alleged protected concerted activity.”
This claim must be rejected because that protected activity in-
volved expressing the employees’ concerns to management, in-
cluding to Administrator Morrison.
The administrator hardly could be unaware that Hentz was
voicing employees’ concerns to management when he, Morri-
son, was the member of management to whom Hentz spoke. In-
deed, after Hentz engaged in the protected activity of advocating
that Morrison grant Sigmund’s requested schedule change, Mor-
rison replied “stay in your lane.” Treating the Respondent’s ar-
gument most charitably, it is possible that Morrison might not
have known that the Act protected Hentz’ right to speak on be-
half of other employees. However, the administrator’s possible

21 Based upon my observations of the witnesses, and for the reasons
discussed earlier in this decision, I do not take at face value testimony
claiming that Hentz said that he was speaking only for himself. Hentz
was an outgoing, people-oriented person, whose personality stood in
contrast to that of the more military Morrison. Hentz’ advocacy on be-
half of Sigmund’s schedule request, advocacy from which he personally
had nothing to gain, shows he was concerned about other employees.
Moreover, the record clearly demonstrates that Hentz complained about
racial prejudice only after other employees confirmed to him that they,
too, felt that they had been treated differently. Even apart from Hentz’
ignorance of the law is not ignorance of the protected activity
itself.
The record also includes convincing evidence of animus.
When Hentz’ complaint to corporate-level management resulted
in an investigator coming to the facility, Morrison clinched his
fist and said he was “tired of Ricky’s shit.”
Additionally, the Respondent’s director of health services,
Dickens, told Registered Nurse Horton “that corporate had told
them to let him go slowly because he can be dangerous and to
document appropriately.” Dickens added that Morrison “had to
be careful because this is the second complaint about race.”
Dickens’ words suggest that management intended to discharge
Hentz because of his complaint about race, which was part of his
protected activity. (They also are consistent with the conclusion
that management intended to conceal that reason by creating a
“paper trail,” which will be discussed further below.)
Morrison acted precisely in the manner Dickens described.
He did not discharge Hentz immediately but instead issued a “fi-
nal warning.”
Therefore, I conclude that the General Counsel has carried the
government’s initial burden of showing that Hentz’ protected ac-
tivities were a motivating factor in the decision to discipline him.
The burden therefore shifts to the Respondent to establish that it
would have taken the same action even in the absence of pro-
tected activities. However, a respondent cannot carry this burden
if its claimed reason for the discipline is pretextual. Rood Truck-
ing Co., above. As the Board explained, this “is because where
‘the evidence establishes that the reasons given for the Respond-
ent’s action are pretextual—that is, either false or not in fact re-
lied upon—the Respondent fails by definition to show that it
would have taken the same action for those reasons, absent the
protected conduct, and thus there is no need to perform the sec-
ond part of the Wright Line analysis.’ Golden State Foods
Corp., 340 NLRB 382, 385 (2003).” Rood Trucking Co., 342
NLRB at 898.
If the Respondent’s reason for the disciplinary action is pre-
textual, I need not consider the evidence it offers to prove that it
would have taken the same action even in the absence of pro-
tected activities. Austral USA, LLC, above. Therefore, I first
consider whether the reasons for issuing the disciplinary warning
were pretextual.
Pretext
Here, evidence strongly indicates that this “final warning” it-
self was part of the pretext. Crediting Horton’s testimony, I have
found that Dickens said that corporate management had told
Morrison to discharge Hentz (“let him go”) but also had cau-
tioned Morrison to “go slowly because he can be dangerous and
caring personality and the concern he demonstrated for other employees,
the notion that Hentz received other employees’ complaints of prejudice
but then told management he was complaining only for himself is diffi-
cult to believe.
22 Horton credibly quoted Director of Health Services Dickens as say-
ing that Hentz’ complaint was the second one about race. Clearly, em-
ployees other than Hentz were concerned about perceived prejudice in
the workplace.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 19
to document appropriately.” In other words, Respondent’s cor-
porate management instructed Morrison to create a “paper trail”
of documents which could be used to justify discharging Hentz.
The Respondent did discharge Hentz, on about November 13,
2016, ostensibly because of attendance problems. Thus, the final
warning which Hentz received on about November 28, 2016, for
supposed attendance problems does serve as documentation to
support the later termination of Hentz’ employment. Therefore,
in considering the issue of pretext, I will examine not only
whether the reason for the final warning itself was pretextual, but
also whether it was part of a scheme to create a pretext which
would conceal the actual reason for discharging Hentz.
The most obvious evidence of pretext is Dickens’ statement to
Horton, describing the instructions Morrison had received from
corporate management to discharge Hentz but to do it slowly and
to “document appropriately.” As noted above, it appears that
Morrison began the documenting process on the same day the
investigator arrived by retrieving attendance records showing
when Hentz clocked in and out of work.
Morrison testified that after he took charge of the nursing
home in August 2016, he began tightening enforcement of the
existing rules about attendance and punching in and punching
out. Although Morrison was the overall administrator of the
nursing home, for a period of time he also was Hentz’ immediate
supervisor. In fact, he had been Hentz’ supervisor for a month
at the time he issued the final warning. One of Hentz’ supposed
failures to punch in or out took place on October 11, 2016.
The General Counsel’s brief argues that Morrison’s slowness
to discipline Hentz undercuts any conclusion that the new ad-
ministrator pulled Hentz’ time records only as part of a more
general tightening of attendance enforcement. The General
Counsel’s argument has some persuasive power, but I do not be-
lieve timing alone, although raising suspicions, suffices to estab-
lish that Respondent’s stated reason for discharging Hentz was
pretextual.
Morrison’s testimony itself provides some of the most con-
vincing evidence of pretext. Not very subtly, and not at all con-
vincingly, he labored to depict Hentz as a terrible and disruptive
employee. His testimony that, every night, employees slipped 5
or 6 letters complaining about Hentz under his office door rang
more than a little untrue when he could not produce even one of
them. This supposed failure to retain the letters is even more
unbelievable considering that corporate management had told
him to “document appropriately” Hentz’ shortcomings.
