HomeMy WebLinkAboutTrautman 10-12-14
IN THE MATTER OF AN ARBITRATION
BETWEEN:
DAWN PATROL CHILD & YOUTH SERVICES, INC.
(The "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 262
. (The "Union")
AND in the matter of the individual grievance of Ms. A. Trautman
ARBITRATOR:
William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER:
A.M. \Tereschagbrr,counsel
T. Henry, exec. dir.
M. Troskot, prog. mgr.
FOR THE UNION:
M. Bevan, OPSEU gr. officer
A. Trautman, grievor
and others
Hearing held in Hamilton on November 18,2010.
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AWARD
In her February 19,2010 grievance, Ms. Alyssa Trautman (the "grievor") claims she was unjustly
denied the January 25,2010 posted position of permanent part-time residential counsellor. On the
day of hearing, the parties stated their agreement that this award deal only with the issue of whether
or not the incumbent, Ms. Rachelle Deneault, met the required qualification, "Certification in Child
& Youth Work ( or equivalent)", included in the "Qualification & Skills" section of the job posting.
Documentary evidence was admitted and no witnesses were called to testify.
The incumbent had been properly notified of the hearing and did not attend.
The parties referred to the following provisions of the collective agreement under which the
grievance arises:
ARTICLE 5 - MANAGEMENT RIGHTS
5.01 The Union recognizes and acknowledges that the management of the Empioyer' s
operations and direction of the Employees are fixed in the Employer and, without
restricting the generality of the foregoing, the Union acknowledges that it is the
exclusive function of the Employer to:
(b) hire, promote. . .
ARTICLE 15 - VACANCIES. PROMOTIONS AND TRANSFERS
15.01 The Employer shall consider abilities and qualifications in effecting promotions
and temporary assignments. Where these factors are relatively equal amongst
candidates, seniority will be the determining factor. Such judgment shall be
made in a fair, impartial and consistent manner.
ARTICLE 16 - JOB POSTING
16.01(a) Where a permanent vacancy occurs in a position within the Bargaining Unit or
a new position within the Bargaining Unit is established by the Employer, such
vacancy shall be posted. . . .
(b) Notwithstanding (a) above, where a vacancy occurs or when a new job is created,
the following factors shall be [sic] govern:
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(i) skill, ability and qualifications to do the work available.
(ii) seniority
If the factors in (i) above are equal among applicants, (ii) shall determine the
successful applicant.
16.02 Such po stings shall include the job title, wage or salary range, and a summary of
duties and qualifications required. . . .
The Employer's "Policy Manual- Human Resources Management" contains the following:
4.01 - 06 Posting Vacancies & Short Listing Candidates
The responsibility for posting new or vacant positions . . . lies with the hiring
manager. '.' . Each job posting should include:
. position title
. description of major responsibilities
. minimum qualifications (academic & experience)
· salary range
. benefits, and
. application information
All applications and resumes for new or vacant positions will be forwarded to the
hiring manager. The hiring manager will select a "short list" of candidates to be
interviewed by the Hiring Team, eliminating unqualified or marginal applications
(i.e., those applicants whose cover letters or resumes do not indicate at least
minimum qualifications).
The job descriptions for, both, a "Residential Counsellor" and, a "Residential Counsellor (Relief)"
include, in the "Qualifications & Skills" section, "Certification in Child & Youth Work (or
equivalent)", as provided for in the January 25, 2010 job posting. Both the grievor and the
incumbent are included on the Employer's "Relief Seniority List"; the grievor had 1,672.75 hours
of seniority, and the incumbent had 530 hours of seniority as at December 2009, in the Residential
Counsellor (Relief) position. The grievor has a B.Soc.Sci. (Honours in Criminology) and does not
have the posted academic qualification of "Certification in Child & Youth Work" ("CYW"). The
incumbent has a "General Arts and Science Certificate" from Mohawk College of Applied Arts and
Technology. As at the date of the job posting, January 25,2010, she had completed all but some 2
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months of the 3-year CYW program at Mohawk College. That is, at the time of the job posting, she
did not have the academic qualification of "Certification in Child & Youth Work."
