Appeal from the Superior Court of the District of Columbia (MPA10-98) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Arabella W. Teal, Interim Attorney General at the time, and Charles L. Reischel, Deputy Attorney General at the time, filed a statement in lieu of brief for appellee District of Columbia as successor in interest to the Health and Hospitals Public Benefit Corporation and the D.C. General Hospital.*fn1
Before WASHINGTON, Chief Judge,*fn2 and RUIZ and REID, Associate Judges.
Appellant, Doctors Council of the District of Columbia General Hospital ("Doctors Council-Hospital Physicians"), appeals from a judgment of the trial court sustaining a decision by the District of Columbia Public Employee Relations Board ("PERB") in favor of the District of Columbia General Hospital ("DCGH" or "the Hospital"). The complaint which triggered this matter revolves around compensation and alleged unfair labor practices relating to two collective bargaining units, Doctors CouncilHospital Physicians which represented Hospital doctors employed by DCGH, and Doctors Council of the District of Columbia ("Doctors Council-Clinic Physicians") which represented clinic doctors employed by the Commission on Public Health, Department of Human Services prior to their transfer to DCGH and the Public Benefits Corporation ("PBC").
Doctors Council-Hospital Physicians challenges the PERB's interpretation of the District of Columbia Health and Hospitals Public Benefit Corporation Act, of 1996 ("PBC Act"), D.C. Law 11-212, D.C. Code §§ 32-261.1, et seq., (1998), recodified as D.C. Code §§ 44-1101-01, et seq., (2001).*fn3 We hold that PERB unreasonably interpreted D.C. Code § 32-262.8 (h) (regarding the PBC and existing collective bargaining agreements and personnel administration) by declaring, in essence, that § 32-262.8 (h) trumped D.C. Code § 1-618.4 (a)(3) and (5) prohibiting specified unfair labor practices (but did not trump § 1-618.4 (a)(2), also precluding a specified unfair labor practice). We also hold that PERB incorrectly dismissed Doctors Council-Hospital Physicians' complaint because (1) DCGH was required to implement the pay parity agreement between it and Doctors Council-Hospital Physicians since that agreement was reached prior to December 17, 1986, the first meeting of the PBC Board, and the PBC did not assume management and control over the Hospital and Doctors Council-Hospital Physicians until October 1, 1997; and (2) DCGH/PBC engaged in discriminatory unfair labor practices by discouraging membership in Doctors CouncilHospital Physicians and encouraging membership in Doctors Council-Clinic Physicians (§ 1-618.4 (a)(3)). In short, PERB erred by rejecting the findings, conclusions and recommendation of the Hearing Examiner with regard to DCGH's violation of D.C. Code § 1-618.4 (a)(3).
We also conclude that PERB should not have dismissed Doctors Council-Hospital Physicians' complaint with respect to its contention that DCGH refused to bargain with it in good faith in early 1997 concerning a new collective bargaining agreement (§ 1-618.4 (a)(5)). Consequently, we reverse the judgment of the Superior Court, with instructions to remand the case to the PERB with further instructions (1) to vacate its decision and order dismissing Doctors Council-Hospital Physicians' complaint with respect to the violation of D.C. Code § 1-618.4 (a)(3) and to enter an order adopting the Hearing Examiner's findings, conclusions and recommendation regarding wage parity for doctors who are members of Doctors Council-Hospital Physicians; and (2) to vacate its decision and order dismissing Doctors Council-Hospital Physicians' complaint regarding the violation of D.C. Code § 1-618.4 (a)(5) and to decide whether the record supports the Hearing Examiner's findings and conclusions as to DCGH's alleged refusal to bargain in good faith with Doctors' CouncilHospital Physicians.
This case has had a long history. On June 19, 1997, Doctors Council-Hospital Physicians filed a complaint against DCGH, alleging unfair labor practices under D.C. Code § 1-618.4 (a)(2), (3) and (5) (1999), recodified at D.C. Code § 1-617.04 (a)(2), (3), and (5) (2001).*fn4 Doctors Council-Hospital Physicians, which had been certified since 1985 as the collective bargaining representative of medical officers employed by DCGH, claimed, in part, that (1) "[s]ince on or about February 25, 1997," DCGH had "interfered with the administration of [its] Labor Organization  by publicly expressing a preference" for another labor organization as the collective bargaining agent for doctors employed at the Hospital and at clinics (§ 1-618.4 (a)(2)); (2) the Hospital had discriminated against its members by "refusing to compensate them at levels equal to the compensation of other medical officers employed by [the Hospital] who are not represented by [Doctors Council-Hospital Physicians];" that medical officers assigned to clinics, rather than the Hospital, received approximately $10,000.00 more in compensation per year than medical officers who "perform[ed] comparable and substantially equal work" at the Hospital; and that DCGH "has failed and refused to provide equal pay to medical officers all because of their membership in and representation by Complainant [Doctors Council-Hospital Physicians] and in order to discourage such membership in and representation by Complainant [Doctors Council-Hospital Physicians], and in order to encourage membership in and representation by [Doctors Council-Clinic Physicians]" (§ 1-618.4 (a) (3)); and (3) since around April 24, 1997, DCGH had "failed to bargain in good faith with  Doctors Council-Hospital Physicians by reneging on its agreement for a compensation agreement with [DCGH] for fiscal years 1992 through 1997;" and that an "agreed upon compensation agreement" was sent to the Mayor and Council of the District of Columbia on March 12, 1997, but that around April 24, 1997, DCGH "refused to assure [the Mayor] that it had funds available to cover the . . . agreement" (§ 1-618.4 (a)(5)).
