Dr. Allison Cormie (Ph.D) v. Laurentian University Faculty Association (LUFA)
2860-99-U Dr. Allison Cormie (Ph.D), Applicant v. Laurentian University Faculty Association (LUFA), Responding Party v. Laurentian University, Intervenor.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Marsha Lindsay and Allison Cormie for the applicant; Dr. Peter Simpson for the responding party and Karen Sargeant for the intervenor.
DECISION OF THE BOARD; December 14, 2001
This is a complaint filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995 c.l, as amended (the “Act”) alleging that the responding party trade union (“LUFA”) violated section 74 of the Act in relation to its representation of the applicant.
On November 8, 2000, following a consultation, the Board (differently constituted) issued a decision directing that the matter be listed for hearing. In that decision, however, the Board narrowed the scope of the inquiry. It explicitly found that LUFA’s representation of the applicant in relation to her not having received a particular course assignment did not constitute a violation of the Act. (Although the applicant did not teach the course she claimed entitlement to teach, she was ultimately compensated in full in that regard.)
The Board ruled, however, that the question of the representation the applicant received in relation to what has been described as her “harassment grievance” could not be adequately dealt with by way of the consultation as there were fundamental factual conflicts which could not be resolved short of receiving the parties’ evidence at a hearing.
Consequently, a hearing was convened before me. The parties presented their evidence and argument over the course of three days. We heard the evidence of three witnesses: the applicant; Dr. Frank Mallory, who was the LUFA chief steward for virtually all of the relevant period; and Dr. Mercedes Steedman, who assumed the chief steward position very late in the chronology of relevant events.
Before turning to the evidence some background context will be helpful.
The Board’s decision which followed the consultation concluded that the only issue to be dealt with was “whether the faculty association represented the applicant in connection with her harassment concerns in accordance with section 74 of the Act during the period March 1998 until June 1999”.
The significance of those temporal markers is straightforward: March (or perhaps February) 1998 was the earliest point at which the applicant can be said to have first raised her concerns with LUFA; June 1999 is when those concerns were incorporated into a grievance filed by LUFA with the intervenor employer, Laurentian University (the “University” or the “employer”).
And although it is therefore beyond the temporal scope of our inquiry, it is useful to briefly note the progress and disposition of that grievance. Subsequent to the filing of the grievance, the University appointed a three member committee to investigate the applicant’s complaints. It issued a report in July 2000 and determined that there had been no harassment.
It is also important to note that while the applicant was clearly neither happy nor satisfied with the results of that report, it appears that report effectively marked the end of the grievance. The report was not filed in evidence. The Board often observes that it is not its role in cases of these sorts to adjudicate the merits of any grievance which may have or ought to have or might have been advanced. The temporal limitation we operate under in the instant case serves to further underline that point. For our inquiry ends with the filing of the grievance. Thus, its ultimate disposition is beyond our purview. It is, rather, the conduct of LUFA in the period of time leading up to and culminating in the filing of the grievance which is the subject of our inquiry.
In its broadest and most basic outline, the chronology of relevant events is as follows. The applicant is a qualified academic with specializations in areas which include geology, archaeology and anthropology. She commenced her employment with the University in or about the fall of 1996 as a sessional lecturer. In September 1997 she commenced employment as an Assistant Professor on a limited term appointment for 22 months ending in June 1999. The appointment was on a half-time basis. It was during the term of this appointment that most of the significant events for the purposes of this decision transpired.
The applicant believed that her appointment would be the start of a long term employment relationship with the University. It was not to be.
Virtually all of the applicant’s difficulties, which culminated in the instant complaint, are rooted in a clearly pathological relationship which developed between her and another female faculty member – a tenured professor in the same department.
The applicant has had and has taken various opportunities to describe and detail the nature of the forms of offending conduct said to have been engaged in by her colleague. She did so, to some extent, before me as well.
For the purposes of this decision, however, it is not necessary for me to and I decline to detail all of that impugned conduct in its full intricacies.
