22:0271(26)CA - HHS and SSA and AFGE -- 1986 FLRAdec CA



[ v22 p271 ]
22:0271(26)CA
The decision of the Authority follows:


 22 FLRA No. 26
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 AND SOCIAL SECURITY ADMINISTRATION
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES AFL-CIO
 Charging Party
 
                                            Case NO. 9-CA-40337
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondents had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  The Respondents and
 the General Counsel filed exceptions to the Judge's Decision, and the
 General Counsel filed an opposition to the Respondents' exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendation that the complaint be
 dismissed.
 
    In adopting the Judge's conclusion, we note particularly the Judge's
 findings, with which we agree, that the Respondents here in fact fully
 complied with the arbitrator's award, and that in light of all the facts
 and circumstances presented, the Respondents acted promptly enough, and
 did not engage in any dilatory tactics, in implementing the award.
 Thus, we do not agree with the General Counsel's assertion that the
 "standard" applied by the Judge in reaching her conclusion was one of
 gross negligence or deliberate delay.  /1/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case NO. 9-CA-40337 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., June 25, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case NO.: 9-CA-40337
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES AND 
 SOCIAL SECURITY ADMINISTRATION,
    Respondents
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
    Charging Party
 
    Michael Walsh and Wilson G. Schuerholz, For the Respondents
 
    Stefanie Arthur, For the General Counsel 
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. CAPPELLO Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. NO. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute, and hereinafter referred to as the Statute, and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
 
    Pursuant to a charge of an unfair labor practice filed on July 20,
 1984, and amended on October 1 and October 5, the Regional Director of
 Region IX of the Federal Labor Relations Authority (hereinafter, the
 Authority) investigated the charge and, on October 30, served the
 complaint initiating this action.  The complaint was amended on November
 13.  Answers were served on November 15 and 29.
 
    The amended complaint alleges, as to the Social Security
 Administration (SSA) that since on or about February 13, 1984, SSA has
 failed to comply with an arbitration award by failing to reinstate a
 grievant with full pay and with reinstitution of all other perquisites
 in accordance with the arbitration award and/or by complying in a
 dilatory manner.  By such acts and conduct, it is alleged that SSA has
 failed and is failing to comply with section 7122(b) of the Statute, as
 modified by section 7121(f), and thereby has engaged in and is engaging
 in unfair labor practices within the meaning of section 7116(a)(1) and
 (8) of the Statute.  /2/
 
    As to the Department of Health and Human Services (DHHS) it is
 alleged that DHHS has not processed the documentation necessary to
 effectuate the arbitration award at issue and/or has processed such
 documentation in a dilatory manner which has precluded prompt compliance
 with such award by SSA.  By such acts and conduct, it is alleged that
 DHHS has interfered with SSA's obligation to comply with section 7122(b)
 of the Statute to implement and effectuate final and binding arbitration
 awards that result from SSA's collective bargaining agreement with the
 Charging Party, and thereby has engaged in unfair labor practices within
 the meaning of sections 7116(a)(1), (5) and (8) of the Statute.  /2/
 
    Respondents admit that there has been an arbitration proceeding under
 the provisions of a collective bargaining agreement with the Charging
 Party over a termination, but deny any violations concerning it.
 
    A hearing was held on December 20, 1984, in Seattle, Washington.  The
 parties appeared, entered into a stipulation of facts, examined
 witnesses, and adduced exhibits.  Briefs were filed on February 3, 1985,
 by the General Counsel and on February 4 by Respondents.  Based upon the
 record made in this case, my observation of the deameanor of the
 witnesses, and the briefs, I enter the following findings of fact and
 conclusions of law and recommend the entry of the following order.
 
                           Findings of Fact /3/
 
                             Background facts
 
    1.  At all times material herein, DHHS has been and is an agency and
 SSA an organizational subcomponent thereof, within the meaning of
 section 7103(a)(3) of the Statute.
 
    2.  At all times material herein, the Charging Party (also referred
 to herein as the Union) has been and is a labor organization within the
 meaning of section 7103(a)(4) of the Statute.
 