A hearing on the complaint took place on September 9, 1997, before Hearing Examiner, Robert J. Perry, Esq. Only two witnesses testified, Dr. Kenneth Dais, President of Doctors Council-Hospital Physicians since 1979 and the director of cardiology at the Hospital, and Yakini Martin, a Doctors Council-Hospital Physicians labor specialist consultant. Dr. Dais indicated that a collective bargaining agreement between Doctors Council-Hospital Physicians and DCGH, which technically had expired in 1991, had been "rolling over from year-to-year" in the absence of a new agreement. This agreement did not cover medical officers working in clinics who were employed by the District of Columbia Department of Human Services ("DHS") and represented by another bargaining agent. "[O]nce the rumor came out in September of 1996 that the [medical clinic] doctors would be transferred to DCGH," hospital doctors demanded equal pay from DCGH "on numerous occasions."
The medical clinic doctors were transferred to DCGH on October 1, 1996 under an Interagency Agreement between DCGH and DHS. Upon their transfer to DCGH, there was "an average of $9,500 difference [in compensation] between physicians employed in the Neighborhood Health Clinics and physicians who are employed at the [H]ospital," and further, unlike doctors at the Hospital, clinic medical officers received compensation for "on-call pay." On November 5, 1996, the Executive Director of DCGH sent a memorandum to the City Administrator "request[ing] [his] approval for [DCGH] to move forward in resolving a serious situation involving the disparity in compensation between physicians and nurses employed at [DCGH] and those employed at eleven (11) Ambulatory Health Care Clinics." The memorandum identified "a significant pay disparity of as much as 10% [in the pay of clinic doctors compared with Hospital physicians] even though the clinic [p]hysician's duties and responsibilities may not be as demanding as those employed at the Hospital."
Documents referenced by Dr. Dais during his testimony revealed that the PBC Board "was established in December of 1996, when it had its first board meeting."*fn5 At a PBC Board meeting, which Dr. Dais attended on February 25, 1997, a memorandum from the Hospital's Executive Director and its General Counsel, dated February 20, 1997, was distributed. The memorandum recommended that Doctors Council-Clinic Physicians be the collective bargaining representative for all of the doctors employed by the Hospital.*fn6 Dr. Dais stated at the hearing that DCGH management evidenced hostility toward Doctors CouncilHospital Physicians and toward him personally. The Hospital expressed its preference for Doctors Council-Clinic Physicians in meetings; had an open-door policy for that organization and a closed-door policy for Doctors Council-Hospital Physicians. Moreover, the Executive Director of DCGH called him an "irritant," said he was "full of sh*t" and "obstructive." The Executive Director of the Hospital became angry when Doctors Council-Hospital Physicians opposed the Hospital's decision to use outside contractors to provide medical services, and when Doctors Council won arbitration cases opposing the contracting out policy.
Dr. Dais' testimony also focused on the new, proposed collective bargaining agreement between Doctors Council-Hospital Physicians and DCGH which provided for pay parity between clinic and Hospital doctors at an annual cost of $750,000 (for nine months) and $900,000 (for twelve months). The agreement was sent to the Mayor on March 7, 1997 ("for subsequent transmittal to the Council of the District of Columbia"), as well as to the Mayor's Chief of Staff and the City Administrator on March 12, 1997.*fn7 However, the Executive Director of the DCGH failed to confirm the availability of funds to implement the agreement. Instead, on May 12, 1997, he asserted in a Memorandum to the Deputy City Administrator an inability to "provide a definitive assurance that funds are available for this activity at this time." A letter dated May 23, 1997, from the Deputy City Administrator to DCGH, indicated that the Mayor would not sign the agreement because of lack of assurance as to the funding source for its implementation. Although the Mayor forwarded the compensation agreement to the Council for approval on September 12, 1997, it was returned to him on September 25, 1997, due to lack of funding certification. Dr. Dais declared that between January 1997 and the transmittal of the compensation agreement to the Mayor, no one at the Hospital had mentioned the lack of monies to fund the agreement.*fn8
Ms. Martin testified that at "a forced meeting" in Fall 1996, Hospital management showed hostility toward Dr. Dais and toward her. On one particular occasion the Executive Director of the Hospital "use[d] profanity at [her] [while] flailing his hands," when she asked him about his alleged preferential treatment of Doctors Council-Clinic Physicians. On another occasion while she was in attendance at a labor/management meeting, the Executive Director confronted her and demanded that she put her role in writing, something that he had never requested of others acting in a similar capacity.
