HomeMy WebLinkAboutMACKENZIE-1991-15-08
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IN rHE MAUER O~ AN ARBIrRAr ION
BEr'l/EEN:
sr. MARY'S O~ rHE L.AKE HOSPIrAl.
the "Hospit;al"
AND:
rHE ASS:)CIArION OF Al.L.Iill HEAl.lli PKO~ESSIONAl.S: ONrARIO
the "Association"
G~IEVANCE OF L.. l~CK&~ZIE
OOL.E ARBIrRArOR:
Ms. Jane E. Emri:::h
APPEARANCES :
Ms. Mary Lou Boudreau
Mr. 'l/illiam Frier
Consult;ant
Assist;ant Execut;ive Dire:::tor,
Human Resources
Dire::: t;or, Occupational rnerapy
Assist;ant; Execut;ive Dire:::t;or,
Pat;ient Services
Student;, Human Resour:::es
For t;he Hospital:
l'1r. Allan O. Shakes
I'1S. Gwen Pooley
,'1r. Elliot;t; Rea
For the Association:
Ms. Dianne Ni:::holas
Ms. ,'1. L.ynn MacKenzie
Ms. l'1aureen Fraser
'Counsel
Jrievoc
L.aoour Relat;ions Officer
Hearing held at; Kingst;on, Ont;ario on February 14, 1991
The disput;e oet;~een t;he part;ies cent;res upon ~het;her t;ne Hosplt;al
accorded to t;he grievor proper credit; for recent; related clinical experience
when placing har on t;ne salary grid for her classifi:::at;ion as Staff
Oc:::upat;ional merapist;. me grievor was hired as a :::asual st;aff
occupat;ional t;herapist; on Novemoer 21, 1939. On July 23, 1990, the grievor
was appoint;ed to a full-t;ime posiCion as a St;aff Occupat;ional Therapist;.
The collective agreement; in Art;icle 1 recognizes t;hat; casual employeps fall
~itnin t;he scope of t;he oargaining unlt. Article 2 set;s fort;h definit;ions
of t;he various classes of employment ranging from casual, t;o regular part;-
t;ime, to full-t;ime. me disput;e raises a quescion of t;he int;erpret;acion and
applicat;ion of Art;icle 21.04 of t;he colle:::Cive agreement;:
ARTICL.E 21 - DIRECT ,'10NErARY CJMPENSArION
21.04
Each new employee shall De informed by t;ne Employer t;hat;
claim for recent; relat;ed clini:::al experience, if any,
shall be made in writ;ing oy t;he employee at; t;im2 of
hiring. Tne employee shall cooperate with the Employer
oy providing verificat;ion of previous experien:::e, if
necessary, so t;hat; her recent; relat;ed :::lini:::al
experience may De det;ermined and evaluated. Having
est;ablished such experien:::e t;ne Employer will recognize
recent; relat;ed clinical experience on t;he following
basis:
(a) experien:::e gained in t;ne same classificat;ion or
occupaCion ~ichin che t;nree (3) year period prior
t;o daCe of hire will be recognized at t;ne rate of
one (1) incre.nenc for ea:::n year of experience;
(0) other relevant; relat;ed full-t;ime experience will De
recognized aC t;ne rate of one (1) increment; for
each two (2) years of service;
(c) t;he maximum st;art;ing salary will normally De five
(5) increment;s (L.evel 5) on cne salary scale.
(d) part;-t;ime experience will be recognized on t;he
basis of fifceen hundred (1,500) nours being
equivalent; t;o one (1) year's service.
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Ac t;ne t;ime of hire ea:::h employee ~ill receive a lett;er
st;at;ing her classificat;ion, salary, and credit given for
previous experience.
The salary schedule pert;inent; t;o the grievor's classlfi:::at;ion as Staff
Occupat;ionalmerapist; during t;he relevant; t;ime period is as excerpt;ed belo..
from Schedule "A":
St;aff O.T. & P.T.
1 !7 /89 2935. 3025. 3115. 3207. 3295. 3330.
13.003 13.615 19.159 19.735 20.233 20.349
1/7/90 3097. 5191. 3235. 33:33. 3477. 3574.