In a letter dated February 19, 2010, Mr. Mike Troskot, program manager, informed the incumbent,
relevant to our purposes, as follows:
I am pleased to offer you the permanent part-time position at Bernhardt House effective
February 27,2010.
.....
Please supply [the Employer] with a copy of your updated immunization status and your
Child & Youth Worker certificate when you receive it.
Mr. Troskot met with the grievor, apparently some time after the job posting had been awarded to
the incumbent, to provide her with "feedback" about not having been awarded the position. Mr.
Troskot's notes indicate that during the interview:
I rr...formed [the grievor] that [the ineumbent] 1S in her last placement with the [CYW]
Program at Mohawk, she is on track to graduate at the top of her class in early April [2010],
and that in her letter of hire there is a condition that she must provide us with a copy of her
diploma.
The Union argued that the incumbent did not have the qualification of "Certification in Child &
Youth Work (or equivalent)" as required when the permanent part-time Residential Counsellor
position was posted on January 25, 2010. There is no dispute the incumbent had not completed the
CYW Diploma program as of January 25, 2010. Nor is it in dispute that she had no other
qualification which could be said to be "equivalent", in that the ordinary or normal meaning of
equivalent is, "equal in force, amount or value" Re Merriam-Webster Dictionary (on-line version).
On the other hand, the grievor's B.Soc.Sci is recognized by the Employer as being equivalent to
CYW certification. It is not in dispute the incumbent was some 2 months shy of completing the
CYW program, however, attending school and hoping to get the certification is not the same as
possessing the certification.
The Employer's determination that the incumbent had the equivalent qualification begs the question
as to how far back into a course of studies can one say equivalency with the completed program
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exists - halfway? first day of enrolment? Rather, an individual either has completed the program
or has not and, if not, there can be no equivalency to the qualification. In the incumbent's case,
"almost" completing the CYW program is not equivalent to possessing the Diploma. There is
nothing in the collective agreement, for example, language to the effect that being "actively in a
course of studies", is equivalent to having completed that course of study.
In the alternative, the Union argued the Employer recognized that the incumbent did not have the
qualification or equivalency at the time of the job posting. The February 19, 2010 letter of offer for
the posted position to her states, "Please supply [the Employer] with a copy of your . . . Child &
Youth Worker certificate when you receive it." This statement implicitly indicates the incumbent
needed the CYW Diploma in order to be awarded the position in issue. If the Employer is correct
in determining the incumbent had the equivalency of the qualification at the time of the posting,
there was no need for it to require the incumbent to provide her certification when she completed the
program. Rather, it is clear that had she not completed the program, she would not have been able
to keep the job. That the Employer made completion of the program a requirement of the position
is made clear by way of Mr. Troskot's statement to the grievor in the discussion he had with her
concerning the reasons why she was not awarded the position. In that interview, Mr. Troskot told
the grievor, as recorded in his notes, "I informed. . . that in [the incumbent's] letter of hire there is
a condition that she must provide us with a copy of her diploma." The Union argued that this
statement "ends the charade"; in stating that a condition of being awarded the position is the
incumbent must graduate from the program, the Employer recognized she did not have the
equivalency of a CYW Diploma at the time it offered her the job. Had the incumbent dropped out
of the program before its completion, she would not have met the condition for being awarded the
job and could not then have been properly so awarded it.
In support of its position, the Union submitted Re Hamilton Health Sciences and o.NA., [2009] 97
C.L.A.S. 306,2009 CLB 3747 (Whitaker); Re School District No. 48 (Howe Sound) and C. U.P.E.,
Local 779, [1993] 33 C.L.A.S. 267, 1993 CLB 13247 (Kinzie), and, Re District Health Authority
No.1 (South Shore) and c.u.P.E., Local 4150, [2002] 71 C.L.A.S. 316, 2002 CLB 11887
(Archibald).
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The Employer argued that the incumbent had been employed as a part-time relief Residential
Counsellor prior to the job posting, without the CYW certification, and it was at such prior time the
Union should have grieved she did not have the necessary qualification in order to be in that position.
