General Hosp. v. Public Employee rel. Bd., 02-CV-1255.

• Decision Date: 11 January 2007
• Docket Number: No. 02-CV-1255.,02-CV-1255.
• Citation: 914 A.2d 682
• Parties: DOCTORS COUNCIL OF THE DISTRICT OF COLUMBIA GENERAL HOSPITAL, Appellant, v. DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, et al., Appellees.
• Court: D.C. Court of Appeals

914 A.2d 682

DOCTORS COUNCIL OF THE DISTRICT OF COLUMBIA GENERAL HOSPITAL, Appellant, v. DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, et al., Appellees.

No. 02-CV-1255.

District of Columbia Court of Appeals.

Argued January 7, 2004.

Decided January 11, 2007.

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Linda M. Correia, with whom Bruce A. Fredrickson, Washington, and Jeffrey E. Fallon were on the brief, for appellant.

David R. Levinson, Washington, for appellee.

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.^*

Before WASHINGTON, Chief Judge,^** and RUIZ and REID, Associate Judges.

REID, Associate Judge:

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 Council-Hospital 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).¹ 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, 1996, 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 Council-Hospital 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' Council-Hospital Physicians.

FACTUAL SUMMARY

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).² 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."³ 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.⁴ Dr. Dais stated at the hearing that DCGH management evidenced hostility toward Doctors Council-Hospital 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...