19.058 19.637 20.222 20.813 21.397 21.994
The grievor Cestified t;hat; she graduat;ed from Queen's Universit;y wit;h a
Diploma in Occupat;ional Therapy in April 1971 and worrl:ed as an occupaUonal
tnerapist; at Kingston Psychiat;ric Hospit;al from O:::t;ober 1971 to September
1973. At tnat; time, the grievor ret;urned to Queen's University for an
academic year to complet;e her Bachelor of Science Degree in Occupational
Therapy. She graduat;ed in April 1974. From ,'1ay 1974, she worrl:ed as an
occupat;ional therapist; at; various hospit;als and at the Kingston, ~rontenac,
and Lennox & Addington Healtn Unit until ~ebruary 1935. Her work history is
summarized in the resume sne filed ..ith the Hospital in the following
manner:
Octooer 1971 - April 1972
Kingston Psychiacric Hospital - Ministry
of Heaith. ROCKwood :now L..S. Penrose,
Division of Ong..anada Hospital).
~acility for Mant;ally Ret;arded Aduits
and Adoles:::ents.
April 1972 - September 1973
Kingst;on Psychiat;ric Hospital - Ministry
of Health, West;~ood Division Western
~egionai Services (Aduits and
Adolescents) .
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May 1914 - August; 1915
Kingst;cn PSf~hiatric Hospital - ~inist;ry
of Health, westwood Division Western
Regional Services (Adults and
Adolescent;s.) Senior rherapist
Sepcember 1975 - Augusc 197:3
Ong~anada Hospit;al - Hoprl:ins Division
Supervisor of Kinsnen Pot;ent;ial
Renabilit;at;ion Clinic. ~acilit;y for
Mulciply Handi:::apped Cnildren.
August; 1973 - May 1979
Ongwanada Hospit;al - HopKins Division
Occupat;ional Tnerapisc in Kinsmen
Pot;enCial Renaoilit;at;ion Clinic (part-
t;ime).
August; 1973 - May 1979
Kingston, ~ront;enav and L.ennox and
Addington Healt;h Unic. St;aff
Occupat;ional Therapist; (part-time)
l'1ay 1979 - ~ebruar;r 1935
Kingst;on Jeneral Hospit;al. L.onger t;erm
rehaoilit;at;ion ~it;h head injured pat;ient;s
and amputees (4.5 years). Ort;hopaedics
and Rne~~acology (1.5 years)
Feoruary 1985 - November 1939
Bought; o'..n business. was a memoer of the
Nort;horoo~ Area Volunteer Amoulance
Service. Have a Cert;ificat;e in C.P.R.,
Standard First Aid, Restrict;ed Radio
Operat;ors License. Upgraded to next
level for ~unda~ent;als of Casualt;f Care
Certificat;e.
The Associat;ion argued t;nat; t;ne grievor's experience as an occupat;ional
t;herapisc from 1971 co February 1935 ought; t;o have been crediced pursuant; t;o
Art;icle 21.04(b). [t; was common ground becween t;he part;ies t;hat; t;he
grievor's experience as an entrepreneur in ousiness from February 1935 to
November 1939 ~as recent, but; unrelat;ed and did not; qualify for credit;
pursuant; to Arti:::le 21.04 (a) or (b). The Associat;ion cont;ended that;
Article 21.04(c) a:::ted as a cap to the recognit;ion of recent related
clini:::al experience for t;he purpose of placement; on the salary grid. [n
otner words, sin:::e the maximum number of increment;s Which can be obt;ained is
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five, and ot;her experience is recognized on t;he oasis of one increment for
ea:::h two years of experien:::e, ac ceast; Can years of prior experien:::e couid
be considered as recent; and relaced and eligiole for credic on t;he wage
grid.
