LEOunion.org

June 3, 2010 

Jeffery R. Frumkin, Associate Vice Provost

Senior Director, Academic Human Resources

2072F Administrative Services Building

1009 Greene Street

Ann Arbor, MI  48109-1432 

Dear Mr. Frumkin: 

Please be advised that we are writing to grieve the unsuccessful major review of our Vice President, Dr. Kirsten Herold, English Department, Ann Arbor, on March 31, 2010. This grievance is being filed in accordance with Article X.C.4.b, Expedited Process 2. As you know, the parties have agreed that the filing deadline for this grievance is June 3, 2010 at 5 p.m. 

In this case, we are grieving that the Employer has breached the implied covenant of good faith and fair dealing implied in the Preamble and the Recognition Clause (Article I) of the collective bargaining agreement (CBA). We contend that the Employer and Ann Arbor English Department have interfered with the successful administration of the contract, and, more specifically, that the English Department adopted arbitrary and discriminatory standards that prevented Lecturers’ Employee Organization (LEO) Vice President Kirsten Herold (KH) from receiving the benefits and protections of the contract. 

Part A: The English Department uses arbitrary and vague criteria in its performance review process, and these so-called standards are unevenly applied. The uneven application of these arbitrary and vague criteria led to the unreasonable non-reappointment of Dr. Herold. 

General problems with the English Department major performance reviews: 

1. Review standards are vague. 

Article XIX, A.3 of the LEO-UM CBA stipulates that each academic unit “establish and distribute written procedures and criteria for major reviews.” Moreover, XIX.D.3 states that "each unit will establish specific written criteria relevant to its own methods of teaching and subject area(s)".  D.3 then lists a set of “general criteria,” which the specific criteria may “address.” 

The English Department did not communicate any specific criteria to its lecturers. Instead, lecturers were provided with a list of required documents and a “general” list of factors to be considered quoted directly from the CBA. This list of what the unit calls “specific review criteria” is not at all specific to the teaching of writing or literature, nor to the actual criteria that emerge in individual lecturers' review letters. For example, the department “criteria” make no mention of any of the following issues, which, based on an analysis of English Department reviews, are clearly important to the outcome of their review process:

• The requirement that student evaluations be at least above the median, and preferably higher. 
• The requirement of “rigor,” a vague term which is not articulated even in the letters, but is demonstrated in part through the distribution of final grades and amount of formal papers required (cited in some letters but not others).  
• The importance of a classroom observation where all students are present, participate, and talk to each other, rather than address the instructor. 
• The importance of conducting “effective” writing workshops.
• Adequate time management (except when it is ignored).
• An “even” file – although what this means is never articulated.
• A desire to see all course goals achieved in each classroom observation. 
• An expectation that classroom observations, teaching portfolio, and even student comments on the official university student evaluations (E&Es) be an enactment of the teaching statement.

Moreover, the department has been remarkably resistant to revealing its review criteria. In September 2006, after two years of negative lecturer reviews (7 failed reviews out of 18), lecturers sent a letter to the department requesting more transparent standards and more lecturer involvement in developing review criteria. While polite, the response was negative.  

The same resistance to stating actual review criteria occurred during the process of developing KH's remediation plan in April-May 2008. In the draft plan, the department requested she improve her course materials and show them to the program director. When the Union wanted the remediation plan to include a response from the program director indicating whether these materials now met department “standards of excellence,” the department declined to give the program director that authority, arguing that other review committee members might not agree with the program director. The Union argued that it was hardly fair to our member to be told something was OK, only to learn later that it was not. HR agreed with the Union, and the final version of the plan included the statement that the program director would indicate whether teaching materials met the department standards or not.   

2. The vague and unwritten review criteria are unevenly applied. 

• In some cases, inadequate or missing syllabi are overlooked because they are generally considered wonderful teachers, whereas in another case this is grounds for failing the review in spite of strong student reviews and classroom observations.
• Some lecturers pass in spite of issuing very high grades whereas others fail.
• Some people pass in spite of grades “trending upwards” while for others this is grounds for failing.     
• Lack of rigor cited for people who fail, but overlooked in other cases.
• Lack of time management cited in some cases as evidence of poor teaching while in others it is overlooked.
• Overall, less experienced lecturers are treated more leniently – although it might seem reasonable to forgive less experienced lecturers for not being so good, the contract does say the unit must apply consistent criteria, and not make seniority a minus factor, where they expect perfection if a lecturer has been there long enough. 