It is sufficient for my purposes to comment that the applicant truly believed her colleague’s conduct to be consistently abusive, inappropriate and unprofessional. It may well have been so. However, it is sufficient for current purposes that the relationship between these two faculty members was troubled. And whether or not it was (at least initially) a labour relations problem, there is no question that the relationship was problematic. And it is clear, from her perspective, that the applicant was never able to either resolve the difficulties or to secure the necessary support (which was sought from various sources) to allow her to persevere in her endeavours with any degree of ongoing comfort.
The problem between the two faculty members was evident to the applicant within the very first weeks of her sessional appointment. However, for the duration of the 1996-1997 academic year, it would appear that the applicant restricted her discussion of these issues within the University to other department members who provided her with an opportunity to “vent” but were apparently unable to offer any other useful guidance or support.
With the start of the next academic year and her limited term appointment, the applicant began to take steps to raise her concerns in a more dramatic fashion.
In November of 1997 and after meeting with him, the applicant filed a formal complaint with the Dean of Social Services and Humanities. The complaint included some five typed pages detailing the impugned conduct of her colleague along with some twice that amount in the way of supporting documentation. The formal complaint was copied to the University’s Harassment Officer. It was not copied to the union.
In January of 1998 the applicant sent the Dean a two-page “update” regarding her colleague’s treatment of her. This, too, was copied to the Harassment Officer but not sent to the union (despite the fact that included in the first paragraph of the update was a declared intention to consult with the union).
The first contact the applicant can be said to have had with the union, the first time she can be seen to have raised some of these concerns with a union official was in February or March 1998. Dr. Mallory, who as the LUFA chief steward through almost all of the relevant period, was the locus of virtually all of the applicant’s contact with the union.
As both the applicant and Dr. Mallory testified about their dealings with each other, I pause to comment on the nature of that testimony.
Although I do not even suggest that either Dr. Cormie or Dr. Mallory deliberately provided the Board with misleading testimony, there are frailties associated with the presentation each offered. And some of those frailties may, in fact, go to the heart of certain central issues in the case.
In the applicant’s case, for example, I find it interesting that she was able and willing to generate a prodigious “paper trail” in respect of pursuing her concerns (we have not yet traversed the entire chronology – but it will reveal four separate written complaints to the Dean – the ultimate one consisting of 18 single space typed particulars). Yet despite that impressive production, not a single written word was addressed to the union until June 25, 1999 when the grievance protesting her harassment was filed.
I am concerned that with the benefit of hindsight the applicant has come to truly (and perhaps even legitimately) believe that the union could have done more to support her in her travails. However, it is much less clear to me that at the time events actually unfolded, the applicant sought the assistance of the union to the extent that she may now assert or even truly believe she had.
The principal conflict was one between two fellow employees (albeit each in very different positions of employment authority and seniority).
The applicant developed and made choices about the strategy to adopt to deal with that conflict. The role which she sought the union to play was relatively marginal until late in the chronology.
The applicant sought the assistance of fellow department members, the Dean and the University’s harassment officer.
Her enlistment of Dr. Mallory in the cadre of those assembled in efforts to provide support was by no means an unambiguous request that the union take steps to protect her interests. For it must be noted that the applicant and Dr. Mallory were also colleagues sharing a common research project who had reasons to regularly meet and interact quite apart from Dr. Mallory’s status as a union official or the applicant’s as a putative grievor.
Dr. Mallory explained, as well, that as chief steward, he was not the normal first contact for a bargaining unit employee seeking union assistance.
But in view of their circumstances and established relationship, it is not surprising that the applicant engaged Dr. Mallory.
The first meeting at which the applicant’s employment difficulties were broached with Dr. Mallory occurred in February or March of 1998. The grievance was filed in June of the following year.
The descriptions that the applicant and Dr. Mallory have each presented about their joint dealings over that period of time share at least one common characteristic. The accounts are largely vague, generally unsubstantiated by documentation, and tailored (whether or not deliberately) to various degrees, to advance the perceived self-interests of the teller.