    3.  At all times material herein, the Union has been certified as the
 exclusive representative of an appropriate nationwide consolidated unit
 within the meaning of section 7112 of the Statute.  The unit includes
 employees employed in SSA's Seattle and Renton Districts.
 
    4.  At all times material herein, SSA and the Union have been parties
 to a collective bargaining agreement covering employees in the unit.
 The agreement includes a grievance procedure culminating in final and
 binding arbitration.
 
    5.  On or about April 26 and 29, 1983, in accordance with the
 collective bargaining agreement of the parties, an arbitration was held
 before Arbitrator George Schatzki in the matter of the Madge Wolfe
 termination.  Ms Wolfe is a member of the bargaining unit and has been
 an employee of SSA since 1970.  At the time of her termination she was
 serving as a Service Representative at SSA's Renton Branch Office.
 Prior to her termination, Ms. Wolfe was a permanent career employee of
 SSA.  Her termination was effective November 26, 1982, and was grieved
 by the Union.
 
    6a.  On July 13, 1983, the arbitrator issued a preliminary opinion
 and award directing that Ms. Wolfe be reinstated and that she have a
 fitness-for-duty examination.  He also directed the restoration,
 retroactive to November 26, 1982, of all the perquisites of her position
 other than back pay.  The arbitrator retained jurisdiction over the case
 to address any issues not voluntarily resolved following the
 examination.
 
    b.  The opinion stated that the arbitrator was "fully persuaded that
 at the time Madge Wolfe was discharged, she was not performing her job
 adequately;" that her supervisors acted in good faith and put in a great
 deal of effort to help her improve;  but that they should have realized
 that a fitness-for-duty examination was called for pursuant to SSA's
 Personnel Guides for Supervisors.  See Ages 4 and 5 of Jt. 1(1).
 
    c.  The opinion stated that she should receive pay at her GS-7 rate
 "during the period between the Monday following management's receiving
 the Opinion and Award and the time the course of action following the
 examination (was) implemented." See page 6 of Jt. 1(1).  No other time
 limits were set by the arbitrator.
 
    7.  SSA received the July 13, 1983 opinion and award of the
 arbitrator on July 15 (a Friday).  Pamela Smith, the SSA Branch Chief
 for the Human Resource Management Branch in the Regional Office for
 Region 10 had been the management representative at the arbitration and
 had some responsibility for implementing the July 13 award.  She was
 confused by its interim nature, and the fact that Ms. Wolfe was to be
 reinstated at once with no backpay but all other perquisites.  SSA felt
 that "the most expeditious thing to get her into pay was to do a
 temporary appointment" (Tr. 124).  Ms. Smith personally took the papers
 to accomplish this over to the necessary authorizing and implementing
 officials.  Ms. Wolfe was reinstated into a pay status on Monday, July
 18.
 
    8.  Within the next couple of weeks discussions were held as to where
 Ms. Wolfe should be placed.  It was decided to place her in a less
 stressful position, in another office.  The Union was informed and
 interposed no objection.
 
    9.  During the same time frame, Ms. Smith proceeded to resolve
 questions about this "very unusual award" (Tr. 126).  Advice was sought
 from SSA's central office, from DHHS, and the Office of Personnel
 Management (OPM) in Washington, D.C.
 
    10a.  The Union raised a question with management officials about the
 appropriateness of a temporary appointment for Ms. Wolfe in that there
 is a significant difference in perquisites, the most critical one being,
 in Ms. Wolfe's case, her ineligibility for group health insurance.  As a
 result of the temporary appointment, she was forced to take insurance
 with a private plan, Blue Shield, with higher premiums.  Also, career
 employees are covered under and pay into the Civil Service Retirement
 System (CSRS) whereas temporary employees make so-called FICA payments
 into and are covered under the Social Security Act.  Also, time served
 in a temporary appointment does not count towards longevity for
 retirement purposes under the CSRS and does not apply towards tenure for
 purposes of promotion and within-grade salary increases.  Also,
 temporary employees are not eligible for promotion, reassignment, or
 transfer as are career employees.  Also, as a career employee, Ms. Wolfe
 had been eligible for and had carried group life insurance (FEGLI) for
 which she was ineligible as a temporary employee.  The Union urged
 conversion of the appointment to permanent career.
 