3. The review standards are arbitrary and unreasonable. 

We take particular issue with the use of E&E quartiles and the expectation that lecturers in the Writing Program consistently fall in at least the second and, better still, the top quartile. Although this is not stated as one of the department criteria, the evidence shows that very high student scores are clearly the most important requirement for a successful review.¹ With one possible exception,² no lecturer in the Writing Program passes major reviews with any scores below the 2^nd quartile; the reviews in Sweetland Writing Center tell a different story, where lecturers' performances are treated much more holistically. This emphasis on quartiles rather than raw scores is problematic for several reasons:   

First, making E&Es below the median an automatic cut-off is a violation of XIX D.6, which states “in a major review the student evaluations shall not be the sole measure of teaching performance.” It is irrelevant that it is still possible to fail even with “superlative” student scores, if the review committee finds something else to dislike; sections below the median is an automatic disqualifier, a first cut.     

Second, the expectation that all lecturers be above average is a violation of Article XI.A.7. By that logic, half the instructors would be fired every year. This is patently unreasonable because it leads to the non-reappointment of excellent teachers. 

Third, the fact that about 75% of the instructors at the University earn a median score of 4.00 and higher on Q2 speaks to general student satisfaction with the teaching; in other words, a number of 4.00 or higher indicates that students agreed the instructor was an excellent teacher. Because so many instructors cluster around the median, the difference between the second and third quartile can be as miniscule as a couple of hundreds of a percent: the difference between 4.51 and 4.48 for instance, which in no way can be considered substantial. In addition, the university- and college-wide number fluctuates slightly from term to term, so what is good enough one semester may not be the next one.   

Fourth, the lack of context inherent in the focus on college- and university-wide quartiles ignores some very real differences between courses: required courses like first year writing (and many others) tend to score lower than electives and upper-level courses in the major which students want to take.   Moreover, while there are certainly exceptions, instructors who grade generously tend to earn higher student scores than instructors who grade more harshly – as the English Department evidence corroborates. Much research exists to support the idea of student bias based on gender, age, ethnicity, etc. Most importantly, the research shows little evidence supporting the link between high scores and student learning.    

Yet in spite of all these well-known problems with over-reliance on E&Es in faculty evaluation, and in spite of the fact that this is a contract violation, the English Department insists on its demand that its lecturers be consistently above average. To our knowledge, English is the only unit in the university to use E&Es to establish a cut-off point; we believe English does so to keep the number of long-term lecturers in the writing program as low as possible, a violation of Article XI, A.7.    

Part B: If Dr. Herold's unsuccessful Review is not the result of the use of arbitrary and vague standards, then it is the result of the English Department's abuse of discretion and uneven application of standards that were bound to result in her failure of the review. 

1.  Background:

Dr. Herold's unsuccessful major review this winter is the culmination of a long process that began during Fall 2004, the first semester of the LEO contract, when English Department laid off first five (two subsequently recalled), and eventually three of its most senior lecturers for Winter 2005, rather than give them a major review and a three-year appointment. The Union filed a high-profile grievance which was eventually settled with the MoU of December 2004, giving the three lecturers appointments for Winter 2005, when the first major review took place. One of the three lecturers passed, another resigned to accept a tenure-track position elsewhere, and KH failed, as did three other lecturers in the writing program. Five passed, with a success rate of 55%, a rate far lower than in any other department. In accordance with the first LEO-UM CBA, KH was issued a three-year appointment as a Lecturer II (due to her many years of service) with a remediation plan and a re-review in Winter 2008.    

KH’s second review was also unsuccessful. At this point, the second LEO contract mandated that a Lecturer II or Lecturer IV who failed a major review receive mandatory remediation with a re-review in the following year; however, since major reviews in English begin in October, which would offer little time to remediate, the department offered KH and another long-term lecturer a two-year remediation period with another major review in Winter 2010. In return, the Union agreed not to grieve the outcome. This time the department, the Union, and KH developed a much more detailed remediation plan with a clear timeline and set of expectations. However, although the parties seem to agree that KH completed the time line and the concrete steps of her remediation (such as meetings with Directors, Center for Research on Learning and Teaching (CRLT) visits, etc.), on March 31, 2010, the department notified KH that she had failed again and would be terminated at the end of the academic year.    

