HomeMy WebLinkAboutUnion 92-08-17',~ OPSEU f~: 91C521 & 522
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IN THE MATTER OF AN ARBITRATION
BETWEEN
Fanshawe College,
Employer,
- and -
Ontario Public Service Employees Union,
Union.
BEFORE: Michael Bendel, Chair
William A. Correll, Employer Nominee
Jon D. McManus, Union Nominee
APPEARANCES: For the Union:
John J. Monger, Counsel
Jean Crawford, Local Union President
For the Employer:
Stephen F. Gleave, Counsel
Peter Myers, Director, Human Resources
Debbie Laevens, Assistant Manager, Caretaking
Services
Paul English, Supervisor, Caretaking Services
Heard in London, Ontario, on March 16 and May 8, 1992.
ARBITRAL AWARD
The two grievances of Jean Crawford, who is employed as
a clerk and is president of the local union, arise from a memoran-
dum dated February 19, 1991, written by a manager to another
employee, Tim Miller. In the memorandum, which was circulated to
several other managers, Debbie Laevens, Assistant Manager of
Caretaking Services, reprimanded Mr. Miller, a caretaker, for three
incidents relating to his use of the shipping/receiving area of the
Main Campus, which is a restricted area. In particular, it is
alleged in the memorandum that Mr. Miller was in this area with the
grievor and another employee on the evening of January 25, 1991.
If true, this allegation would mean that the grievor, as well as
Mr. Miller, was guilty of a breach of rules. The grievor flatly
denies being in the restricted area.
Although the employer insists that the offending
memorandum was not intended as a censure of the grievor and
although it is prepared to undertake that it will not use this
memorandum for any disciplinary purposes vis-a-vis the grievor, the
union claims that the employer acted in violation of the collective
agreement in writing and circulating this memorandum without any
notice to the grievor. The union objects to the reputation of an
employee being compromised in this manner, since the employee might
never discover the attack on his or her integrity and could suffer
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serious damage to his or her career as a result. It seeks a
declaration that the employer violated the collective agreement in
writing and circulating the memorandum; a declaration that the
employer should, in all .future cases, send a copy of such a
memorandum to any employees mentioned therein; an order that all
copies of the offending memorandum be removed from the employer's
files, or corrected; an order that the memorandum not be used for
any disciplinary purpose; as well as other related relief.
The employer does not seriously question the grievor's
plea of innocence as regards the incident of January 25, 1991.
However, it denies that it violated the collective agreement.
II
The offending memorandum, dated February 19, 1991, is
addressed to Mr. Miller, and copies were sent to four other
managers (none of whom is a manager of the grievor), as well as to
Human Resources. It reads as follows:
This memo serves as confirmation of items discussed about
the shipping/receiving area of the college at Main
Campus.
1. On January 25, 1991, Control Center received an
alarm at 7:15 p.m. Paul English went to investigate
the possibility of a caretaker re-entering without
calling Control Center. You were found in Jim Bates'
office with Chris Speare and Jean Crawford having
coffee and cigarette.
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2. On February 8, 1991, you again were found in the
same area with Chris Speare at 7:30 p.m. having
coffee.
3. On February 15, 1991, at 7:45 p.m. you were also in
the same office with Chris Speare, with your feet
up, having a cigarette and coffee.
On all the above dates and times you in fact were not on
your coffee or lunch break.
This is a restricted area and beyond normal working hours
is classified as an unauthorized area, on an alarm
system. The keys in your possession are to access an area
for the purpose of cleaning, not for meeting room or
coffee break purposes.
The receiving area is also not a designated smoking area.
The designated areas are "D" Cafeteria and "E" Cafeteria
during your break times. Effective Monday, February 18,
1991, the time in which you will be in this area for
cleaning will be from 4:30 - 5:30 p.m. No one else is
authorized to be in receiving at that time, if for some
other reason your job is incomplete and there is a need
to re-enter this area you will notify the Control Center
and/or Paul English. Your behavior displayed above is
unacceptable. Noncompliance to the above issues in future
will result in a suspension and/or termination from the
college.