    b.  SSA found that the temporary appointment was also creating
 problems for it.  Therefore, SSA came to a decision and an agreement
 with the Union to convert Ms. Wolfe to a career appointment "in order to
 get all those back benefits paid" (Tr. 127).  This decision was reached
 in late August 1983 by Ms. Smith, after getting approval from the
 Regional Personnel Office.
 
    c.  The necessary papers to effect this conversion were received by
 DHHS on September 29, 1983.  A number of personnel actions had to be
 processed to effect the conversion.  See Jt. 1(3(a)-(f)) and paragraph 7
 to the Stipulation.  The computer system was unable to process them;
 and permission had to be sought to prepare them manually.
 
    d.  The Regional Personnel Officer signed the necessary conversion
 papers on October 4, 5 and 31, 1983.  The conversion became effective on
 October 5.  Ms. wolfe was placed on leave without pay (LWOP) for the
 period November 26, 1982 to July 18, 1983.  Health benefits were first
 deducted from her paychecks for the pay period ending October 15, 1983.
 FICA payments were deducted through the pay period ending October 29,
 1983 after which Civil Service Retirement was deducted.
 
    11a.  In accordance with applicable procedures of the Federal
 Personnel Manual, SSA set up the required fitness-for-duty examination
 and convened a panel, including a Public Health Service physician.  The
 panel had to determine what type of examination was appropriate, whether
 a clinical or psychiatric one.  The panel determined that there was no
 basis for a psychiatric examination.  Accordingly, the employee was
 given a neurological fitness-for-duty examination.  Management asked the
 neurologist if he thought a psychiatric examination was warranted.  He
 determined that there was no such need and that the employee was fit for
 duty.
 
    b.  On November 23, 1983, SSA informed the arbitrator that two
 doctors had agreed that Ms. Wolfe was fit for duty.
 
    c.  On November 30, 1983, the Union wrote to the arbitrator to
 complain of the absence of a psychiatric examination.  The Union asked
 the arbitrator to review the records of a psychiatrist whom Ms. Wolfe
 had consulted.
 
    d.  Apparently SSA did not inform the arbitrator, before his
 supplemental opinion and final award, that it had sought a psychiatry
 examination and been told that there was no need for one.
 
    12.  On December 15, 1983, the arbitrator issued a supplemental
 opinion and final award.  According to the arbitrator, the examining
 doctors agreed that Ms. Wolfe was presently "neurologically capable of
 performing duties." See Jt. 1(4).  The arbitrator expressed surprise
 that a psychiatric examination had not been ordered, since it appeared
 that her performance problems could have been the product of a mental
 problem, and the Union had requested one.  Expressing the view that SSA,
 for the second time, had chosen not to give Ms. Wolfe the examination
 she should have had, the arbitrator declined to order one himself and,
 instead, ordered that "Ms. Wolfe be reinstated with full back pay and
 with reinstitution of all other perquisites." See Jt. 1(4).
 
    13.  SSA received the December 15, 1983, award on December 21.  Upon
 receipt, SSA referred the award to DHHS which, in turn, referred it to
 OPM for determination as to whether to seek review in accordance with
 provisions of the Statute.  OPM received the award on or about January
 11, 1984.
 
    14.  On or about February 10, 1984, OPM verbally informed DHHS and
 SSA that it would not seek review of the July 13, 1983 and December 15,
 1983 arbitration awards.  In a letter to DHHS dated February 24, 1984,
 OPM stated its reasons for declining to seek review.  One was that the
 OPM regulations relied upon by SSA for agency -- ordered medical
 examinations had become obsolete and replaced by new ones which became
 final on February 10, 1984.
 
            The beginning of the alleged unfair labor practices
 
    15.  By letter dated February 13, 1984, DHHS wrote to the arbitrator
 to request his reconsideration of his awards.  On February 27, 1984, the
 arbitrator declined the request.
 
