EXAMINING ADMINISTRATIVE PRACTICE IN PUBLIC INSTITUTIONS

 

 

THE UNIVERSITY OF LETHBRIDGE:
An Analysis of its Grievance Processes and the Failure of the Faculty Association to Represent its Members


General Concerns about the Grievance Process:
(1) Cade’s involvement in the grievance process in spite of two of the grievances being filed against him (conflict of interest)
(2) A failure of administration to investigate the grievances (as required by the grievance process)
(3) A failure of administration to provide a written report on the investigation and recommended solution (as required by the grievance process)
(4) A failure of the faculty association to pursue the grievances and to demand that the administration follow the processes of the grievance article.
(5) A withholding by the faculty association of relevant information from me
(6) The abandoning of the specific grievances for some abstract “greater good”
(7) And, In the case of one grievance, the failure of the resolution of the grievance to address in any way the substance of the grievance. Indeed, it could be compared to accepting as a valid answer “An apple is red” to the question: “What colour is an orange?”

The Matters Leading to Grievances:

I deemed that President Cade had made false charges against me and had improperly involved the Board Chair and Vice-Chair in the matter. I then brought the matter to the attention of ULFA and provided ULFA with extensive documentation.

ULFA’S Initial Response:

ULFA informed me that I had a right to have a faculty member present and advised me to do so when I met with the Board Chair and Vice-Chair in a meeting requested by them. I informed the Board Chair and Vice-Chair that I would be bringing a faculty member as a witness, but the Board Chair and Vice-Chair would not allow me to do so.

I took various matters that I thought were valid grievances to ULFA (as required by the Handbook #22.05), along with a detailed package of documentation. ULFA agreed in the strongest language that I had valid grievances. Peter McCormick, then President, wrote to me, stating that I had given ULFA a “more clearcut battle to fight,” and that ULFA “certainly will be on our toes to protest process from the get go” (March 7, 2006 email). He also says in the same email that it is “always nice to work with people who are ready to get mad about things that matter.”

ULFA proceeded to write up the grievances and then present them to President Cade, according to processes required by the Faculty Handbook (22.06). An email from McCormick (May 2, 2006) is titled “We’re at war!” It relates primarily to Cade’s dismissal of the grievances because of my status as a member of the Board. This email from McCormick is filled with uncompromising language: “This is so patently absurd that I cannot believe that they are saying it.” In regard to arbitration on the grievances, McCormick said that ULFA “never had any choice from the minute that Cade wrote the silly email.” McCormick also commented: “But I think we have to keep our eye on the ball--what is being arbitrated is not the nonsense claim, but the actual content of each of our grievances, with the nonsense claim being a threshold issue.” By “nonsense claim,” McCormick means Cade’s assertion that I cannot grieve because I am a Board member. Johnston, the Grievance Chair writes: “It sounds to me like a standard lawyer tactic--let’s shift the focus to a technicality rather than deal with the substance of the matter.” Brenda Rennie’s response to Cade’s dismissal of the grievances is: “Oh my god.” In an email a day later, McCormick states: “This sucker is going all the way, so I think it is important to call them on all the procedural lapses and improprieties along the way.” In that email, McCormick points out that: “the fact that the President replied to the two grievances against the President is itself a violation of the Handbook, because it puts him in the position of being judge in his own case which is the world's purest example of a conflict of interest; this being the case, Article 4.02(b) applies, and the President's letter is not a valid or legal response to the first two letters of grievance,” and later in that email McCormick comments about Cade’s “conflict of interest (ie being judge in your own case, which the SCC itself has identified as the perfect example of conflict of interest).” McCormick’s conclusion was that the situation “absolutely requires that the Vice-President act in this matter.” Rennie emails me on May 9, 2006: “The ball is really rolling now.  We have drafted 3 separate responses to Cade's letter, identifying each of the grievances.  We have sent a letter to TUCFA informing them of the situation and already had a call from them, willing to help out in any way.  As a matter of fact, they're willing to test out their administration by asking their point of view on this matter, which they assume will be the same as ours.  Don Kozak has saved all the newspaper clippings from the time when the new P-SLA came into effect and he says there's lots there that will help in our case.” (#7U) [P-SLA = Post-Secondary Learning Act]

During this time, ULFA had me meet with the ULFA lawyer to draw up an affidavit. On August 28, 2006, ULFA’s lawyer sent ULFA a second draft of my detailed affidavit, and he asks that ULFA provide me with a copy for my comment, which they did.


