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Hold-Downs - Opting
Eligible employees may not be denied opting opportunities. National Arbitrator Bernstein held (C6461) that an employee may not be denied a holddown assignment by virtue of his or her potential qualification for overtime pay. For example, an employee who works 40 hours Saturday through Thursday is eligible for a hold-down which begins on Friday even though he or she will earn overtime pay for work In excess of 40 hours during the service week. Furthermore, an otherwise-qualified employee on light duty may not be denied hold-down assignments as long as the assignment Is within his or her physical limitations (C-10181). Finally, according to the National Agreement, employees may opt for temporary vacancies only in their delivery units. In clarifying this limitation on eligibility, a Step 4 settlement (M-0828) established that when employees are temporarily reassigned to other units, they may still exercise their seniority to obtain hold-down positions in their home units.
Some employees are not permitted to opt. Probationary employees may never opt (M-0594, M0510), because while probationary they have no seniority to exercise (Article 12, Section 1 (c)). Carriers acting in 204(B) supervisory positions may not opt for hold-down positions in their installations as long as they are in a supervisory status (M-0552). A national pre-arbitration settlement (M-0891) established that an employee's supervisory status is determined by Form 1723, which shows the times and dates of an employee's 204(B) duties.
B. Duty assignments eligible for opting
Not all anticipated temporary vacancies create opting opportunities.
Vacancies in full-time level 5 regular and reserve assignments are open for opting. T-6 positions are not subject to opting because they are higher level assignments which are filled under Article 25 of the National Agreement (M-0276). The failure of management to award a temporarily vacant higher level position to the senior, eligible, qualified employee should be grieved under Article 25, not Article 41.2.B.
Auxiliary routes need not be made available as hold-downs because such assignments are not full-time (M-0625).
Vacancies lasting less than five days need not be filled as hold-downs. Clarifying the meaning of this five-day requirement, National Arbitrator Kerr held (C5865) that opting is required when vacancies are expected to include five or more work days, rather than vacancies that span a period of five calendar days but may have fewer than five days of scheduled work. However, these anticipated five days may include a holiday (M-0237). According to the National Agreement, local practice may allow full-time carriers to opt for vacancies of fewer than five days (Article 41, Section 2.13.3).
In any case, an employee does not become entitled to a hold-down assignment until the "anticipated" vacancy actually occurs (C-8883). Thus, an employee who successfully opts for an expected vacancy that fails to materialize is not guaranteed the assignment and has no remedy.
The National Agreement does not set forth specific procedures for posting and opting for holddowns. However, the posting of vacancies and procedures for opting for hold-down assignments may be governed by Local Memorandums of Understanding (M-0446, C-6339). In sustaining a local policy of posting notices of temporary vacancies for only one day, a regional arbitrator correctly noted that "Article 30 allows the local parties to negotiate provisions covering 22 specific Items, including the subject of posting" (C-6395).
In the absence of an LMU provision or mutually agreed-upon local policy, the bare provisions of Article 41, Section 2.13 apply. In that case, there is no requirement that management post a vacancy, and carriers who wish to opt must learn of available assignments by word of mouth or by reviewing scheduling documents. There is also no requirement concerning the form by which an employee must notify management that he or she wishes to opt-any means of notification is acceptable.