Peter Bent Brigham Hospital

National Labor Relations Board - Board Decisions

May 6, 1976

223 N.L.R.B. 1359 (N.L.R.B. 1976)

PETER BENT BRIGHAM HOSPITAL 1359
Peter Bent Brigham Hospital and Timothy Cichocki.
Case l-CA-10570
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
May 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On February 4, 1976, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
MAx ROSENBERG, Administrative Law Judge: This pro-
ceeding, with all parties represented, was tried before me in
Boston , Massachusetts, on November 10, 1975, upon a
complaint filed by the General Counsel of the National
Labor Relations Board and an answer interposed thereto
by Peter Bent Brigham Hospital, herein called the Respon-
dent.' At issue is whether Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by discharging employee Timothy Cichocki. Briefs have
been received from the General Counsel and the Respon-
dent, which have been duly considered.
Upon the entire record made in this proceeding, includ-
ing my observation of the witnesses as they testified on the
stand, I hereby make the following:
1 The complaint , which issued on July I. 1975, is based upon a charge
which was filed and served on April 7, 1975.
Respondent, a nonprofit hospital duly organized under,
and existing by virtue of, the laws of the Commonwealth of
Massachusetts, with its principal office and place of busi-
ness in the city of Boston, county of Suffolk, and Com-
monwealth of Massachusetts, is engaged in the operation
of a nonprofit medical facility. During the annual period
material to this proceeding, Respondent derived gross reve-
nues in excess of $250,000 from its hospital operations, and
purchased and had delivered to its hospital goods and ma-
terials valued in excess of $50,000, which goods and mate-
rials were transported to said facility from points located
outside the Commonwealth of Massachusetts. The com-
plaint alleges, the answer admits, and I find that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by discharging Timothy Cichocki on or
about November 21, 1974, because of his engagement in
protected, concerted activities. Respondent answers that
Cichocki's termination was legally privileged on dual
grounds, i.e., his activities were neither protected nor con-
certed within the purview of the statutory scheme, and, his
discharge was prompted solely by fiscal considerations.
Stephen F. Vatner, a medical doctor, was, at the times
material herein, an associate professor of medicine at the
Peter Bent Brigham Hospital in Boston, which is affiliated
with the Harvard Medical School. In addition, he served as
an associate in cardiology at the Children's Hospital Medi-
cal Center in the same city. In 1972, Vatner left a research
post at the University of California to establish a laborato-
ry at the Harvard Medical School Peter Bent Brigham
Hospital, herein called PBB, to engage in adult cardiovas-
cular research under a grant funded by the National Insti-
tutes of Health. On January 1, 1973, the National Institutes
of Health awarded PBB a 5-year grant, renewable annual-
ly, to continue this work. Concurrently, Vatner launched a
neonatal physiology project at Children's Hospital Medical
Center, herein called CH, with funds provided by the To-
bacco Institute. At the laboratory, which is located in the
Southboro facility at CH, Vatner headed and supervised a
team composed of graduate fellows, senior engineers, jun-
ior engineers, electronic technicians, and research assis-
tants, and, under the PBB grant, conducted experiments on
animals to further medical knowledge regarding cardiovas-
cular physiology. Under the CH grant, he directed experi-
mentation with sheep to harness knowledge concerning
neonatal or newborn physiology.
On April 9, 1973, Timothy Cichocki visited the PBB per-
sonnel office and obtained a job as an electronics' engineer
at a salary of $13,000. His duties included the designing,
testing, maintenance, and construction of prototype instru-
mentation to be used by the research doctors, in addition
to setting up and monitoring the actual experiments on
laboratory animals . Cichocki's wages and other terms and
223 NLRB No. 206
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment were regulated by PBB, he was
paid under the National Institutes of Health grant to PBB,
and he was under the immediate supervision of PBB's se-
nior engineer , Thomas Patrick . In May or June 1974,2 Phil-
lip L. Oliver applied for and received a job as an electron-
ics' technician with CH at the annual rate of $ 10,000 under
a separate grant which CH had received from the Tobacco
Institute, and he worked in the same laboratory at South-
boro with Cichocki. Unlike Cichocki, Oliver was carried on
CH's payroll , and his terms and conditions of employment
were established by CH. Dr. Vatner was in overall charge
of both the PBB and CH projects.