ULFA’s Altered Stance:

In an email of July 29, 2006, Steve Ferzacca, the new ULFA President, informed me that there “have been some developments regarding the grievances,” and he asked for a meeting for early August. Then comes word of a Memorandum of Agreement. I had one or two meetings with Ferzacca, McCormick, Johnston and Rennie in August. I told them that the Memorandum of Agreement, at best, addressed future issues and did not address the concrete violation of my rights specified in the grievances. I also pointed out that one grievance had nothing to do in any way with my status as a Board member. In a witnessed conversation at my home, Ferzacca assured me that he would not sign the Memorandum of Agreement and that everything would go to arbitration.

As I mentioned above, in late August and early September, I was dealing with ULFA’s lawyer about the grievances and my related affidavit. Before I had a chance to look over the affidavit carefully and provide comment, ULFA signed off on the grievances for which the affidavit was critical.

ULFA did this without my knowledge or consent. In addition to signing a Memorandum of Agreement regarding the rights and duties of faculty members who serve on the Board of Governors, ULFA signed a second Memorandum of Agreement that did away with my grievances. ULFA agreed with the Board that these Memoranda of Agreement “constitutes a satisfactory resolution for both parties of the three grievance [sic] (appended) claimed by ULFA on behalf of Dr. Tom Robinson.”

My position is that the Memoranda of Agreement did not resolve my grievances; rather, the agreement simply abandoned the grievances. ULFA informed me by letter (September 13, 2006), that ULFA  had “signed two Memoranda of Agreement that have effectively resolved the grievances filed by ULFA on your behalf’.”

I contend that ULFA knew that they had not resolved my grievances, for Ferzacca says in that same letter that “it is our hope that you agree a greater good in your case has been achieved.” What do they mean: They hope I will agree? Why did they sign off on my grievances without that assurance already in hand?


Violation of the Grievance Process:

Three grievances were presented to President Cade. Cade responded that he did not consider these to be valid grievances since I was a Board member (Letter of Cade to McCormick: May 2, 2006). The grievances should then have gone to an arbitrator for the following reasons:
(a) The question of the rights of a faculty member serving on the Board was one of the matters of grievance, therefore Cade’s rejection of the grievances on the basis of my membership on the Board was out of order since that was a matter to be resolved by grievance.
(b) Cade should have immediately disqualified himself from further involvement in the grievance process since two of the grievances were against him and the other grievance was related to matters that Cade had raised, specifically, my status as a Board member. To allow Cade to investigate and present a written report (as required by Handbook #27.07) would constitute a clear conflict of interest, which McCormick (then ULFA President) recognized in an email of May 3, 2006.
(c) When ULFA brought the matter of a conflict of interest to Cade’s attention, Cade agreed and said that he would not involve himself. (Letter of Cade to McCormick: May 12, 2006).
(d) In spite of that assurance from Cade, it appears that Cade continued to take an active role in meetings with ULFA on the matter. No e-mail or letter from anyone else is on the record, though Cade continues his involvement. Cade should not have been present at discussions or even indirectly involved.
(e) The Handbook requires an investigation of the grievance (#22.07). If there was an investigation, it appears to have been one-sided since the investigator did not speak to me about anything.
(f) The Handbook requires that a written report be presented to the Association/Member within ten working days (#22.07). Not only was there no report within the required 10-day period, no report for any of the three grievances was ever presented. The Handbook does allow for a change of deadline (in the Objectives), but requires that such agreement be in writing. The Handbook reads: “Any deadlines mentioned in this agreement may be varied by written mutual consent prior to the deadline, by the Board and the Association and by the Member in cases where the deadline affects the Member concerned.” That was not done. ULFA admits that it “has no additional documentation in its file, nor even seen any documentation other than those which you have provided to us” (letter from Ferzacca to Robinson, September 25, 2006). Therefore ULFA admits that no report was submitted to ULFA by the administration in spite of the Grievance article requiring such reports. Given that three grievances were filed on my behalf, ULFA should have had three reports in their files, and they should have demanded these reports when administration failed to provide them.
(g) The Handbook requires that the written report be accompanied by a “recommendation to resolve the dispute” (#22.07). No such recommendations were presented. If ULFA wishes to argue that the Memorandum of Agreement is the recommended resolution of the dispute, the Memorandum of Agreement makes no reference to the grievances. A second Memorandum of Agreement was signed. This simply states that the signing of the other Memorandum of Agreement “constitutes a satisfactory resolution for both parties of the three grievances (appended) claimed by ULFA on behalf of Dr. Tom Robinson.” That is not a resolution of the grievances but a dismissal of them.
(h) The Handbook requires that the Member see the President’s report (22.09), and the President’s report is deemed accepted “unless within seven (7) working days of receipt by the Member, the Member/Association notifies the President in writing to the contrary.” I have never received a report on any of the three grievances.

