WITHHOLDING 12.6B2

Length of withholding: There is no established contractual time limit on the length of time management may withhold residual positions. Rather, as Arbitrator Gamser noted in Case 16340, the parties must apply “a rule of reason based upon the facts and circumstances then existing.” Whether management’s actions are reasonable in particular case depends on the full facts and circumstances in that case.

Number of withheld positions: Management may not withhold more positions than are reasonably necessary to accommodate any planned excessing. Section 12.6B2 only authorizes management to withhold “sufficient full-time and part-time flexible positions within the area for full-time and part-time flexible employees who may be involuntarily reassigned.”

There are no blanket rules that can be used to determine whether management is withholding, an excessive number of positions, or withholding positions for an excessive period of time. Again, each case must be examined based on the local facts and circumstances in that case. Generally, this involves calculating the number of positions that will be reduced and the length of time over which the reductions will occur and then determining whether the reductions will occur faster than can be accommodated by normal attrition.

Withholding positions for excessing is only justified when positions in the losing craft or installation must be reduced faster than can be accomplished through normal attrition. Projections of anticipated attrition must take into account local historical attrition data and the age composition of the employees. Installations with a high percentage of employees approaching retirement age can reasonably expect higher attrition than installations with a high percentage of younger employees. Thus, accurate projections require an examination of the local fact circumstances rather than mere application of a national average attrition rate.

• Section 12.6B3 provides that no employee may displace or bump another employee properly holding a position or duty assignment. The reassignment provisions contained in Section 12.6C do not violate Section 12.6B3 even though junior full-time employees are involuntarily reassigned, and their duty assignments are reposted to the remaining senior full-time employees for placement through the bid or expedited selection procedures.
• Provides that the Union at the Area/Regional level shall be notified, as much as 6 (6) months in advance whenever possible, prior to making involuntary reassignments. An exception applies when reassignments are only made within an installation (sectional excessing), in which case notice shall be given at the local level; there is no contractual time limit for this notification at the local level, but it should be as soon as practicable.

National Arbitrator Garrett has ruled that such notice is meaningless “unless given prior to the event. One obvious purpose of giving notice is to provide opportunity for an involved Union to investigate the facts and make suggestions calculated to minimize dislocation and inconvenience to full-time or part-time flexible employees affected’…proper notice is not given unless it provides an affected Union with a reasonable time period to investigate relevant facts and to, discuss the matter with appropriate Management representatives before the proposed action becomes effective.” Arbitrator Garrett also noted that while the Union, after notification, would have “reasonable opportunity to present facts and suggestions to the Service, there can be no obligation by the Service to engage in ‘collective bargaining” regarding the reassignments.