At the time of their hire or shortly thereafter , both Ci-
chocki and Oliver were apprised that , because of the nature
of the experiments conducted at the laboratory , their hours
of work would be irregular and they could expect to be
called upon to toil on weekends. Thus, in Cichocki's words,
"at my hiring time they said that we work in a professional
manner and it sometimes requires , it's not always an eight
to five job , but I took that to mean some late evenings or
some weekends." Moreover , Oliver acknowledged that he
learned that the work schedule was "somewhere around 8
to 5 days and at the end of the day if things ran over we
were expected not to just drop things and leave but contin-
ue until you reached a convenient stopping place and that's
how the end of the day was determined and it was a Mon-
day through Friday job except when things ran over into
the weekend."
On March 20, Dr. Vatner made an annual evaluation of
Cichocki's work performance. In this survey, Vatner gave
Cichocki high marks in every category which was under
review. However, although Cichocki had earned an engi-
neering degree and was classified as an electronics' engi-
neer, Vatner testimonially explained and I find that Ci-
chocki "did not have the capacity to fill the requirements
in that job title" because his experience was gained in in-
dustry rather than in a medical laboratory. Moreover, Ci-
chocki had received verbal cautions from senior engineer
Thomas Patrick concerning his engineering work which
prompted the former to indicate on his evaluation that "[1]
will try to improve quality of my work." Vatner explained
that his written ratings on the evaluation form pertained to
Cichocki 's duties as an electronics ' technician rather than
as an engineer . Vatner further explained that , during his
5-month span of employment, Oliver had absented himself
from work for approximately 20 days, and the matter of
these absences was discussed with Oliver and a notation to
this effect was placed in Oliver's evaluation file.3
Events abided until the fall of 1974. While Vatner was
out of the country on a visit to India, the monthly schedule
for weekend work in the laboratory checking the animals
was posted at the facility for the month of October. Ac-
2 Unless otherwise indicated , all dates herein fall in 1974.
3 Research Associate Thomas Manders testified that Oliver had absented
himself during his employment stint for approximately 15 days. When ques-
tioned as to the number of his absences from work in that time span . Oliver
initially replied that he was unable to provide an exact number of days. He
then placed the figure at 7 or 8 days. Oliver did not impress me with his
candor as a witness , and I credit the testimony of Vatner and Manders and
find that, during Oliver 's 5-month tour of duty, his record of absenteeism
was between 15 and 20 days.
cording to the chart, Oliver was programmed to work the
Veterans' Day weekend commencing on October 26. Ci-
chocki testified that, during the preceding week, he over-
heard Oliver tell Thomas Manders, a supervisory research
associate at the laboratory, that Oliver would be unable to
work that weekend because of a prearranged dental ap-
pointment. On Friday, October 25, Manders approached
Oliver and inquired whether the latter intended to report
for work the following morning. When Manders received a
negative reply, he asked Oliver whether he had obtained a
substitute to take his place. Oliver stated that he had not,
whereupon Manders angrily retorted that "I'm going to see
that it is taken care of this weekend, but you are coming in
here all Thanksgiving." Cichocki became upset and pro-
tested that "That's wrong, it's unfair." Manders rejoined,
"We'll see."
Research Associate Thomas Manders testified that he
was in charge of scheduling weekend work at the laborato-
ry, and that Oliver was designated to monitor the experi-
mental animals for the weekend of October 26-27.1 About
a week prior thereto, Oliver advised Manders that, due to a
dental appointment, he would be unavailable to report for
duty that weekend. However, Oliver assured Manders that,
in conformity with established procedure, he had success-
fully persuaded Cichocki to substitute for him. On Friday,
October 25, Cichocki informed Manders that the former,
too, would not report for duty that weekend, because he
deemed that it was unfair for engineers or technicians to be
required to monitor the animals on weekends. In conse-
quence of these refusals to work, Manders, who had other
plans for the weekend, and Senior Engineer Patrick took
over the chores in lieu of Oliver and Cichocki.