2. We believe that the English Department's abuse of discretion was not only discriminatory, but  violated the contract for three reasons: 

First, KH in fact completed all the tangible steps of her remediation plan. Her remediation required CRLT visits, classroom observations by colleagues and supervisors, discussion with colleagues, and meetings with her supervisor to discuss specific issues, such as E&E scores. She did all those things, and more, as her review file shows. The Unit would appear to agree as none of these issues are brought up in her review letter.   

Structure of class sessions was a specific concern raised by the remediation as well as the final review report, and we believe an impartial examination of the evidence shows that she improved in this area also.  We are struck by the very different tone and content of the actual observation reports [attached] compared to the final review letter.  As KH states, her classroom observations seem to have gotten worse, once the committee decided to fire her. The observation on January 27 describes a well-designed class section, with students applying themselves to “appropriate” and “worthwhile” activities and a well-designed progression from beginning to end. The framing of activities at the beginning and end of class was pronounced “clear,” and, although the observer felt there might have been more in-depth discussion of the activities, the constraint of time was noted as a mitigating factor. The class clearly achieved its goal of students getting ready to write their first paper. The second observation of February 10 was a workshop of two student papers – only the second such of that semester. Again, the observation report has many positive things to say about student participation, KH's follow-up questions, referencing of materials previously discussed, and points made about various aspects of the papers themselves. It also notes that she was quite ill. Overall, this too sounds like a successful class, a fact corroborated by the extremely high E&E scores achieved in that section, a median on Q2 of 4.92.  So, we conclude from that evidence that KH did demonstrate efficient classroom “structure and continuity” (quoting the remediation plan).     

The second contract violation is the abuse of her E&E scores. We have argued above why the department requirement of above average scores is arbitrary, and in itself is a contract violation.³ In spite of the department’s efforts to make KH believe she is not a good teacher,⁴ her E&Es show a very different picture: For Fall 2008, the first semester of her remediation, 19 students agreed she was an excellent teacher, 7 were neutral, 3 disagreed. For Winter 2009 (the semester the system crashed), 20 out of 24 students agreed she was an excellent teacher, 4 were neutral. Her supervisor, seemed happy and said, “you definitely want to show these numbers to the committee.” In Fall 2009, 24 students agreed she was an excellent teacher, 1 was neutral, and 4 disagreed (more on those below). The fact that her scores are generally well within the range of average is shown again for the Winter 2010 term: 24 students agreed she was an excellent teacher and only one was neutral.   In fact, for this most current term, KH was in the top quartile for these two questions in one class, and in the other class she missed the second quartile by only 0.1 and 0.17. Further, the written comments on the 2010 E&Es are overwhelmingly positive. Through the two years of the review and eight sections (with a total of 140 or so students), only 7 students disagreed she was an excellent teacher, and four of those were in English 125.048 of Fall 2009.   

As KH has indicated, at a meeting in January 2010, the reaction of her supervisor made clear that these four students’ opinion was going to be a big problem for her review. When KH asked if these scores meant she should withdraw from review (and spare herself the hard work of preparing her file), there was no answer – presumably because her supervisor recognized that admitting to placing this much weight on the opinions of four people would be grievable. As KH explained in her review materials and again in her review response, she had tried to reach out to all four students. She had worked diligently in her comments on their papers and during office hours to help them understand how they could perform better. Given the high stakes environment, she could have taken the easy path and given the students the grades they thought they deserved. However, as a conscientious teacher, she instead continued to try to help them meet the course goals of writing nuanced academic arguments. This continued effort should be viewed as admirable, not a fatal problem.⁵    

The third contract violation is that in the eagerness to build the case against our member, new criteria emerged that had not been brought up in the remediation plan, or on any other occasion. This abuse of discretion was patently unfair and a violation of the remediation plan.    