In concluding that Morrison wildly exaggerated the number
and seriousness of complaints he received about Hentz, I take
into account the feebleness of the evidence Respondent submit-
ted to support Morrison’s claim. Morrison’s testimony comes
close to depicting Hentz as terrorizing and intimidating the nurs-
ing staff, and not just rarely but continuously for more than a
month. Morrison’s testimony similarly portrays the nursing su-
pervisors as barraging him with complaints about Hentz. The
clear difference between what Morrison described and what the
credited evidence established is so great it suggests that whatever

23 Issues concerning racial discrimination in employment neither fall
within my authority nor are alleged in the complaint. Here, I do not de-
cide whether Morrison actually harbored any racial prejudice or whether,
Morrison claimed about the reason for discharging Hentz cannot
be trusted.
When asked to name specific individuals who had complained
to him about Hentz, Morrison answered “I would say probably
all of the RN supervisors, Julia Conner, Mary Bosenberry, Tonya
Gray, Frank McElrath and to the point where—it got to the point
where they requested a meeting with me, all the nursing staff
did.” However, only one of those people he named, Registered
Nurse Tonya Gray, testified. For reasons discussed below, I be-
lieve that Gray had a tendency to exaggerate and give little
weight to her testimony.
Gray testified that she reported to Administrator Morrison that
“the other RN supervisors who had voiced concerns to me about
not being able to change the schedule to meet the needs. I voiced
that the LPNs were—had concerns that they could not speak with
the scheduler about the needs of their specific units and that the
CNAs had concerns because they felt that they were not able to
give continuity of care because they were being placed on differ-
ent units frequently.”
In considering Gray’s testimony that the CNAs often were
placed on different units, it should be noted that this problem was
not Hentz’ fault. Administrator Morrison testified that “the turn-
over is 50 percent” at the nursing home. With employees leaving
and new ones being hired, some changes in work assignments
would be expected and unavoidable.
Moreover, the employees repeatedly complained to Hentz that
the nursing home was understaffed. In that situation, the absence
of even one employee could require someone else to be reas-
signed to meet minimum staffing requirements on each wing.
Again, that problem was not Hentz’ fault. However, when Hentz
relayed employee complaints about understaffing to Administra-
tor Morrison, he took no action. Indeed, the record suggests that
Morrison thought that the employees were not working hard
enough. For example, Morrison told employees that they should
not tell patients or their families that the nursing home was un-
derstaffed, and he testified, in effect, that a claim of understaffing
was not true. (Indeed, his testimony suggests that he may even
have considered the statement “we’re understaffed” to be an ex-
cuse for laziness.)23
However, I do not credit Morrison’s testimony that the nurs-
ing home was not understaffed. As noted above, he displayed a
marked tendency to exaggerate and I do not consider his testi-
mony reliable. Additionally, the record indicates that the Re-
spondent actually paid a kind of bonus to employees who re-
cruited others to work at the nursing home. That fact, together
with the high turnover rate, leads me to conclude that there was
indeed a shortage of CNAs, which in turn occasionally made it
necessary to change their work assignments.
Additionally, Gray, who works at the facility as a registered
nurse supervisor, was not a convincing witness. She testified
about one occasion when, after she made changes to the work
schedule, Hentz told her that she was not allowed to do so:
Q. When did that conversation take place?
A. It was approximately mid-October, to the best of my
if so, it affected his reaction to the employees’ complaints about under-
staffing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
knowledge.
Q. And what do you recall Mr. Hentz saying to you during
that conversation?
A. He showed me the schedule and asked why I had made
changes to the schedule, and reprimanded me for making
changes to the schedule. He told me that the only people
that were allowed to make those changes were Justin,
Crysta, and himself, and that anybody else who made
those changes, it was considered a fireable offense.
Q. And how did you interpret his statement that other people
making schedule changes would be a fireable offense?
A. I interpreted it as him telling me that he had the authority
to fire me if I made changes to the schedule.
Q. Did you believe that to be true or not true that he had the
authority to fire you if you made changes to the schedule?
A. I believed that according to his scope of practice he could
not.
Q. Why do you say that?
A. Because certified nursing assistants, according to the
North Carolina Board of Nursing cannot supervise regis-
tered nurses.
Q. Were you concerned or unconcerned about the infor-
mation that Mr. Hentz was sharing to you?
A. I was very concerned about it.
Q. Why is that?
A. Because I did not feel that I was able to perform my job
duties. I felt that not being able to change the schedule to
meet the needs of the facility and acuity of the residents
put my nursing license at risk, because I’m ultimately re-
sponsible for those residents during my shift.
However, on cross-examination, Gray admitted that the Re-
spondent’s policy, printed on the daily assignment sheet, did not
authorize her to change the schedule. To the contrary, changes
had to be approved by the director of health services (DHS).
During the cross-examination the General Counsel handed Gray
such an assignment sheet:
Q. And what is that document?
A. That is our daily staffing assignment sheet.

24 Gray also testified that she asked Administrator Morrison, presum-
ably after this conflict with Hentz, if she had authority to change sched-
ules and that Morrison said “RN supervisors could change the schedule
to meet the needs of the facility, that resident care was always first and
foremost. So if we had a unit that we felt needed more CNA staff in a
unit that could spare one that we could reassign those CNAs.”
Morrison described a meeting with Gray, but his testimony falls short
of establishing that he gave her permission to make scheduling changes.
He testified that “her main fight was that she would be able to have a say
in who goes where or what staff members go to which areas based on the
medical needs of the residents.”
Q. And that’s similar to the document that you referenced in
your testimony about the daily staffing?
A. Yes.
Q. And just below where it says RN supervisor, it says no
changes to schedule without consulting with DHS.
A. Right.
Q. And the DHS would be Crysta Bloomberg Dickens, I be-
lieve?
A. Yes, uh-huh.
Counsel for the Charging Party also cross-examined Gray
concerning whether she had authority to change the schedule
without prior approval by the director of health services. She
appeared to believe that, because she was a registered nurse, she
had such authority notwithstanding the Respondent’s rule:
Q. BY MR. SHULTS: Yes. Mr. Hentz was correct in saying
that the only changes to the schedule could be made by
the facility administrator, Mr. Morrison, the DHS, or him-
self as the scheduler.
A. Not according to my registered nursing license.
Q. Well, I’m not concerned about your registered nursing li-
cense. I’m concerned about what the policy was at the fa-
cility. If you’ll look at General Counsel’s No. 3, do you
have that in front of you?
A. This? Yes.
Q. It says at the top, no changes to the schedule without con-
sulting with the DHS, correct?