Cichocki further testified that, when he and Oliver re-
ported for work on the morning of October 28, they were
met by Senior Engineer Patrick who stated, "You guys
want to tell me what's going on with the checking of dogs
because I had to come in here and check them this week-
end?" Oliver informed Patrick of the former's scheduled
dental appointment. Patrick replied, "Look, you have to be
flexible, we have a lot of work to do, you either have to fit
into our schedule or don't do it at all." Turning to Oliver,
Patrick stated, "Don't screw somebody else over, because I
had to come in this weekend ." Believing that Patrick "was
making a culprit out of Phil [Oliver]," Cichocki blurted "In
that case I won't come in if that's the way we're going to
have to do it." Looking at Oliver, Patrick inquired, "How
about you?" and Oliver responded, "I feel the same way."
Patrick concluded the conversation by advising the men
that "I'm going to tell Vatner about this and I guarantee
you it won't win any votes with him."
Dr. Vatner returned from India on November 1. Upon
his arrival, Research Associate Manders notified him that
Oliver and Cichocki had declined to work the preceding
weekend as alternatively scheduled, and complained that
4 In the conduct of his cardiovascular research. Dr. Vatner had instru-
mented various species of primate and other animals to study the effect of
stress and other impulses upon these animals. By the strictness of state law,
as well as the exigencies of medical science, constant attendance to and
monitoring of the subjects were of the utmost importance during each day
of the week if the experiments were to produce meaningful scientific results
and if state proscriptions against cruelty to animals were to be satisfied. The
record so establishes and I so find.
PETER BENT BRIGHAM HOSPITAL 1361
"it was unfair to have either myself [Manders] or put the
burden on [us], we did have a planning schedule in ad-
vance, we put out a schedule multiple weeks in advance,
we tried to do it two months in advance, or a month in
minimum, we tried to put this schedule out and it was
unfair to have someone come up and refuse to work two or
three days prior to that time." After receiving this intelli-
gence from Manders, Vatner called a meeting of all labora-
tory personnel to discuss the matter. Vatner opened the
dialogue by reporting, in Cichocki's words, that "I under-
stand we have some problems, so let's have this meeting
and talk it out. First of all I want it understood that ev-
erybody is going to check dogs, I'm going to check them,
everybody is going to come in and check them, it's unfortu-
nate if anybody feels it's beneath them to do this, but ev-
eryone is going to check dogs. Now, we understand, Phil
[Oliver] and Tim [Cichocki], that you don't want to check
dogs anymore so, do you want to tell us what your problem
is?" Cichocki thereupon launched upon a diatribe in which
he charged that he and Oliver were not being shown the
proper "respect" and were being "isolated as bad guys."
Vatner attempted to placate Cichocki by stating, "Okay,
look this is all small stuff, we're going to iron it all out and
smooth it over, but, we've got a lot of work to do and if
there is anybody here who doesn't like the way things are
being done then I just have to see to it that they find a
position in industry that is more suitable to them." At the
conclusion of the conclave, Vatner decided to alleviate the
scheduling problem by having all laboratory personnel in-
dicate the weekends on which they would be unavailable
for duty during the months of November and December.
I find that a day or two later, Manders asked Cichocki
and Oliver to signify on the schedule calendar the week-
ends on which they wished to absent themselves from
work. The men manifested their desires and, after canvass-
ing the selection of the other laboratory personnel, Man-
ders proffered the calendar to Vatner. Upon observing that
Cichocki and Oliver had eschewed working on any week-
end but one for the balance of the calendar year 1974,
Vatner became irritated and searched out the men to in-
quire whether they were unhappy working at the laborato-
ry and both men responded in the affirmative.' Vatner
then asked each whether he desired to seek another job
elsewhere, and each replied that he intended to do so. Ci-
chocki and Oliver stated that they would like to remain on
the laboratory payroll until January 31, 1975, so that they
could look for other employment. Vatner readily agreed to
this proposal, and added that "we'd give them as many
days off as possible to look and would try to be as helpful
as possible in finding them another job." On November 5,
both Cichocki and Oliver visited Vatner because they mis-
takenly believed that they had already been terminated.
