15:0243(45)AR - Patent and Trademark Office and Patent Office Professional Association -- 1984 FLRAdec AR

 15 FLRA No. 45
 
 U.S. PATENT AND TRADEMARK OFFICE
 Activity
 
 and
 
 PATENT OFFICE PROFESSIONAL ASSOCIATION
 Union
 
                                            Case No. O-AR-780
 
                        ORDER DISMISSING EXCEPTIONS
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Joseph A. Sickles filed by the Activity under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and section
 2425.1 of the Authority's Rules and Regulations.  For the reasons set
 forth below, the Authority is without jurisdiction to review the
 Activity's exceptions and they must be dismissed on that basis.
 
    The dispute in this matter arose when the grievant received a notice
 of proposed removal for unsatisfactory performance pursuant to 5 U.S.C.
 4303.  The Arbitrator found that the proposed removal was not a final
 agency action and therefore not properly grievable;  moreover, based on
 the Activity's subsequent actions, that the grievance was moot.  The
 Activity then filed the instant exceptions with the Authority.
 
    Section 7122(a) of the Statute provides in pertinent part:
 
          Either party to arbitration under this chapter may file with
       the Authority an exception to any arbitrator's award pursuant to
       the arbitration (other than an award relating to a matter
       described in section 7121(f) of this title).
 
    The matters described in section 7121(f) of the Statute include those
 covered under 5 U.S.C. 4303 which applies to adverse actions based on
 unacceptable performance.  Pursuant to section 7121(f), review of an
 arbitration award relating to such matters must be obtained in
 accordance with 5 U.S.C. 7703, i.e., in the same manner and under the
 same conditions as judicial review of a final decision of the Merit
 Systems Protection Board.
 
    Since the Arbitrator's award in this case involves a matter directly
 related to a matter covered by 5 U.S.C. 4303, under section 7122(a) of
 the Statute the Authority is without jurisdiction to review the
 Activity's exceptions.  Rather, judicial review of the Arbitrator's
 award may be sought pursuant to 5 U.S.C. 7703.
 
    Accordingly, and apart from other considerations, the Activity's
 exceptions are hereby dismissed.
 
    For the Authority.
 
    Issued, Washington, D.C., July 5, 1984
                                       Harold D. Kessler, Director, Case
                                       Management