I must therefore approach that aspect of both witnesses’ evidence with caution. Continuing to focus for the moment on concerns regarding the applicant’s evidence, I shall return to that of Dr. Mallory later.
I have little difficulty accepting that the applicant did not get the support she needed or perhaps even thought she had sought. However, I am unable to identify the precise point in time when she made or began to make any specific requests of the union. I am satisfied that the earliest conversation with Dr. Mallory was not an effort to prompt a union intervention. As the applicant described it, she was not seeking Dr. Mallory to intervene, she was merely seeking advice and guidance. Neither is it clear to me that Dr. Mallory’s position as chief steward was the principal reason the applicant initially approached him.
Having said that, however, there can be little doubt that, at some point during a chronology that spans some 16 months, Dr. Mallory was asked (even if not very explicitly) and understood that he was being asked to don his “union hat” and to act in that capacity in relation to the applicant.
The evidence before me, however, (whoever’s version is to be preferred on that point) falls well short of establishing with any degree of precision at just which point the applicant requested or Dr. Mallory ought to have understood she was requesting formal assistance and representation from her bargaining agent.
While I have yet to consider Dr. Mallory’s evidence and the reasons for its frailties, there is yet another facet of the applicant’s evidence I must consider.
Dr. Cormie was extremely vague and, at times gave inconsistent or, at least alternative versions of the origins, in her mind, of the very possibility of filing a grievance. For although she may, over the course of these events, have learned more about the provisions of the collective agreement and the role of grievances and the grievance process in resolving workplace disputes, the applicant clearly did not profess to be an expert in the working of the collective agreement. The very idea of filing a grievance would not have originated with her. But despite her sometime denials of the point, I am satisfied that the idea, the possibility of filing a grievance, was communicated to her by Dr. Mallory.
I am, however, as with other aspects of the dealings between Dr. Cormie and Dr. Mallory, unable to determine precisely when the possibility of such a step was first raised or discussed with the applicant.
I am also unable to accept the applicant’s claim (to the extent it was seriously advanced) that Dr. Mallory never raised or suggested the filing of a grievance as an option to deal with Dr. Cormie’s difficulties.
I turn now to a consideration of the quality of Dr. Mallory’s evidence.
I have already indicated that neither Dr. Cormie nor Dr. Mallory appear to have kept any meaningful records or other written documentation in respect of their joint dealings.
And while the reader will have already gathered that I have considerable reluctance in accepting either of their versions of events in toto, there are aspects of Dr. Mallory’s evidence worthy of particular note.
First and foremost and without imputing any nefarious motives, Dr. Mallory’s evidence could frequently be described, at best, as extremely tentative and, perhaps at its most extreme, as resembling an earnest but flawed effort at reconstructing a dream from fleeting memories.
The only written document Dr. Mallory prepared was one which he authored some three months after this application was filed. And whether anything critical turns on the discrepancies, applicant counsel in her cross-examination of Dr. Mallory and her subsequent argument was able to demonstrate various inconsistencies between portions of that document and Dr. Mallory’s viva voce evidence.
Just as a dream engages the unconscious, it may well be that Dr. Mallory was unable (given his poor records and recollection of events) to resist the unconscious imperative to construct what he might have perceived to be favourable versions of relevant events.
And there is a further aspect of Dr. Mallory’s evidence which has given me significant pause. The refrain was repeated so often that it assumed a mantra-like quality. Dr. Mallory took every opportunity to explain that he was pursuing the “informal process” to deal with Dr. Cormie’s concerns.
This Board should not be seen to be diminishing or otherwise criticizing the value of “informal” methods of dispute resolution. Labour relations practitioners frequently see the value of such procedures in resolving or even precluding the need for formal grievances.
The informal process that Dr. Mallory referred to, however, appears to have had little more content than its title. For Dr. Mallory was unable to provide any specific concrete details of what was involved, what steps were taken, what goals or objectives were set, what timetables were in place or what expectations were generated. (It may be that he would have been in a much better position to describe all of those things had some basic records been kept of the process).