When the men queried Vatner as to whether they had been
fired, Vatner replied, "Well, that's a little harsh, I really
don't want to fire anybody, but it's obvious that you're not
happy here, you don't really fit in here, there's just going to
3 As Cichocki testimonially put it, "I refused to work any further week-
ends when I was given the choice of being, you know, a schedule which
would completely disregard any commitments that I had which would be
conflicting... .
be problems," Once again, Vatner assured the two employ-
ees that they would remain on the payroll until January 31,
1975, so that they could seek other employment during that
period without suffering any loss of pay.
However, on November 8, Albert Deckel, the director of
grants and contracts at PBB, detected that Vatner's PBB
project which was funded by the National Institutes of
Health had a cost overrun of more than $40,000 for calen-
dar year 1974, a fiscal problem which first manifested
itself in August. Deckel explained that, under the terms of
the NIH grant, PBB was unable to borrow from the 1975
financial allocation, and suggested that the payroll at the
laboratory be trimmed 6 Vatner scanned the list of person-
nel and selected Cichocki and Oliver for immediate termi-
nation. Vatner informed the men that their separation was
occasioned by a lack of funding, and a release date of No-
vember 21 was decided upon. According to Vatner, Oliver
was chosen for discharge because of his extensive record of
absenteeism at the suggestion of the CH personnel depart-
ment. Cichocki was selected for termination because he
refused to pull his fair share of weekend work. Vatner of-
fered Oliver's job to Cichocki but the latter refused the
position because it paid a lesser salary. Oliver later ob-
tained a position with CH.
The General Counsel maintains that Cichocki was dis-
charged on November 21 because he concertedly com-
plained with Oliver about performing weekend work; that
the complaints were statutorily protected; and, that Re-
spondent therefore violated Section 8(a)(1) of the Act by
terminating Cichocki. I cannot agree.
As heretofore chronicled, Cichocki was fully aware at
the time of his hire by PBB that weekend work was a term
and condition of employment, and he freely accepted this
chore in order to obtain work at the laboratory. On Veter-
ans' Day weekend at the end of October, Oliver was sched-
uled to monitor the dogs at the laboratory, a task he re-
fused to undertake because of a dental appointment. If
Cichocki's testimony is to be believed, Oliver did not ask
Cichocki to pull the chore. When Vatner returned from
India on November 1, he learned from Research Associate
Manders that Cichocki and Oliver refused to work on the
preceding weekend. This prompted Vatner to conduct a
meeting of all laboratory personnel and to solicit their co-
operation in performing weekend duty. After establishing
an availability calendar for weekend work during the last 2
months of the year, it came to Vatner's attention that Ci-
chocki and Oliver were the only employees who declined to
work more than 1 weekend and, at this juncture, Vatner
told the two men that they would be happier if they sought
employment elsewhere. In my opinion, Cichocki's and
Oliver's decision not to carry their full share of weekend
chores was individual, and not concerted activity. By his
own admission, Cichocki acknowledged that he never ad-
vised Oliver to refuse to work on weekends nor did Oliver
request Cichocki to do so. According to Cichocki, he "had
some personal benefit at stake" in eschewing weekend du-
ties. Moreover, Cichocki admitted on the stand that the
only common cause which he espoused with Oliver con-
6 The General Counsel has conceded that this fiscal crisis occurred at this
time.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerned Respondent's criticism of Oliver's extensive record
of absenteeism and not weekend work. In sum , I am not
convinced that Cichocki and Oliver participated in the
kind of group action intended or contemplated within the
ambit of Section 7 of the Act when they refused to shoul-
der weekend work burdens , and I conclude that Respon-
dent was at legal liberty to terminate Cichocki when it did.'
I shall therefore dismiss the complaint in its entirety.
t See Mushroom Transportation Company v. N.L.R.B.. 330 F.2d 683. 685.
(C.A. 3. 1964).
Upon the basis of the foregoing findings of fact and con-
clusions, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
IT IS HEREBY ORDERED that the complaint herein be, and it
hereby is, dismissed in its entirety.
8In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.4& fo the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.