[1983] OLRB Rep. January 147
0711-82-M Ontario Public Service Employees Union, Complainant, v. Sheridan College of Applied Arts and Technology, Respondent,
BEFORE: R. 0. MacDowell, Vice-Chairman and Board Members W. H.Wightman and B. L. Armstrong.
APPEARANCES: W A. Lokay and M. LaPointe for the complainant; Janice Baker and P. M. Matthews for the respondent.
DECISION OF R. 0. MACDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; January 13, 1983
This is a reference under section 82 of the Colleges Collective Bargaining Act ("the Act") concerning the status of six individuals classified as "campus supervisors". In accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties and inquire into the duties and responsibilities of the disputed individuals. Pursuant to that appointment, the Officer convened meetings of the parties at the premises of the respondent employer on Thursday, August 26, 1982 and Thursday, September 9, 1982. The parties were agreed that the duties and responsibilities of Mr. W. Little would be considered representative of both himself and those of the other campus supervisors. The parties were further agreed that should the campus supervisors be found to be "employees" for the purposes of the Act, they would properly fall within the "support staff bargaining unit". The respondent employer argues, however, that these individuals exercise managerial functions and cannot, therefore, be included in that bargaining unit. The union asserts the contrary.
The provisions of the Colleges Collective Bargaining Act to which reference will be made are as follows:
In this Act and in the Schedules,
000
(f) "employee" means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2;
000
(1) "person employed in a managerial or confidential capacity" means a person who,
(i) is involved in the formulation of organization objectives and policy in relation to the development and administration of programs of the employer or in the formulation of budgets of the employer,
(ii) spends a significant portion of his time in the supervision of employees,
(iii) is required by reason of his duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee,
(iv) is employed in a position confidential to any person described in subclause i, ii or iii,
(v) is employed in a confidential capacity in matters relating to employee relations,
(vi) is not otherwise described in subclauses i to v but who, in the opinion of the Ontario Labour Relations Board should not be included in a bargaining unit by reason of his duties and responsibilities to the employer;
000
SCHEDULE 2
The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff but does not include,
(i) foremen,
(ii) supervisors,
(iii) persons above the rank of foreman or supervisor,
(iv) persons employed in a confidential capacity in matters related to employee relations or the formulation of a budget of a college of applied arts and technology or of a constituent campus of a college of applied arts and technology including persons employed in clerical, stenographic or secretarial positions,
(v) other persons employed in a managerial or confidential capacity,
(vi) persons regularly employed for not more than twenty-four hours a week,
(vii) students employed in a co-operative educational training program undertaken with a school, college or university,
000
[emphasis added]
Brief reference will also be made to sections 1(3)(b) and 12 of the Labour Relations Act:
l.-(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,
000
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
- The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated directly or indirectly, with an organization that admits to membership persons other than guards.
II
- The structure of a community college differs from that of a private business, and some care must be taken before utilizing concepts developed in a private sector setting, or superimposing them on a public sector educational institution. No doubt it was an appreciation of these differences which prompted the Legislature to enact a specialized statute which spells out, in much more detail than the Labour Relations Act, precisely those functions which, if exercised, should exclude an individual from the ambit of collective bargaining. However, the purpose of the statutory exclusions is one which the Colleges Collective Bargaining Act shares with other labour relations statutes: to ensure that persons in the bargaining unit are not faced with a conflict of interest in respect of potential obligations to their employer which arise from managerial or related responsibilities. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides", whose interest and objectives are sometimes divergent. This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, (1974) Can. LRBR 1 at page 3:
The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and exercised in the way the majority directs. Somewhere in between these competing groups are those in management — on the one hand an employee equally dependent on the enterprise for his livelihood, but on the other hand wielding substantial power over the working life of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided that in the tug of these two competing forces, management must be assigned to the side of the employer.
The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification in the activities of the employees union.
More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the effort is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it.
The determination of employee status under the Colleges Collective Bargaining Act involves a consideration of both the provisions of the Act itself, and the provisions of the appended schedules which define the composition of the two bargaining units. Section 1(f) of the Act specifies that the term "employee" refers to individuals in one or the other of those units; but the unit descriptions exclude persons who, inter alia, are "employed in a managerial capacity". This, in turn, takes one back to section 1(1) of the Act which spells out the kind of functions which should be considered "managerial" and the kinds of persons who must be excluded under this heading.