A. Correct.
Q. That statement was on the schedules, all the schedules for
the entire time you’ve worked at the facility, correct?
A. Correct.
Q. You understood that Mr. Morrison, as the facility admin-
istrator, could make final decisions about scheduling, cor-
rect?
A. Yes.
Q. And you understood that from this document no
changes—the document stated no changes to schedule
without consulting with the DHS, correct?
A. Right.24
Respondent’s counsel asked Morrison whether Gray’s request was
reasonable or unreasonable and Morrison answered “reasonable.” How-
ever, that testimony does not establish that he granted Gray authority to
ignore the language on the daily assignment sheet and make changes
without first obtaining permission from the director of health services.
However, even assuming that Morrison allowed this deviation from
the rule, and even assuming that he told Hentz to make this exception,
there is no evidence that Hentz failed to follow such a direction after
receiving it. To the contrary, Gray testified about Hentz that “I don’t
think that we ever didn’t get along other than that one conversation.”
This testimony does not support Morrison’s depiction of a situation in
which the registered nurses continually were up in arms about Hentz.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 21
It isn’t clear why Gray apparently believed that her license as
a registered nurse granted her authority which the nursing
home’s policy, written on the daily assignment sheet, denied to
her. However, the issue of her authority was a matter between
her and the nursing home and her attempt to blame Hentz fell
into the category of “shoot the messenger.”
Thus, when Hentz reminded her of the Respondent’s policies,
she interpreted what Hentz said as Hentz making a threat to dis-
charge her. Or, at least she claimed that she believed Hentz was
making such a threat. However, when cross-examined by the
Charging Party’s counsel, she admitted that she knew Hentz was
not a supervisor and did not have authority to discharge her:
Q. You understood that whatever Mr. Hentz may or may not
have said, you could always go to Mr. Morrison and get
the changes to the schedule that you thought were appro-
priate.
A. Correct.
Q. You thought that at all times that Mr. Hentz was the
scheduler.
A. Correct.
Q. You knew that he was a CNA, correct?
A. Correct.
Q. You knew he had no supervisory authority over him.
A. I knew—yes.
Q. So you knew that when he said it was a terminable offense
to change the schedule without his permission that that
was not something that could happen to you, that you
could be terminated for that.
A. I felt that he was threatening me.
Yet the real problem appears to be that Gray believed that she,
as a registered nurse, outranked Hentz and she resented his ob-
jecting to her changing the schedule he had made. Indeed, she
testified, “I feel that the scheduler not allowing me to be able to
change the schedule as the facility needs—to meet the needs of
the facility is a CNA supervising an RN.”
Gray further testified that the North Carolina Board of Nurs-
ing did not allow a registered nurse to be supervised by a CNA.
However, she admitted on cross-examination that she never con-
tacted that agency. She also admitted that she knew Hentz had
no supervisory authority:
Q. And you understood that he had absolutely no authority
to terminate your employment.
A. Correct, but I felt that he was threatening my job.
Gray’s view, that Hentz’ refusing to allow her to change the
schedule amounted to a CNA unlawfully supervising an RN,
does not square easily with her admitted knowledge that Hentz
was not a supervisor. In my view, it reflects a personality clash
between the two individuals.
Moreover, Gray seemed to season events with a drama they
did not otherwise possess. For example, she interpreted Hentz’
supposed “fireable offense” remark as a threat that he would dis-
charge her. She also regarded Hentz’ control of the schedule as
the unlawful supervision of an RN by a CNA.
In any event, Gray’s testimony on cross-examination estab-
lishes that she had no complaints about Hentz except for his re-
luctance to allow her to change the schedule and that she really
clashed with him only once:
Q. Now, after your encounter with Mr. Hentz, did you start
getting along better with him?
A. I never—I don’t think that we ever didn’t get along other
than that one conversation.
Q. So except for that one conversation, you found him agree-
able to work with?
A. I found that when I would go to him with a problem, he
would become very defensive very fast and would not lis-
ten to why I needed to make changes.
Hentz’ supposed defensiveness about changing the schedule
is easy to understand. With a shortage of available employees,
each schedule had to be built somewhat like a house of cards.
Once completed, making even one change could necessitate
other changes. Although Gray focused on adequate staffing for
her particular unit, Hentz had to consider the needs of all units.
In the absence of enough available workers, he faced a signifi-
cant challenge just creating a schedule, let alone then having to
change it.
In sum, although Morrison testified that a large number of em-
ployees were complaining about Hentz, I find that to be a great
exaggeration. The most significant supporting evidence the Re-
spondent produced was Gray’s testimony, which basically
showed her blaming Hentz for taking seriously the Respondent’s
rule that the director of nursing must approve all changes in the
schedule.
As already noted, I believe Gray also had a tendency to exag-
gerate which diminishes the weight given to her testimony.
However, even fully crediting that testimony, it does not show
Hentz to have been a bad employee but rather a good one, faith-
fully adhering to the Respondent’s rule even when pressured to
ignore it.
Administrator Morrison also testified that Hentz made fre-
quent errors when he prepared work schedules. However, in
view of my conclusion that Morrison’s testimony lacks reliabil-
ity, I regard it, at best, as an extreme exaggeration of Hentz’
shortcomings.
In preparing work schedules, Hentz had to cope with the un-
derstaffing problem. Additionally, to the extent he made mis-
takes, some arose from following the instructions of the previous
director of health services, whom Morrison discharged. Moreo-
ver, when Morrison informed Hentz of the procedures he wanted
Hentz to follow, Hentz made the changes Morrison desired.
Morrison’s testimony implies that Hentz may then have reverted
to his previous practice but that testimony was vague. Because
I did not find Morrison to be a reliable witness, I do not credit
such vague testimony in the absence of other proof.
To the contrary, I conclude that Morrison strained to portray
Hentz in a bad light by making unsubstantiated claims about him.
Morrison’s attempts to smear Hentz, unsupported even by the
testimony of Gray, a witness the Respondent called, provides
further evidence of pretext.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
An email which Morrison sent to a corporate-level manager
on December 13, 2016, the date Respondent discharged Hentz,
constitutes still more evidence that the stated reason, attendance
problems, was pretextual. Morrison sent this email at 8:29 a.m.,
well before the discharge took place. The email, to Corporate-
level Manager Ellis stated, in part:
In regard to Mr. Hentz. He accepted a position as a CNA and
continues to bring up rumors and allegations regarding mem-
bers of management.