The Employer submitted that under art. 5.01(b), it has the management right to make the decision
as to what qualifications are required for a position. In that regard, there is no issue the CYW
certification is a reasonable requirement of the posted position. Rather, the Union, in the instant
case, is challenging the Employer's management right to determine what is an equivalency to a
posted qualification. In that respect, under its "Posting \T acancies & Short Listing Candidates"
policy, the Employer determined the incumbent was neither "unqualified" nor "margbrral" as a
candidate for the position. In the same way, in exercising its right the Employer determined the
grievor's Bachelor degree was equivalent to the CYW diploma, and, therefore, she was eligible for
the posted position.
The Employer argued that its February 19,2010 letter of offer to the incumbent does not say she
"will lose the job if she does not graduate" nor, that she "must provide a diploma within one week
of graduation." Rather, the letter simply asks for a copy of her certificate, and why should it not?
It is "nice" for the Employer to know what employees' qualifications are and wants to keep track of
their qualifications. For example, under art. 16.02, where an employee applies for a posted position,
he or she "shall do so in writing", including, as did both the incumbent and grievor in the instant
case, a covering letter and an updated resume. Further, as to Mr. Troskot's statement to the grievor
in their interview, viz., "in [the incumbent's] letter of hire there is a condition that she must provide
us with a copy of her diploma", these are not the words the Union says there are in those notes.
Those interview notes reflect a discussion between the grievor and a manager about why the grievor
did not get the posted position. Moreover, those notes clearly state that the incumbent was expected
to graduate and, although a condition in her letter of hire suggested she provide proof of graduation,
it was not expressed as a condition of hire but, rather, was expressed as a request of her. The
Employer had no way of knowing at the time of job posting if she would finish the program. Rather,
it determined that her participation in that 3-year program at that time was equivalent to possessing
the certificate.
The Employer submitted that, in the instant case, while a common understanding of equivalent is
in regard to another degree, nonetheless, the use of the term, "or equivalent", in regard to CYW
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certification, allo~s the Employer to consider equivalency to exist by virtue of the incumbent
attending in a 3-year program and having successfully completed the requirements of year 1 and year
2, including a placement with the Employer, and, attending year 3 and being on track to graduate 2
months after the job posting, which she did. Again, the Employer is not bound to preclude the
incumbent from applying for the position simply because she did not have CYW certification in
January, 2010. Rather, the Employer determined that the incumbent had slJfficient education and
qualifications to possess or have the equivalent of the CYW certificate.
In regard to the case law submitted by the Union, the Employer argued that in those collective
agreements, there is no reference to "equivalent" qualifications in them and, thus, they have no
relevance for purposes at hand. Rather, where the notion of "equivalency" in regard to qualifications
is provided for in a collective agreement, the case law recognizes that an employer has the right to
consider whether someone on "the cusp of graduation" for a specified certification, has the necessary
qualifications to perform the job for which the certification is required. In the instant case, the
Employer's determination that the incumbent had equivalent qualifications was made "in a fair,
impartial and consistent manner" under art. 15.01, as was its determination that the grievor's
Bachelor degree is equivalent to a CYW Diploma. Further, it is to be noted that the qualification of
a CYW certification is not stated as "or equal" but, rather, as "equivalent", which latter word means
"not the same."
In support of its position, the Employer submitted Re Sunbeam Home and London and District
Service Workers' Union, Local 220 (1983), 13 L.A.C. (3d) 183, 1983 CLB 8336 (Rayner), Re
Toronto Public Library and C. u.P.E., Loc. 1996 (1989),5 L.A.C. (4th) 192, 1989 CLB 10859, 13
C.L.A.S. 70 (Burkett), and, Re Regina (City) and C. u.P.E., Local 21 (Erickson) (2009), 189 L.A.C.
(4th) 1 2009 CLB 17805,99 C.L.A.S. 418 (Hood).
