I get along fine with my boss, so why do I need MAGE?

Administrators come and go in state government. It's no secret that there will be changes in departmental leadership, goals and direction, not to mention drastic budget cuts and layoffs. The circumstances surrounding your current employment may change drastically at any time. You need MAGE to protect your rights!

We offer more than just representation in grievances and classification changes. We keep you up-to-date on changes in Civil Service, departmental policies, procedures, legislation the budget and other matters of vital concern. We represent your views in meetings with Departments, Civil Service, the Office of the State Employer and the Retirement Board.

The State Employer already represents my interests, so why do I need MAGE to speak for me?

Although relationships with the Office of the State Employer (OSE) have improved in recent years, we still need to be careful that our rights are protected.

Was the OSE representing your interests when it rewarded bargaining unit workers with benefits still denied to excluded and non-exclusively represented employees?

How can I belong to MAGE without anyone knowing?

If you are concerned that knowledge of your MAGE membership might prove a problem, you may elect to pay your dues directly rather than going through your department's payroll deduction.

If MAGE can't negotiate a contract with the state, doesn't that mean it has no real power?

Absolutely not. There are a number of things MAGE can do to make a difference. Civil Service rules provide MAGE with meet and confer rights in every department. MAGE represents members in grievances, classification appeals and unfair labor practice meetings. MAGE monitors and seeks changes in Civil Service Rules, policies and procedures, and we represent employees in the Coordinated Compensation Process.

I can represent myself in a grievance, so why do I need MAGE?

We're sure you can, but just take a minute to consider the competition. Department Labor Representatives argue grievances day-in and day-out. Can you match their knowledge of case history, departmental policies and case presentation?

Don't forget that Civil Service Classification Analysts were the architects and implementers of the state's Benchmark Classification System. Their experience and training in the system stacks the odds in their favor in a classification appeal. MAGE's professional Labor Relations Staff has the full-time knowledge, know-how and commitment to argue your case against these formidable opponents.

Like other professionals, non-exclusively represented employees (NEREs) need the strength and expertise of an organization working full-time on their behalf. MAGE is that organization

But- and this is important - you must be a MAGE member before a grievance or classification appeal occurs to qualify for MAGE's representation services.

Won't joining MAGE hurt my chances for promotion?

Actually, joining MAGE may help because we will aggressively stand behind you if you are involved in a dispute over candidate selection. MAGE has also negotiated agency policies enhancing excluded employee promotional opportunities by requiring that job vacancies be posted, and won several grievances on this very issue.

Your right to join MAGE is protected by Civil Service's Employee Relations Policy. That policy prohibits management from interfering with, restraining or coercing employees exercising their right to belong to MAGE, and prohibits discrimination against employees choosing to be represented by MAGE.

My boss already belongs to MAGE, so how could I get fair representation?

Filing a grievance is an action taken against an act of management, not an individual per se. MAGE will always act on a member's grievance, not matter whom it is directed against.

My boss doesn't belong to MAGE, so why should I?

Let's put it this way - just because he or she doesn't realize the importance of MAGE membership, that doesn't mean you should go along with that view!

Reassignments Can they reassign me if I dont want to go? By: John DeTizio, Labor Relations Director

A week does not pass in the MAGE office without receiving five phone calls regarding reassignments. Can they reassign me if I dont want to go? Must they reassign me if I want to go? Can I force them to reassign one of my subordinates?

Historically, lateral reassignments, or as the newer Civil Service Rules refer to them, "lateral job changes", have been perceived as an inherent management right. That is, absent any ulterior and illegal motives for doing so, management may reassign an employee for any non-capricious reason they may fashion.

Some Civil Service Hearing Officer decisions, particularly Sweet [v Department of Mental Health] and Haldane [v Department of Corrections] have been perceived by employees to mean that a department may not reassign an employee if the reassignment adversely affects the employees conditions of employment.

Unfortunately, it is not quite that simple. An employee cannot simply grieve any reassignment and assume that the burden of proof will fall on the department to prove a rational basis. In fact, in Haldane the Commission specifically addressed this issue;

[T]he hearing officer cites with approval the following language in Sweet:

When an appointing authority exercises its rights under [Civil Service Commission Rule] 6-4.1, it has an obligation to avoid, where possible, actions which adversely alter an employees condition of employment to a substantial degree.