Morrison testified that “rumors and allegations” referred to
Hentz talking about a “relationship” between Morrison and the
director of health services. However, nothing in the record indi-
cates that Hentz was talking to other employees about Morri-
son’s personal life. Similarly, no evidence suggests that Morri-
son confronted Hentz about his supposed gossiping. Likewise,
the record does not indicate that Morrison complained to anyone
else that Hentz was talking about Morrison’s personal life. Ra-
ther, Hentz discussed working conditions with other employees
and expressed their complaints about working conditions to
management.
Moreover, even if the record showed that Hentz engaged in
personal gossip about Morrison, which it does not, the reference
to such activity, in an email the day of Hentz’ discharge, still
would cast doubt on the Respondent’s assertion that it terminated
Hentz’ employment because of attendance problems. In other
words, discharging Hentz because he gossiped about Morrison’s
personal life, but then claiming that the discharge was for attend-
ance problems, would itself be pretextual.
However, I do not credit Morrison’s testimony that Hentz was
spreading rumors and allegations about Morrison’s personal life
and reject that supposed explanation for the comment in the
email. Instead it appears likely that Morrison was referring to
Hentz’ complaints about working conditions, particularly that
certain managers were racially prejudiced.
Although Morrison described at length Hentz’ supposed per-
formance problems as an employee, the discharge notice only
gave one reason for the termination: Attendance problems. On
cross-examination, Morrison stated that he discharged Hentz for
both poor performance and poor attendance. He explained that
he spoke with Corporate-level Manager Ellis before deciding to
discharge Hentz only on one stated basis, attendance problems:
Q. And what do you recall Ms. Ellis saying to you?
A. Ms. Ellis told me that she would be in the facility in a few
days and that we would review it and a few days went by,
and her advise when she came into the facility was that
we needed to terminate on grounds of attendance because
performance is more subjective than attendance. Attend-
ance is cut and dry. They’re clear cut issues.
It may be argued that if there are two legitimate reasons to
discharge an employee, and the employer gives only one of them
as a reason for the action, that reason is not a pretext. It is a true
reason, not one fabricated to conceal the true reason, and failing
to state the other reason does not make the claimed reason false.
Without disagreeing with the logic of that argument, it may be
noted that the Respondent’s decision to assert only one reason
for discharging Hentz still has some relevance to the pretext
issue.
It is consistent with other evidence showing that the Respond-
ent set out to discharge Hentz, looked for a reason to do so, and
found one which Morrison and Ellis believed would be accepted
with little question. Morrison testified that two reasons, perfor-
mance and attendance, occasioned Hentz’ discharge. However,
the stated reason for the discharge, attendance, was the less im-
portant of the two. Morrison’s testimony, which goes on at con-
siderable length about Hentz’ supposed performance deficien-
cies but says relatively little about Hentz’ attendance, suggests
that attendance was merely an afterthought.
Respondent’s decision to put forward only the less important
reason, because it might be questioned less, demonstrates a focus
on creating appearances, even if they did not reflect all the truth.
The Respondent’s willingness to create a misleading impression
also becomes apparent in the way it conducted an “investigation”
after Hentz voiced the employees’ concerns about racial preju-
dice.
Hentz’ complaint to corporate-level management resulted in
one of those managers, Mervin, coming to the facility to investi-
gate. For the following reasons, the perfunctory nature of her
inquiry leads me to conclude that she was not interested in con-
ducting a serious investigation to ascertain the facts, but rather
was going through the motions so that it would appear that Re-
spondent was taking seriously Hentz’ claim of racial discrimina-
tion. Respondent’s willingness to engage in such a sham inves-
tigation suggests that it would have no qualms about giving a
sham reason for discharging Hentz.
Several reasons cause me to conclude that Mervin was not
conducting a bonafide investigation to learn the facts. Although
Hentz provided the names of other employees, neither Mervin’s
notes nor her testimony establishes that she actually talked with
those individuals. Mervin did claim to have spoken with a num-
ber of employees in addition to Hentz and Ferguson, but did not
record in her notes either their names or what they told her. A
serious investigator reasonably would have written down at least
the names of those she contacted and interviewed, even if such
interviews produced little relevant information.
Another indication that Mervin wasn’t interested in learning
facts is that when Hentz told her something she did not under-
stand, she did not ask him to clarify. Mervin’s notes indicate that
Hentz made a comment about a “dangerous building” but Mervin
testified that she wasn’t sure what Hentz had meant. It would be
reasonable to assume that an investigator from the Respondent’s
corporate offices would care about employees’ safety, not to
mention the safety of the nursing home’s residents, who were
aged or disabled and, in some cases, demented. However, the
record does not establish that Mervin asked Hentz what he meant
by “dangerous building” or brought to anyone’s attention the
possibility that the building was unsafe.
Hentz also told Mervin that other employees believed that
their licenses or certifications were “on the line.” Mervin did not
investigate, stating that it was “outside the scope of what I was
there to do.”
It must be wondered what Mervin really was there to do, if not
to obtain facts which management needed to know. A number
of government agencies regulate the nursing home so, without
doubt, management would want to be informed about any
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 23
problems with the licensing of its staff.
Other circumstances buttress the conclusion that Mervin’s
“investigation” was more kabuki theater than Sherlock Holmes.
If someone conducting a bonafide investigation received reports
of a dangerous building, and of nurses fearful of losing their li-
censes, and if that investigator considered such matters outside
the scope of her authority, she still would have communicated
them to the nursing home administrator or to officials at the cor-
porate level. The record does not establish that Mervin reported
this information to anyone in authority and I must conclude that
she did not.
In sum, Mervin conducted an “investigation” in which she did
not contact the witnesses whose names Hentz provided, in which
she did not write down the names of people she contacted or in-
terviewed, and in which she ignored “red flag” statements about
working conditions. She then reported to corporate managers
that Hentz’ claim of racial prejudice was unsubstantiated.
Mervin’s seeming lack of interest in determining whether ra-
cial prejudice really existed in the workplace is particularly sur-
prising because Hentz was not the first but the second person to
complain about it. However, Mervin was not the only corporate-
level manager who did not appear to take the issue of racial prej-
udice seriously.