The HospLt;al argued t;oat; Art;i:::ce 21.04(a) muse be read as a
precondit;ion t;o ent;it;lemenC for credit under Art;icie 21.04(0). In ot;her
..ords, unless a :::laimant; could est;aocish experience in the sane
classificat;ion or o:::cupat;ion in the t;oree year period prior to the date of
hire, no ot;her experience could be considered recenC and recat;ed for credit;
on t;he wage grid pursuant; to Art;icle 21.04(0). ~rt;hermore, t;he Hospit;al
cont;ended tnat; tne cap in Article 21.04(c), when read with Articles 21.04
(a) and (0) wouid est;aoiish a seven fear period from tne dat;e of hire
~it;hin which reiat;ed experience could be considered recent for ehe purpose
of salary credit;. Thus, t;ne Hospit;al :::on:::luded t;oat; since t;he grievor had
no current; reiat;ed experience from February 1985 t;o her dat;e of hire on
November 21, 1939, sne coucd not; claim credit; under Art;icle 21.04 (a) or
(b). In the alt;ernacive, t;he Hospital cont;ended toat; even if ent;it;lement to
credit; pursuant; to Article 21.04(a) is not; a precondit;ion to ent;it;lement;
under Article 21.04(0), t;ne formucae for crediCing experience for salary
increments est;ablisnes a seven year period from cne dat;e of hire as recent
by definit;ion - ie. on a one increment; per one year of experience oasis
within the t;oree year period from tne dat;e of nire in 21.04(a) and one
increment; for every t;wo years of experience oasis in 21.04(b). Since
Art;icce 21.04(c) set;s a :::ap of five increment;s, the period of t;ime during
whi:::h experience could oe credit;ed as recent and related would be seven
years. In tne inst;ant; case, the seven year period woucd run frQn November
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19:32 t;o November 1939, .hen she ~as hired oy t;he Hospit;al. In this t;ime
frane, t;ha grievor couid claim credit; for her wor~ ac Kingst;on General
Hospical from November 1932 t;o ~ebruary 1935, a period of jusC over t;wo
years. In accordance ~it;h the formula in Article 21.04(0), t;oe Hospical
would calculat;e her ent;it;lemenc as one salary increment;. In a furt;ner
alcernat;ive, t;he Hospit;al argued t;oac even if cen years from Cne dat;e of
hire ~ere t;he relevant; t;ime period, the grievor had less t;han six y~ars of
experience from May 1919 co ~eoruary 1935 at; Kingst;on General Hospital wni~o
could oe applied for salary credit;. Thus, tne Hospit;al cont;ends, even upon
t;he Associat;ion's argument;, at; t;he most; sne would be ent;it;led to is t;wo
salary increments pursuant t;o Article 21.04(0).
Bot;h part;ies referred t;he Board to t;wo :::ases dealing with t;he crediting
of prior professional experience for placement; on a salary grid: Re Mait;land
Manor and Ont;ario Nurses' Asso:::iat;ion, More grievance, unreport;ed, August;
17, 1934, P.C. Barton; and, Re Hotel Dieu Hospit;al (Kingst;on) and
A.A.H.P.O., L.o:::al #3, Be:::rl:er grievance, unreported, April 30, 19d7, I.G.
Thorne.
In t;he Mait;land Manor :::ase, t;ne grievor ..as claiming credit; for prior
nursing experience pursuant; to Article 13.05 of the collective agreemenc
oet;.een t;ne Home and t;he Ont;ario Nurses' Associat;ion:
18.05
Effective April 30, 19d3, all nurses shall receive
recognition for relevant and recent; pasc nursing
experien:::e with previous employers on the oasis of one
annual incremenC for every two years of experience, up
to a maximum of three increments on the salary scale.
Ms. More, t;he grievor, .as hired by Mait;land Manor on April 20, 1975. She
had worrl:ed as a nurse in a permanent part-t;ime posit;ion from August 1951 to
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Novemer 1971 at; Che Alexandra :-1:arine and General Hospit;al. ~rom Decemoer
1971 t;o May 1973, she had wor~ed as a nurse in a doct;or's office. ~ro~
January 1974 co March 1375, she wor~ed as a regist;ered nurse at; }oderich
Psychiatric Hospit;al. The Home recognized only t;he cime at; Goderich
Psychiacric Hospit;al as recent; and reLat;ed for t;he purposes of salary
credit. Bot;n part;ies recognized t;he t;ime spenc wor~ing at the do:::t;or's
office as recent, out; unreLat;ed and t;nerefore not; eLigi~le for salary
credit;. The nursing experience gained at; t;oe Alexa~dra Marine a~d Jeneral
Hospital was recognized as oeing relevant; out; t;he real issue was whether it;
was recenC enough to be eligioie for credit;.