We take exception to this contention. A plain reading of Merit Principle No. 2 suggests that the basic entitlement to fairness, which it establishes, is the right to have an employment decision based upon legitimate business reasons. In short, an appointing authority need only have a rational basis for employment decisions, which are within its exclusive management sphere of authority. This standard is applicable to a management rights decision, such as reassignment, even if an employees conditions of employment are adversely altered by the decision. To the extent that Sweet is read to impose a more stringent burden on the Department of Corrections in exercising its management rights for non-exclusively represented employees, Sweet is expressly overruled.

The fact is that, based upon the Commissions perception of the current rules, an employee does not have the right to grieve just any reassignment. An employee may only grieve a reassignment that violates a Civil Service Rule or Regulation or a work rule of the Department, or Article XI, Section 5, of the Michigan Constitution.

Procedurally, the burden is on the grievant to first prove that the reassignment actually resulted in an adverse impact. Typically the term, "substantial adverse impact" has been perceived to be a "loss in pay or benefit" as opposed to, for example, no longer being able to pick your child up from school as a result of a reassignment. If this first hurdle is not surmounted, the issue is not grievable and no burden exists for the Department to articulate a rational basis for the reassignment.

This whole issue becomes a little muddled when the reassignment is "disciplinary". As MAGE members know, MAGE has diligently protected the "just cause" disciplinary system in the classified service. The just cause doctrine prescribes that any discipline must be issued only for "just cause" and requires that the Department provide some demonstrable, business-related reason for imposing discipline. A paradox arises when a non-grievable reassignment is imposed for a grievable disciplinary reason. The fact is that the Department does not need to provide any more than a rational basis for "reassigning" an employee however, if they call it a "disciplinary" reassignment, they must accept a burden of proving much more than a rational basisthey must prove "just cause".

So what exactly is the standard of review for "disciplinary" reassignments? It just so happens that the Commission recently examined this issue. In Department of Corrections [v John Clark] the Commission ruled that characterizing a reassignment as "disciplinary" in itself places a "significant taint" on the record of the employee which could affect future employment opportunities. Therefore, the Commission reasoned, even though the reassigned employees pay and benefits were not reduced, he should still be allowed to grieve and the department should bear the burden of establishing that it had just cause for punishing him.

Does this mean that we can now grieve every reassignment as a de facto disciplinary reassignment? NO The Commission specifies that a reassignment only becomes a "disciplinary reassignment" when the department labels the reassignment as disciplinary or imposes the reassignment in conjunction with other discipline. As stated in Clark, "It is precisely this formal disciplinary characterization and its punitive connotations that change an ordinary nonreviewable reassignment into a "disciplinary reassignment" subject to Civil Service review."

So, for our members who are in Personnel and Labor Relations and those residing in other positions responsible for doling out discipline, I must recommend that you would be foolish to ever refer to a reassignment as "disciplinary". Why incur the additional burden of proof and pave the way for a viable grievance?

On the other hand, if I am talking to our MAGE stewards, I would suggest that the chances of prevailing when grieving a reassignment that is non-disciplinary are not very good, therefore, any time a department is considering a "disciplinary" reassignment, let them proceed then grieve.

If you have questions about a past or pending reassignment, call the MAGE office.

Committee members of MAGE shall be reimbursed for expenses incurred for travel or other business expenses as prescribed by MAGE Policy. Any other remuneration for services performed shall be as established by a majority vote of the Board of Directors.

What if I get sued by a subordinate or peer?

In the last edition of IMAGE I discussed the recent Michigan Supreme Court decision (Elezovic v Ford Motor Co. 472 Mich 408; 697 NW 2d 851 (2005) wherein the court ruled that the Elliott-Larsen Civil Rights Act specifically subjects supervisors to individual liability. That means that an employee who simply alleges that you discriminated against them can sue you. Furthermore, you can be individually sued if you are made aware of some other employee participating in a discriminatory practice and neglect to act on the complaint.

The question I will address in this article is "what should you do if you find yourself embroiled in this type of situation?"