A perusal of the schedules will reveal certain individuals who are clearly excluded from collective bargaining on the basis of readily ascertainable criteria — for example, persons employed for less than twenty-four hours per week. The status of these persons does not give rise to controversy. But the position of many other persons will not be specifically mentioned, or may be described ambiguously. This is the case of "foremen", or "supervisors" who are mentioned without specific criteria for their identification other than those found in section 1(1).
Section 1(1) envisages a pyramid, or managerial hierarchy which includes "at the top", persons who formulate organization objectives and policy, and nearer the bottom, supervisors who form the "first line" of management. In addition, there are other individuals of subordinate status whose involvement in the grievance procedure, employee relations, or with senior management requires their exclusion, even though they do not themselves exercise supervisory responsibilities vis-a-vis other employees. Finally, section 1(1)(vi) gives the Board a general discretion to exclude other members of the "management team" who have not been specifically described.
While the statutory language is more detailed than in the Labour Relations Act, it is recognized that the application of these provisions is bound to raise interpretive difficulties. There will always be a grey area between those who are clearly included in the bargaining unit, and those who are excluded from it. That is why provision is made for reference to the Board, which attempts to resolve these difficulties in accordance with the evidence in each case and the purpose of the statutory exclusions.
In the case of so-called "first line" managerial employees, the Board has focused on the extent to which the disputed individual can significantly affect the economic lives of his fellow employees so that, for collective bargaining purposes, he is put in a position that creates a conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases, or discipline employees are all manifestations of "managerial" authority, the exercise of which would be incompatible with participation in trade union activities as an ordinary member of the bargaining unit. Indeed, there may be individuals whose formal authority appears to be limited, but who nevertheless make recommendations affecting the economic position of their fellow employees which are so frequently forthcoming, and consistently followed by superiors, that it can be said that, in effect, the "effective" decision is made by them. It is this kind of recommendation which the Board has characterized as an "effective recommendation". The inclusion of these persons in the bargaining unit would also raise the kind of conflict of interest which the statutory exclusions are designed to avoid. In contrast with the position taken by labour boards in other jurisdictions, this Board has held that they too must be excluded.
In each instance, the Board seeks to determine the nature and extent of the disputed individual's authority, as well as the extent to which that authority is actually exercised. If the allegedly managerial functions are not exercised, neither a "managerial" job title, nor a purported "managerial" job description, is likely to be given much weight. Further, there should be some rational relationship between the numbers of superiors and subordinates, consultation, or "input" should not be confused with decision-making, and neither technical expertise nor the importance of an employee's functions can automatically be equated with managerial status. Even the performance of certain co-ordinating functions may not be determinative. Where numbers of people work at a common enterprise (especially in the white-collar service sector) some of them will be engaged in co-ordinating activities which are largely routine, are carried out within a pre-established framework of rules and policies, and are subject to actual managerial authority exercised from above. They act as conduits of information rather than decision-makers, and it may be difficult in the context of a labour relations statute to establish the kind of conflict of interest to which the exclusion portions of the statute are directed. Finally, some individuals may perform some job functions which arguably raise collective bargaining concerns, but many other duties which do not. It was their situation which the Legislature was addressing when it prescribed the exclusion of persons who spend a "significant portion" of their time in the supervision of employees (see section l(l)(ii) ). This approach is similar to that considered by the Board in Falconbridge Nickel Mines Ltd. [1966] OLRB Rep Sept 379:
Most of the persons in dispute have more than one function and generally speaking it is the weight or emphasis attached to the different functions which must determine on which side of the managerial line the persons fall. Senior or skilled employees often have more responsibilities than other rank and file employees and they exercise certain control and direction over the other employees because of their greater experience and skill. It is the Board's difficult task to determine whether the additional responsibilities are managerial functions within the meaning of section l(3)(b) of the Act or are merely incidental to the prime purpose for which the employee is engaged (i.e., to perform work properly performed by persons within the bargaining unit). If the majority of a person's time is occupied by work similar to that performed by employees within the bargaining unit and such person has no effective control or authority over the employees in the bargaining unit but is merely a conduit carrying orders or instructions from management to the employees, the person cannot be said to exercise managerial functions within the meaning of section 1(3)(b) of the Act. On the other hand, if a person is primarily engaged in supervision and direction of other employees and has effective control over their employment relationship, even though the person occasionally performs work similar to the rank and file employees when an emergency arises or to relieve an employee during occasional periods of absence or even to perform a particularly important job requiring special skill and experience, such occasional work in no way derogates from his prime function as a person employed in a managerial capacity. When assessing a person's duties and responsibilities the Board does not look at any one function in isolation but views all functions in their entirety. As stated in the McDougall case above referred to [Local 2890 United Steelworkers of America v. The R. McDougall Company Limited [1943] O.W.N. 7431 titles alone are not much assistance in determining what a person's functions really are.