    16.  In early March 1984, SSA decided to move forward in complying
 with the final award.  This entailed going back and dealing with the
 retroactive period of Ms. Wolfe's non-pay status, from November 1982
 through July 1983;  and sorting out what perquisites had and had not
 been given.  Ms. Smith met with the SSA official responsible for
 handling the necessary personnel actions;  discussed the case and some
 of the time frame problems;  and asked that implementation take place
 "as expeditiously as possible" (Tr. 139).
 
    17a.  In handling personnel actions for SSA Region 10 employees, SSA
 requests them of DHHS's Region 10 Personnel Office which, in turn,
 processes them and forwards them to DHHS's Central Payroll for
 effectuation.
 
    b.  Actions involving retroactive application create a "different
 situation in terms of the Automated Personnel Data System" (Tr. 167).
 They require manual processing at the regional level of DHHS and
 submission of documents by mail to Central Payroll in order for Central
 Payroll to access the system.
 
    c.  The Wolfe case took a considerable amount of special procedures
 in Central Payroll, and special permission from Central Payroll to
 DHHS's Region 10 to cut the action manually.
 
    18a.  By requests for personnel action on March 26, 1984, SSA
 requested effectuation of the arbitration order of December 15, 1983,
 for back pay.  On March 30, 1984, DHHS's Region 10 processed these
 requests.  It normally takes 12 weeks for Central Payroll to process
 such corrective actions.
 
    b.  Although SSA and DHHS management officials had been discussing
 the award since July 1983, most of the discussions had dealt with the
 fitness-for-duty process.
 
    19.  About March 30, 1984, the Union filed an unfair labor practice
 charge over failure of management to implement the arbitration award.
 This was later withdrawn, in May 1984, as "possibly (being) premature"
 (Tr. 80-81).  On at least five occasions between the filing of the
 charge and its withdrawal, a union official spoke with SSA Management
 Analyst, Richard Morris, about the Wolfe case and the charge.  Mr.
 Morris pointed out that it takes a long time to process papers.  The
 union official brought up the matter of Ms. Wolfe's having paid out her
 own money for health benefits and being due a refund.  Mr. Morris did
 not understand the exact personnel problem that was involved, and
 discussed the matter with somebody in the Regional Personnel Office.
 Mr. Morris so informed the union official and told him, on April 25,
 that the Regional Personnel Office was looking into it and determining
 what the proper course of action was and if, in fact, the premiums paid
 by Ms. Wolfe could be refunded.
 
    20a.  By letter dated May 31, 1984, the Union complained to Douglas
 McDonald, the DHHS Region 10 Personnel Officer about the status of Ms.
 Wolfe's retroactive salary and reinstatement of health benefits.
 
    b.  On June 1, 1984, DHHS's payroll liaison person for DHHS's Region
 10, Lila Anderson, suggested that she take over for the two timekeepers
 involved in the matter and write up the necessary Error Notices.  Error
 Notices are used to alert Central Payroll to handle a case as an
 exception to the automated process or to review a case for corrective
 action or follou up.  One Error Notice was needed to determine how much
 back pay Ms. Wolfe was owed.  Another Error Notice was needed to correct
 annual and sick leave notices.  The preparation of these Error Notices
 took a lot of time to work out and necessitated calling the timekeepers
 where Ms. Wolfe had worked to get more information and to clarify
 points.  Ms. Anderson could not determine all the deductions that would
 have to be made and decided she would have to rely on Central Payroll to
 do the final audit on the back pay involved.
 
    c.  On June 11, 1984, Ms. Anderson mailed to Central Payroll the
 Error Notices, with a request that they be given "priority" because the
 employee had already waited six months since a favorable arbitration
 award.  (Jt. 1(12(b).  Error Notices are forwarded by mail.
 
    d.  On June 12, 1984, DHHS replied to the Union's May 31 letter;
 explained that the necessary paperwork had been sent to Central Payroll
 during the first week in April and that normal processing time was 12
 weeks;  and assured the Union that DHHS had followed up with Central
 Payroll, taken additional steps to expedite the matter, and would
 continue to monitor it.
 
    e.  If there is some "urgent aspect to (a) case" that "deserves
 special treatment," DHHS follows up on a case before the normal 12-week
 processing time expires (Tr. 16 and see also Tr. 181).
 