At; p.7 of t;he de:::ision, Aroitrator Barton reasons t;oat; oecause the
:::lause places a cap on t;he numbe~ of increment;s which ~ay be credit;ed, and
since each increment; is :::redit;ed for every t..o years of experience, the
clause defines as recent; a period of six years dated bac~ from t;he dat;e of
hire. At; p.3, Arbit;rat;or 8arton concluded t;hat the unororl:en nursing
experience gained ac t;he Alexa~dra :1arine and }eneral Hospit;al from April,
1970 t;o November 1971, wouid oe eligiole for credit; as recent; and related.
To support; his :::onclusion, Arbit;rator Bart;on noted t;hat during tne interval
~hen the grievor ..or~ed in the doctor's office, she was required to utilize
her nurslng SKills. Thus, this int;erval, aithough reco~~ized by the part;ies
as unrelaced, was held not to oe su:::h a oreari: in her worKing career as t;o
make toe experience at; the Alexandra l'1arine and General Hospital t;oo remoce
to be IrecenC" for salary credit; purposes.
The .'1ait;land .'1anor case was reviewed and the reasoning applied oy
Aroit;rat;or Thorne in the Hotel Dieu (~in~st;on) case. ~rt;icle 10.02 of the
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collective agree,uent; dealC wiCh t;he credicing of prior experien:::e for
salary purposes:
Recent; Related Experience
Each new employee shall be infocmed oy Che employer t;hat
claim for recenc related clinical experience, if any,
shall be made in ~rit;ing by the employee at; t;ime of
hiring. The employee shall cooperat;e ~it;h t;he Employer
by providlng verificacion of previous experience, if
necessary, so t;nac ner recenC related clinical
experience may be det;ermined and evaiuat;ed. Having
est;ablished such eKperience t;he Employer will recognize
recent; relat;ed :::llnical experience on t;ne following
basis:
(a)
Experience gaLned wiCh t;he employer in t;he same
classificacion wit;hin t;he five (5) year period
prior t;o dat;e of hire ~ill oe re:::ognized at; the
rat;e of one (1) increment; for ea:::h year of
experience;
(0)
Ot;ner full-t;ime experience ~ill De recognized at;
the raCe of one (1) incremenC for each (2) years of
service;
(c)
Aft;er the inicial year of experience, more t;han
t;hree quarters (3/4) of a year ~ill be recogni~ed
once as a fuil year. ~or example: t;wo and one-
half (2 1/2) years experience :::ount;s as (2) years;
t;..o and three quart;ers (2 3/4) years count;s as
t;hree (3) years; t;hree and one-half (3 1/2) years
counts as three (3) years; t;oree and t;hree-
quart;ers (3 5/4) years counCs as four (4) years;
four and one-quart;er (4 1/4) councs as four (4)
years and so on;
(d)
The maximum scart;ing salary will normaily be four
(4) incremencs (L.evel 4) in cne salary scale, out;
the Hospit;al may place a ne~ employee at; a higher
level wit;h Che agreemenc of t;he Asso:::iat;ion which
agreement; shall not; oe unreasonably wit;hheld
At; issue Det;ween t;he parties ~as ..net;her t;he grievor's experien:::e as a
speech pachologist at; iestern Memorial Hospit;al in Ne.foundland from
Sept;ember 1975 t;o August 1971 would be eligiole for credit;. ~rom Sept;ember
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1971 t;o August; 1973, tne grievor spent; traveiling. In Sept;ember, 1973, tne
grlevor commenced a Mast;ers Degree programma in Speeco L.anguage Pat;hology.
