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HomeMy WebLinkAboutTeolis 01-11-26 IN THE MATTER OF AN ARBITRATION BETWEEN: ~ CAMBRIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY The College - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION The Union AND IN THE MATTER of the grievance of Fred Teolis regarding a reassignment. Board of Arbitration: I.G. Thorne, Chairman Marc Piquette, College Nominee Ed Seymour, Union Nominee Appearances for the Employer: Lynn Thomson, Counsel Linda Wilson, Director Marketing and Institutional Relations Bob Hurly, Director, Human Resources Ctnist Bai tlett, Dean, School o£Ct uative A~ ts and Open Lemning Appearances for the Union: Nick Coleman, Counsel Bill Riess, OPSEU Mary Jane Veinott, OPSEU Fred Teolis, Grievor Incumbent: Bruce Streitenberger A hearing in this matter commenced on November 7th, 2001, at Sudbury, Ontario. PRELIMINARY AWARD The grievor, a Technologist B a.t the College, asserts that he has been improperly laid off. The College has taken the position that his grievance was not filed within the time limits specified in the collective agreement and that this board is without jurisdiction to consider the grievance. This preliminary award responds to the submissions of the parties on the College's motion at the commencement of the hearing. For the most part the facts on which the parties relied for the purposes of the preliminary motion were not in dispute. Evidence was called, however, in connection with certain discussions in which the grievor had been involved. Until the late summer of 2000, the grievor worked as a Technologist B in the Marketing and Institutional Relations Department. By letter dated July 26th, 2000, he was advised that his current 12-month position would become a 10-month position effective August 31st, 2000. This letter and the sequence of events leading up to the referral to arbitration must be examined in some detail in order to determine the preliminary issue. What must be said at the outset is that the Union and the grievor consider that the College's action amounted to a lay off and gave rise to bumping rights for the grievor which he was entitled to exercise against a less senior Technologist B, Bruce Streitenberger. The College notified :Mr. Streitenberger of the hearing (doing so as a precaution although it did not agree that his participation was necessary, at least at this preliminary gtage). Mr. Streitenberger attended the hearing and was afforded the opportunity to participate as a party. Counsel for the College sununarized the circumstances which, from the College's point of view, had led to the situation which gave rise to the grievance. By the summer of 2000, a number of aspects of the position the griever.held had been removed, to the extent that the work which remained would amount to a p~rt-time, workload. Thig would have placed the griever's position outside the scope of the collective agreement, xvhich excludes employees regularly employed for 24 hours a week or less. The College notified the Union in accordance with the collective agreement that there was a potential for a layoff of the griever. At the same time the College created a new position combining the part-time component of the griever's position, and other duties, to produce a position which would operate for 10 months of the year. The College considered that its action triggered the layoff procedures stipulated in Article 15.04 of the collective agreement (and the parties do not disagree on that score). It prepared a letter to the griever dated July 26th, 2000, which it is appropriate to reproduce in full: This letter will serve as formal notice of a change to your current 12 month position as Technologist B in the Marketing and Institutional Relations Department. Effective August 31, 2000 this position will become a 10 month position. 4 The rationale for the change to a "Less Than 12 Month Position" is based on usage of the facilities outside the academic year and on the need to operate within financial parameters. At this time the exact period of lay off has not been determined but it will occur between May 1, 2001 and August 31, 2001. Details will be confirmed by your supervisor at a later date. The outcome of the process followed by the College and OPSEU Support Staff Local 656 to review this matter in accordance with article 15 of the Support Staff Collective Agr¢~mcm is a~ follows: 1. You may elect displacement rights as contained in Article 15.4.3, Bumping Procedure. This article states that the first assignment is to a vacant position within your same classification. By changing your position to a "Less Than 12 Month Position" the College has created a vacant position within your classification. Therefore, your appropriate assignment is to this new "Less Than 12 Month Position" with no thrther bumping rights. OR You may elect layoff with recall rights. Your recall rights would be effective after November 29, 2000 (the last day of your 90 day notice period from the effective date of the change) and would remain in effect for a period of eighteen (18) months as per Article 15.6 of the Support Staff Collective Agreement. OR You may elect lay off and waive your recall rights to receive twenty four and eleven twelves (24 11/12) weeks of severance pay as per article 15.5 of the Support Staff Collective Agreement. 