NLRB Finds Nursing Facility Violated The Act By Discouraging Employees From Discussing Wages And Disciplining Employee Who Complained About Working Conditions

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Apr 30, 2020

Pruitthealth Veteran Services operates nursing facilities. At one such facility, Justin Morrison serves as the administrator and Ricky Edward Hentz as a certified nursing assistant. Shortly after Hentz started work at the facility, friction developed between him and Morrison.

Hentz initially worked as a scheduler, a job that brought him into contact with many other employees and thus gave him the opportunity to hear their complaints about terms and conditions of employment. Often, Hentz’s fellow employees would complain to him about work-related matters, including wages and understaffing. Hentz, who is African-American, also perceived racial prejudice against African-Americans by management at the facility, including management disciplining African-American employees for conduct that white employees engaged in without incident.

Hentz somewhat regularly informed Morrison of his concerns about workplace issues, including those related to understaffing certified nursing assistants and regarding his and others’ perception of racial prejudice at the facility. Morrison was not welcoming of Hentz’s commentary on workplace issues, and instructed Hentz to “stay in your lane.”

Hentz then filed a complaint alleging racial prejudice at the facility with Pruitthealth’s corporate-level human resources department. Pruitthealth commenced an investigation and assigned an investigator to inquire as to Hentz’s allegations. However, the investigator was skeptical of Hentz’s claims and ultimately dismissed his allegations.

Over a period of several months, Morrison initiated a series of escalated disciplinary actions against Hentz, including written reprimands, reassignments, and ultimately the termination of Hentz’s employment with Pruitthealth. In support of the adverse actions taken against Hentz, Morrison cited alleged complaints about Hentz’s poor performance and attendance issues. However, Morrison did not retain any records supporting his assertions that other employees complained about Hentz’s performance or that there were any issues with Hentz’s attendance.

In January 2017, following his dismissal, Hentz, filed an unfair labor practice charge with the NLRB against Pruitthealth. Hentz argued that by complaining to Morrison and corporate-level officials, he was seeking relief not merely for himself but also for other employees also affected by the racial prejudice. Hentz contended that his conduct constituted concerted activity protected by Section 7 of the NLRA. Hentz further alleged that the Respondent unlawfully discharged Hentz because he engaged in this protected, concerted activity.

Pruitthealth disputed Hentz’s contention that he was speaking on behalf of anyone other than himself and therefore argued that the NLRA did not protect Hentz. Pruitthealth further argued that, in any event, it did not discharge Hentz because he complained to corporate officials but for failure to comply with the Pruitthealth’s attendance rules.

Hentz’s first charge was unrelated to his dismissal, but alleged that the Pruitthealth’s managers told employees not to disclose their wage rates to other employees. Hentz’s complaint alleges that in September 2016, the Pruitthealth director of health services directed him not to discuss his wages with other employees and that a Pruitthealth human resources/ payroll coordinator provided a similar instruction. Pruitthealth denied these allegations, but did not produce evidence to contradict Hentz’s statements. On this un-contradicted evidence, the presiding Administrative Law Judge determined that Pruitthealth had a practice of informing employees not to discuss their salaries with other employees, which violates the NLRA.

Hentz’s second allegation concerns interference with representational rights regarding employees’ concerns with staffing and racial discrimination. The Administrative Law Judge determined that Hentz engaged in protected activities by discussing working conditions with fellow employees and expressing their concerns about those conditions to management and that Pruitthealth’s management clearly knew about these activities. The Administrative Law Judge then determined that Hentz’s protected activity was a motivating factor in Pruitthealth’s taking action against him and that Pruitthealth’s warnings to Hentz regarding his performance and attendance were part of a pretextual scheme designed to conceal the actual reason for discharging Hentz.

The NLRB affirmed the Administrative Law Judge’s conclusions of law and order to Pruitthealth to cease and desist from instructing employees not to discuss their wages, instructing employees not to express other employees’ complaints about working conditions, and disciplining employees because they complained about wages, hours, or working conditions.

Pruitthealth Veteran Services-N. Carolina, Inc. & Ricky Edward Hentz (Feb. 5, 2020) 369 NLRB No. 22.