HomeMy WebLinkAboutPhillips 02-08-22
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IN THE MATTER OF AN ARBITRATION
RECEIVED
-08- 2 6 2002
OPSEU UONNSV I EW
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
(the "Unionll)
- AND -
BAYCREST CENTRE FOR GERIATRIC CARE {
(the II Employer" )
AND IN THE MATTER OF THE GRIEVANCE OF DIANE PHILLIPS
BOARD OF ARBITRATION
Robert D. Howe, Chair
Michael Lyons { Union Nominee
Robert Gallivan, Employer Nominee
APPEARANCES
For the Union
Mary Anne Kuntz, District
Grievance Officer
Diane Phillips
For the Employer
John Saunders, Counsel
Joyce Lagunoff
Elizabeth Miller
Gurjeet Gill
A hearing in the above matter was held in Toronto, Ontario on
July 18, 2002.
., ".~.
AWARD
The issue in these proceedings is whether the two
hours that the grievor was away from work on July 5, 2001 for
an x-ray and medical appointment should be treated as sick
leave time or as time which she is required to make up.
The parties agreed to argue the grievance on the
'basis of the following agreed statement of facts:
In addition to various documents that the parties
intend to admit on consent in this matter{ the
following facts are agreed upon:
1. The grievor, Diane Phillips is a Senior Social Worker
at the Centre (MSW II) and has been employed since
April 1974. She normally works seven hours per day
from 9:00 am to 5:00 pm with a one hour unpaid lunch.
2. She currently holds the position of President of OPSEU
Local 595.
3. On or about February 14, 2001{ Ms. Phillips sustained
an undisplaced fracture of the right elbow arising from
being hit by a puck while attending a hockey game at
the Air Canada Centre.
4. Ms. Phillips is right handed. While the injury did not
require surgery, she was required to wear a stabilizing
brace on her right arm for some time.
5. She remained off work on sick leave for approximately
four and one-half (4 1/2) weeks.
6. Toward the end of March 2001, she returned to work on
modified hours and duties owing to the limitations
imposed by the injury.
7. The return to work plan called for a gradual increase
from four hours daily to seven hours over a period of
weeks. During this time she received wages from the
Centre for those hours that she actually worked and was
then "topped Up" with sick leave hours to a maximum of
seven hours per day.
8. After the first three weeks of modified hours during
which she progressed to six hours per day, she asked
for and obtained medical approval to freeze her hours
at six per day for a further few weeks.
1
9. Ms. Phillips returned to full-time hours the week of
April 30{ 2001 but remained unable to perform certain
aspects of her position. For example; writing,
computer work and manipulating wheelchairs remained
difficult and painful,
10. Throughout this period, Ms. Phillips continued with
prescribed Physiotherapy treatment. Whenever these
treatments occurred during working hours Ms. Phillips
took the appropriate amount of time off for the
treatment and made up an equivalent amount of time at a
later opportunity. She did not suffer any financial
loss and did not receive any sick leave payments for
this time away from work.
11. At the time of her return to work, her physiotherapy
treatments were four times weekly and she attended
these on her own time.
12. As she progressed{ the treatments were reduced to three
times weekly. As her work hours increased, she used
personal and other time to attend these treatments but
made an effort to minimize any disruption in her
workday.
13. The physiotherapy treatments continued until June 2001.
The hours used for this purpose during her workday were
not taken as sick time.
14. From the date of the injury in February 2001, through
to and including July 5, 2001, Ms, Phillips was treated
by Dr. Erin Boynton, an orthopedic Surgeon at Mount
Sinai Hospital. .
15. Her elbow fracture was x-rayed regularly and she saw
Dr. Boynton monthly.
16. The Occupational Health Service at the Hospital was
regularly furnished with the requisite medical reports
on the progress of the grievor1s injury.
17. Ms. Phillips had expected that her last appointment and
x-ray would be on June 21, 2001.
18. However, on June 15, 2001, Ms. Phillips advised her
supervisor{ Ms. Lagunoff that the appointment date of
June 21{ 2001 had been cancelled by the Doctor's office
and rescheduled to July 5, 2001,
19. She asked Ms. Lagunoff at the time for confirmation
that, as with previous related medical appointments,
j-his rimf" 'll()ll1d hp rltr-rir)llt,-:'rl to sirk timp
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20. On June 7, 2001, in spite of not having attended what
turned out to be her final x-ray and appointment with
Dr. Boynton (expected to be June 21, 2001), Ms.