[Emphasis added]
The grievor testified that, on the evening of January 25,
1991, she attended a Staff Pub at the college. On her way out, she
walked part of the way through the building with Mr. Miller and
with Chris Speare. She left them and went out of the building alone
before reaching the shipping/receiving area. She did not go into
any part of the shipping/receiving area that evening. She has never
been in Mr. Bates' office. She had no reason to be in that area.
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She does not drink coffee or smoke. She could not recall meeting
Mr. English, who is a supervisor of caretakers, that evening.
The grievor testified that Mr. Miller informed her of Ms.
Laevens' memorandum a couple of days after it was written. She was
upset about it for several reasons. First, she did not receive a
copy of it. However, while looking for Mr. English to discuss it
with him, she spoke to several caretakers who all seemed to know
about the memorandum. Secondly, the facts stated in the memorandum
about herself had not been checked with her and were untrue. The
grievor felt that Ms. Laevens had "put gossip to paper". Thirdly,
she did not appreciate the implication that she had been alone with
a couple of guys in a secluded area of the campus. Fourthly, the
memorandum could be understood as implying that she was conducting
a union meeting that evening, particularly since Mr. Miller was a
steward at the time; this would have been a violation of Article
2.2 of the collective agreement, which prohibits union meetings on
the employer's premises without permission. Fifthly, it would have
been against the employer's rules for her to have been in the
shipping/receiving area that evening, since this is a restricted
area and she had no authorization to be there. The grievor added
that, in her capacity as local union president, she had had several
dealings with Ms. Laevens and, after some difficulties, she felt
that she amd Ms. Laevens were trying to communicate with each other
more effectively; in light of this, Ms. Laevens' failure to send
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her a copy of the memorandum was particularly upsetting to her.
According to the grievor, she viewed this memorandum as being more
damaging than a disciplinary measure since it was more difficult
to contest it.
In their testimony, both Mr. Miller and Mr. Speare fully
corroborated the grievor's evidence on her whereabouts on the
evening of January 25. Mr. Miller also denied telling either Mr.
English or Ms. Laevens that the grievor had been with him in
shipping/receiving that evening.
Mr. English testified that he did not see the grievor in
shipping/receiving that evening. He stated that Joe Sharkey, a lead
hand, told him that the grievor was in shipping/receiving with
Messrs. Miller and Speare on the evening of January 25. Mr. English
had been looking for Mr. Miller and had enlisted Mr. Sharkey's help
in locating him. Later, after Mr. Miller had reported to Mr.
English, Mr. Miller confirmed that he had been in shipping/receiv-
ing, having a coffee with the grievor and Mr. Speare. Mr. English
brought the incident of January 25 to Ms. Laevens' attention, after
she had questioned him about the false alarm received by the
Control Center.
Ms. Laevens testified that, in addition to the report she
received from Mr. English, Mr. Miller mentioned to her, on February
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18, that he had been meeting with the grievor and Mr. Speare in the
shipping/receiving area on January 25 for the purpose of discussing
the employer's budget. She further testified that the only reason
she mentioned the grievor in the memorandum of February 19 was
because Mr. Miller had told her he had been with the grievor on the
evening of January 25. Ms. Laevens added that she has no jurisdic-
tion over the grievor. She did not write the memorandum for the
purpose of criticizing or disciplining the grievor. Her concern in
writing the memorandum was to place on record her discussion with
Mr. Miller concerning his breaches of discipline. She only sent
copies of the memorandum to managers who had a valid reason for
knowing of the incidents. Since the memorandum was not directed at
the gr±evor, Ms. Laevens did not send a copy to the grievor or to
the grievor's supervisor.
III
In their submissions, counsel referred to the following
provisions of the collective agreement:
ARTICLE 2. RELATIONSHIP
2.2 Union Activities
The Union agrees there will be no union activities on the
premises of the Colleges, except as specifically referred
to in this Agreement or approved in writing by the
College.