    21.  On July 20, 1984, a union official wrote to Mr. McDonald, to
 complain about the lack of positive action since the Union's May 31
 letter, to state that the unfair labor practice charge had been refiled,
 and to seek his help.
 
    22.  On July 26, 1984, Ms. Anderson began calling Central Payroll to
 check on the matter.  On July 27, Ms. Anderson was told that more
 information was needed, specifically whether Ms. Wolfe had received
 unemployment compensation.  Ms. Anderson replied that she thought she
 had.  Ms. Lewis requested this information so that the State could be
 notified that Ms. Wolfe had been brought back and given back pay.  Ms.
 Anderson called Ms. Wolfe who brought her a copy of the unemployment
 compensation papers within a couple of days.  Ms. Anderson immediately
 mailed them off.  Ms. Anderson did not know such papers were needed
 until July 27.
 
    23.  In addition to Ms. Anderson's inquiries, Mr. McDonald arranged a
 meeting with union representatives regarding effectuation of the
 arbitration award.  The meeting was held on August 3, 1984.  Present
 were two union officials and, for DHHS, Mr. McDonald, and the Chief of
 the Employment Branch for DHHS, Barbara Schmedling.  At the meeting, the
 Union reviewed the history of the case, the delays involved, and the
 various issues remaining to be settled, such as reimbursement for
 premiums which Ms. Wolfe had paid Blue Shield.  Neither Mr. McDonald nor
 Ms. Schmedling appeared clear as to what, if anything, would be done
 concerning Ms. Wolfe's premiums payments.  At Mr. McDonald's request,
 Ms. Schmedling itemized some of the problems which had delayed payment
 to Ms. Wolfe.  This included papers being misplaced and the movement of
 computers from Washington, D.C. to Rockville, Maryland, or vice versa.
 The meeting ended with Mr. McDonald agreeing to contact Central Payroll
 to try to get the matter resolved.
 
    24.  On or about August 23, 1984, Ms. Wolfe received a check in the
 amount of $7,397.59 representing back salary for the period November
 1982 to July 1983 ($12,262), less Federal taxes ($1772,40), federal
 retirement contributions ($1248.55), Medicare ($137.22) and leave
 reimbursement ($1707.04).  The leave reimbursement represents the amount
 of money Wolfe had received for her accrued annual leave at the time of
 her termination in November 1982.  With the deduction of this money from
 her back pay, Ms. Wolfe was credited with 206.7 hours of annual leave
 and 68 hours of sick leave as of the payperiod September 29, 1984.  No
 deduction was made for health benefits premiums.  No reimbursement was
 made for Ms. Wolfe's Social Security (FICA) payments which she had made
 during the period of her temporary appointment.
 
    25a.  On September 10, 1984, the Union wrote to DHHS's Regional
 Personnel Officer and asked for an explanation of the check.  The Union
 acknowledged, in its letter, that the "case has been difficult" (Jt.
 1(13)).
 
    b.  On September 19, 1984, DHHS's Regional Personnel Officer gave a
 written explanation and an offer to meet with the Union and Ms. Wolfe to
 clarify the explanation and answer questions.  The explanation included
 a discussion of deductions for health benefits, Medicare, reimbursements
 for FICA and FEGLI, refund of unemployment benefits, leave deductions
 and restoration, and options for health benefits.
 