Two things, however, are clear. First, from the time Dr. Mallory was first asked to or otherwise assumed the capacity of LUFA official in response to Dr. Cormie’s issues until the formal grievance was filed in June 1999, nothing was undertaken, no steps were engaged apart from the ephemeral and lengthy unparticularized process Dr. Mallory described as the informal one. This period of time ranges (depending on whose evidence is to be preferred on certain points) from eight to sixteen months. The second thing which is abundantly clear is that these informal procedures yielded no apparent tangible results.
In a characterization which I acknowledge is undoubtedly unfair to all concerned, this case might be described as a contest between, on the one hand, an applicant whose requests and expectations of the union were far less significant than her application may betray and, on the other, a union which was less than responsive in any real or timely fashion to the entreaties it understood were being made.
I return now to a chronology of events subsequent to the first meeting between the applicant and Dr. Mallory. It will be recalled that meeting took place in February or March of 1998. By that time, the applicant had already met twice with the Dean and had filed two formal written submissions with him (which had both been copied to the University’s Harassment Officer but not to the union).
Indeed, it was not long after this first meeting that the applicant filed a further complaint (her third) with the Dean (again copied to the Harassment Officer but not to the union).
There are significant discrepancies in the evidence regarding when and in what circumstances the applicant provided various documentation to the union.
According to the applicant, she provided Dr. Mallory with an “edited version” of the first complaint she had filed with the Dean. Dr. Mallory does not dispute having received documentation from Dr. Cormie. His recollection, however, is that it was provided much later in the process. Further, according to Dr. Mallory, the applicant’s instructions were to keep the envelope she provided sealed unless and until she provided contrary instructions. It is also common ground that, at some point, the applicant retrieved those materials and added to them before returning them to Dr. Mallory. Dr. Mallory asserts that this happened in or about December 1998 when the applicant first advised that she had decided “to sort of go ahead with the grievance”. (It was curious, though, and as the applicant’s counsel pointed out in cross-examination, that Dr Mallory appeared to have also described a similar set of events having transpired in May of 1999.) The applicant’s evidence was that the full complaint was provided to Dr. Mallory in March or April of 1998.
Again, regardless of which version of events is more accurate, I find it noteworthy that even after her first meeting with Dr Mallory, the applicant chose, when filing her third written complaint with the Dean to not immediately provide a copy to the union. The document on its face (and like its two predecessor complaints) is addressed to the Dean, copied to the Harassment Officer but not to LUFA. I find it exceptionally difficult to reconcile the explicit omission of the union with the applicant’s assertion that she was, at that time, seriously seeking the union’s intervention on her behalf.
Dr. Mallory’s written account (prepared in March 2000) asserts that while he may have had the documents previously, he was not asked or “instructed” to unseal them before May 1999. In his via voce evidence he testified that he had been provided with the revised package of documents in December 1998. The applicant claimed she had furnished those documents not later than April 1998 and denied providing Dr. Mallory with any instructions not to read them.
I have little confidence that either version is entirely accurate.
Indeed, I must note a further peculiarity. On the applicant’s evidence, she provided the relevant documentation to the union in April 1998 but had little meaningful further contact with Dr. Mallory until December 1998, when, as she put it, she “dropped in” on him. Without engaging the perhaps futile debate around who bore the obligation to follow up with whom, an intervening event further highlights the curiosity of the applicant’s conduct.
In October 1998, the applicant was advised that she would be provided with no further work or employment with the University after her limited term appointment expired.
I have not and will not find it necessary to comment on the merits of grievances which might have been advanced on behalf of the applicant. Indeed, given the specific language of the collective agreement (which I need not detail), it may well be that LUFA could ultimately have provided no more effective support for the applicant in relation to her non-renewal than it could in relation to the harassment grievance. But I find it telling that the applicant, who claims at the time to have fully engaged the union’s support in her harassment complaint, did not go directly to the union’s door upon being advised that her employment with the University was coming to an end (particularly when the applicant was clearly and perhaps even correctly of the view that her pathological relationship with her department colleague figured in that result). Instead, she simply “dropped in” on Dr. Mallory a month or two later.