While the cases cited above would seem to indicate that while a person may have minor supervisory function or very limited confidential function in matters relating to labour relations, if such functions are merely incidental to their main function and are of such a nature that they cannot be said to materially effect the employment relationship of the respondent's employees, such persons should not be excluded from collective bargaining by reason of section l(3)(b) of the Act. Unless a person who regularly performs work similar to persons in a bargaining unit has independent discretionary powers rather than merely incidental reporting functions which are subject to the discretion and authority of higher persons in management, there is no reason to exclude such a person from collective bargaining.
For these individuals it is a matter of weighing the totality of their responsibilities in order to determine whether they are properly regarded as part of the management team. And, of course, given the remedial nature of the statute and the purpose of the statutory exclusions, it is incumbent upon any party seeking to establish or maintain an excluded classification to demonstrate that the functions performed by the subject individuals, create the "mischief' which the exclusions were designed to avoid.
- With this introduction then, we turn to the facts in the instant case.
III
The respondent operates from three separate locations or campuses. Mr. Little is one of the three campus supervisors at the Oakville Campus. He works in the plant department and reports to Howard McKeown, the supervisor of grounds, maintenance and security. On the Oakville Campus the supervisory responsibilities which, it is said, require the exclusion of the campus supervisors from the bargaining unit, are exercised in respect of three bargaining unit employees — two handymen and one journeyman. In other words, the alleged ratio of first-line supervisors to subordinates is one to one. Three bargaining unit employees are said to have three direct "supervisors".
There is obviously no magic number which prescribes the appropriate ratio of managers to manage in any given case. It depends upon the employer's organization. But in the Board's experience, it would require a highly unusual organization or managerial structure, and the clearest possible evidence to support a ratio of superiors to subordinates of the order proposed here. Even in the public sector one does not expect three employees to have three foremen.
Mr. Little has been employed by the College for more than eight years and performs a variety of duties — many of which can be described generally as "security functions". Security services are provided by an outside contractor during the night (12 o'clock to 8:00 a.m.) and on weekends. At other times, this function is performed by the three campus supervisors who alternate on the day and evening shifts, and perform a liaison role between the College and the subcontractor. Because the three campus supervisors alternate shifts, Mr. Little estimated that he spends approximately forty per cent of his time working evenings or weekends. If required to work overtime, he may earn a premium rate of pay, or take lieu time off at some other time.
Mr. Little "supervises" (i.e., monitors) campus events where alcohol is consumed, such as post-football "pub nights", or occasions sponsored by a member of the Faculty. Mr. Little presides over these functions to maintain order and ensure that liquor licensing requirements are being followed. He explains the function rules to the Faculty host, checks liquor prices, ensures that the number of staff available to sell tickets and "man the bar" is adequate, makes sure that no minors are involved, and is responsible for stock control of the alcoholic beverages being delivered to the bar or returned to storage. In this regard, he is responsible for the issuance of receipts and related paperwork. On occasion, it has been necessary for him to close down the bar or terminate a function — as, for example, when an intoxicated student became involved in a serious off-campus accident, or there was a prolonged power failure and it was necessary to clear the cafeteria in which the function was being held. Mr. Little indicated that presiding over such functions took up twenty to thirty per cent of his time.
In addition to presiding over these functions, Mr. Little has a variety of responsibilities involving the safety and security of the campus. He ensures that physical stores are properly secured, checks for safety or fire hazards, and patrols the premises. After the Board of Governors' meetings, Mr. Little told the Board he checks to ensure that no "sensitive documents" have been left behind. He has never found any. If he comes upon a door which should be locked, he locks it.
As might be expected of individuals performing a security role, Mr. Little is involved in the investigation of thefts or other criminal acts which occur on the campus. In this regard, he co-operates with the police and makes reports to Mr. McKeown, his superior. The trade union, he said, does not become involved, although there may be isolated incidents where the alleged criminal activity may involve an employee. Mr. Little said there were perhaps six or eight such instances in the eight years of his employment with the respondent. He further indicated that twice in the past three years there was a theft, which presumably involved an employee, but he was reluctant to indicate whose decision it was to call in the police, nor is it clear how the employee concerned was dealt with or what, if anything, Mr. Little had to do with that process. He said that to his knowledge the union was not involved. The problems normally arise from students and outsiders rather than bargaining unit employees. For example, Mr. Little mentioned his involvement in a drug investigation which has been ongoing for some fourteen months, but which did not involve any bargaining unit employees.