    26.  On September 24, 1984, a Labor Relations Specialist for SSA and
 DHHS arranged a meeting with Ms. Wolfe and a union representative to
 finish up any unresolved matters in the Wolfe case.  Several management
 representatives attended, including Lila Anderson, Payroll Liaison for
 DHHS.
 
    a.  One unresolved matter concerned Ms. Wolfe's medical benefits.
 Ms. Anderson explained to Ms. Wolfe what her options were.  Prior to her
 termination, Ms. Wolfe carried medical benefits with Washington
 Physicians Service (WPS), a group medical insurance plan.  Upon her
 termination, she was informed by DHHS that WPS did not offer individual
 coverage.  Ms. Wolfe then elected to enroll with Blue Shield, which did
 offer individual coverage.  The cost of her health insurance, after
 November 26, 1982, was to be paid in full by Ms. Wolfe.  Her premiums
 under Blue Shield were $71.05 per month.  Under the arbitration award,
 Ms. Wolfe was entitled to reinstatement with WPS retroactive to November
 27, 1982, but had to pay premiums to WPS for this retroactive period.
 Following the meeting, DHHS wrote a letter, dated September 24, 1984, to
 Blue Shield asking for assistance in refunding the dues paid by Ms.
 Wolfe to Blue Shield "as soon as possible," for the period she paid
 (January through June 1983).  See Jt. 1 (16).  Blue Shield refunded the
 dues to Ms. Wolfe on October 22, 1984;  and Ms. Wolfe reimbursed DHHS
 for the retroactive premiums due to WPS on October 29.  DHHS had agreed,
 at the September 24 meeting, to hold off any collection of the
 retroactive premiums from Ms. Wolfe until she received a refund from
 Blue Shield.  See Tr. 96-97 and 115-117.  On or about October 11, 1983,
 Ms. Wolfe's enrollment in WPS was reinstated.
 
    b.  Another unresolved matter was leave.  Ms Anderson explained to
 Ms. Wolfe that 113 hours of her annual leave could not be put on the pay
 slip because they would result in an excess of annual leave that can be
 carried over.  Ms. Anderson told Ms. Wolfe that the 113 hours could be
 placed in a restored leave account, or she might be able to receive cash
 for the 113 hours.  Ms. Wolfe indicated that she would prefer cash.
 
    c.  On September 25, 1985, DHHS's Regional Personnel Officer sent a
 memorandum to the Supervisor Leave Unit approving the restoration of 113
 hours of leave to Ms. Wolfe, and another to the Director Pay Systems
 Divisions seeking assistance in resolving the leave and health benefits
 problems of the Wolfe case and asking that Ms. Wolfe be paid a lump sum
 for her 113 hours of leave.
 
    d.  As it turned out, regulations prohibited a cash payment for the
 113 hours.  The 113 hours were placed in a restored leave account, from
 which Ms. Wolfe would receive payment within 44 or 51 days following her
 retirement, which apparently took place prior to the hearing.  See Tr.
 190, DHHS learned that the 113 hours would be placed in a restored leave
 account on October 11, 1984.
 
    27.  On October 10, 1984, the Union wrote to SSA that Ms. Wolfe had
 received credit for 240 hours of annual leave, but had not received her
 lump sum payment for her 113 hours or her FICA money refund.  The Union
 explained that Ms. Wolfe had retirement plans which she could not
 finalize until all her pay problems were adjusted.  The Union asked for
 advice as soon as possible as to when a final resolution could be
 reached on the payroll processing issues.
 
    28.  On November 11, 1984, the Union wrote to Mr. McDonald to
 complain about the failure to implement the arbitration award as to the
 FICA and 113 annual leave hours, and to seek his assistance.  The Union
 did not learn that Ms. Wolfe would not get "a cash-out" for her 113
 hours of annual leave until the day of the hearing.
 
    29.  On December 18, 1984, Ms. Wolfe received reimbursement from SSA
 for the FICA contribution which had been deducted from her salary while
 she was in a temporary appointment during the period July to October
 1983.  See paragraph 21 of Jt. 1, as explained at G.C. Br. 12.
 
    30.  There was "just nothing in the books" as to how Respondents had
 to proceed in this unusual, difficult, and complex case, involving
 issues not only of retroactive back pay (with which they had dealt
 before), but also adjustments for health benefits, life insurance,
 taxes, unemployment benefits and leave (Tr. 141 and see also Tr. 174).
 
                        Discussion and Conclusions
 
    The General Counsel has not established, by a preponderance of the
 evidence, /4/ that Respondents engaged in dilatory conduct in complying
 with an arbitration award, or that they have failed to comply with it.
 