In any event, forces combined and by the end of June 1999 the applicant prepared a further complaint to the Dean, “the eighteen page monster” complaint as she described it. That complaint was brought to the union and incorporated into a formal grievance which resulted in the process described earlier.
In assessing all of these events, I am drawn to conclude that while the union’s conduct was by no means as egregious as the applicant would paint it, there were serious shortcomings in its response to its member. And I am further drawn to conclude, not without some reluctance, that the union’s conduct amounts to a breach of its statutory obligation.
There are at least two significant ironies inherent in that conclusion. First, I repeat that I have not engaged or addressed the merits of the grievance ultimately advanced. I need not do so and the parties, in any event, really did not equip me to pursue that task. It may be, however, that had the union turned its mind to the matter in a timely fashion and advised the applicant that it could or would do nothing further to assist her, such conduct might have been defensible in the face of a section 74 complaint. I make no further comment on the point. The union chose, however, to at least purport to provide assistance and then was frankly unable before me to substantiate, in any concrete fashion, the nature or content of any such meaningful efforts.
To merely claim to have been “pursuing informal channels” for a significant period of time when no meaningful particulars of the effort can be provided, does not substantiate the existence of the claimed or promised efforts.
The second irony arises from the symmetry between the union’s inability to substantiate its claimed efforts and the applicant’s inability to establish precisely when, how and to what extent and for what purpose she sought the union’s assistance. For this Board has never required unions, in the pursuit of their statutory obligation, to solicit grievances or to impose formal grievance procedures on reluctant or recalcitrant potential grievors.
Yet when all of the dust settles in this case (and given my earlier comments, perhaps the best one can hope for is a diminished fog), it is clear to me and, ultimately, not really disputed that the applicant did at some point seek the union’s assistance. And while I am inclined to accept Dr. Mallory’s characterization that while he was initially approached as a colleague and not as union official, I am also satisfied that, as events unfolded and time passed, it was made clear to him and he understood that he was being engaged by the applicant in his formal union capacity.
However, even accepting a view of the facts perhaps more consistent with that offered by Dr. Mallory, it would appear that for a period of at least six months (and likely more), the union, having provided at least an implicit undertaking to do so, did nothing effective and perhaps nothing at all to advance the applicant’s interests. In hiding behind the shield of purporting to advance the “informal process”, the union failed to do that which it had, at least implicitly undertaken to do, it failed to meaningfully turn its mind to the merits of the applicant’s concerns. I am satisfied that amounts to breach of its statutory obligations. It may be that the union had no obligation to pursue these matters. However, having undertaken to do so, it cannot employ a fictitious “informal process” as a proxy for real action.
I am thus prepared to and hereby declare that LUFA breached its statutory obligation in its representation of the applicant.
However, while the applicant may well find some satisfaction, moral victory or vindication in this conclusion, she may wish to employ some caution and perhaps reign in any possible enthusiasm she may have in continuing these proceedings further.
I have already noted that the parties agreed that this decision should deal only with issues of liability and that if such liability were established, as it now has been, the Board was to remain seized as to damages, if any. As a result, I have heard no (or at least very little) evidence which may bear upon any issue of remedy or damages. Thus, it may be that this hearing will have to reconvene on those issues.
The parties may prefer, however, to pursue options short of further litigation.
In weighing various options, the applicant will, no doubt, consider that (while there may be contrary evidence yet to be heard), there is very little before me to suggest that the outcome of the applicant’s difficulties would have been materially different (from the results of the investigating committee), had the union handled matters differently. Indeed, to establish, as might be necessary to attain any meaningful remedy that, but for the union’s conduct, the applicant would have continued her career at the University, might well be a daunting evidentiary task (particularly if any such conclusion results largely on the applicants “opinion” or “feeling” about the course of her personal history).
In that context, I am hopeful that all of the parties will engage in reasoned and rational assessments before opting for further litigation.
“Bram Herlich”
for the Board