The process which led to Mervin’s visit to the nursing home
began when Hentz used the corporate “hotline” to complain
about racial prejudice. He left a message and Manager Ellis
called him back. As discussed above, that conversation did not
go well. As Hentz described what he believed to be evidence of
racial prejudice, he sensed that Ellis was being dismissive and
reacted with frustration. Ellis became annoyed, even consider-
ing that Hentz should be disciplined.
The Respondent then went to the expense of sending Mervin
to the nursing home to investigate. However, her superficial ef-
fort leads me to conclude that she, too, did not take the complaint
of racial prejudice seriously and simply went through the mo-
tions to create the appearance of an investigation. The Respond-
ent’s willingness to engage in this pretense suggests a willing-
ness to be less than truthful about its reasons for discharging
Hentz.25
Indeed, Dickens’ statement to Horton indicates that the Re-
spondent was going to use attendance as the basis for discharging
Hentz, presumably because it could be documented. Even if
Hentz’ attendance could, in a vacuum, constitute grounds for dis-
charging him, the very act of targeting him for discharge and then
seizing upon attendance as a plausible reason makes that reason
pretextual.
The Respondent contends that when Morrison arrived as the
new administrator, he tightened enforcement of the nursing
home’s attendance policy. The record establishes that Morrison
did, indeed, enforce the attendance policy more strictly.

25 It should be stressed that the Board neither sets particular standards
for employers conducting investigations nor requires employers to meet
a certain standard, and I do not do so here. Rather, I simply conclude
that Mervin’s investigation was so perfunctory it cannot be considered a
genuine attempt to ascertain the facts relevant to Hentz’ complaint but
rather was a show to make it appear that it had considered that complaint
before rejecting it. Respondent’s willingness to engage in this pretense
suggests that it embraces the use of pretext in dealing with its employees.
However, this fact does not overcome the persuasive evidence,
discussed above, that Morrison targeted Hentz for discharge and
seized upon attendance as a plausible reason to justify the dis-
charge.
Indeed, the timing of events also is consistent with the conclu-
sion that the Respondent used attendance as a pretext. Morrison
began work at the nursing home in August 2016, and Hentz
started working there September 20, 2016. However, Morrison
pulled Hentz’ attendance records on November 21, 2016, the day
Mervin arrived to investigate Hentz’ racial prejudice complaint.
Accordingly, I conclude that Respondent’s stated reason for
discharging Hentz—his supposed attendance problem—was
pretextual. Part of this pretext involved the final warning issued
to him on about November 28, 2016, because this warning cre-
ated documentation to support his later discharge. In other
words, this warning, by being part of the effort to create a pretext,
was itself a pretext.
In view of my finding that the Respondent’s actual reason for
disciplining Hentz was a pretext, I conclude that the Respondent
cannot carry its rebuttal burden under the Wright Line frame-
work. Therefore, I recommend that the Board find that the Re-
spondent violated Section 8(a)(1) of the Act, on about November
28, 2016, by issuing him a final warning, as alleged in complaint
paragraph 10.
Complaint Paragraph 11
Complaint paragraph 11 alleges that about December 5, 2016,
the Respondent demoted employee Hentz. Complaint paragraph
13 alleges that the Respondent took this action because of Hentz’
protected activities. Complaint paragraph 14 alleges that the Re-
spondent thereby violated Section 8(a)(1) of the Act. The Re-
spondent’s answer denies these allegations.
The evidence establishes without contradiction that on De-
cember 5, 2016, at a meeting in Morrison’s office, Morrison re-
lieved Hentz of his duties as a scheduler and offered him, in ef-
fect, a transfer to a position as a CNA performing patient care.
Morrison testified that Hentz became angry and stormed out of
this meeting. Hentz testified that he didn’t storm out but walked
out, and did so after Morrison “was done.” Although Dickens
also attended this meeting, her testimony reveals little about it.
Based on my observations of the witnesses and for reasons dis-
cussed above, I believe that Hentz’ testimony is more reliable
than that of either Morrison or Dickens, and credit it. Therefore,
I find that he did not storm out of the meeting but left when it
concluded.26
Hentz credibly testified that, during this December 5, 2016
meeting, he has asked Morrison if there was anything he could
do to change Morrison’s decision to remove him from the sched-
uler’s position. Morrison said that there was not.
The next day, Hentz accepted Morrison’s offer of the position
26 After leaving the meeting, Hentz telephoned the corporate-level
manager who had visited the nursing home to investigate his earlier com-
plaint. Mervin’s testimony on this point was sparse, and vague as to date,
but she confirmed that at some point after her visit to the nursing home,
she received a call from Hentz. She testified that she explained to him
that she was not assigned to his region, could not help him, and that he
should contact Tammy Ellis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
of CNA performing patient care. However, he had no choice if
he wished to remain employed at the nursing home. Morrison
had said there was nothing Hentz could do to change his deci-
sion. Therefore, I find that Hentz’ acceptance of the CNA work
did not constitute a voluntary relinquishment of the scheduler’s
position.
The Respondent argues that Hentz had continued to make
scheduling mistakes, which prompted Morrison to remove him
from the scheduling position and put him to work “on the floor”
doing patient care. However, I do not credit the testimony of
Morrison and Dickens to this effect. Rather, based on Horton’s
credited testimony concerning what Dickens told her, I find that
corporate management had instructed Morrison to discharge
Hentz and also told him how to do it. In Dickens’ words, as
quoted by Horton, “corporate had told them to let him go slowly
because he can be dangerous and to document appropriately.”
Part of such documenting involved generating paperwork
showing that Hentz’ performance was deficient and to do that,
they had to find reasons to discipline him. The credited evidence
establishes that the December 5, 2016 action, removing Hentz
from his scheduling duties, resulting in his reassignment to work
fulltime performing patient care, was part of that scheme.
The Respondent contends that Morrison removed Hentz from
the scheduler position because Hentz’ performance in that posi-
tion was unsatisfactory. However, I do not credit Morrison’s tes-
timony that Hentz made frequent errors in scheduling. For rea-
sons discussed above, I have concluded that Morrison was not a
reliable witness but instead inclined to wild exaggeration. Cred-
ible evidence establishes only that Hentz understandably resisted
making changes in schedules he had prepared, but does not prove
either that nurses frequently complained about him, as Morrison
testified, or that he otherwise performed his scheduling work
poorly or incompetently.