In reply, the Union argued that equivalent does not mean, "not the same", but means "equal in value"
and in the instant case, equal in value refers to a certification that is equal in value; "almost" certified
is not good enough to qualify as a certification equal in value to another certification. The Union
agrees that the Employer has the right to determine what "equivalent" is, but that right is not
unfettered and can be, as here, properly challenged by way of a grievance. Mr. Troskot expressly
told the grievor that attaining CYW certification was a "condition" of hire upon the incumbent and,
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it is "not a stretch" to say that without it, the incumbent would not get the job. As to not having
grieved the incumbent's previous placement in the position, the U~on pointed out that it cannot file
a policy grievance regarding a job competition, and without a grievor the matter does not necessarily
come to the Union's attention.
The issue to be determined in this award, is whether or not the incumbent for the position of
permanent part-time Residential Counsellor had the posted qualification of "Certification in Child
& Youth Work (or equivalent)" at the time of the job posting, January 25,2010. I find the merits
of the grievance, on the evidence and submissions before me, require determination of whether or
not the Employer improperly decided that the incumbent's qualifications, at the time of the job
posting, were "equivalent" to CYW certification.
The ordinary or normal meaning of the word "equivalent" as submitted by the Union, and relevant
to our purposes, is "equal in . . . value" Re Merriam-Webster, supra. That is, it is the "value" of
things that are said to be equivalent. Therefore, it remains to be determined whether or not the value
of the incumbent's qualifications were equivalent to the CYW certification at the time of the job
posting.
In Re Hamilton Health Sciences, supra, the union claimed the grievor was improperly denied a
posted position, a qualification for which was "Recent 2 years experience within the last 5 years in
the care of oncology patients." The grievor's application "did not indicate that she had oncology
experience", but that she had "long service in the Henderson ICU" (para.13). In that ICU, "much
of her work. . . is with oncology patients [and she testified] the employer should have known this
and for this reason, credited her with oncology experience" (para. 16). Because her application did
not indicate oncology experience, she was not interviewed for the posted position, but if she had, she
testified "she would have been able to persuade the interviewers that she indeed had the requisite
oncology experience" (para.I7). The Employer contended, among other things, "that the grievor did
not indicate any oncology experience and . . . was properly screened out before the interview stage"
(para. 21). The union argued that the employer, "should have equated the grievor's ICU experience
at the Henderson with sufficient oncology experience. . . and she should have been granted an
interview." (para.22). Relevant to our purposes, arbitrator Whitaker states, at para 28: "On the
basis of the information that was provided in the application filed, the employer reasonably
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concluded that she did not have the minimum threshold of two years of oncology experience in the
last five years" and dismissed the grievance.
The above indicates that where it is determined, on the basis of information provided by an applicant,
the employee does not have the minimum requirements for a position, an employer can properly
exclude him or her from the selection process. What distinguishes the Hamilton Health Sciences
case from the one at hand, is that there is no language in the former in regard to the matter of "or
equivalent" qualifications in the collective agreement.
In Re School District No. 48, supra, the union claimed the grievor had been improperly not awarded
a Clerical Assistant position. The required qualifications included "good typing ability", and, "2
years satisfactory service in similar work." The union argued the grievor's qualifications on those
two criteria were "relatively equal", under art. 9.01 of the collective agreement to those of the
incumbent. Relevant for our purposes, arbitrator Kinzie determined that the grievor did not have
either of the above qualifications "at the time the position was posted and filled" (para. 34), and, at
para. 35, "In light of the fact that the grievor did not meet the minimum qualifications for the
position, no competition arises between her and [the incumbent] for the position."
Similar to the collective agreement in the Hamilton-Wentworth Sciences case, the collective
agreement before arbitrator Kinzie did not contain wording to the effect of "or equivalent", or
"equivalency" concerning the qualifications for a position. Accordingly, the School District No. 48
case is distinguishable from the matter at hand.
In Re Health District Authority No.1, supra, the grievor was denied the posted position of
Journeyman Cook. A qualification for the position was, "Journeyman Cook certification - Nova
Scotia" (para.3). At the time of the posting and her interview, the grievor was ''two weeks away
from writing the examination which would have given her the Nova Scotia Journeyman Cook
certification" (para. 4). The union position was, in effect, that the grievor did have the necessary
certification, given she was only 2 weeks away from completing the college program. Relevant to
our purposes, arbitrator Archibald states, at para. 20: "Given the Grievor's manifest lack of formally
established minimal qualifications for the position at the relevant time when the Employer made its
decision", the grievance was dismissed. In my view, this case would be supportive of the Union's
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position before me except for reason that there was no language in that award similar to the "or
equivalent" language before me in regard to the CYW certification qualification.