2. Any other exercisable rights contained within the Support Staff Collective Agreement. If you elect lay off, please inform me in writing by no later than the end of the business day (4:30 p.m.) on September 8, 2000. We hope you understand why the change in the position is necessary and that you will choose to remain with the College in this new position. We appreciate the commitment you have always demonstrated to Cambrian College. Please do not hesitate to contact me if you have any questions regarding the above. Before this letter was sent the College had given notice to the local Union which led to discussions by the Employment Stability Committee. We did not hear evidence about anything that took place at that stage but it would appear that those discussions would have taken place following notice under Article 15.2 and in compliance with Article 15.3.3. The Union advised that the grievor did not receive the letter of July 26th until August 9th, 2000, and the College did not contest that assertion. However the College says that the grievor did not file a grievance within the fifteen days stipulated in Article 18.7.2 of the collective agreement, which ~equi~es an employee who claims he has been improperly laid off or reassigned to present his grievance in writing within 15 days of the date he is advised in writing of his layoff or reassignment. Whether the 15 days started to run on July 26th or on August 9th, in the College's view, no grievance was filed within that time. What the grievor did do was to send an e-mail on August 14th to Bob Hurly, Director, Human Resources, the writer of the letter of July 26th: This memo is to advise you that it is my intent to grieve the circumstances outlined in your letter, paragraph #1, dated July 26, 2000. The grievance will be forwarded to you the first day that I'm damaged by your decision. On the same day, Bill Riess, President of the Local Union, also sent an e-mail to Mr. Hurly: This is to inform you that it is the Union's intention to grieve this matter as outlined in 6 our earlier discussions on the day that Mr. Teolis is damaged by the College's decision as captioned in the latter, Hurly to Teolis, dated July 26,2000. There was no immediate response to these e-mails. In the meantime the grievor received a letter from Susan Pratt, Co-ordinator of Staff Relations, dated August 18th. The letter stated that it confirmed the grievor's recent discussions with Linda Wilson, Director of the Marketing and Institutional Relations Department, and Chris Bartlett, Dean of the School of Creative Arts and Open Learning. The letter set out the grievor's new schedule which involved an assignment of 5 hours per week from August 28th to December 15th, 2000, and an n~q.qignment to the. Testing Centre for 14 hours per week during the 2000/2001 academic year. The remainder of his workweek was to remain with the Marketing and Institutional Relations Department. It would appear that this letter partially carried into effect the change in the grievor's position to a 10 month position as indicated in the letter of July 26th. The grievor spoke to Ms. Wilson following his receipt of the letter of August 18th; he believed that their conversation was on August 21st. The grievor and Ms. Wilson testified about this conversation, and the evidence of both was that the grievor had been irritated and had expressed his displeasure about the new arrangements and had stated that he should have been given the opportunity to bump. The grievor recalled that he had also stated that the only person he could bump was Mr. Streitenberger, but Ms. Wilson did not believe that a name had been mentioned. Both witnesses stated that Ms. Wilson had indicated that she believed the matter the grievor was raising had been dealt with by the Employment Stability Committee and were matters the grievor should take to the Union or Human Resources. Both witnesses also recalled that they had had other discussions both befbre and after the letter of August 18th. It seems clear, however, that the exchange they both referred to occurred very shortly after the grievor's receipt of that letter. The grievor testified that he then wrote to Ms. Pratt requesting a change in the implementation of the new assignments since he had not received three weeks' notice of the ~qhiPr change. A subsequent letter from Mr. Hurly, dated September 1 lth, confirmed a delay in the implementation date to September 5th. On August 29th, Ms. Pratt had responded by letter to the grievor's e-mail of August 14th. She took the position that there was a mandatory time limit of 15 days after the date he was advised in writing in which an employee must file a grievance claiming improper layoff or reassignment. A grievance submitted beyond the time limit would be considered invalid by the College. On August 30th, the grievor sent an e-mail to Ms. Pratt in response. He stated that he had received the letter of July 26th on August 9th. He remarked that it seemed ironic that he should receive a memo dated July 26th exactly 15 days after it was dated and that this coincided with the grievance time limit. He went on to say that "since I received the notice on August 9th, I have already been put in a disadvantaged position" and he asked Ms. Pratt to shed some light on "this