OPTING (P-00030)



I. INTRODUCTION

The National Agreement provides a special procedure for exercising seniority in filling temporary vacancies in full-time duty assignments. This procedure, called "opting," allows carriers to "hold down" vacant routes of regular carriers who are on leave or otherwise unavailable to work for five or more days. The terms "opt" and "hold-down" refer to the same procedure and may be used interchangeably. This section will review the opting procedures and policies as established by the National Agreement, arbitration awards, and national level settlements.

II. CONTRACT PROVISIONS

The opting procedures stem directly from Article 41, Section 2.B of the National Agreement, which states in part:

3. Full-time reserve letter carriers, and any unassigned full-time letter carriers whose duty assignment has been eliminated in the particular delivery unit, may exercise their preference by use of their seniority for available craft duty assignments of anticipated duration of five (5) days or more in the delivery unit within their bid assignment areas, except where local practice provides for a shorter period.

4. Part-time flexible letter carriers may exercise their preference by use of their seniority for available full-time craft duty assignments of anticipated duration of five (5) days or more in the delivery unit to which they are assigned.

5. A letter carrier who, pursuant to subsections 3 and 4 above, has selected a craft duty assignment by exercise of seniority shall work that duty assignment for its duration. Questions arising from these provisions fall into several categories. These areas include eligibility for opting, rules for posting of vacancies, the meaning of "duration" in Section 2.B.5, pay status of employees on hold-downs, applicable schedules, and remedies for improper denials of opting opportunities. Each area is addressed separately below.

III. ELIGIBILITY

A. Employees eligible for opting

Full-time reserves, flexible-schedule regulars, unassigned full-time carriers, and part-time flexible carriers may all opt for hold-down assignments. Although Article 12, Section 3 of the National Agreement provides that "an employee may be designated a successful bidder no more than five (5) times" during the contract period, a national settlement (M-0513) establishes that these restrictions do not apply to the process of opting for vacant assignments. Moreover, opting is not "restricted to employees with the same schedule as the vacant position" (M-0843). Rather, an employee who opts for a hold-down assignment assumes the scheduled hours of the regular carrier whose absence is filled by the hold-down (See "Schedule Status," below).

Eligible employees may not be denied opting opportunities. National Arbitrator Bernstein held (C-6461) that an employee may not be denied a hold-down 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, M-0510), 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 prearbitration 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 (C-5865) 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.B.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.

IV. POSTING

The National Agreement does not set forth specific procedures for posting and opting for hold-downs. 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.B 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. V. DURATION The National Agreement says that once an available hold-down position is awarded, the opting employee "shall work that duty assignment for its duration" (Article 41, Section 2.B.5). Within this category are questions involving hold-down carriers who voluntarily leave or are involuntarily removed from their hold-down assignments before the duration of the vacancy has run.

A. Defining "duration"

One important issue is the meaning of "duration" as used in Section 2.B.5. Generally, "duration for remaining on an instation bid will be as long as the position remains unfilled unless the instation bid itself places a definite time limit" (C-7489). Thus, a hold-down typically ends upon the return of the incumbent carrier. If no end date is specified and a vacancy lasts longer than anticipated, the opting employee retains his or her right to work the assignment (See C-7001). An opt is not necessarily ended by the end of a service week (C- 9539).

B. Voluntary leave and reassignment

There are situations in which carriers temporarily vacate hold-down positions for which they have opted. Such an employee may reclaim and continue a hold-down upon returning to duty (M-0748). If the opting employee's absence is expected to include at least five days of work, then the vacancy qualifies as a new hold-down within the original hold-down. Such openings are filled as regular hold-downs, such that the first opting carrier resumes his or her hold-down upon returning to duty-- until the regular carrier returns.

An opting employee may also bid for and obtain a new, permanent full-time assignment during a hold-down. A national settlement (M-0669) established that such an employee must be reassigned to the new assignment. If there are five or more days of work remaining in the hold-down, then the remainder of the hold-down becomes available to be filled by another opting carrier. Detail to a temporary supervisory position is considered a voluntary reassignment that ends an employee's rights to a hold-down. For example, suppose an employee opts for a position which he or she voluntarily vacates to assume supervisory 204(B) responsibilities. Once the vacancy is awarded as a hold-down to another employee, the original hold-down cannot be reclaimed by the 204(B) upon returning to craft duties (C- 9187).

C. Involuntary reassignment

The duration provision in the National Agreement generally prevents the involuntary removal of employees occupying continuing hold-down positions.

National Arbitrator Bernstein (C-6461) held that an employee may not be involuntarily removed from (or denied) a hold-down assignment in order to prevent his or her accrual of overtime pay (See "Eligibility," above). For example, suppose an employee who worked eight hours on a Saturday then began a 40-hour Monday-through-Friday hold-down assignment. Such an employee may not be removed from the hold-down even though he or she would receive overtime pay for the service week.

Opting employees are also protected against permanent reassignment. Article 41, Section 1.A.7 of the National Agreement states that unassigned full-time regular carriers may be assigned to vacant full-time duty assignments for which there are no bidders. However, National Arbitrator Mittenthal ruled that an unassigned regular may not be involuntary removed from a hold-down to fill a full-time vacancy (C-4484). Thus, the right to remain on a hold-down "for its duration" is "unconditional." Of course, management may decide to reassign an employee to a new permanent assignment pursuant to Article 41, Section 1.A.7 at any time, but the employee may not be required to work the new assignment until the holddown ends.

Mittenthal's reasoning was later adopted by a regional arbitrator to prevent the early removal of part-time flexibles. "To involuntarily reassign an employee while on hold-down would, in effect, nullify the intent of Article 41, Section 2.B.5. . . . Involuntary assignments of PTFs obviously can be made by the Postal Service, but such assignments must be made by using PTFs who are not on hold-down positions" (C-10264).