Mr. Little has a residual responsibility for the supervision of part-time students who are employed by the College to perform cleaning and maintenance functions. They work on a part-time basis, with varying hours of work, doing such things as moving furniture, painting, and cleaning. They are referred from other parts of the College, and are paid a fixed rate for their services. Their number is prescribed by the College and the campus supervisor has some role in their selection and supervision. However, these individuals are excluded from the Act, are not represented by the trade union, and we cannot attach much significance either to their presence or the relationship between them and the campus supervisors. It is not unusual for students to be under the direction and control of full-time bargaining unit employees — in the library, for example, where part-time students are supervised by library technicians. It does not follow that those employees are "managerial" within the meaning of the Colleges Collective Bargaining Act or the Labour Relations Act. More often, they are simply senior employees to whom the supervision of part-time students has been delegated. There is no potential for the kind of collective bargaining friction with which the statutory exclusions are concerned.
The campus supervisors also exercise certain responsibilities respecting the outside contractors who perform work on the Campus. It is the campus supervisors who check all areas of the College to identify areas in need of painting or repair. These jobs are subcontracted to various contractors and, thereafter, the campus supervisors monitor their progress. These maintenance and repair jobs are beyond the capacity of the respondent's own employee complement.
The primary basis for the exclusion of the campus supervisors from the bargaining unit rests upon their relationship with the campus handymen and journeyman. It is argued by the respondent that this is a managerial or supervisory relationship. The evidence does not bear out that contention.
Persons with maintenance problems phone the plant department with their complaint which is generally received by the plant department secretary. She makes out a work order stipulating the work to be done which she gives to a campus supervisor, who, in turn, gives the job to a handyman or journeyman. The campus supervisors share the office and may also make out work orders. When the job is completed the handyman or journeyman reports that fact to the campus supervisor who notes that the job has been completed. On the Oakville Campus, work orders are generally picked up at the desk of Mr. Little.
Mr. Little testified that (together with the other two campus supervisors) he was the "supervisor" of the two handymen and the journeyman. However, in practice, the extent of his authority over them is severely circumscribed.
Mr. Little indicated that he had no real influence in the hiring process. Some seven years ago he participated in the interview of an individual who was subsequently hired as a journeyman, however, that individual was the only applicant, and Mr. Little testified that he had no real input in the decision. There is a hiring committee in the maintenance department of which Mr. Little is not a member. He testified that if another handyman were to be hired he thought he would "possibly" discuss the matter with Mr. McKeown and he "assumed" that there was an interview committee who would consider the candidates. Mr. Little conceded that he was not involved in the interviewing process and, we do not think his selection of part-time students (referred to him by others and excluded from the Act) is particularly significant.
Mr. Little does monitor the work of the two handymen and the journeyman, but it is difficult to characterize this responsibility as "managerial" or such as to warrant exclusion from the bargaining unit. Mr. Little has no input into these employees' salary or advancement. He has never been involved in, or discussed, a promotion, transfer, demotion, or layoff. The amount of overtime to be worked is determined by Mr. McKeown, and is allocated among the employees on the basis of their accumulated lieu time. There is no evidence that Mr. Little has required anyone to work overtime. Mr. Little is advised when someone wants casual time off, but that time never extends beyond two or three hours and is taken from a bank of "lieu-time" which the handymen or journeyman have already accumulated. Mr. Little said that he could not grant a leave of absence for as much as a day. The handymen or journeyman tell Little of their intention to take time off, and Little tells the secretary who marks it on their time sheets. Any significant time off must be arranged in advance with the approval of McKeown. An employee returning from sick leave advises the personnel department.
In his eight years of service, Mr. Little has had no involvement with the grievance procedure. He has never received a grievance, nor has he engaged in any discussions about a grievance or labour relations matters. He may have given a verbal admonishment to the handymen or journeyman, but he has never been involved in more serious discipline. He has been present at meetings with management, but there has been no discussion of labour relations matters, or "personalities".
Mr. Little initially testified that he had responsibility for scheduling the hours of the handymen and journeyman, however, on closer examination; he admitted that they only work on the day shift. There is no real scheduling to be done for them —unlike the campus supervisors themselves who are required to work evenings. Mr. Little initially testified that he had issued written warnings on his own initiative, but, when pressed, he admitted that he had not done so directly and that anything other than a verbal warning was channelled through Mr. McKeown. He testified, at first, that he had recommended a suspension, then suggested that he had not done so personally, then indicated that he had taken an individual to his supervisor and that a suspension had resulted. He initially testified that he had purchased up to two thousand dollars worth of material without discussion with Mr. McKeown, then admitted that he did not normally purchase more than one hundred dollars worth of material without approval and that he only approved the higher amount when, for a time, he was substituting for his supervisor. Jack Annis, one of the two campus handymen allegedly "supervised" by Little, testified that in the eight years of his employment with the respondent he has received a verbal and written warning, both of which came from Mr. McKeown.