mess". Ms. Pratt responded by e-mail on August 31st, again relying on Article 18.7.2. She suggested that if he had received the written notice on August 9th, the latest date he could have submitted a grievance would have been August 24th. The grievance was filed on September 26th, 2000. It grieved that the reduction of the gricvor's position to a 10 month position constituted a wiongful layolT and that the College had failed to permit the grievor the proper opportunities for displacement of junior employees It asked that he be reinstated to his former position. Ms. Pratt wrote to the grievor on September 27th, outlining the College's position. Since the College's position was substantially the same at the hearing, it is worthwhile to quote the letter in full: The College received your grievance submitted at Step 1 on September 26, 2000. As you are aware from my memos dated August 29 and August 31, 2000, it is the College's position that the subject matter of your grievance falls within Article 18.7.2 of the collective agreement. Employees who claim they have been improperly reassigned shall, within 15 days of the date they are advised in writing of their reassignment, present their grievance in writing to the President, commencing at Step No 3 You informed the College in a memo dated August 30, 2000 that you received the College's letter dated July 26, 2000, advising you of your reassignment, on August 9, 2000. Assuming these facts to be accurate, your grievance is untimely and deemed to have been abandoned pursuant to the mandatory time limits in the agreement. In addition, your grievance is invalid because it does not meet the requirements of Article 18.7.2.1. An employee claiming improper application of Article 15.4.3., shall state in the grievance the position(s) and name of incumbent, if any, to which the employee claims entitlement. Without prejudice to its position that your grievance is invalid, the College is willing to meet with you to discuss your concerns. However, you should be aware that the College's application of Article 15~4.3. to your position was discussed at length by the Employment Stability Committee (ESC) in June and July 2000. During those discussions, the ESC was bound by Article 15.3.3 which states that it shall be the duty of the ESC to prevent or minimize the dislocation of employees by making recommendations with respect to the potential creation of vacancies that might be filled by affected employees. In your case, your Technologist B position was to be eliminated, but there existed a vacant 10-month Technologist B position. Pursuant to Article 15.4.3, the College was required 'to assign you to that position. If you did not want that reassignment, you had the right under Article 15.4.4.1 to elect to be laid off. I have scheduled this meeting for October 10, 2000 at 10:00 a.m. in the Human Resources meeting room. The meeting mentioned in this letter took place on October 10th. Ms. Wilson summarized the discussions in a letter of October 13th to the grievor. The College had maintained its position that the grievance was invalid because the time limits and the requirements of Articles 18.7.2 and 18.7.2.1 had not been complied with. The Union had maintained that the grievor had advised the College of his intention to grieve and that the effective date for any action should be September 1 lth, the date on which he had received confirmation of the assignment at the testing centre which he had started on September 5th. The College's objection to our jurisdiction was twofold. First, the grievance was said to be untimely. The College accepted that the grievor had received the letter of July 26th on August 10 9th, but the grievance had been filed long after the mandatory 15-day time limit had expired. Counsel observed that a series of decisions had confirmed the mandatory nature of the time limits for filing grievances in this collective agreement, and that a board of arbitration had no statutory power under the Colleges Collective Bargaining Act to relieve against a failure to file a grievance in time. Second, the grievance failed to comply with the requirements of Article 18.7.2.1 of the collective agreement in two respects: the grievance had not stated the position(s) and name of the incumbent whom the grievor wished to displace; and the written referral to arbitration had not ~pecified the position which was to be the subject matter of the grievance and arbitration as that article required. In the College's view the defect could not be remedied by the iclentification of an individual at a later date since it might give rise to the right to bump. It was common ground that in the present case counsel for the Union had advised the College of the identity of the individual sought to be bumped in the week leading up to this hearing. In the Ulfion's submission thru e had been some technical omissions in the filing of the grievance but there had been substantial compliance with the collective agreement. The critical point, in counsel's submission, had to do with the time limit. It was the case that Article 18.2.1 referred to the deemed abandonment of a grievance not flied in a timely way. Untimeliness, in the Union's submission, was the only aspect of the requirements for a grievance which might be fatal to it. So far as timeliness