    In reaching this conclusion, the following facts of record have been
 most persuasive.  In the first place, the arbitration award was
 bifurcated, with the initial award coming some five months before the
 final award.  This presented difficulties for Respondents.  In the
 preliminary award, an employee was found not to have been performing her
 job adequately at the time of her termination;  but she was ordered
 reinstated with all perquisites but back pay, and directed to have a
 fitness-for-duty examination.  In the final order, five months later and
 after a finding that she was fit for duty, the arbitrator ordered
 reinstatement with full back pay and reinstitution of all other
 perquisites.
 
    Secondly, Respondents promptly complied with the only portion of the
 arbitration award with a clear time frame -- receiving pay at the
 grievant's GS-7 rate beginning the Monday following the receipt of the
 July 13, 1983 preliminary opinion and award.  Respondents accomplished
 this by giving the grievant a temporary appointment, which was the most
 expeditious method available to comply with the award.  The rest of the
 award concerned the restoration of pay and perquisites, with no
 indication of a time frame within which Respondents were to act.  This
 serves to distinguish the case relied upon by the General Counsel at
 page 24 of the brief, SSA, Field Office Operations, New York Region,
 2-CA-30127, decided by Judge Chaitovitz on June 8, 1984, wherein the
 arbitrator ordered backpay made be within 20 days.
 
    Thirdly, having reinstated the grievant with full pay, Respondents
 had to face resolution of what was indisputable a difficult, complex
 matter of restoring all perquisites and back pay over a period of
 several years, some of which involved a temporary appointment and LWOP
 status.  Social Security taxes, life and health insurance, unemployment
 benefits, and leave accumulation were among the issues to be resolved.
 These issues were complicated by Respondents' compliance with the
 preliminary award edict, that they get the employee back on the payroll
 the Monday following receipt of the award, which they accomplished by
 giving her a temporary appointment.  This decision resulted in the
 employee paying into the Social Security system rather than the Civil
 Service one, losing leave and life insurance entitlements, and having to
 pay for private health benefits rather than less-expensive group health
 ones.  While Respondents made this decision on their own, it was not
 done to deprive the grievant of any rights but, rather, to get her back
 on the payroll as expeditiously as possible.  Furthermore, personnel
 actions to effect restoration of all these perquisites and payback could
 not simply be cut and processed.  First, decisions had to be made on how
 to effectuate them, and involved consultations between various levels of
 management of SSA and DHHS.  A further complication was that the
 computer system in use had to be accessed manually and normally takes 12
 weeks to process corrective actions such as the ones here involved.
 
    The final fact is that nothing in the record suggests any deliberate
 delay or gross neglect in effectuating the award.  To the contrary,
 Respondents did take some steps to expedite it.  And during the entire
 period, Respondents acted with compassion toward the employee and her
 job performance problems.  The arbitrator found that the grievants'
 supervisors acted in good faith and put in a great deal of effort to
 help her improve, before finally reaching the decision to terminate her.
  On this record it was established that Respondents reinstated her in a
 job involving a less stressful situation, after consulting with the
 Union which voiced no objections.
 
    The General Counsel cites, as an example of "unreasonable
 interference with compliance" with the award, the conduct, on February
 13, 1984, of DHHS in soliciting the arbitrator to reconsider his
 decision.  See G.C. Br. 20-21.  The General Counsel correctly points out
 that nothing in the collective bargaining agreement or the Statute gives
 DHHS a right to seek reconsideration of an arbitrator's award.  /5/
 However, while this attempt by DHHS to obtain reconsideration may be
 characterized as a feckless one, it did not unduly delay the SSA
 decision, made in early March, to move forward in complying with the
 final award.
 
    The General Counsel notes that the award had been the subject of
 discussion among Respondents since July 1983, and yet it took SSA until
 March 26, 1984 to complete the forms necessary to initiate effectuation
 of the December 13, 1983 final award.  See G.C. Br. 21.  However, most
 of the pre-March 1984 discussions dealt with the fitness-for-duty
 process, rather than the complications of restoring perquisites and
 backpay.  Even the Union took the position, in discussions with
 management, to defer arguments regarding retroactivity until receipt of
 the final award.  See Tr. 63.
 