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ARTICLE 3. MANAGEMENT FUNCTIONS
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function
of the Colleges to:
- maintain order, discipline and efficiency;
- hire, discharge, transfer, classify, assign,
appoint, promote, demote, layoff, recall and suspend
or otherwise discipline employees subject to the
right to lodge a grievance as provided for in this
Agreement;
- generally to manage the College and without restric-
ting the foregoing, the right to plan, direct, and
control operations, facilities, programs, courses,
systems and procedures, direct its personnel,
determine complement, organization, methods and the
number, location and classification of personnel
required from time to time, the number and location
of campuses and facilities, services to be
performed, the scheduling of assignments and work,
the extension, limitation, curtailment or cessation
of operations and all rights and responsibilities
not specifically modified elsewhere in this Agree-
ment.
ARTICLE 16. EMPLOYEE EVALUATIONS
16.1 Performance Appraisal
The copy of an employee's performance appraisal which is
to be filed on the employee's record shall be given to
the employee in advance. The employee shall initial such
appraisal as having been read within seven (7) days of
receipt of a copy of such appraisal. If the employee
wishes, he/she may add his/her views to such appraisal
within such seven (7) day period. A notice shall be
printed on the performance appraisal stating that the
employee's rights concerning performance appraisals shall
be found under Article 16.1 of the Collective Agreement.
16.2 Disciplinary Notice
Each employee shall receive a copy of any formal disci-
plinary notice that is to be placed on his/her personnel
file. With the consent of the employee concerned,
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notification shall be given to the Local Union that a
disciplinary notice is being served on the employee.
16.3 Access to Personnel File
Each employee shall be entitled to reasonable access to
his/her personnel file in order to examine his/her
performance appraisals and disciplinary notices.
16.4 Removal of Notices from File
Each employee may, once each calendar year, request the
removal of a disciplinary notice that has been in his/her
official personnel file for more than one (1) year. The
removal of such notice shall be at the discretion of the
College. Such discretion shall not be exercised unreason-
ably.
ARTICLE 17. JOB POSTINGS/PROMOTIONS
17.1.1 Consideration - Bargaining Unit Employees
When a vacancy occurs and employees within the bargaining
unit at the College apply, the college shall determine
the successful candidate based on the qualifications,
experience and seniority of the applicants in relation
to the requirements of the vacant position. Where the
qualifications and experience are relatively equal,
seniority shall govern, provided the applicant has the
necessary qualifications and experience to fulfil the
requirements of the position.
Mr. Monger, on behalf of the union, presented two
arguments.
The first was that the memorandum of February 19, 1991,
was a disciplinary measure against the grievor that had been
imposed without just cause.
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The second argument was that, in writing and circulating
the memorandum as it did, management was in breach of its duty to
exercise its discretion reasonably and in a manner that would not
undermine rights conferred by the collective agreement. Mr. Monger
argued that the memorandum was factually groundless as regards the
grievor and that it damaged her reputation. This undermined the
grievor's rights under Articles 16 and 17 of the collective
agreement. In Article 16, according to Mr. Monger, the parties had
established a code which offered employees substantial protection.
The employer was not free to write memoranda that reflected
negatively on employees except as permitted by Article 16. As for
Article 17, it is inevitable that, as part of the competition
process, managers consult files and seek references from other
managers. The offending memorandum could prejudice the grievor in
future competitions, thereby undermining the rights guaranteed by
Article 17. In support of his submissions, Mr. Monger referred to
the following authorities: Municipality of Metropolitan Toronto v.
Canadian Union of Public Employees, Local 43 (1990), 69 D.L.R.
(4th) 268 (Ont. C.A.); Re Council of Printing Industries of Canada
and Toronto Printing Pressmen & Assistants' Union, No. 10 (1983),
149 D.L.R. (3d) 53 (Ont. C.A.); Re Wardair Canada Inc. and Canadian
Air Line Flight Attendants Association (1988), 47 D.L.R. (4th) 663
(Ont. Div. Ct.); Re Corporation of City of Toronto and Canadian
Union of Public Employees, Local 43 (1991), 19 L.A.C. (4th) 412
(Davis); Re Campbellford Memorial Hospital and Canadian Union of
Public Employees, Local 2247 (1990), 14 L.A.C. (4th) 129 (Joyce);
and Re British Columbia District Telegraph Co. Ltd. and Interna-
tional Brotherhood of Electrical Workers, Local 213 (1984), 17
L.A.C. (3d) 131 (Kelleher).