was concerned, the two e-mails of August 14th inet the requirement 11 since they were in writing and sent within 15 days of the grievor's receipt of the letter of July 26th. In counsel's submission the e-mails were unequivocal, stating that the grievor would be grieving as soon as his assignment took effect Such a communication addressed the concern that the collective agreement was designed to address: that the College should be entitled to know within 15 days whether an employee intended to challenge a layoff or reassignment in order that it could govern itself accordingly. That interest had been satisfied in the present case since the College would have known before implementing the change that the grievor intended to challenge it. Counsel pointed out that there could be a danger of grieving prematurely. However the process should not amount to a game or gamble with an individual's rights. The essence of the matter was whether the College should have known that its proposed action was to be challenged, and in these circumstances the e-mails should be seen as substantial compliance by the Union and the grievor. The Union also suggested that there was an inconsistency in the College's position in that it waited until August 29th before it indicated that the e-mails were not acceptable or that it disagreed with thc Union about thc cvcnt which would trigger the time limit. Counsel suggested that there was also a basis on which the grievance dated September 26th could be seen as timely. There had been a delay in implementing the change of the grievor's shift so that it was not formalized until the letter of September 1 lth was sent. The grievance had been flied within 15 days of that date and was an attempt at making a formal grievance in 12 response to the event which formalized the original advice in writing by setting out the parameters of the new assignment. The Union also maintained that the evidence showed that the grievor had identified the individual and the position into which he sought to bump within a few days of Ms. Pratt's letter of August 18th (i. e. in the discussion with Ms. Wilson on or about August 21 st). Turning to the alleged defects in the grievance, other than untimeliness, asserted by the College, counsel argued that untimeliness was the only defect which the College could claim wa~ fatal to the grievance under the collective agreement. A deemed abandonment could occur only for failure to act within stipulated time limits (Article 18.2.1) and had no application to other requirements, such as the identifying of incumbents or a requirement to refer to Step 3, as were alleged in this case. Different interests were at stake with respect to these other requirements: if the Union submitted a layoff gricvancc at Step 1 rather than at Step 3 there could be no prejudice to the College since it was entirely within the College's power to deal with the matter at Step 3; and while the Union should attempt to identify the position into which an individual wished to bump that identification might not be certain until the matter ~vas referred to arbitration, so that an identification at the later time could respond to the College's legitimate interest. In contrast the parties had chosen precise language when spelling out the consequences of a failure to meet time 13 limits. Counsel stressed that bumping was not the only remedy which the griever was seeking: his preference was to have his former job back or to have his new job on a 12-month basis. The provisions of the collective agreement most relevant to the parties' submissions are the following: 18. COMPLAiNTS/GRiEVANCES 18.1 Definitions 18.1.4 Grievance "Grievance" means a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement. 18.2 General Conditions 18.2.1 Time If the griever fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. 18.7 Grievance re: Dismissal, Suspension or Layoff' 18.7.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause or improperly laid off or reassigned shall, within fifteen (15) days of the date he/she is advised in writing of his/her dismissal, suspension, layoff or reassignment present his/her grievance in writing to the President, commencing at Step No. 3 and thc President, or his/her designee shall convene a meeting and give the griever and the Union Steward his/her decision in accordance with the provisions of Step No. 3 of Article 18.6.1.3. A Union Staff Representative may be present at such meeting at the request of either the College or the Local Union. 14 18.7.2.1 Layoff`Grievance An employee claiming improper application of Article 15.4.3, shall state in the grievance the position(s) and name of incumbent, if any, to which the employee claims entitlement. The College will provide the PDFs of the positions, named in the grievance, to the employee within three (3) days after the filing of the Step 3 grievance. If the grievance is processed through Step 3, the written referral to arbitration shall specify, from the po~ition(s) originally designated, no more than four (4) position~ which shall thereafter be the subject matter of the grievance and the arbitration. The parties do not disagree that a failure to file a grievance within the 5tipulated time limits can be fatal to the grievance: under Article 18.2.1 such a grievance is considered abandoned. Nor