Phillips took herself off modified duties in
consultation with Dr. Gratton of the Occupational
Health Department. Dr. Gratton was aware that there
was at least one appointment scheduled and x-ray
planned.
21. On July 5{ 2001 Ms. Phillips attended for an x-ray and
medical appointment with Dr. Boynton. The appointment
was between the hours of 8:00 am and 10:30 am and she
returned to the Centre at 11:00 am for the remainder of
her shift. Had she not had the medical appointment Ms.
Phillips would have been able to work her regular hours
of work between 9:00 am and 5:00 pm,
22. The Centre offered to allow Ms. Phillips to continue to
receive her regular pay of seven hours for the day in
question if she umade up" the two hours at a later
time.
23. All of Ms. Phillip'S previous x-ray appointments and
evaluations by her physician arising from this injury
were attributed to sick time except for the appointment
on July 5, 2001. Previous medical appointments had not
overlapped with actual working hours. On the days in
question, Ms. Phillips had been in receipt of sick
leave benefits.
24. When Ms. Phillips was advised that she could not
attribute two hours on July 5, 2001 to her sick time,
she filed a grievance dated August 2, 2001 asserting a
violation of Article 24.01 of the collective agreement.
The documents entered into evidence on the consent of
the parties included the collective agreement, the grievance,
the Employer's reply to the grievance, medical reports,
modified duties documentation{ an employee health report,
excerpts from the Employer's Human Resources Manual, and a
number of e-mails. The employee health report, which was
signed by Dr. Gratton of the Employer's Occupational Health
and Safety Department on lJune 7, 2001, indicates that the
grievor IImay resume regular dut.ies" without any rest.rictions.
l)r, C;ratton wrote the words lias neededll on the IIFo11owup
j
appointment datell line of the report immediately above his
signature. The grievor also signed the report, thereby
authorizing that information to be released to her supervisor.
The e-mails indicate that an appointment which the grievor had
with Dr. Boynton on Thursday April 26{ 2001 was attributed to
sick time. They also indicate -that the grievor IImade Upll the
two hours which she was absent from work on July 5, 2001 as a
result of her x-ray and medical appointment by allocating one
and one-half hours of accumulated overtime and by working an
additional one-half hour (by taking a half-hour lunch on
November 29, 2001).
Collective Agreement provisions
Article 24 of the collective agreement (the
HAgreement") provides, in part, as follows:
Article 24 - Sick Leave
24.01 Sick leave is time taken with pay due to
illness, disability or quarantine not
compensable by Workers' Compensation. When an
employee has an accident and is unable to work
her day or part of her day because of the
accident she will be entitled to sick pay for
any part of the day she misses.
24.03 (a) Upon completion of three (3) months of
service{ employees will be entitled to up
to fifteen (15) weeks of sick leave pay in
accordance with the following schedule:
Length of Service
Benefit Paid at
% of Salary
3 - 9 months
9 months - 2
2 - 3 years
3 - 4 years
Tl1nrp rhFln ft
years
66 2/3%
70%'
80~o
90%'
JOO%-
'/F);-l rs
J. .. ..
<1
For the purpose of this article, service
means service since September 11 1979.
Persons employed prior to that date will
continue to benefit from use of their sick
leave supplement bank.
(b) Where an employee returns to work after an
absence and continues working for a period
of more than three weeks without a further
absence the employee's entitlement to a
full fifteen (15) weeks will be reinstated.