Mr. Gleave, on behalf of the employer, argued that the
memorandum did not constitute a disciplinary measure. He referred
the board to the award in Re Metropolitan Transit Commission of
Halifax, Dartmouth and the Municipality of the County of Halifax
and Amalgamated Transit Union, Local 508 (1985), 20 L.A.C. (3d) 203
(Darby) for a discussion of the nature of disciplinary action. Mr.
Gleave argued, further, that there was no breach of an implied duty
of fairness in this case. In order for such a breach to be estab-
lished, there would have to be a finding that the action complained
of had the effect of undermining negotiated provisions, which was
not the case here. Counsel referred to Re Council of Printing
Industries, supra, and Re Westin Harbour Castle and Textile
Processors, Service Trades, Health Care, Professional and Technical
Employees International Union, Local 351 (unreported award of
arbitrator R.M. Brown, dated November 5, 1991). In any event,
Article 16.2 of the collective agreement and the Freedom of
Information and Protection of Privacy Act, RSO 1990, c. F.31, would
not permit the employer to give copies of disciplinary memoranda
to other employees, with the result that it could scarcely be
unreasonable or unfair for the employer to have refrained from
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doing so in this case. As for Article 17, counsel maintained that
no relevant duty could be inferred from it. If, at some time in the
future, the employer used the memorandum to the grievor's detriment
in a competition, it might be called upon to justify its use; but,
until such time, Article 17 was of no relevance. Finally, counsel
argued that, in any event, the memorandum had been written for a
legitimate business purpose, which would preclude a finding that
the employer was in breach of any duty of fairness or reasonable-
ness: Re Corporation of City of Toronto and Canadian Union of
Public Employees, Local 43, supra.
IV
The first question we have to examine is whether the
offending memorandum constituted disciplinary action towards the
grievor.
In our view, this question must be answered in the
negative. As the case-law makes clear, a letter or memorandum, even
if directly criticizing an employee, cannot be regarded as disci-
plinary if it was not written for a disciplinary purpose. The
employer's intention in writing such a letter is a key element in
deciding whether it is disciplinary. It is beyond dispute that the
memorandum of February 19, 1991, was not written in response to the
grievor's behaviour and was not intended to censure or criticize
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her for being in the shipping/receiving area on January 25, 1991.
As such, it cannot be viewed as disciplinary action as far as the
grievor is concerned. See, generally, Re Metropolitan Transit
Commission of Halifax, supra.
The other question, and the principal one, that we have
to address is whether the employer violated its duty to act fairly
or reasonably in writing and circulating the memorandum.
In Municipality of Metropolitan Toronto, supra, the
Ontario Court of Appeal (per Tarnopolsky, J.A.) offered the
following interpretation and endorsement of its earlier decision
in Re Council of Printing Industries of Canada, supra, (at page
285):
In other words, it is not patently unreasonable for an
arbitrator to oblige management to exercise its discre-
tion reasonably, where to do so unreasonably would be to
create a conflict with or undermine the rights conferred
by some other provision in the collective agreement.
Later in the same decision the Court of Appeal stated the following
(at page 286):
However, it does not seem patently unreasonable to view
the collective agreement in a holistic manner, where even
management rights may be circumscribed in order to avoid
negating or unduly limiting the scope of other provi-
sions.
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As we read the case-law on this subject, an employer is implicitly
precluded from acting unreasonably (in areas not expressly regulat-
ed by the collective agreement) if that might lead to specific
provisions of the agreement being negated or undermined. We did not
understand counsel for either party to be in disagreement with this
statement of the law.
The issue we have to decide in the present case is
whether the employer action complained of would undermine the
grievor's rights under Article 16 or 17 of the collective agree-
ment.
