CRITICAL CONTRACT CLAUSES (#1)-Job Swaps

Why should not employees have a right to swap jobs, e.g., a GS-318-05 Secretary in one office on the west side of the city swapping with a GS- 318-05 on the east side of town–or even across the country?  While there are some costs to management, the agency and employee benefit under the right approach. 

There are many reasons an employee might want to relocate within an agency, e.g., to get away from a manager with whom she does not work well, to pursue extra education (or income) outside the work day, to cut commuting costs, to reduce the burden of a medical or family hardship, to follow a transferred spouse, to lower costs, to reduce stress, etc. While unions rarely can insist the agency move the employee when there is no available vacancy, the union can negotiate a contract provision requiring management to allow employees to swap jobs.

This issue came up in a recent AFGE case (AFGE, 65 FLRA 588) as well as an NTEU case (NTEU, 64 FLRA 281). FEDSMILL.com found the 2012 NTEU-IRS contract on the web and here is the clause in question:

Section 7- Job Swaps– The Employer has determined that Employees in the same occupational classification series, with the same specialty area, if applicable, and at the same grade levels may swap positions, absent just cause. Additionally, once an employee has swapped positions with another employee, he or she may not swap again for three (3) years. In order to be eligible for such voluntary movement employees must be at least fully successful in their current positions and the swap must not require any formal training or relocation costs to the Employer. The parties recognize and acknowledge that such job swaps are solely for the benefit of the employees involved and it is the responsibility of the employees to identify the other employees interested in such a job swap.

The key to writing a negotiable clause is to provide that the employees must be qualified to perform one another’s job and currently occupy the same position as defined by job title, series, qualifications and grade.  FLRA has declared so far that management has the right to-

• Determine the particular duties assigned to a position and the particular employees assigned to that position (AFGE, 61 FLRA 209),
• Reassign employees to different positions permanently or temporarily (AFGE, 61 FLRA 209),
• Determine the qualifications and skills needed to do the work of the position (including such job-related individual characteristics as judgment and reliability), and whether an employee meets those qualifications and skills. (PASS, 61 FLRA 97)
• Determine whether to fill a vacant position (NAGE, 54 FLRA 218)

However, FLRA has also decided management’s right to assign employees under 7106(a)(2)(A) of the Statute are not abridged by proposals involving only the decision as to the location where employees, who are assigned to positions and who management has already determined possess the required qualifications, will perform duties previously assigned to their positions. For example, a proposal that required the agency to select employees for reassignments based on tenure of employment was negotiable because the proposal involved the reassignment of employees from one location to another without an accompanying change in the duties performed by the employees.  It did not affect management’s right to assign employees. The Authority noted that employees affected by the proposal had already been “chosen by the [a]gency to perform duties substantially similar to those required in the new assignments” and were essentially being moved to perform those duties in another location without any other change. (NAGE, 54 FLRA 218)

The key to drafting a clause that minimizes the cost to management is to provide that employees are not entitled to moving expenses or any other benefits normally associated with a move required by the agency. Another reasonable provision might be to place a limit on how often an employee can exercise the right. For example, should a New York City employee seeking to move to Los Angeles be entitled to make a series of swaps in a short period of time to hopscotch to her desired location, e.g. from NYC to Chicago to Vegas to San Francisco and finally to Los Angeles? However, there is no reason why employees should be barred from making a three-way or multiple party switch if it can be arranged. The impact on the agency would be the same.

One final item we suggest unions keep in mind is the employees’ statutory right to a reasonable accommodation to address a qualified disability. Unions should provide that where the swap is needed to provide a reasonable accommodation, the agency should solicit for employees who might want to swap and that none of the other negotiated qualifications would bar the move if available.

Once negotiated, the union can administer a job swap programs for its members that helps them swaps, e.g., create a database file of who is seeking a swap and to what locations, advertise when a member wants to swap into a location when there are no waiting takers, etc.

Giving employees the right to swap jobs is similar to a right to telework and alternative work schedules.  It provides employees more control over their lives, makes the agency a more attractive place to work, and avoids turnover.  It might also help avoid litigation.