From April 1932 t;o Qct;ooer 19:35 she worrl:ed as a Progran Direct;or of t;he
Communicat;ive Renaoilit;acion progran at; t;he Nort;hwescern Healt;h Unit; in
Dryden, OnCario. Aroicrat;or Thorne held ac p.9 t;hat; t;he 4 1/2 year period
from Sept;ember 1977 t;o Aprli 1932 constitut;ed suCh a ore~ in relaced
experience, in the conCext; of a t;ot;al ~orKing career of 5 1/2 years at t;he
t;ime of hire, t;hat t;he earlier experience in Ne..foundland was too remoCe for
credic:
The cap ment;ioned in Article 16.02(d) offers some
guidance as to ~hat the parties were to consider as
appropriat;e experience for recogni t; ion, although, in my
opinion t;he clause does not go so far as to exciude
experience o::::::urring out;side the eight;-year period from
consideration; st;rictly.it; simply sets a limit on
maximum starting salary. However it shouid be noted
t;hat; t;he previous experience which is in disput;e ended
just out;side the eight-year period. I would regard t;his
as a fact;or to oe considered thougn not a conclusive
one.
More significant; is the actual iength of the break
in relat;ed experience. mat oreaK was of four and a
half years :::ompared to a totai worrl:ing career, at the
grievor's t;ime of oire, of aoout; five a~d a half years.
While much of tne oreak was clearly o:::cupied wit;h
maintaining and L~deed improving her professional
SKills, one year ..as not;. At; sOlne point; experience must;
cease to be "recent;" if that word is to have any effect.
Turning to the language of the collect;ive agreement; in this case, [
find t;hat t;here is nothing in tne language of Art;icle 21.04 which would set;
up ent;it;lement; under Article 21.04(a) as a p~e:::ondit;ion t;o furt;ner or any
ent;iClement; under Art;icle 21.04(0). If toe part;ies had int;ended such a
result;, more explicit; and spe:::ific wording ..ould be required t;o a:::hieve sucn
a result;.
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ThUS, cne ent;it;lement; of Ms. MacKenzie falls t;o be det;ermined under
Art;icle 21.04(b) since she has no relat;ed experience in t;he t;hree years
before her hire. Nhen read wicn Art;icle 21.04(~), and in t;he cont;=xc of t;he
Art;i~le as a whole, [ find t;oac t;he clause est;aolishes a t;en year period
dacing baCK from t;he dace of nir= t;naC is defined or t;ne part;ies as prima
facie eligiole for credit; as recent;, if t;he experience is ot;herwise relevant;
and r=lat;ed. I ..ould also agree wit;n t;he reasoning of Aroicracor Tho~ne
t;oat a :::ap such as t;hat; in Arcicle 21.04(c) necessa~ily does not; exclude
from considerat;ion experience occurring oucside t;ne ten year period; raCh=r
it; sets a limit; on tne maxim~n start;ing salary. It; is t;o be not;ed t;hac
part-t;ime experience in the sane classifl:::at;ion or o:::cupation, if obt;ained
wit;hin t;he t;hree year p=riod prior t;o hire, is eligioLe for credit under
Article 21.04(a) on t;he basis of one in~r=ment; for eacn rear. On the other
hand, credit under 21.04(0) is availaole onLy for full-t;ime, relevant and
relat;ed experience. The purpose of tne clause is to reward in tangible
monet;ary t;erms, the value of an employee who orings e~t;ensive prior
experience whi:::h is t;ransferrabie to the dut;ies and r=sponsibilit;ies of her
classificat;ion upon hire. At; t;ne same time, t;he clause balan:::es t;his
recognit;ion wit;n the fLnan~ial cap cont;ained in Art;L:::le 21.04(c) so t;hat; the
clause should not become an indet;erminace and consideraoLe financial ourden
for t;he Hospit;al.
In Che inst;ant case, counsel for t;ne Asso:::iat;ion ad~ised toe Board that;
it; was seen:ing placement; of t;he grievor at t;ne "aft;=r four years" ievel on
t;he grid as at; the dac= of her hire on November 21, 1939. Thus, since the
grievor's ent;itlement; falls t;o be decermined br t;ne formula in Art;icle
9
21.04(0), the grievor must; establisn eight; years of rele-vant;" related
experience so as to ent;it;Le ner to four increment;s.
~rom ~ay 1979 to ~ebruary 1935, t;he grievor had five and three quarters
(5 3/~) years of cont;inuous full-t;ime experien:::e as a st;aff o:::cupat;ional
t;herapist; at; ~ingston General Hospit;al. From August; 1973 t;oAay 1979, the
grievor held two part;-time jObs in tandem as a st;aff occupacional t;herapist.