    The General Counsel also makes the point that, until her retirement,
 the grievant was not paid for 113 hours of excess annual leave placed in
 her restored leave account, and that the Union, despite two
 communications on the problem, was not kept advised on this issue.  See
 G.C. Br. 23.  Management officials were derlict in not keeping the Union
 advised on this issue.  However, overall, management officials responded
 promptly to Union communications, which were numerous over the period of
 time here involved;  and I do not find that this particular dereliction,
 in itself, lifts this case into the status of an unfair labor practice.
 
    Superficially, taking a year to comply with an arbitrator's award
 would seem to be proof of an unfair labor practice.  But the facts here
 show that Respondents did act promptly enough in starting up the
 process.  While they could have probably moved it along at a faster
 rate, they were under no specific order to give it special, expedited
 treatment.  The administrative process ground slowly, but surely;  and
 full compliance with the award was eventually accomplished.  There is no
 evidence that the employee suffered unduly from the delay.  At most, it
 may have delayed her retirement plans somewhat.
 
    Other issues have been raised by the parties.  However, in view of
 the conclusions expressed above, that Respondents did not engage in
 dilatory tactics in complying with the arbitration award and have now
 fully complied therewith, the resolution of other issues is deemed to be
 unnecessary.
 
                  Ultimate Findings and Recommended Order
 
    Respondents have not engaged in the unfair labor practice alleged in
 the complaint.
 
    Accordingly, it is hereby ORDERED that the complaint should be and
 hereby is dismissed.
                                       /s/ ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) With respect to the only issue raised by the Respondents'
 exceptions, that is, that the Authority may not order compliance with an
 arbitrator's award involving a matter covered under 5 U.S.C. Section
 4303 in light of section 7121(f) of the Statute, such contention must be
 rejected.  See, United States Army, Adjutant General Publications
 Center, St. Louis, Missouri, 22 FLRA NO. 20 (1986) (in which the
 Authority recently found that the Authority has jurisdiction to order
 compliance with an arbitrator's final award such as the one herein in an
 unfair labor practice proceeding).
 
    (2) The pertinent statutory provisions are as follows:
 
               Section 7122.  Exceptions to arbitral awards
 
          (b) If no exception to an arbitrator's award is filed under
       subsection (a) of this section during the 30-day period beginning
       on the date of such award, the award shall be final and binding.
       An agency shall take the actions required by an arbitrator's final
       award.  The award may include the payment of backpay (as provided
       in section 5596 of this title).
 
                    Section 7121.  Grievance procedures
 
          (f) In matters covered under sections 4303 (pertaining to
       actions based on unacceptable performance) and 7512 (pertaining to
       certain adverse actions such as removals) of this title which have
       been raised under the negotiated grievance procedure in accordance
       with this section, section 7709 of this title pertaining to
       judicial review shall apply to the award of an arbitrator in the
       same manner and under the same conditions as if the matter had
       been decided by the (Merit Systems Protection) Board . . . .
 
          (Section 7703 provides that the Director of OPM may obtain
       judicial review upon a determination that an error was made in
       interpreting a civil service law, rule, or regulation and that the
       error would have a substantial impact.)
 
                   Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;  . . . or
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    (3) The following abbreviations will be used herein.  "Tr." refers to
 the transcript of the hearing.  "Jt. 1" refers to the stipulation
 entered into by the parties, with the exhibits thereto indicated by a
 parenthetical reference as, for example, "Jt. 1(9)(a)." "G.C. Exh."
 refers to exhibits of the General Counsel and "R. Exh." to those of
 Respondents.  "G.C. Br." refers to the brief of the General Counsel and
 "R. Br." to that of Respondents.
 
    The General Counsel's unopposed motion to correct the transcript is
 granted.
 
    (4) This is the statutory burden of proof.  See 5 U.S.C. 7118(a)(7)
 and (8).
 
    (5) In the case of terminations for performance deficiencies, the
 Statute gives only OPM appeal rights;  and one Federal Court has held
 that even OPM is not permitted to s