Accordingly, rejecting the testimony of Morrison and Dick-
ens, I conclude that Morrison did not remove Hentz from the
scheduling position and reassign him because of any work defi-
ciencies but because of Hentz’ protected activities and to create
a pretext for later discharging him.
The Respondent notes that Hentz’ rate of pay did not change
and argues that changing his duties did not rise to the level of an
adverse employment action. However, the record establishes
that the work of a CNA performing patient care duties, such as
lifting patients in and out of bed, was significantly more arduous
than sitting at a desk and making work schedules. Therefore, I
conclude that the position of a CNA performing patient care is
not substantially equivalent to the position of scheduler. Accord-
ingly, I further conclude that Hentz’ reassignment did amount to
an adverse employment action which fairly may be described as
a demotion.27
In sum, the credited evidence establishes that Morrison, using
the pretext that Hentz’ scheduling work was unsatisfactory, re-
lieved him of scheduling duties and reassigned him to work “on
the floor” as part of Respondent’s plan to portray Hentz in a bad
light as a predicate to discharging him. The credited evidence

27 As the General Counsel’s brief observed, relieving Hentz of sched-
uling duties and sending him to work “on the floor” significantly reduced
the number of other employees with whom he came in contact and
also establishes that Hentz had engaged in protected activities,
that the Respondent knew about those activities, and that Re-
spondent harbored animus towards Hentz because of he had en-
gaged in such activities. Therefore, I conclude that the General
Counsel had established that Hentz’ protected activities were a
motivating factor in the decision to reassign him.
Because the government has carried its initial burden under
Wright Line, the burden of proceeding typically would shift to
the Respondent to show that it would have taken the same action
against Hentz even in the absence of protected activities. How-
ever, the credited evidence establishes that Hentz’ reassignment
was part of a plan to create a pretext for discharging him. More-
over, the credited evidence further establishes that the asserted
reasons for reassigning Hentz were pretextual. When a respond-
ent offers a pretextual reason for taking an adverse action against
an employee, it forfeits the opportunity to rebut the General
Counsel’s case.
Accordingly, I recommend that, by the conduct alleged in
complaint paragraph 11, the Respondent violated Section 8(a)(1)
of the Act.
Complaint Paragraph 12
Complaint paragraph 12 alleges that about December 13,
2016, the Respondent discharged Ricky Edward Hentz. Com-
plaint paragraph 13 alleges that it did so because of Hentz’ pro-
tected activities, and complaint paragraph 14 alleges that Re-
spondent thereby violated Section 8(a)(1). The Respondent de-
nies these allegations.
Hentz’ account of the events leading up to the discharge bears
little resemblance to Morrison’s. For reasons discussed above, I
conclude that Hentz’s testimony is more trustworthy. For that
reason, and additional reasons discussed below, I credit Hentz’
account. The following summary of events is based on that cred-
ited testimony.
Hentz had accepted the CNA patient care position on Decem-
ber 6, 2016. When he came to work on December 9, he discov-
ered that he was not on the work schedule. So, he clocked out.
Time records establish that he was “on the clock” from 2:26 p.m.
to 2:30 p.m. that day. (The relevance of this fact, that Hentz
spent only 4 minutes at work on December 9, will become clear
later during the examination of Morrison’s markedly different
version of what happened.)
On December 13, 2016, Hentz was working as a CNA in Al-
pha unit. He and another nursing assistant, Lucinda Geter, began
talking as they worked. Two other employees, Nicky Bartlett
and Heather Long, joined them. At some point, the conversation
shifted from Hentz’ removal from scheduling to the need for
more staff members. They were discussing understaffing when
a registered nurse, Jackie Walker, came up.
Hentz testified that Walker, “very stern said you guys are not
short staffed; two is plenty on the floor.” Hentz replied, “no,
there is not enough on the floor and the residents feel differ-
ently.” Hentz testified that Walker rolled her eyes, got the em-
ployees to sign an “in-service” memo (unrelated to this case) and
then left.
therefore provided him fewer opportunities to speak with other employ-
ees about terms and conditions of employment.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 25
Two of the employees who were present—Geter and Long—
testified. Their accounts corroborate Hentz’ testimony. Bartlett
and Walker did not testify.
About an hour later, Hentz’ work took him to the nurse’s sta-
tion, where he was standing when Morrison and Dickens walked
up. Morrison met with the nursing supervisor on duty for about
3 minutes, then approached Hentz and said, “why don’t you just
clock right out and go home.” When Hentz asked why, Morrison
said “I heard you’ve been disruptive all day.”
Hentz replied that he had been in the Alpha wing all that day
and that he knew that no one working with him had said anything
to Morrison because none had left the wing. Hentz further testi-
fied:
Q. Was anything else said during that conversation?
A. He said why don’t you just clock out and go home again.
I said, well, why? He’s like that’s just where we’re at right
now. I said, well, if you’re going to send me home, I’d
like to know why, to which he responded I don’t have to
tell you anything, that’s just where we are right now.
Q. Was that the end of the conversation?
A. It was.
By telephone the next day, Morrison discharged Hentz, who
then called a corporate-level manager, Ellis. Hentz told her he
had just been fired for attendance even though he had never
missed a day of work. Hentz said the only day he missed was
Thanksgiving and that was because Morrison had told him he
could take the day off. Ellis replied that Morrison could dis-
charge him for attendance.
Morrison’s testimony does not accord with Hentz’ account.
One significant difference concerns what happened on Decem-
ber 9, 2016. In Hentz’ version, he had arrived at the nursing
home on that day but, discovering that he was not on the sched-
ule, clocked out and promptly left. Contradicting Hentz, Morri-
son testified as follows:
Q. And did you—do you recall any events involving Mr.
Hentz on December 9th?
A. I do.
Q. What do you recall about that?
A. I was working at my desk. I got a call from Mary Bosen-
berry who was a nursing supervisor, that Mr. Hentz did
not show up for his shift at 2:00 and they needed some
kind of help. There was an issue that they needed help
with staffing on that hall. So I told them that I would be
down there. I was in the middle of something, and I would
be down there as soon as I can to assist.
Q. And what did you do next?
A. A few minutes went by. I walked down to the Alpha
where Mary was. As I walked down the hall, I noticed that
Mr. Hentz was actually at work and he looked like he
had—he looked like he was charting information, and the
fact that I had just gotten off the phone moments before,
my brain immediately thought how could he be charting
something if he just got to work because you chart infor-
mation on the resident after you provide the care to the
resident.