The union relies, firstly, on Article 16.1. This provi-
sion, in essence, requires the employer to give an employee in
advance the performance appraisal which is to be filed on the
employee's record and to allow his or her comments to be appended
to the appraisal.
We have concluded that Article 16.1 is not relevant to
this grievance for at least two reasons.
Firstly, the comment about the grievor in the memorandum
of February 19, 1991, does not seem to relate to her "performance",
as that term is generally understood. Generally, a performance
appraisal deals with an employee's efficiency, aptitudes, work
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habits, etc. One would not normally expect to find, in a perfor-
mance appraisal, comments about an employee going into a restricted
area after working hours. Conduct of this type has little or no
relevance to the employee's performance.
Secondly, even if this type of conduct were regarded as
performance-related, we could not derive from Article 16.1 any
implied duty to refrain from making performance-related comments
about an employee in memoranda such as the one of February 19,
1991. What the parties have bargained for is some regulation of the
formal performance appraisal process. A casual reference made by
a manager about an employee's performance in some document other
than the formal performance appraisal does not, in our opinion,
tend to negate or undermine the employee's contractual rights in
that process. If the memorandum of February 19, 1991, had been
conceived as a means of evading Article 16.1, the result might have
been different. But there is no justification for concluding that
a passing comment about an employee's performance, even if untrue,
tends to undermine or negate the rights conferred by Article 16.1.
Finally, we must consider whether Article 17 of the
collective agreement is of relevance.
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The union's argument is, essentially, that the grievor
might be prejudiced in future competitions as a result of the
damage to her reputation caused by the memorandum.
We cannot accept this argument. In our view, for an
argument of this kind to succeed, there has to be a reasonably
probable or direct link between the act complained of and the
apprehended undermining of a provision of the collective agreement.
According to Article 17, a selection is based upon "the qualifica-
tions, experience and seniority of the applicants in relation to
the requirements of the vacant position". It is inevitable and
natural that a whole range of management acts or decisions have an
impact on an employee's prospects for promotion. The assignments
the employee has received over the years, for example, could bear
on his or her chances of success in a future competition. Having
worked for Supervisor X, rather than for Supervisor Y, could impact
on an employee's future career. Should arbitrators therefore
conclude that an employer routinely has to justify a decision to
assign an employee to a particular job or to a particular super-
visor on the ground that the decision could affect the employee's
prospects in future competitions? We think not. In our view, for
such an argument to succeed, it would have to be demonstrated, at
a minimum, that there was some reality, and not just a hypothetical
basis, to the fear that the act or decision complained of might
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impinge upon rights conferred on the employee by the collective
agreement.
This view is supported by the award in Re Air Canada and
International Association of Machinists, Lodge 148 (1990), 13
L.A.C. (4th) 110 (Foisy). That was a case where it was alleged that
the employer had violated the collective agreement by deciding in
an arbitrary or discriminatory manner which employees would be
allowed to take a training course. Although access to the course
was not specifically regulated by the collective agreement, the
arbitrator held that management was under a duty to act reasonably
since access to the course was a pre-condition to promotions. At
pages 123-4, the arbitrator stated the following:
It is true, as argued by the employer, that these
grievances do not contest the fact that promotions should
have been given to the grievors instead of other employ-
ees. There is, however, given the fact that the holding
of an A.M.I. is a negotiated pre-condition for being
considered for a promotion to certain jobs, that the
right to follow the courses rests entirely in manage-
ment's hands and that the decision to award the promotion
or the transfer is also management's prerogative, ~
direct relationship between obtaining the right to enter
the course and future promotions...
In the context of this case, it cannot be argued that the
relationship between the denial of the opportunity and
the obtention of a promotion is remote...Management's
decision to deny access to categories 1 and 38 mechanics
to obtain the necessary qualifications for promotion in
certain jobs that would be made in bad faith, discrimina-
torily or arbitrarily would impact directly on the
promotions of the concerned employees...
