22:0271(26)CA - HHS and SSA and AFGE -- 1986 FLRAdec CA
[ v22 p271 ]
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 seek reconsideration of arbitrators' decisions. See 5 U.S.C. 7121(f) and 7703 and Devine v. White, 697 F.2d 421, 112 LRRM 2374, 2379-2383 (C.A.D.C., Jan. 7, 1983).