Q. What does charting refer to?
A. That’s doing any kind of electronic charting on the resi-
dent, stating whether you changed the resident, so we can
keep track of their bowel movements, keep track of their
weights, their showers. So we are keeping our infor-
mation as accurate as possible.
Q. And did you have any communications with Mr. Hentz at
that time?
A. No. I actually went down the hall, I saw him off to the left
at that exact time. At the front of Alpha, there was a call
light going off, one of the residents on Alpha. So I imme-
diately walked over to that resident’s room, knocked on
the door, asked if they needed assistance. That resident
pointed him out and said that I do not want this person on
this hall or in this facility, providing care for me because
when he does, he comes in the room, turns the call bell
light off and leaves or just does not provide care at all.
Morrison further testified that he then approached Hentz, ask-
ing him why he had been late to work and why he was not re-
sponding to the call light. According to Morrison, Hentz “rose
his arms, got upset and said I’m just—I can’t deal with this any
more. I’m done, and started to make a scene. . . in the residence
common area. At that point, I told him that he needed to go
home.”
Hentz denied having any conversation with Morrison on De-
cember 9. As discussed above, I have concluded that Morrison’s
testimony is not trustworthy. Moreover, there are additional spe-
cific reasons for doubting Morrison’s testimony about what hap-
pened on December 9.
Morrison testified that Hentz made a scene in the residence
common area. If Hentz indeed had been loud, someone would
have noticed. However, no witness corroborated Morrison’s tes-
timony. The Respondent did not call as a witness the nursing
supervisor on duty at the time, Mary Bosenberry, or any other
witness to this supposed event.
Morrison testified that after this incident, he spoke with a
number of people about it. Those people included the human
resources/payroll coordinator, Ellege. However, the Respondent
did not call Ellege as a witness.
According to Morrison, he also sought guidance from a Cor-
porate-level Manager Ellis:
Q. And what do you recall Ms. Ellis saying to you?
A. Ms. Ellis told me that she would be in the facility in a few
days and that we would review it and a few days went by,
and her advice when she came into the facility was that
we needed to terminate on grounds of attendance because
performance is more subjective than attendance. Attend-
ance is cut and dry. They’re clear cut issues.
However, although Ellis testified, she did not refer to such a
telephone conversation with Morrison.
Morrison testified that a resident complained about Hentz sup-
posedly coming in the resident’s room, turning off the call light,
then leaving without providing care. Considering that the resi-
dent likely has serious medical problems, I would not expect that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
person to come to the hearing and do not draw any adverse in-
ference from Respondent’s failure to call him.
However, it does seem significant that Respondent produced
no document of any kind to confirm this incident. Neglecting a
patient is a serious matter which presumably would result in pa-
perwork. The Respondent did not offer into evidence any state-
ment written or signed by the patient. Likewise, the Respondent
did not produce any memorandum, nurse’s note, chart entry or
any other writing referring to such an incident.
The record does include one written document which is highly
probative. Hentz’ time clock printout shows that on December
9, 2016, he punched in at 14:26, that is, at 2:26 p.m., and clocked
out 4 minutes later, at 14:30 p.m. This timesheet corroborates
Hentz’ testimony that he only was present at the nursing home
briefly on that date.
Both the presence of evidence corroborating Hentz and the ab-
sence of evidence corroborating Morrison leads me to conclude
that Morrison’s testimony is not trustworthy. Instead, crediting
Hentz, I find that the December 9, 2016 events described by
Morrison did not occur.
A conclusion that Morrison made up something which did not
happen imputes to him more serious misconduct than deciding
that he exaggerated. Indeed, this conclusion is tantamount to
finding that the witness committed perjury, and no judge should
reach such a conclusion in haste or without clear evidence.
However, I believe that the time record for December 9, 2016,
showing Hentz worked only 4 minutes that day, constitutes such
evidence. Morrison did not testify merely that Hentz was work-
ing that day but gave specific testimony indicating that Hentz
was neglecting a patient.
Is it possible that something similar to what Morrison de-
scribed actually did happen, but that Morrison was mistaken as
to the date? That possibility cannot be ruled out completely be-
cause, arguably, if a patient had been neglected the Respondent
might be reluctant to describe it in a document which later might
be seen by a government regulatory agency or used in a lawsuit.
However, to conclude that such an incident did happen on a dif-
ferent date, and that the Respondent did not document the in-
stance because it feared legal ramifications, is sheer speculation
unsupported by evidence.
The record does establish that Hentz was on the clock only 4
minutes on December 9, 2016. It lacks evidence which would
corroborate Morrison’s testimony that, on this date, he found that
Hentz was neglecting a patient, confronted Hentz about it, and
that Hentz then made a scene and walked out. Moreover, it
seems more than a little odd that, if Hentz really had engaged in
this flagrant misconduct, the Respondent instead would dis-
charge him for attendance.
For these conclusions, I must conclude that the administrator
was willing to make up something that did not occur to place
Hentz in a bad light, which itself would be pretextual.28
Credited evidence establishes that the final warning which

28 Yet even Morrison’s testimony, had it been credited, would have
provided evidence of pretext. Morrison testified that Ellis came to the
facility a few days after December 9, 2016, which would have been im-
mediately before Hentz’ discharge. According to Morrison, “her advice
when she came into the facility was that we needed to terminate on
Respondent issued to Hentz on about November 28, 2016, its re-
moval of Hentz from the scheduler position on about December
5, 2016, and its discharge of Hentz on about December 13, 2016,
were actions taken pursuant to a plan to “let him go slowly be-
cause he can be dangerous and to document appropriately.” In
other words, warning, demoting and then discharging Hentz
were all part of the same plan.
Therefore, the Wright Line analysis of Hentz’ discharge looks
much like the analysis of Respondent’s November 28, 2016
warning and its December 5, 2016 removal of Hentz from the
scheduler position. Hentz clearly engaged in protected activities,
discussing terms and conditions of employment with other em-
ployees and then expressing their concerns to management. The
Respondent obviously knew about this protected activity. Mor-
rison’s negative reactions, including his comment that he was
“tired of Ricky’s shit,” manifest animus. The General Counsel
therefore has carried the government’s initial burden, resulting
in the burden of proceeding shifting to Respondent to establish
that it would have taken the same action against Hentz even in
the absence of protected activity. However, the Respondent’s
assertion of a pretextual reason for Hentz’ discharge defeats any
effort to rebut the General Counsel’s case.