Since Article 21.04(0) specifies that; full-t;i~e eKperience only is ~ligiole
for credic, I ~ould exclude tois experien:::e for credit; purposes. rlo~ever, I
would also find tnat su:::o aggcegate part;-Cime experience would serve as a
bridge to ner experience from May 1914 t;o August 1973, since her experience
in t;he same occupat;ion or classificacion was :::ontinuous from May 1974
t;nrough to ~ebruary 1935. Indeed, unliKe the Hot;el Dieu Hospit;al case
declded by Aroit;rat;or Thorne, t;his grievor worrl:ed cont;inuously as a st;aff
occupacional cherapist; from Q::t;ober 1971 to Feoruary 1935 excepc for a
period of eight; mont;hs ~hen she upgcaded her academic qualifi:::acions for Cne
same profession. rhus, in t;ne circ~nst;ances of t;ois case, I would find toat
t;he breari: of less than five years from February 1935 to Novemoer 1939 in the
cont;ext; of a wor~ing career as a st;aff occupacional t;herapisc of almost; 14
years to be insufficient; t;o render ner experience prior t;o ~ebruary 1985
irrelevant, unrelated, or t;oo remOGe in t;ine.
I would further find that; for t;ne t;ime period from May 1979 t;o ~ebruary
1935, a period of five and t;nree-quart;ers (5 3/4) years, t;he grievor wouid
be eligible for at; least; Cwo salary increment;s pursuant; t;o Article 21.04(0}.
As noCed aoove, given t;oe continuous nat;ure of t;he grievor's wor~ experience
as an occupat;ional t;herapisc from 1974 co NoveillOer 1979, I would consider
full-time experience as reiated and relevanc for credic, alt;nough it falls
10
out;side t;he t;en year period ext;ending from No~emo~r 21, 1979 t;o Novemoer 21,
1:339.
As already indlcat;ed, [ ..ould not int;erpret; Coe cap in Art;icle 21.04(c)
as a bar t;o suco considerat;ion, alt;nougn it would const;icute a bar t;o
finan:::ial crediC above five incre.nencs. As already ment;ioned, I would
exclude for salary credit; .purposes coe parC-Cime experience from Augusc 1973
t;o ~ay 1979, out; would con.sider iC as a bridge t;o credit; for t;he full-time
experien:::e oot;ained oy the grievor as a st;aff occupacional t;herapist; from
May 1974 co August; 1973. This is a four year period, ..nich would yield a
furt;oer t;wo salary increment;s in accordance wiCn the formula in Art;icle
21.04(b). Since counsel for t;he Asso:::iat;ion advised me thac it was seeKing
in Chis grievan:::e placement; at the "aft;er four year" level, and since I have
deCermined thac the grievor's experience oughC t;o be :::redit;ed wit;h four
increment;s, ic is unnecessary to decide whecner any of the grievor's
0,
experience prior t;o May 1914 could be eiigible for consideration.
Therefore, I deciare tnat; the grievor ls ent;icled to placement; on t;ne
salary grid as of her dat;e of hire wiCn t;he Hospical at; t;he aft;er four year
level; t;hat; is, at $3290.00 per mont;h. [n tne result;, t;he grievan:::e is
allowed. [n accordance wico t;he request; of t;he parties, I reserve
jurlsdi:::cion on t;he quest;ion of compensat;ion result;ing from t;his de:::laracion
and any otner prooiem of applicat;ion or implement;at;ion arising from this
award. Furt;hermore, I was advised at; t;he hearing that; t;ne grievor was
entitled t;o a furtner incremenC arising from Art;icle 21.04(d) as of January
22, 1991. In accordance wit;h t;ne request; of t;he part;ies, I reserve
jurisdiction t;o deai wiCh any problem arising ~it;h respect; to t;ne placement
11
of t;he grievor on t;he salary grid occurrLng as a resuLt; of t;his award and
ner furt;har ent;it;iement under ArCicla 21.04(J).
Dated ac Kingston, Ont;ario Chis 15th day of August;, 1:191.
c;.
",~.~:'L)
Jane E. E:mr ich
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