• Workshop is not identified as a one of the five “problem areas” in the remediation plan, except in the overall complaints about class structure. However, as KH explains, writing workshop was identified as a student concern by the CRLT visits, and she spent much effort making improvements. The review letter ignores that effort. Moreover, the student responses in the E&Es do not support the committee’s reading. For Fall 2008, 20 students thought workshop was helpful, 2 were neutral, and 5 disagreed; for Winter 2009, 21 students agreed that “workshop of student writing helped me improve my writing,” while only 2 were neutral. In Fall 2009, 21 agreed, 4 were neutral, and 4 disagreed (same 4 as above). For the Winter 2010 term, 23 agreed, and 2 only were neutral. So again, there was an upwards trend, with the four students in one class as outliers. In addition, a high number of students cited writing workshop as the most helpful aspect of the course, which can be verified by looking at the written comments sections. Contrary to the report, KH has not experienced “serious” student resistance to workshop.

• “Lack of rigor” is a completely new complaint: The term ‘rigor” is not defined explicitly in the department file, but appears to refer to issues like the amount of formal writing required, complexity of readings and writing assignments, complexity of in-class discussion, and distribution of final grades. We see no evidence that KH's teaching lacks rigor and concrete data supports this view: KH requires more formal writing than many of her colleagues; students report they work hard; the committee made no complaint about her readings; her assignment sequence was declared to meet the unit’s standards of excellence so presumably was rigorous; the observation reports shows that she asked good questions, followed up when students tried to settle for easy answers, and tied the day’s activities to previous learning. Most tellingly, she has consistently been told (as the evidence corroborates) that she issues lower grades than most successful EDWP lecturers. It is telling that this time her review letter omits any reference to her final grades, one of the unit’s stated criteria, presumably because her grades did not support the case for lack of rigor the letter was trying to make.  

• The unwritten and vague criteria used by the English Department were applied unevenly in the performance evaluation of KH. There are patterns of criticisms in the evaluations of other lecturers, but when KH appears to have no problem in that area, it is not recognized as a strength. Several lecturers were criticized for teacher-centric discussions during writing workshop; the first classroom observation of her class cited students as being "quickly engaged in the assignment" in two small group discussions, and that 13 out of 18 students spoke during large group discussion. The second observation cited 12 of 15 students participating, and that students were engaged as they brought up issues that had been previously discussed in class, like "generalizations without evidence" and lack of focus in thesis statements. These are clear patterns of students being engaged in interactive discussion with each other. Other lecturers were criticized for lack of input to small group discussions. While the first observer reports that KH "did well" as she monitored and engaged students, providing groups with "comments, suggestions, and questions," this apparent strength was not included in the final evaluation report. And finally, some lecturers were strongly criticized for being too opinionated in their classroom comments about writing. This was not observed in KH, but also not cited as a strength in her evaluation report.

• The review vaguely faults her for “lack of creativity” and a “guiding approach to the teaching of writing.” Based on what evidence? Lack of creativity was not mentioned in the remediation plan or the two previous review letters; if this was a such weakness, one would expect it to emerge before her 18^th year of teaching. And again, her course materials had been pronounced as “meeting department standards," not as insufficiently creative. While a handful of students may not have enjoyed particular readings or topics, this is not a general student complaint. And, we have no idea what a “guiding approach” to the teaching of writing is or why it is so bad. Would an “unguided” or “guideless” approach be better? The department seems to be willing to marshal any assertion to justify its conclusion. 

Part C: The English Department’s anti-union and anti-lecturer bias led to a corrupt process in the performance review of Dr. Herold. 

1. Background: There are a handful of mostly Lecturer IIIs and IVs in the English Department who teach writing courses as well as introductory literature courses in the Undergraduate Program. Most Lecturer Is and IIs in the department teach in the English Department Writing Program (EDWP), which administers the 100 and 200 level writing courses. Some Lecturers from Sweetland also occasionally teach in the Writing Program, as do a large number of Graduate Student Instructors (GSI’s). The evidenced shows that the turn-over in the Writing Program is far greater than in Sweetland or the English Undergraduate Program. 