There is an exception to this rule against involuntarily removing opting employees from their hold-downs. Part-time employees may be "bumped" from their hold-downs to provide sufficient work for full-time employees. Full-time employees are guaranteed 40 hours of work per service week (M-0531). Thus, they may be assigned work on routes held down by parttime employees if management demonstrates that no other sufficient work is available for them on a particular day (M-0097). Bumping is still a last resort, as reflected in a Step 4 settlement (M-0293), which provides that:

A PTF, temporarily assigned to a route under Article 41, Section 2.B, shall work the duty assignment, unless there is no other eight-hour assignment available to which a full-time carrier could be assigned. A regular carrier may be required to work parts or "relays" of routes to make up a full-time assignment. Additionally, the route of the "hold-down" to which the PTF opted may be pivoted if there is insufficient work available to provide a full-time carrier with eight hours of work.

VI. PTF PAY STATUS

Although a part-time flexible employee who obtains a hold-down must be allowed to work an assignment for the duration of the vacancy, he or she does not assume the pay status of the regular carrier being replaced. That is, a part-time flexible carrier who assumes the duties of a full-time regular by opting is still paid as a part-time flexible during the hold-down (C-4871, C-5399).

PTFs do not receive holiday pay for holidays which fall within the hold-down period. Instead of being eligible for holiday pay, PTFs are paid at a slightly higher hourly rate than full-time employees.

The pay status of PTFs is most important in the area of overtime pay. Part-time flexibles can receive overtime only for working in excess of eight hours in a day or 40 hours in a week (C- 10710). PTFs do not receive "out-of-schedule overtime" pay (C-4871).

VII. SCHEDULE STATUS

Employees on hold-downs are entitled to work the regularly scheduled days and hours of the assignment. These scheduling rights assumed by all hold-down carriers, whether full-time or part-time, create some of the most perplexing problems in the opting process. In the area of schedule status, two key distinctions must be considered. First, there is a difference between a guarantee to work and a right to days off. Second, when an opting employee is denied work within the regular hours of a hold-down, "out-of-schedule overtime" may not be the appropriate remedy.

A. Scheduled days

The distinction between the guarantee to work certain scheduled days and the right to specific days off is an important one. An employee who successfully bids for a hold-down assignment is said to be guaranteed the right to work the hours of duty and scheduled days of the regular carrier. Some settlements and arbitration awards state that hold-down carriers "assume" the scheduled work days and days off of the incumbent carrier (E.g. M-0091, M- 0404). It must be noted, however, that days off are "assumed" only in the sense that a holddown carrier will not work on those days unless otherwise scheduled. In other words, a holddown carrier is not guaranteed the right to work on non-scheduled days (See C-5911). This, of course, is the same rule that applies to the assignment's regular carrier, who may be required to work on a non-scheduled day.

For example, suppose there is a vacant route with Thursday as the scheduled day off. The carrier who opts for such a route is guaranteed the right to work on the scheduled work days, but is not guaranteed work on Thursday. This does not necessarily imply that Thursday is a guaranteed day off; the hold-down may be scheduled to work that day as well, either on or off the opted-for assignment. However, management may not swap scheduled work days with days off in order to shift hours into another service week to avoid overtime or for any other reason. To do so would violate the guarantee to work all of the scheduled days of the holddown.

B. Scheduled hours

If management requires a regular or a PTF to work hours outside of an assignment's regular hours and fails to pay the carrier for all hours that he or she should have worked, a grievance should be filed (See C-1412). For example, suppose a Monday-through-Friday route is regularly scheduled from 7:00 am to 3:30 pm, but management instructs an opting carrier to work from 8:00 am to 4:30 pm instead. The carrier should be paid for the time from 7:00 am to 8:00 am by virtue of the opt. The rate of pay demanded as a remedy should be whatever rate the letter carrier would have earned during the scheduled hours plus the additional hours actually worked. Thus, in this example, the carrier should be paid for a nine-hour day (7:00 am to 4:30 pm, with 30 minutes for lunch), receiving eight hours of straight pay and one hour of regular overtime. Such a grievance should not request "out-of-schedule overtime" as a remedy, because PTFs are never entitled to such pay.

VIII. REMEDIES

Employees are entitled to remedies if their rights to opt are violated. Remedies to employees are usually money awards, intended to make the aggrieved employee whole by compensating him or her for wages lost due to the violation. If no money award is appropriate, the disputed practices may be prohibited in the future, but employees rarely receive punitive damages in excess of their demonstrated losses. Such punitive damages are awarded in extreme situations where "the terms and intent of a collective bargaining agreement are blatantly, arrogantly, or repetitively violated placing the offended party in a position of having to sue for damages or incurring undue expenses at arbitration" (C-7001).

Where a monetary award is the appropriate remedy, the usual measure of damages "is not whether grievant was compensated for the hours he worked, . . . but rather whether he was improperly deprived of . . . work that day" (C-5821). The remedy for unfair denial of scheduled work to a successful hold-down bidder is the employee's regular wage for the hours that he or she should have worked, less the hours that he or she actually worked (C- 6142).

The following regional arbitration awards are among those which held that monetary awards were appropriate remedies for violations of employees' rights to opt: C-04739 Leventhal, March 28, 1985 C-05821 Rotenberg, March 24, 1986 C-06142 Britton, May 9, 1986 C- 06339 Dennis, June 19, 1986 C-06395 Stephens, August 8, 1986 C-06904 Jacobowski, March 6, 1987 C-07001 Scearce, April 8, 1987 C-10181 Sobel, July 23, 1990 C-10264 Parkinson, Sept. 4, 1990 C-10710 Taylor, March 15, 1991