28:0759(97)AR - AFGE, LOCAL 85 VS VA MEDICAL CENTER



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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 He requested that the admonishment be rescinded and that reference to the incident be removed from all records and files.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the third step of the grievance procedure, the Medical Center Director decided that the evidence was insufficient and rescinded the admonishment.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