Summary of the Union's Submissions
In her submissions on behalf of the Union { Ms. Kuntz
submitted that the July 5{ 2001 x-ray and medical appointment
flowed directly from the grievor1s injury and should be
covered by sick leave in the same manner as all of her
previous appointments with Dr. Boynton, including the one
which took place on April 26, 2001. The Employer's failure to
treat the July 5, 2001 appointment in the same way as the
April 26, 2001 appointment penalizes the grievor for taking
herself off modified duties. Article 24 is quite a generous
sick leave plan and is fairly unique. Although entitlement
under that provision is subject to the Employer's ability to
determine that sick leave is being paid for a bona fide
illness, there is no dispute in the present case regarding the
bona fide nature of the grievor's situation. Article 24.01
contains no conditions which set out any substantial
limitations on entitlement. It does not give the Employer a
discretion to deny sick leave for an absence resulting from a
bona fide illness or injury. Given the contiguous nature of
the appointment, it was inappropriate for the Employer to
5
require the grievor to make up the time involved in attending
it. Although the only specific reference to receiving sick
pay for part of a day relates to compensable accidents, there
is no barrier to sick leave being attributed to part of a day
so long as it relates to a disability. Entitlement to sick
leave for part of a day avoids possible abuse{ as it renders
it unnecessary for an employee to take an entire day off for a
medical appointment that only requires an absence of a few
hours. Here there was an ongoing disability for which the
grievor had approved sick leave time off in the past. The
July 5, 2001 appointment was simply a follow-up not materially
different from the April 26, 2001 appointment. Those
appointments are distinguishable from a normal maintenance of
health medical appointment. Finding sick leave to only be
accessible for medical appointments which occur while an
employee is on modified duties would be an excessively narrow
interpretation of Article 24.
Cases relied upon by the Union include Re St.
Joseph's Hospital and United Nurses of Alberta (1987) { 28
L.A.C. (3d) 185 (Ponak) i Re Peel Board of Education and
O.S.S.T.F. (Lambert) (1998){ 73 L.A.C. (4th) 183 (Albertyn)i
Re Air Canada and I.A.M. Lodge 40 (Ardito) (2000){ 91 L.A.C.
(4th) 94 (M.G. Picher) i Re B.C. Cancer Agency and B.C.N.U.
(Edwards) (1997), 65 L.A.C. (4th) 380 (Larson) i and Re Meadow
Park Nursing Home and Service Employees International Union.
Local 220 (1983) 1 9 L.A.C. (3d) 137 (Swan).
The remedipscequestpd are rl declCi1'at ion that Acticle
6
24 has been breached and an order that the time the grievor
was required to make up be returned to her.
Summary of Employer Counsel's Submissions
Mr. Saunders submitted that the Employer has no
obligation under Article 24.01 to provide sick leave to the
grievor for the two hours in question because the grievor did
not have an illness or disability on July 51 2001. As of
June 7, 2001, she had been cleared to return to her regular
duties with no restrictions. Since she was not precluded by
an illness or a disability from working on July 5, 2001{ she
was not entitled under the first sentence of Article 24.01 to
receive sick pay for the two hours that she was away from work
that day for an x-ray and medical appointment. The second
sentence of Article 24.01 is also inapplicable. Since under
the Workplace Safety and Insurance Act entitlement to
compensation in respect of a compensable accident starts on
the day after the accident, that sentence is included in the
Agreement to ensure that employees receive a full day's pay
for the day of the accident. It has no application to ongoing
medical appointments.
In support of his submissions, Mr. Saunders referred
to Re Ontario (Ministry of Housing) and C.U.P.R. Loc. 767
(1994), 39 L.A.C. (4th) 1 (G.S.B.); Re General Bakeries Ltd.
and Milk and Bread Drivers Union, Local 647 (1981)1 2 L.A.C.
(3d) 444 (Rayner); Re Bell Canada and Communications Workers
of Canada, unreported award issued in 1979 by arbitrator
Burkett.; and Re Metropolitan Toronto (Municipality) and
7
C.U.P.E.. Loc. 79 (1989){ 7 L.A.C. (4th) 214 (Davis). He also
submitted that none of the cases relied upon by the Union
apply to the facts of the present case, as they are all
factually distinguishable.
Summary of Union Counsel's Reply Submissions
In replying to those arguments { Ms, Kuntz noted that
Dr. Gratton wrote the words lias neededll on the IIFollow-up
appointment datell line of the employee health report which he
signed on June 7, 2001. She also noted that there is no
dispute between the parties that the July 51 2001 appointment
was needed. She submitted that it was a necessary and logical
follow-up arising from the grievor's injurYI and that it would
be an unnecessarily restrictive interpretation of Article 24
to limit sick time in the manner advocated by counsel for the
Employer. She further submitted that although it confirmed
the decision made by Dr. Gratton{ the July 51 2001 appointment
and x-ray could have gone the other way. While the grievorrs
injury no longer prevented her from working seven hours a day,
she was still in the process of healing at the time of that
appointment.