In his report and recommendation of December 22, 1997, the Hearing Examiner stated: "Both Dr. Dais and Ms. Martin testified in a straight-forward manner and they were quite impressive as witnesses. I fully credit the testimony of Dr. Dais and Ms. Martin." The examiner found that DCGH "violated [D.C. Code §] 1-618.4 [(a)(2)] of the CMPA [Comprehensive Merit Personnel Act] by providing unlawful assistance to Doctors Council-Clinic Physicians." The examiner also determined that DCGH violated § 1-618.4 (a) (3) "by failing to adjust employee pay scales for reasons that are discriminatory in nature (preference for Doctors Council-Clinic Physicians and refusal to take action even though acknowledging the pay disparity between clinic and Hospital doctors):
Also at issue was the salary differential between the two groups. The clinic medical officers were receiving considerably more in wages than the hospital medical officers, even though both groups were performing substantially the same work. When Complainant Union [Doctors Council-Hospital Physicians] raised the issue with Respondent [DCGH], there was no disagreement over the need to adjust the pay scale to provide parity for the hospital medical officers. In fact, [DCGH] has consistently taken the position that there is a serious disparity in the wage structure of the two groups. However, recognizing the problem and dealing with it are two different things. [DCGH] has been aware of the problem since at least October 1, 1996 and it has not taken any action to resolve it. Nor has it offered any lawful explanation for its failure to deal with the issue.
I do not believe that one has to speculate concerning [DCGH's] motivation for failing to take the action it knew was required. [DCGH's] Executive Director  supplied the answer when he told the employees that Complainant Union was responsible for their failure to receive pay parity. I have previously found that [DCGH's] overall objective was to force a change in the hospital medical officers' bargaining representative by replacing [Doctors Council-Hospital Physicians] with [Doctors Council-Clinic Physicians]. In fact, all of the evidence of illegal assistance to [Doctors Council-Clinic Physicians] was designed to achieve that goal. However, this is the exact type of discrimination Section 1-618.4 (a)(3) makes unlawful. [DCGH] clearly evidenced a discriminatory motive when it failed to adjust the pay scales and this affected "a term and condition of employment within the meaning of Section 1-618.4 (a)(3) . . . . Accordingly, I find that [DCGH] violated Section 1-618.4 (a)(3) of the CMPA [Comprehensive Merit Personnel Act] by failing to adjust employee pay scales for reasons that are discriminatory in nature.
Hearing Examiner's Report and Recommendation, PERB Case No. 97-U-25 "Hearing Examiner's Report"), at 6-7 (footnote omitted). Finally, the Hearing Examiner concluded that DCGH violated D.C. Code § 1-618.4 (a)(5) requiring good faith bargaining with a labor representative, see supra note 7, "by reneging on its contractual agreement with [Doctors Council-Hospital Physicians] and by thereafter acting in a manner designed to elicit disapproval of the agreement by the Mayor and  Council [of the District of Columbia]." This finding concerned the collective bargaining agreement (sent to the Mayor on March 7, 1997, and the Mayor's Chief of Staff and City Administrator on March 12, 1997) "on all compensation issues." The collective bargaining agreement, the Hearing Examiner referenced a statement of April 24, 1997, by DCGH/PBC questioning whether it had the funds to cover the agreement, and a May 12, 1997 memorandum from the Hospital's Executive Director to the City Administrator indicating that he "cannot provide a definitive assurance that funds are available," and the examiner concluded:
There is nothing in this record to suggest that [DCGH] is unable to properly fund the compensation agreement with [Doctors Council-Hospital Physicians]. Rather, this is a situation where [DCGH] reached agreement with [Doctors CouncilHospital Physicians] only to avoid the expense and uncertainty of arbitration and then thereafter has engaged in this subterfuge to get out from under the agreement. Accordingly, I find that on April 24, 1997 and thereafter, [DCGH] engaged in bad faith bargaining by reneging on its agreement with [Doctors CouncilHospital Physicians] and by ...