is there really any question that what starts the running of the time in this case is the date an employee who claims he has been improperly laid off or reassigned is advised in writing of his layoff or reassignment. The fact is unavoidable that the griever was advised in writing of his layoff or reassignment in the College's letter u£ July 261h. We accept that the griever could be "advised" of the situation only on the date he actually received the letter, August 9th. That date, therefore, marked the beginning oftl~e running of the 15 days stipulated in Article 18.7.2. There was a suggestion in argument that the griever and the Union may have taken the date on which the reassignment was implemented as the date which triggered the running of the 15 days, Several things should be said about that suggestion. If the date of implementation were to be taken as the triggering event, it is not at all clear what would amount to "implcmcntatio,~" - the date the griever's new assignment was first scheduled for (August 25th), the date it was postponed to (September 5th), the date he was actually notified of the postponement (September 15 llth), or indeed the date between May 1st and August 31st, 2001, at which his actual layoff would occur. But Article 18.7.2 is quite clear as to the date which is the important one: it is the "the date he ... is advised of his ... layoff or reassignment" In this case there can be no uncertainty about the document which advised him. It was the letter of July 26th which stated that it was "formal notice" of the change in the gfievor's position from a 12-month one to a 10-month one. The details were to come later. In the meantime the letter made it clear that, from the College's point of view, this was notice of the layoff which gave rise to an assignment to a vacant classification, or a layoffwith lecall rights, oi' ~t. layoffwith a waiver of recall rights and an entitlement to severance l~ay. The letter laid out important choices for the grievor. It wa.~ the point at which he could either accept the situation and choose one of the alternatives proposed, or state his disagreement and file a grievance. The letter was the written advice to the grievor mentioned in Article 18.7.2, and we find that he was advised on August 9th, 2000. Thcrc was also a suggestion that the gricvor and thc Union approached the situation as they might a grievance on some other matter in which it might be important to be certain that something affecting the grievor had actually occurred. That may have been the way they looked at it (although there was no evidence on the point) but Article 18.7.2 is quite clear about the time for filing a grievance against an allegedly improper layoff or reassignment. 16 In these circumstances the only thing which could amoun~ to a grievance in the proper time was the griever's (and the Unioffs) e-mail of August 14th. Was it a grievance? The e-mail was in writing and met the general definition of a grievance (Article 18.1.4). We do not think that the College's suggestion that the reference to a "signed grievance" in Article 18.6.1.1 governs the situation, if only because that article deals with a Step 1 grievance (whereas a layoff grievance starts at Step 3). But nothing turns on that since the griever's e-mail signature might suffice. The real question is whether either e-mail amounted to a grievance. We do not think so. The e-mails spokc of' an intention to grieve, but not ut [hat time. The grievance would come later when the griever was "damaged" by the College's decision. That view of the e-mail is also borne out by fact that the grievance did come later, on September 26th. But Article 18.7.2 does not permit an employee to wait and see whether he should grieve: once he has been advised in writing of the layoffor reassignment he must grieve within 15 days if he is going to grieve at all. Given the clear wording of the article it is not reasonable to interpret it in a purposive way, as the Union suggests, and to regard it as satisfied if the College knows that an employee intends to g~ieve if something happens in the future. In our view the requirements of the article can be satisfied by a grievance but not by a conditional grievance. The grievance in this case, filed on September 26th, 2000, was out of time. The foregoing conclusion can be reached on the plain wording of the collective 17 agreement. The result is consistent with the context of the structure set up by the collective agreement for resolving questions of layoff and reassignment. Reference was made at the hearing to the involvement of the Employment Stability Committee in the procedures which led up to the notice to the griever and to his grievance. The parties indicated that the matter had been before the Employment Stability Committee although we did not hear evidence of what had taken place. In order to put this matter in context, it is appropriate to summarize what the collective agreement requires in a potential layoff situation. An employee who has completed the probationary period may not bc subjcct to the layoff process until the requirements of Article 15 have been applied in sequence (Article 15.1). Briefly, that sequence requires the College to notify the local Union when it contemplates any such action (Article 15.2) and the Employment Stability