My Attempts to Resolve the Matter with ULFA:

In the letter informing me that ULFA had signed the Memoranda of Agreement, Ferzacca states: “If you have questions, or require further clarification regarding the Memoranda and the processes which led to their signing, please contact me at any time.” Subsequently, I had two meetings with ULFA and I wrote three letters to ULFA. In these, I have presented ULFA with a series of questions, which for the most part they have avoided answering, simply telling me to take it up with the Labour Relations Board if I did not like what they had done. I tried to raise the matter in the Fall General Meeting of the Faculty Association, as did other members. We were ruled out of order or prevented from speaking. Senior members of the ULFA Executive argued that ULFA had followed the grievance process, but I was not permitted to show that they had not.

ULFA has not only failed to represent me adequately, they refused to discuss the matter and have refused to allow me to address the matter in the full meeting of the membership when they presented a report on the resolution of the grievances.

When I pressed ULFA for an explanation why they abandoned my grievances when I gave them such clear cases, they said that there were affidavits from the Board Chair and Vice-Chair that contradicted my version of the events, so it would be simply my word against theirs. They reached this conclusion in spite of having a detailed summary of a student’s meeting with the Board Chair and Vice-Chair, in which the student described  what she felt to be a “witch hunt” against me. Further, they reached this conclusion without even asking me for a response.

They later denied they had said anything about affidavits, even though that was the one thing they could not have forgotten about the meeting in which the matter of affidavits were, quite literally, blurted out, for at that point in the meeting everything went deathly silent. It was clear to me that they knew that such information should have been presented to me, and they were caught in a compromising situation for having abandoned my grievances on the basis of evidence that I had not been given the opportunity to see—or respond to, which I could have convincingly done.


ULFA’s Failure to Represent:

Upon reviewing the documentation that I presented ULFA and after ULFA’s own investigation, ULFA had the option of not taking the grievances on my behalf (Handbook #22.05). They chose to claim the grievances. Only if ULFA had decided not to claim the grievances could I have filed the grievances myself.

In claiming my grievances but in signing off on these grievances and in failing to follow the procedures specified by the Handbook for a resolution of grievances, ULFA has denied me my grievance rights under the Handbook. They have also complicated any further and proper resolution of these grievances by giving a signed document to the Board agreeing that the grievances were resolved, which the Board lawyers have used to dismiss my demand for a fair resolution of the matter.


DOCUMENTS:

In the correspondence below, ULFA is largely non-responsive in answering my detailed and specific questions about the grievance process and the conduct of ULFA executive in these matters. Do I have confidence in the ULFA Executive? No. Would I recommend that a member take their grievance to ULFA? No.

Further, Cade’s signature is on the Memorandum of Agreement resolving (abandoning) three grievances filed in my name by ULFA. Two of the grievances were against Cade. Is this not a conflict of interest or did Cade blindly sign the document? ULFA’s records will show the involvement of Cade at various stages in the process, I maintain that there should have been a refusal of ULFA to proceed until Cade was fully removed from the process.



Letter of Ferzacca to Robinson (13 September 2006)
Letter of Robinson to Ferzacca (23 September 2006)
Letter of Ferzacca to Robinson (25 September 2006)
Letter of Robinson to Ferzacca (1 October 2006)
Letter of Robinson to Ferzacca (22 October 2006)
Letter of Ferzacca to Robinson (27 October 2006)
Memorandum of Agreement (with Cade’s signature)


— Tom Robinson
Professor

The University of Lethbridge