2. The English Department opposed the formation of the Union from the outset and has continued practices aimed at reducing the number of long-term lecturers in the department using every tactic at its disposal. The department opposes LEO because it sees the Union as interfering with its ability to limit the number of long-term lecturers in the EDWP and thereby reserve positions that can be filled by recent graduates of the department until they find employment. The evidence clearly shows that the proportion of graduate students and recent graduates teaching in the Program has been increasing over the past several years. What has happened to Dr. Kirsten Herold is part and parcel of these anti-union practices.  

The attached timeline chronicles key events in the department since the inception of the Union illustrating its anti-union bias. The following summarizes several key points from the timeline that illustrate the anti-union bias of the English Department.

• Prior to the certification of the Union, lecturers in the department were threatened with a loss of their job if they supported the Union. Anonymous notes were used to harass Union organizers.
• After the first CBA was ratified, the department laid off its most senior lecturers for Winter Term to avoid having to conduct major reviews and the subsequent increased job security associated with passing a review. Fortunately, the decision was reversed due to Union action.
• When the first major reviews were conducted, over half of the most senior lecturers in the EDWP failed (including KH) despite the fact that they had all been working in the department for many years. No other unit in the University fails this great a proportion of lecturers. (For example, in 2009-2010 major review failures numbered one on the entire Flint campus, two on the Dearborn campus, and two outside the English Department on the Ann Arbor campus.) Fortunately, the English lecturers who failed were put on probation and later given a second major review.
• Even lecturers with successful reviews often received extremely negative letters, making them feel as if they are being set up to fail the next time.
• When a group of lecturers offered suggestions intended to make the major review process more transparent, they were rebuffed by the department which stated that the review process was “rigorous and fair.”
• During the summer of 2005, the department asked to be able to circumvent the contract and hire lecturers from the outside when qualified lecturers were on the layoff list and subject to recall. When the Union offered a compromise, the department accused the Union of interfering with its academic judgment and hired no one.
• In a provocative move, management assigned KH’s immediate supervisor to their bargaining team at a time when she was the chief negotiator bargaining the Union’s second CBA.
• The second contract included a Special Cases article designed to allow the English Department to hire its recent graduates. Rather than agree to defer the discussion while the outcome of KH’s negative major review of 2008 was pending, the department proceeded to hire several recent graduates as Lecturer Is anyway.
• In most years since the first contract was ratified, the department has used the threat of full and partial layoffs to intimidate lecturers.
• During the past several years, the department has hired an increasing number of GSIs, many from departments other than English, to teach the first-year writing courses. These GSIs are displacing Lecturers, which clearly weakens the Union and creates an atmosphere of fear.  
• Because of the way they are treated, lecturers rarely stay in the writing program very long.
• KH, a key Union leader, unjustly failed three major reviews and in addition has been threatened with layoff repeatedly throughout the life of LEO.

3. In conclusion, as the attached timeline demonstrates, the English Department has worked to undermine the Union from its earliest days. Dr. Kirsten Herold has been active in LEO since its beginning as organizer, campus chair, vice president, bargaining team member, chief negotiator, and grievance officer; she has been present at multiple grievance meetings in the department. The English Department, as part of its overall campaign to weaken or eliminate LEO, has been trying to get rid of KH ever since the Union was conceived. 

Part D: Summary 

The grievant is a serious, dedicated, and accomplished teacher, who completed her remediation plan, but has been targeted for termination since the inception of the lecturers' Union. In its review of Dr. Herold, the English Department violated several articles of the LEO-UM collective bargaining agreement. As a result, Dr. Herold has been subjected to a flawed and biased review.   

In addition, the review was corrupt and a product of animus, based on the high level of resentment against the Union in the English Department. Finally, we hold that Dr. Herold’s performance evaluation was a subterfuge which enabled the English Department to target the union through its vocal and effective Vice President and grievance officer. In spite of a hostile environment, Dr. Herold bent over backwards to accommodate the department, and her remediation was, in fact, successful by any reasonable standards.   
 

Part E: Remedy 

To make Dr. Kirsten Herold whole, we request that the College and the Provost’s Office set aside the flawed and biased review, expurgate the review report from her file, and instruct the English Department to issue her the three-year appointment she fully deserves.   
 

Sincerely, 
 

Bonnie Halloran

President, LEO

Also see "Ann Arbor English vs LEO: a timeline."