As can be seen from the above three awards, where an employee does not meet the minimum
qualifications for a position, an employer can properly not award the position to her or him. These
cases, however, are distinguishable in a significant manner from the issue at hand, in that none
provides for "equivalent" qualifications. Nonetheless, those awards suggest that where an employee
can be said to have the minimum qualifications for a position, the employer would be required to
consider that person for the position. In any event, the awards submitted by the Employer in the
instant case all deal with the matter of equivalency, where the crux of the grievances concerned
whether or not the grievors met the minimum qualifications for a posted position.
In Re Sunbeam Home, supra, the union grieved the employer's determination that the grievor "lacked
the qualifications for the job" (p.183) and did not interview her for a posted position. Arbitrator
Rayner stated,' at p.183, the issue to be determined was ". . . whether the grievor had the
qualifications, or more correctly, equivalent qualifications for the job." In that case, the grievor did
not have "either a M.R.C. or E.C.E. certificate. . . [but] argues her degree in social sciences is at
least equivalent to the academic component for an M.R.C. or E.C.E. certificate course and that her
practical experience more than equals the field training in those courses" (p.185). The collective
agreement provided for, at art. 9.01, a "competitive" clause concerning j ob po stings, "where all the
factors listed in B [i.e., "Ability and Qualifications"] are relatively equal. . . departmental seniority
shall prevail" (p.183). There was no provision of the collective agreement that expressed the notion
of "equivalency". As to that notion, arbitrator Rayner states, at p.186: "The difficult question that
the Board faces is whether the grievor's degree is equivalent to the academic or theoretical
component of the M.R. C. or E. C.E. certificate." After a review of a number of awards, the majority
conchided, relevant for our purposes, as follows at p.187:
These authorities support a conclusion that a board of arbitration may examine equivalency
in terms of formal educational requirements. This conclusion is also supported by common
sense. Formal requirements relate to the job. To conclude that a person who lacks the
precise stated qualifications, when that person can clearly establish true equivalent
qualifications would not only turn a blind eye to the realities of the situation but would also
defeat legitimate expectations of employees without advancing any legitimate interest of the
employer.
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Moreover, the majority states, as a caveat, at p.188: "However in determining equivalency, the board
shall proceed with caution and act only on clear evidence." The majority determined that her degree
was equivalent to the "academic requirements of the M.R.C. and E.C.E. courses" (p.188).
Relevant for our purposes, it would seem the majority in the Sunbeam case found the provision in
art. 9.01 that, in regard to "Ability and Qualifications", whether or not academic qualifications are
"relatively equal" can properly be assessed by arbitrators in terms of equivalency. I note the
dissenting opinion, however, disagreed with the majority on that point, at p.190:
. . . the majority has proceeded to read into the collective agreement or the job description
an invitation to look at qualifications which may be equivalent to those required by the
employer. In my view there is no authority to do this either in the collective agreement or
the job description.
Be that as it may, the matter at hand is distinguishable from the Sunbeam award in that the job
description provides for "Certification in Child & Youth Work (or equivalent)". That said, the
majority, in indicating that there may exist "true equivalent qualifications", appears to suggest that
the formal requirements for a position need be analysed or assessed as they "relate to the job" (p.187)
and not simply to the formal academic requirement. That is, it is the employer's assessment of the
qualifications vis-a-vis the posted job that is the subject-matter at arbitration. In that regard, in Re
Regina (City), supra, arbitrator Hood, at p.25, cites Re Cape Breton District Health Authority #8 and
CA. W - Canada, Locs. 4600 & 4603 (MacDonald) (2003), 125 L.A.C. (4th), para. 44, as follows:
" 'The notion of equivalency refers to the idea that what counts is the existence in an applicant, at
the time of application, of the ability actually, and adequately, to perform the job's duties and not
the source of that capacity' ."