Committee must then meet (Article 15.3.1). The Committee has the duty to make recommendations to prevent or minimize the dislocation of employees and a number of ways this may De done are set out (Article 15.3.3). After this process, if the College determines that layoffs are still necessary, employees may then be givcn noticc (Articlc 15,3.5.1). Article 15.4 lays out a sequence which must be applied in laying off or reassigning employees, and Article 15.4.4 provides for written notice of layoff or reassignment and the possibility for the employee to make an election of the sort mentioned in the letter of July 26th. There are then provisions which the College must follow for employees affected by a second, third and final displacement (Article 15.4.5). The sequence starts with a commitment by the parties to prevent or minimize the 18 dislocation of employees, after which decisions must be made by the College and by the employees affected. It is understandable that the parties should have required, as they have in Article 18.7.2, a dear indication in the form of a grievance from an employee who does not agree with the action that has been taken. The College has also argued that we lack jurisdiction because the grievance was defective in that it failed to state the position and name of thc incumbent and in that it was expressed to be filed at Step 1 rather than as Article 18.7.2 required. We have found that the grievance w~, untimely. In the context of this collective agreement and the Colleges Collective Bargaining Act the result must be that we lack jurisdiction to consider it. In these circumstances it would not be proper to examine further questions which the form of the grievance might otherwise raise. For the same reason it is unnecessary to consider whether the griever's conversation with Ms. Wilson on or about August 21 st amounted to compliancc ~vith thc requirement to id~mify tlm pu~itkm 19 and name of the incumbent. For the foregoing reasons the grievance must be dismissed. Dated at Kingston, Ontario, thi~y of November 2001. I.G. Thomc, Chairman In the Matter of an Arbitration BETWEEN CAMBRIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY The College ONTARIO PUBLIC SERVICE E~PLOYEES UNION The Umon AND IN THE MATTER of the grievance of Fred Teolis regarding a re-assignment PARTIAL DISSENT of Union Nominee Edward E. Seymour I have read the Majority Award and, with respect, I must dissent. In my view, and given the particular circumstances of this case, the Majority should have dismissed the Employer's preliminary objection with respect to time limits and heard the case on its merits. I am disturbed that College officials, having expressed their appreciation for Mr. Te~)fis's commitment to the College (see Ex. 3), go on to treat him so shabbily. The July 2¢ letter (Ex. 3) did not reach Mr. Teolis until August 9"', the final day on which he could file a grievance. To be fair, the College did eventually accept August 9~ as the trigger date for time-limit purposes. In the July 26~ letter, the College outlines to Mr. Teolis his optir~n.~ under Article 15, but fails to inform him of his rights under Article 18, the Complaints / Grievance provisions, in thc event he was not satisfied with the options outlined in Article 15. It should be emphasized that the CoJlege was under no contractual obligation to respond to the August 14"~ e-mails from Mr. Teolis and the Union (Exs. 4 and 5); however, since they did so on August 29~, 2000, albeit ton late once again, why could the College not have responded eadier pointing out to both Mr. Teolis and the Union their obligations under Article 18? The College officials certainly knew that Mr Teoli~ was upset, that he intended to file a grievance and, as a minimum in the interests of harmonious Employer/employee relations to a "¢ommi~ed, loyal employee," they could have forewarned him. There was absolutely no downside to the Employer had it addressed the e-mails eadier by directing Mr. Teolis and the Union to the appropriate sectinn of the Grievance Procedure. At the same time the Employer could have emphasized that the action Mr. Teolis was ~ontemplating was not acceptable, and that if he had any concerns they had to be addressed via a grievance on or before August 24TM, 2000. Isn't that what College officials did anyway in their August 29~ memo (Ex. 6) except to point out that it was now too late? It is interesting, particularly in light of the concerns expressed above, that the College, having received the grievance dated September 26~, 2000 (Ex. 1), responded immediately via another memo from Susan Pratt dated September 27~, 2000 (Ex. 3) to Fred Teolis stating that the time limits had already expired and directing him to the appropriate sections of the Grievance Procedure. Without addressing all the memos, e-mails and other correspondence which were exchanged between the parties, it will suffice to say that the appropriate College officials were aware of Mr. Teolis's displeasure and his intent to file a grievance. At the very least, these same College officials could have had the decency to remind Mr. Teolis of his contractual obligations in filing a grievance. A long-term, loyal employee, committed to the College deserves no less. Edward E. Se),mour, Union Nominee File: O PSEUTeolisPart Diss.wpd Page 2 of 2