Decision
The cases cited by the Union establish a number of
principles regarding sick leave. In construing a provision
which gave the employer a discretion to deny sick leave
payment tlfor the first two (2) days of absence in the fourth
and succeeding periods of leave due to sickness in each
calendal':' yearrr I arbitxatol':' Swan wl':'ote, in pal':'t, as follows in
8
Re Meadow Park Nursing Home and Service Employees
International Union. Local 220{ supra, at pages 142-3:
In these circumstances, where the parties have agreed
to give the employer a discretion to suspend payment
of earned benefits in certain circumstances, we
think that it must have been intended in using that
formulation to incorporate a number of elements of
the administrative law concept of discretion. In
particular, we think that the exercise of the
employer's discretion must be in good faith, must be a
genuine exercise of discretion and not merely the
application of rigid policy, and must include a
consideration of the merits of each individual case.
All relevant factors must be considered, but no
extraneous or irrelevant considerations may be taken
into account. Finally{ we think the parties must have
intended that an exercise of discretion so unreasonable
that no reasonable employer could ever have come to it
would fall outside the meaning of art. 14:05.
Re St. Joseph's Hospital and United Nurses of
Alberta, supra{ indicates (at page 193) that where an employee
reacts to a relative's serious illness with great anxiety,
depression, and an inability to cope, that reaction can fall
within the definition of "illness" because Hone cannot base
illness on causes rather than on symptoms". That case was
cited with approval in Re B.C. Cancer Agency and B,C.N.U,
(Edwards) { supra, in which arbitrator Larson noted (at page
387) that "a number of authorities have expressly denigrated
causation as a factor of entitlement and have chosen to rely
entirely upon a test of disablement. II A similar approach was
adopted by the Grievance Settlement Board in Re Ontario
(Ministry of Housing) and C.U.P.E. Loc, 767, in rejecting the
concept of self-infliction as a basis for determining whether
a condition constitutes an illness, and adopting the test that
II illness and hence entitlement to sick leave is estahl. ished
9
where the objective evidence establishes a physical (and
possibly emotional) inability to perform work. II Disablement
was also the test applied in Re Peel Board of Education and
O.S.S.T.P. (Lambert) { supra, which held that sick leave may be
available to an employee for a portion of a day, where the
employee lacks the capacity to work a full day due to ill
health.
The test of disablement or inability to perform work
has also been applied by arbitrators in the context of
determining employee entitlement to sick pay for time spent
attending medical (and dental) appointments. In Re Bell
Canada and Communications Workers of Canada, supra, an
employee who resided in Cornwall was under the care of a
medical practitioner in Kingston for Crohn's disease. On May
17{ 1978 the employee was absent from work in order to attend
an appointment with that physician{ having advised his
foreperson of the appointment two weeks in advance. The issue
which the board of arbitration chaired by arbitrator Burkett
was called upon to determine in that case was whether on the
day in question the grievor was lIabsent on account of
sickness" (within the meaning of Article 25.01 of the
applicable collective agreement). The award includes the
following passage (at page 6) which has been quoted with
approval in subsequent awards:
It is necessary to distinguish three types of doctor's
appointments. Employees may visit the doctor because
of the onset of health problems which are making it
difficult or impossible for them to carry out their
daily functions,... Employees may also visit the
doctor atter having been confined because ot sickness
10
in order to be advised as to whether or not they are
fit to return to their normal routine.... Employees
may also visit the doctor when they are well enough to
work but suffer from some ongoing health problem which
requires periodic monitoring.
The board concluded that although the first two types
of appointments could be considered IIsickness" and could,
therefore, fall within the sick-pay provision, the latter type
of appointment could not. In interpreting the word
II sickness II , the board accepted the Company's argument Uthat
there is no such thing as perfect health so that the word
'sickness., which connotes a lack of health, must be given
meaning from the context in which it is usedll, After noting
the duty of the employee to attend at work if able, the Board
expressed the following view:
... having regard to this fundamental requirement of
the employer/employee relationship we are unable to
conclude in the absence of clear and compelling
language to the contrary, that the term sickness as
used by the parties in art. 25.01 of their collective
agreement { refers to a state of health which would
allow a person to attend at work. In our view, the
term "sickness" in art. 25.01 refers to a state of
health which renders a person unable to attend at work
and accordingly, the entitlement under art. 25.01 is to
be paid when unable to work because of the state of
one's health.