In the Regina (City) case, the grievor was not interviewed for a posted position because the employer
''took the position that [the grievor] did not have this education [i.e., a university degree or diploma]
and was therefore not granted an interview" (para. 1). The grievor's position, in effect, was that his
long service (23 years) and various non-degree/non-diploma courses were equivalent to the required
degree or diploma. Similar to the circumstance in the Sunbeam case, there is no indication in that
award of a provision in the collective agreement or in the job description of the notion of
"equivalency". In any event, arbitrator Hood states, at para. 64:
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It would be absurd to defeat the more senior candidate merely because he or she did not have
the exact educational qualifications determined necessary for the position when it is clear the
applicant possesses the equivalent of such qualifications.
In that case, arbitrator Hood found that the grievor's academic qualifications fell well-short of being
equivalent to the required degree or diploma.
Relevant to our purposes, arbitrator Hood, similar to the majority in the Sunbeam case, assessed the
grievor's qualifications against the requirements of the job and not simply against the required
qualification, itself. This same approach was taken by arbitrator Burkett in the Toronto Public
Library case.
In Re Toronto Library, supra, the union contended that the grievor was improperly denied the
position of "Head, Spaced-Out Library" (p.192) and had not been interviewed for the position
because the posted position required "four years of professional library experience" (p.192). At the
time of posting, the grievor had a Master of Library Science degree and "three years and ten months
of experience as a professional librarian with the employer" (p.192). In noting an agreement
between the parties with respect to the position of library assistant, viz., academic qualifications
included, "Bachelor's degree or equivalent" (p.195), arbitrator Burkett reasoned that "or equivalent"
also applied in regard to the grievor's qualifications, albeit for a more senior position: "It would be
unusual, to say the least, if equivalent qualifications were to be considered in respect of one job but
not in respect of another" (p.203). Relevant for our purposes, arbitrator Burkett states, at p.200:
"Equivalent qualifications are those that although not stipulated have equal significance or value in
relation to the job in issue." Moreover, at p.203:
To deny an applicant who possesses equivalent qualifications from consideration on the basis
of a mechanistic application of the stated qualifications . . . is the antithesis of a fair and
reasonable exercise of managerial discretion.
In that case, arbitrator Burkett found that the grievor's professional experience of 3 years and 10
months was equivalent to 4 years of experience.
Relevant to our purposes, arbitrator Burkett, consistent with the approaches taken in the Sunbeam
and Regina (City) cases, viewed the matter of equivalency from the perspective of the requirements
of the job and not from the perspective of the qualification, itself.
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I concur with the approach taken in regard to matter of .qualifications equivalency in the Sunbeam,
Regina (City), and, Toronto Library Board cases, particularly so in that the job description for the
position in question provides for "Certification in Child & Youth Work (or equivalent)". Therefore,
in order to determine whether or not the incumbent in the instant case had the equivalent of the CYW
certification at the time of posting, her qualifications for the position are properly assessed against
. the requirements of the job of permanent part-time Residential Counsellor.
The program of studies followed by the incumbent leads to CYW certification, i.e., the required
qualification for the posted position in issue. At the time of the job posting, she had completed the
first 2 years of the program and all but 2 months of the third and final year. Given the length of the
program, the amount of the program the incumbent had completed at the time of job posting, and,
the time remaining to complete the program, it is not unreasonable to conclude that whatever amount
of knowledge and training were to be gained in her final two months would be minimal relative to
the knowledge and training for the position she had already gained. In these circumstances, I find it
was not unreasonable for the Employer to have assessed the incumbent's qualifications as being
equivalent to the CYW certificate as measured against the requirements of the posted position. I
find, therefore, that in awarding the position in issue to the incumbent, the Employer did not breach
the provisions of the collective agreement. I find it reasonably and fairly assessed the incumbent's
. qualifications at the time of posting.
Dated at Toronto, this
! If l^- ~ I
I .~ day of ---lj{)Z9rfi\JK"V ,2010.
{lie it ~l1zo I}. Jllj(~-?-l&
William A. Marcotte
Arbitrator