On the basis of the evidence before us, and having regard to the definition of the bargaining unit and the statutory exclusions prescribed by section 1(1) of the Act, we cannot conclude that the three campus supervisors should be excluded. The degree of authority which they exercise vis-a-vis the three bargaining unit employees is simply insufficient to raise the kind of conflict to which the statutory exclusions are directed. Despite the fact that these individuals have been excluded from the bargaining unit for some time, we do not view their inclusion as causing any collective bargaining difficulties or problems of the kind which the statutory exclusions were intended to avoid.
It is argued by the respondent that the security functions performed by the subject individuals, in themselves, involve some potential for conflict with other members of the bargaining unit. There is some indication of this possibility in the evidence of Mr. Little, although, in practice, it seems to be somewhat remote. It is conceivable, however, that an investigation in which he might be involved might produce information which members of management might act upon to justify the discipline or discharge of an employee — although, we repeat, there is no evidence that, in fact, Mr. Little has been so involved. In his eight years of service with the respondent his activities have rarely put him in a position where a potential conflict might possibly arise and even then his role is ambiguous. There is no evidence indicating that he is the effective decision-maker in determining how employees should be dealt with and in those eight years he has never dealt with or participated in a single grievance. He works, where necessary, in association with the local police forces, and makes reports to management, but he does not have effective decision-making authority. The potential for conflict is, in practice, substantially absent. There is really little indication of any problems which might arise if Mr. Little and his colleagues were included in the bargaining unit. At most, there is a possibility that they might be a witness in a grievance proceeding — although this has never actually happened. We also not that the master agreement covering community colleges contains a classification for security guards. Individuals exercising security functions have not been excluded from the agreement covering Ontario's community colleges.
The Colleges Collective Bargaining Act does not even mention let alone exclude security personnel. In this respect it differs from the Labour Relations Act. The latter statute, of course, does not exclude security guards from collective bargaining, but in recognition of their special responsibility to protect the property of their employer, it does require that they be grouped in a separate bargaining unit represented by a separate trade union. However, the exclusion contemplated in the Labour Relations Act is not an exclusion from collective bargaining altogether, nor is it based upon managerial status. That issue is dealt with in section 1(3)(b) of the Labour Relations Act, and, in our view, the separate treatment underlines the different character of "security" and "managerial" functions.
Under section 1(l)(vi) of the Colleges Collective Bargaining Act, the Board has a discretion to exclude individuals who are not managerial, but who, in the Board's opinion, should nevertheless be excluded from collective bargaining by reason of their duties and responsibilities. That section is broad enough to permit the exclusion of security personnel such as the campus supervisors and there is something to be said for that solution if the potential conflict of interest which we have already discussed were sustained on the evidence. The fact that the Labour Relations Act gives statutory recognition to such potential conflict supports this approach. On the other hand, had the Legislature wished to exclude security guards or accord them special treatment it could easily have done so as it has done in the Labour Relations Act; moreover, as we have already noted, the evidence simply does not establish the "mischief' which would require exclusion. To exercise our discretion in the manner suggested by the respondent would not only be tantamount to legislation — in effect, excluding an entire category of employee from the ambit of statute — but is unnecessary, as the circumstances of this case indicate. We decline to do so.
For the foregoing reasons, the Board finds that the campus supervisors are employees within the meaning of the Colleges Collective Bargaining Act.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
Mr. Little's evidence, as reflected in paragraph 24 of the majority decision, was not of great assistance, particularly insofar as assessing the supervisory managerial aspects of his responsibility, and the Board was thus reduced to making a difficult judgment call.
However, the "security" aspects of his responsibilities, as reflected particularly at paragraph 15, enabled counsel for the respondent to argue, persuasively in my view, that the employer has good reason for being apprehensive at the prospect of its campus supervisors" being included in the main bargaining unit.
If we were to exercise our discretion in deciding to exclude them, as requested by the respondent, we would be doing so based on this specific fact situation and would not, I think, be excluding an "entire category of employee from the ambit of the statute". In my view, it was successfully argued that the longer term interests of all groups within this particular College's community would be served by their exclusion and I would have so found.