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15:0243(45)AR
The decision of the Authority follows:
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