JURISDICTION ... § 7123(a) ... KYNE EXCEPTION. The Magistrate Judge of the San Antonio Division of the U.S. District Court, Western District of Texas, recommended that the court dismiss the union's request that the court vacate the Authority's decision in 58 FLRA No. 13, finding that the court lacked jurisdiction. (In 58 FLRA No. 23 the Authority had set aside an award involving environmental differential pay (EDP) for exposure to asbestos. It disagreed with the arbitrator's determination that the agency's regulation, adopting the OSHA standard for permissible exposure to asbestos, wasn't binding on the union unless there was evidence that the union consented to the standard.) The Magistrate Judge said that "§ 7123 precludes district courts from reviewing the Authority's decision on an exception to an arbitration award." He also held that "[b]ecause plaintiffs have not shown the Authority committed an egregious error," the Kyne exception to § 7123(a)'s statutory preclusion of any judicial review of FLRA's decisions on exceptions to arbitration awards wasn't applicable. AFGE Local 1617; Arthur Celestino; and AFGE Council 214 v. FLRA, Civ. No. SA-03-58-FB (W.D. Tex, August 4, 2003).

SCHEDULING OF OFFICIAL TIME ... WORKING CONDITIONS OF MANAGEMENT OFFICIALS FLRA affirmed an award in which the arbitrator interpreted the contract as requiring that stewards requesting official time be released from their duties "unless reasonable efforts have first been made to augment and reassign staff, including unit managers, in order to grant such requests and, despite such reasonable efforts, the presence of the requesting union stewards at their work stations is essential to the performance of the Agency's responsibilities." Internal Revenue Service and NTEU Chapter 66, 0-AR-3506, August 15, 2003, 59 FLRA No. 8.

PRIORITY CONSIDERATION ... VACATING SELECTIONS ... SELECTING OFFICIAL. The arbitrator, after finding that the agency failed to provide priority consideration to the grievant, ordered it to vacate its selections, rerun the selection process, and designate a different selecting official. FLRA set aside that portion of the award directing the agency to appoint a different selecting official because it didn't pass Prong II of the BEP test. "[T]here is no showing that the Agency would have designated a different selecting official had the Agency not violated the parties' agreement." Social Security Administration and American Federation of Government Employees, Local 3627, 0-AR-3590, July 29, 2003, 58 FLRA No. 175.

PRIVACY ACT ... REQUESTING INFORMATION FROM GRIEVANTS' MEDICAL PROVIDERS. The Authority set aside two awards in which the arbitrators found that the agency violated the Privacy Act by requesting information from the grievants' medical providers without first seeking to obtain the information directly from the grievants. In one case, where the agency requested the information by phone rather than in writing, as required by 20 CFR 10.06, FLRA found that the agency's action didn't amount to a willful and intentional violation of the Privacy Act. In the other case, the award was defective because, given that the record evidence demonstrated that the grievant didn't lose any benefits to which she was entitled, the record didn't support a finding that there was an adverse effect. Department of Veterans Affairs Medical Center, Charleston, SC and National Association of Government Employees, Local R5-136, 0-AR-3628 and 0-AR-3639, July 17, 2003, 58 FLRA No. 170.

STATUTORILY MANDATED DOD-WIDE UNIFORMITY ... NAF HEALTH BENEFITS. Proposals requiring the Air Force to pay the entire amount of nonappropriated fund (NAF) employees' health insurance premiums and requiring it to offer NAF employees the option to enroll in the Blue Choice Health Benefit plan are nonnegotiable because inconsistent the statutory mandate for DOD-wide uniformity under § 349 of the National Defense Authorization Act for FY 1995. American Federation of Government Employees, Local 3240 and Dep't of the Air Force, 325th Support Group, Tyndall AFB, Florida, 0-NG-2665, July 15, 2003, 58 FLRA No. 168.

CONDUCT EXCEEDING THE BOUNDARIES OF PROTECTED ACTIVITY. In a case where the Authority, in a brief decision, found that the agency violated 5 USC § 7116(a)(1) and (2) when it reprimanded an employee for engaging in protected activity, FLRA announced it was modifying the "flagrant misconduct" standard. It said that "when the alleged discrimination concerns discipline for conduct occurring during protected activity, a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity." Department of the Air Force, Aerospace Maintenance and Regeneration Center, Davis Monthan Air Force Base, Tucson, Arizona and John Pennington, DE-CA-01-0276, July 11, 2003, 58 FLRA No. 162.

CAR AVAILABILITY ... MEANS ... APPROPRIATE ARRANGEMENT. Although FLRA assumed without deciding that a proposal dealing with the retention of a GSA car concerned the exercise of management's right to determine the means of performing the agency's work within the meaning of § 7106(b)(1) (and thus a matter on which the agency could elect not to bargain), it concluded that it was an appropriate arrangement within the meaning of § 7106(b)(3), (and thus a mandatory subject of bargaining). AFGE National Council of Field Labor Locals and Department of Labor, 0-NG-2687, July 9, 2003, 58 FLRA No. 156.

ATTORNEY FEES ... PREVAILING PARTIES. Although an appellant may be a prevailing party, he is not automatically entitled to attorney's fees. William T. Arnold v. Department of the Air Force, AT-0752-00-0594-E-2, August 6, 2003.

NATIONAL ORIGIN DISCRIMINATION ... ENGLISH REQUIREMENTS ... BUSINESS NECESSITY. The US Equal Employment Opportunity Commission (EEOC) ruled that the agency's requirement that the complainant speak only English was justified by business necessity because his lengthy Spanish conversations were intimidating to his coworkers. This ruling came despite the fact that English only rules that apply at all times presumptively violate Title VII and complainant was allowed to speak Spanish only during break times. Edward E. Sanchez, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency, Equal Employment Opportunity Commission, Appeal No. 01A20555, AVDSF09903J0030, 370-00-X2239, July 18, 2003.