The first step you should take is calling the MAGE office to speak to one of your representatives. We will decide whether it is necessary to contact your Department of Human Resources. As a general rule, I would suggest that if an employee so much as whines about the treatment they are receiving from a supervisor or a peer, you should document it and inform your department of Human Resources, your EEO Coordinator or the designated agency in your department (i.e., DHS employees would contact the Office of Equal Opportunity).

Section 4-A-1 b of Civil Service Regulation 1.03 Investigating Reports of Discriminatory Harassment requires the following:

b. Supervisors and Managers. A supervisor or manager who witnesses a subordinate employee engaged in discriminatory harassment of another person is obligated to report the behavior and to take prompt and appropriate remedial action.

You do not want to find yourselves in the position of being sued personally by an employee for violating CS Regulation 1.03. If you do find yourself in that position, you will need to call the MAGE office immediately. We will take steps to assure you are being represented by the State. If your department or the Attorney General refuses to represent you, we will immediately file a grievance seeking representation and assist you in securing a competent attorney. MAGE will then seek to have the State re-compensate you for any and all expenses incurred as a result of the lawsuit.

My guess is that many of you are working under the inaccurate assumption that the State will represent you if you are ever sued as an individual by a subordinate or peer. History tells us that that is not the case.

Civil Service Rule 2-19 Legal Representation prescribes that, "If an employee is named in any civil claim or action alleging negligence or other actionable conduct arising out of employment in the classified service, the employee may request that the appointing authority provide the services of an attorney at state expense to represent the employee. If the appointing authority determines either (1) that the conduct alleged occurred during the course of the employees employment and within the scope of the authority delegated to the employee or (2) that the employees conduct occurred during the course of the employees employment and the employee had a reasonable belief that the employees conduct was within the scope of authority delegated to the employee, the employee is entitled to legal representation at state expense, subject to the following conditions:

If the appointing authority authorizes legal representation at state expense, the appointing authority shall first request that the attorney general represent the employee. If the attorney general declines to represent the employee, the appointing authority may, at its option, either hire an attorney to represent the employee or authorize the employee to hire an attorney. If the employee hires an attorney, the appointing authority shall reimburse the employee for all necessary and reasonable attorney fees and costs incurred.

Now, the key question regarding state representation and/or compensation if you are forced to secure your own representation is this

Will the Department represent me, if, for example, subordinates allege that I sexuallyharassed and discriminated against them?

Is that alleged conduct "within the scope of authority delegated to the employee?" The answer, unfortunately, is not so cut and dried.

The fact is that I have personally represented a MAGE member [Kevin Schneider and Department of Mental Health, HERM 092-96] who walked into an office and placed his hands on a co-workers shoulders and said "hello". The co-worker lost her balance as a result of the touch and subsequently filed civil and criminal complaints alleging that the MAGE member "unannounced and unprovoked, violently pushed and shoved the complainant into a window causing her to be injured, shocked, stunned and spiritually drained".

The Attorney General refused to represent the MAGE member concluding that the alleged acts were not "within the scope of authority delegated to the employee". The MAGE member was forced to defend himself in the legal actions that followed and then grieve to recover his losses.

We eventually prevailed in an arbitration hearing and, again, upon the Attorney Generals appeal to the Employment Relations Board.

During the hearing, I directed the Hearing Officers attention to an appointing authority letter, which went back all the way to the 1970s and which the Attorney General ostensibly did not know existed. It read as follows:

"This rule is designed to assure legal representation as a condition of employment, permit the Attorney General to continue his policy and in case he refused to represent an employee require the Department to furnish legal services if the employee had reasonable belief he was acting within the scope of his authority when the alleged negligent act occurred.

It is also based on the premise that misdeeds, if they occur in this respect, should be dealt with by disciplinary action in the work place and not be an impending threat the employee would be left alone to defend himself and encumber his own resources"

In the end our MAGE member was made whole for thousands of dollars of legal expenses incurred in defending himself in addition to the annual leave he was forced to take to attend meetings and hearings, and the transportation and parking costs associated with attending required meetings and hearings.

I am proud of the fact that MAGE has been instrumental in clarifying the intent of the states legal representation policy and I predict that this decision will become even more important as the ramifications of this latest Michigan Supreme Court decision begin to affect our members.