Consequently, the board concluded that the employee was not
entitled to sick pay for the day in question because he
llmissed work not because his health was such that he could not
work but because he scheduled a doctor1s appointment during
his scheduled work hoursll.
In Re General Bakeries Ltd. and Milk and B~~aQ
Drivers Union, Local 647, supra, a driver salesperson was
absent from work for a day for the purpose of attending a
11
diagnostic appointment with a specialist{ at which he
underwent several tests in respect of his chronic problem with
migraine headaches. The employee was capable of attending
work on the day in question and would have been at work if he
had not had that appointment. The specialistrs schedule and
the company's schedule rendered it impossible for the employee
to see the specialist without missing time from work. Under
the provisions of the applicable collective agreement, a
driver salesman absent from his route would normally lose
one-fifth of the route earnings for the week for each day of
absence. However{ an article designed to protect earnings
when there was a verified illness provided that a
non-probationary employee would !Iif absent for verified
personal illness, have deducted from his pay the sum of $18.00
for each of the first three working days of illness!l (with
weekly sickness indemnity benefits becoming payable
thereafter). The majority of the arbitration board chaired by
arbitrator Rayner adopted and applied the Bell Canada
reasoning. After summarizing and quoting from that award,
they wrote as follows (at pages 447-8) :
In essence, the board in the Bell Canada case had to
engage in a line-drawing exercise. Obviously, all
appointments with physicians or specialists who treat
the body in one fashion or another cannot be said to
amount to personal illness. Hence, it becomes
necessary to draw a line between those appointments
which would be covered by the article in question and
those appoints which would not be covered by the
article in question. In passing, we point out that we
feel that there is no distinction between the word
!Iillness" and the word "sickness".
rn ('In!:' vi_e"', the rr::'21-sordng of the bO,3_:cd iq
for application to the situation at hand.
Hnnrnnri H t- p
--J-.-;i..- n., ."-i-,,-' '",....- ,. -
The line
12
, ,
drawn by the board in the earlier case is a sensible
line and one that protects both parties as much as
possible. We therefore adopt the reasoning in Bell
Canada.
Applying that reasoning to the instant case, we must
conclude that the grievor was not absent from work on
the day in question because of his chronic migraine
headache condition. Rather, he was capable of
attending at work but was absent because of the
conflict of the doctor's schedule and the company's
schedule.
Given this conclusion, it is necessary therefore to
dismiss the grievance.
The Bell Canada reasoning was also adopted and
applied by arbitrator Davis in Re Metropolitan Toronto
(Municipality) and C.D.P.E., Loc. 79{ supra. The applicable
collective agreement provided (in Article 11) for sick pay
"for any time lost by reason of illness, or injury" (other
than compensable injuries) to the full extent of the sick pay
credits available to the employee under the terms of the
agreement. In that case an employee had a number of absences
from work as a result of a fractured tooth and an infection
which developed after the fractured portion of the tooth was
removed by the employee's dentist, culminating in the
extract'ion of the remainder of the tooth. The employee
received sick pay for all of those absences. However{ she was
denied sick pay for two subsequent dental appointments which
she attended for the purpose of obtaining a fixed bridge
prosthesis to replace the extracted tooth. After referring
with approval to the Bell Canada and General Bakeries cases,
arbitrator Egan wrote, in part, as follows (at pages 220-1) in
dismissinq the qrievances by which the employee souqht to
1 C)
~,)
obtain sick pay for the time spent attending those two
appointments:
In viewing the instant case against the background of
art. 11 and the arbitral reasoning in the Bell Canada
and General Bakeries cases it is evident that from
August 31, 1987, the grievor was suffering from a
periodic disability causing a loss of time from work on
August 31stl September 1st, September 9th, October 2nd
and October 22nd. The recurring disability was brought
to an end on October 22nd by the extraction of the
tooth. The grievor was paid for the time lost on those
days as was required by art. 11.12. How then are the
dental appointments of January 21 and 28, 1988 to be
viewed?
