Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85 (Authority decision, August 28, 1987)

Final FLRA decision. The Authority modifies an arbitration award that directed a VA medical center to expunge an internal investigation file after it rescinded an employee's admonishment. The center may retain the file but may not use its information against the employee in the future. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

A Leavenworth VA medical center investigated a patient complaint about a nurse's aide and initially admonished him. The director later rescinded the admonishment for insufficient evidence, but the center kept its investigation file. An arbitrator ordered the file expunged. The Authority held that the grievance concerned the employee's work relationship, but management's right to set internal security practices allowed it to retain the file for a possible patient claim. It modified the award so the file could stay while barring its use against the employee.

Decision snapshot

• Authority: Grievance definition under 5 U.S.C. § 7103(a)(9); management's internal security right under § 7106(a)(1).
• Outcome: Expungement order replaced with a prohibition on future use against the employee.
• Key point: Management could retain the investigation record for a potential claim even after the admonishment was rescinded.

Full text (FLRA public release)

[ v28 p759 ]
28:0759(97)AR

The decision of the Authority follows:

28 FLRA NO. 97

VETERANS ADMINISTRATION MEDICAL
CENTER, LEAVENWORTH, KANSAS

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 85

Union

Case No. 0-AR-1284

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Henry M. Grether filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. 1

II. Background and Arbitrator's Award

The dispute in this case concerns an internal investigation initiated when a patient complained that the grievant, a nurse's aide, had disclosed medical information about the patient to a third party in violation of the patient's privacy. As a result of the investigation, the grievant was given a letter of admonishment over which he filed a grievance. In this grievance, the grievant denied he had released any information or violated the patient's privacy. He requested that the admonishment be rescinded and that reference to the incident be removed from all records and files. At the third step of the grievance procedure, the Medical Center Director decided that the evidence was insufficient and rescinded the admonishment. The personnel folder relating to the admonishment was given to the grievant. However, the administrative investigation file was not released to the grievant and was not expunged. Consequently, the grievance in this case was filed and submitted to arbitration on the issue of whether the grievant was entitled to have the administrative investigation file expunged.

The Arbitrator concluded that because management had decided that there was insufficient evidence to admonish the grievant, the investigation file could not be used against the grievant and there was no further use for this file. Accordingly, he determined that the grievance should be sustained because there was no apparent legitimate need or use for the Activity to retain the file. His award was as follows: "The grievance is sustained and the (Activity) is directed to expunge the investigation file in question."

III. First Exception

A. Contentions

The Agency contends that the award is contrary to the Statute. Specifically, the Agency argues that the award is deficient because it does not concern a condition of employment. In support, the Agency cites the Authority's decision in American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982) (Proposal 1), reversed as to other matters sub nom. Department of Justice, INS v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). In Department of Justice, INS, the Authority found that a proposal did not concern conditions of employment because it only concerned management's access to internal investigation files. The Agency argues that the grievance and award, which similarly concern restricting management's access to the disputed investigation file, do not concern conditions of employment of unit employees. Consequently, the award is beyond the scope of grievance and arbitration prescribed by the Statute.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to the Statute. We find that the grievance demanding that the investigation file be expunged in view of the rescission of the admonishment clearly relates to the work situation and employment relationship of the grievant and is within the definition of grievance set forth in the Statute. Section 7103(a)(9) broadly defines grievance as a complaint by any employee concerning any matter relating to the employment of the employee. Accordingly, the award sustaining that grievance and directing that the file be expunged and not be used against the grievant in the future has not been shown to be deficient on this basis. See Leavenworth Veterans Administration Medical Center and Local No. 85, American Federation of Government Employees, AFL - CIO, 27 FLRA No. 35 (1987); General Services Administration and American Federation of Government Employees, AFL - CIO, National Council 236, 27 FLRA No. 1 (1987) and cases cited in the decision; Local R-1-185, National Association of Government Employees and Adjutant General of the State of Connecticut, 25 FLRA No. 36 (1987). Furthermore, we do not view the decision cited by the Agency as establishing otherwise. The Authority clearly indicated in that case that the proposal would have concerned conditions of employment if it had related to management's consideration or use of internal investigation files in connection with personnel actions affecting unit employees. Management's consideration and other use of the disputed investigation file in connection with the grievant was precisely what was grieved and arbitrated in this case. Accordingly, this exception is denied.

IV. Second Exception

A. Contentions

The Agency contends that the award is contrary to section 7106(a)(1) of the Statute. Specifically, the Agency argues that by effectively directing that the Activity destroy the investigation file, the award conflicts with management's right to determine its internal security practices. The Agency maintains that under section 7106(a)(1), only management and not the Arbitrator can determine whether information from an internal investigation is necessary for retention. The Agency notes, in particular, that one purpose for retention of the investigation file in this case is to have a record in the event that it becomes necessary to defend a law suit filed by the patient who claimed an invasion of privacy.

B. Analysis and Conclusions

We conclude that by determining that management had no legitimate use for retaining the investigation file and by directing that it be expunged, the award conflicts with management's right to determine its internal security practices. In National Federation of Federal Employees, Local 1308 and General Services Administration, 18 FLRA 789 (1985), the Authority found that a proposal providing for access to information regarding internal investigations conflicted with management's right to determine its internal security practices. The Authority explained that management has the right under section 7106(a)(1) to determine matters relating to the disclosure and protection of information concerning internal investigations. 18 FLRA at 797. In this case we specifically find that management has the right under section 7106(a)(1) to determine that information concerning the internal investigation must be retained and is not to be released or expunged because of the potential for a claim against the Agency even though the information did not support a disciplinary action against the grievant. Consequently, the award is contrary to section 7106(a)(1) and must be modified. 2

V. Decision

Accordingly, the award is modified to provide as follows:

The grievance is sustained and the Activity may not use the information from the investigation file in dispute against the grievant in the future.

Issued, Washington, D.C., August 28, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In its opposition, the Union contends that the Agency's exceptions were untimely filed. However, we find under our Regulations that the exceptions were timely.

Footnote 2 In view of this decision, it is
unnecessary to address the Agency's other exceptions.