[emphasis added]
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In the present case, it would be entirely speculative for
us to hold that the grievor's rights under Article 17 have been or
might have been jeopardized by the memorandum of February 19, 1991.
There is an absence of directness or even probability between the
employer's act and the grievor's promotion prospects.
We have therefore concluded that there has been no
violation of the collective agreement.
We understand the grievor's concern that her reputation
may have been tarnished by the memorandum of February 19, 1991, and
we understand her resulting feeling of injustice. However, the
collective agreement is not an instrument that can address every
interaction between employees and managers, and our jurisdiction
is limited to remedying violations of the collective agreement. In
the present c~se we are unable to conclude that there has been a
breach of the collective agreement.
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The grievances are hereby dismissed.
DATED at Ottawa, Ontario, this 17th day of August 1992.
Michael Bendel,
Chair
^
I c oncur~-;t-~:ssem~ l, W':O~.m ~. [~" ~ /[~ ~.
William A. Correll,
Employer Nominee
~-~ea~I dissent "~ O' ~c~~ ~ ~'~'
(dissent attached) Jon D. McManus,
Union Nominee
Re: OPSEU (Crawford, Jean) and the Ontario Counsel of Rcgent,~ for .Colleg~,$ of
P~plt~.Arts a. nd Tec. hnology Oran~hnw~ College)
I have reviewed the draft decision on the above referenced matter and must
dissent,
Article 16,1 o~r' the collective agreeraen! under which this grievance orisinates
provides that employees shelf have an opportunity to review thei~ performance appraisab,
and, if the employee so desires, add comments to the appraisal document. It is obvious that
the purpose or inient of Article 16.1 is to ensure tha~ 0mployees are. aware of the College's
written record as it pertains to them, and to give them an opportunity to correct any
misconception.q, or, at least, to record both Mdes of the story for posterity.
The letter that led to this grievance mentions the griever by name,
indicates that ~he was in un unauthorized ar,a after hours. She is accused of being party
~ the very conduct for which the recipient {of the letter was being di~ciplin¢cl. Tkis letter
was sent to many managers at the College, However, the griever rece~vecl no notic~ of this
allegation from the College, and was not given any opportunity to set the record straight
with respect to her involvement in violation of th~ College's rules.
The evidence clearly indicates that th~ griever was not, in fact, a party ta any
wrongful conduct, and that ~he clearly should not have been mentioned in the letter, Her
name and her profe,~[onal reputation had been unfairly besmirched within the employment
context Withmn any notice of the accusation, she was denied the oppm tunity to clear her
name with the author ~f the letter and tho,e others to whom it was sent.
The chairman states that "there is no justiflcalinn for concluding lhat a passing
comment about the employee's performance, even if untrue, tends ~o undermine or negate
the rigt~t~ granted by A.rticie 16,1". That may be true of a "passing comment". Itowever, it
is clear that the essence of the griever's complaint is that this was no "passing comment", but
rather, an written document that may form a part of thc College's records and be in the
po~es~un of the individual managers to whom it was sent for an indeterminate length of
time into the future. As long a~ the document ~ist8 and is in circulation the gr/.¢vor's
professional reputation will be harmed by the unfounded implication that she was involved
in wrongdoing described therein,
In light of this continued harm, the employer exercised its right to cre~t~ ~uch
letters unreasonably, insofar as it failed to asc~rtain the facts recorded for posterity and
widely disseminated, and failed to put the griever on notice of the facts as alleged, The
Cntlective Agreement gives certain rights to thc employees tt covers in relation to written
information kept by the College with respect to lh~ir suitability and performance as
employees. The employees are entitled to be awnre of bow the College evaluates them~ and
to respond to the College% evaluation. The College tm~ agreed to fetter its right~ in ~-elation
to the documents it creates and distributes that pertain to an employee's record at the
College. By acting as it did in this case, th~ College has negatively affected the griever's
record at the College, and has undermined ~h~ rights gral~tcd by Article 16 which operate
to prevent or alleviate such unfounded prejudice,
Ft~r th~ above reasons I would allow thc ~lcvan¢¢.
Jon McM'anus