-l---
It is [true], as argued by the union, that had it not
been necessary in the treatment of the grievor's
disability to extract the tooth there would have been
no [rationale] for the bridge prosthesis. I have
difficulty in accepting the further suggested step that
accordingly the prosthesis was part and parcel of the
original treatment. In my view as of October 22, 1987,
the grievor was no longer suffering from the unhealthy
condition which resulted in her previous lost time from
work and there was no remaining vestige of the initial
disability to be ameliorated whether by way of
prosthesis or otherwise. The only purpose of the
prosthesis would appear to be, as suggested in the
grievor's evidence, to facilitate the mastication of
food and to preclude a potential future shifting of
teeth. What would be the medical implications of
either of those events is not a facet I could comment
on absent expert evidence which is not before me.
In the three types of doctor's appointments enumerated
in the Bell Canada case it is evident that sick pay is
considered as being for the purpose of compensating the
employee for his absence as a result of illness. The
third type of appointment makes clear that appointments
for the periodic monitoring of an ongoing health
problem [do] not reveal a condition making it difficult
or impossible for the employee to perform his usual
dutiesl and that being the case it cannot be said that
the absence from work is one which qualifies for paid
sick time. Rather it is in the nature of preventive
treatment to ensure that the chronic condition is not
developing to a level which would result in an absence
from work. While the instant circumstances do not fit
four-square into the third type of enumerated
appointment in that here there is not even an ongoing
or continuing health condition to be monitored but the
purpose of the prosthesis, at its highest, can only be
14
to potentially prevent a health problem from developing
in the future. Whether such a future health problem as
might develop would be one which would make it
necessary for the employee to absent himself from work
can only be a matter of sheer speculation. While the
installation of the prosthesis may well be good
preventive medicine and a sensible precaution to takel
it is too remote to be brought within the meaning of
art. 11 as it now stands to qualify for the payment of
sick pay.
For the foregoing reasons the grievances must be
dismissed.
In the instant easel the operative language contained
in Article 24 of the Agreement does not differ materially from
that contained in the provisions construed in the Bell Canada
and Metropolitan Toronto cases. It provides sick pay for
"time taken ... due to illnessl disability or quarantine not
compensable by Workers' Compensation". Since it is clear that
the two hours which the grievor was absent from work on July
51 2001 were not compensable by Workers' Compensation and did
not involve any quarantinel the issue is whether the grievor
was absent from work for those two hours due to illness or
disability.
We respectfully agree with the rationale set forth in
the Bell Canada easel which has been adopted and applied in
subsequent arbitration awards. That rationale is based upon
the test of disablement or inability to perform workl which
test has found favour with many arbitrators in the context of
cases involving sick pay. Moreoverl as noted by arbitrator
Rayner in General Bakeries, the line drawn by arbitrator
Burkett in .6.el1~_.C.9n9.cta is a sensible one which duly protects
the disparate interests of the parties,
l':i
In the instant case, the grievor took herself off
modified duties on June 7, 2001 in consultation with Dr.
Gratton, who signed an employee health report that day
indicating that she was able to resume her regular duties.
Although the need for her x-ray and medical appointment with
Dr. Boynton on July 5{ 2001 arose from the fact that she
suffered a disabling injury on February 14{ 2001, by the time
of that appointment she was no longer disabled by that injury.
As indicated in paragraph 21 of the Agreed Statement of Facts,
it is common ground between the parties that had the grievor
not had the medical appointment with Dr. BoyntQn on July 5,
2001, she would have been able to work her regular hours of
work between 9:00 a.m. and 5:00 p.m. Thus, the grievor was
not absent from work from 9:00 a.m. to 11:00 a.m. that day due
to illness or disability within the meaning of Article 24 of
the Agreement, but rather was absent for those two hours
because the timing of her medical appointment { which falls
within the purview of the third category described by
arbitrator Burkett in Bell Canada, conflicted with some of her
normal working hours that day.
For the foregoing reasons, the grievance is hereby
dismissed.
DATED at Burlington, Ontario, this 22nd day of August, 2002.
/~ ' .~ /1 /~2J" ,
~ /(;'~A (D "'-J' '.>' Z.L'~
Robert D. Howe
Chair
16
I concur.
"Michael Lyons"
Union Nominee
I concur.
"Robert Gallivan"
Employer Nominee
17