In sum, I conclude that the Respondent discharged Hentz be-
cause he had engaged in activities protected by Section 7 of the
Act. Therefore, I recommend that the Board find that Respond-
ent thereby violated Section 8(a)(1) of the Act.
Summary
In sum, I recommend that the Board find as follows with re-
spect to the unfair labor practice allegations:
Complaint
Paragraph
Violates
8(a)(1) Description
6 Yes Shepherd’s instructions to employee
not to discuss wages
7 Yes Ellege’s instruction to employee not
to discuss wages
8(a) No Morrison’s statement: “This is my
building and I’ll do what the F I
want.”
8(b) Yes Morrison’s instruction to “stay in
your lane.”
10 Yes Final warning to Hentz on about No-
vember 28, 2016
11 Yes Demotion of Hentz on about Decem-
ber 5, 2016
12 Yes Discharge of Hentz on about Decem-
ber 13, 2016
Remedy
The Respondent, having violated the Act, must remedy the ef-
fects of its unlawful conduct. The remedy shall include posting
the Notice to Employees, attached as Appendix A, as prescribed
grounds of attendance because performance is more subjective than at-
tendance. Attendance is cut and dry. They’re clear cut issues.” How-
ever, stating a reason other than the actual reason for discharging an em-
ployee is the essence of pretext.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC. 27
in the Order section of this decision.
The Respondent also must offer Ricky Edward Hentz imme-
diate and full reinstatement to his former position as scheduler
and make him whole, with interest, for all losses he suffered be-
cause of the Respondent’s unlawful discrimination against
him.29 If the position of scheduler is no longer available, the
Respondent must reinstate Hentz to a substantially equivalent
position. However, as stated above, a position as a certified nurs-
ing assistant performing patient care is not substantially equiva-
lent because it requires greater physical exertion. Additionally,
it entails significantly greater risk than preparing work schedules
at a desk.
The record establishes that, before his unlawful demotion,
Hentz spent about 90 percent of his working time performing
scheduling duties and about 10 percent of his working time
providing patient care. Accordingly, if Respondent reinstates
Hentz to a position other than his former position as scheduler,
to be substantially equivalent the new position must require
Hentz to perform patient care duties no more than 10 percent of
his working time.
CONCLUSIONS OF LAW
1. The Respondent, Pruitthealth Veteran Services-North Car-
olina, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by in-
structing employees not to discuss their wages and by telling an
employee to “stay in your lane,” thereby instructing him not to
express other employees’ complaints about working conditions.
3. The Respondent violated Section 8(a)(1) of the Act on
about November 28, 2016, by issuing its employee Ricky Ed-
ward Hentz a final warning.
4. The Respondent violated Section 8(a)(1) of the Act on
about December 5, 2016, by demoting its employee Hentz from
his position as scheduler to a position of certified nursing assis-
tant performing solely patient care duties.
5. The Respondent violated Section 8(a)(1) of the Act on
about December 13, 2016, by discharging its employee Hentz.
6. The Respondent did not violate the Act in any other way
alleged in the complaint.
ORDER
The Respondent, Pruitthealth Veteran Services-North Caro-
lina, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Instructing employees not to discuss their wages.
(b) Instructing employees not to express other employees’
complaints about working conditions.
(c) Issuing disciplinary notices to, demoting or transferring to
less favorable work assignments, and/or discharging employees
because they expressed employee complaints about wages, hours
or working conditions to local or corporate management, or be-
cause they discussed their wages, hours or other terms and

29 Backpay shall be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as set forth in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
conditions of employment with each other, or because they en-
gaged in other activities protected by the National Labor Rela-
tions Act.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act:
(a) Within 14 days from the date of the Board’s Order, offer
employee Ricky Edward Hentz full reinstatement to his former
job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to seniority or any other rights or
privileges previously enjoyed.
(b) Make Hentz whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against him. Back-
pay shall be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), plus daily compound interest as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline, demotion and
discharge of employee Hentz, and within 3 days thereafter, no-
tify the employee in writing that this has been done and that the
discipline, demotion and discharge will not be used against him
in any way.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Black Mountain, North Carolina, copies of the attached
notice marked “Appendix A.”30 Copies of the notice, on forms
provided by the Regional Director for Region 10, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB 11 (2010). In the
event that, during the pendency of these proceedings, the
30 If this Order is enforced by a judgment of the 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Respondent has 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 and former employees employed by the Respondent at
any time since September 9, 2016. Excel Container, Inc., 325
NLRB 17 (1997).
(f) 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 Regional Director attesting to the steps
that the Respondent has taken to comply.
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 violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of these rights, guaranteed to them by Section 7
of the National Labor Relations Act.
WE WILL NOT tell employees that they may not discuss their
wages or other terms and conditions of employment.
WE WILL NOT tell employees not to express other employees’
complaints about working conditions or otherwise not to act in
concert for their mutual aid or protection.
WE WILL NOT issue a warning to any employee for expressing
other employees’ complaints about working conditions or other-
wise engaging with other employees in concerted activities for
their mutual aid or protection.
WE WILL NOT transfer to a less favorable position or otherwise
demote any employee for expressing other employees’ com-
plaints about working conditions or otherwise engaging with
other employees in concerted activities for their mutual aid or
protection.
WE WILL NOT suspend any employee for expressing other em-
ployees’ complaints about working conditions or otherwise en-
gaging with other employees in concerted activities for their mu-
tual aid or protection.
WE WILL NOT discharge any employee for expressing other
employees’ complaints about working conditions or otherwise
engaging with other employees in concerted activities for their
mutual aid or protection.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL reinstate employee Ricky Edward Hentz to his
former position, or to a substantially equivalent position if his
former position no longer exists, and make him whole, with in-
terest, for all losses he suffered because of our unlawful discrim-
ination against him.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful discipline, demotion, and
discharge of Hentz and WE WILL, within 3 days thereafter, notify
him that the discipline, demotion and discharge will not be used
against him in any way.
PRUITTHEALTH VETERAN SERVICES-NORTH CAROLINA, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/10-CA-191492 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273‒1940.