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HomeMy WebLinkAbout2002-1457.Cartwright et al.05-10-11 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1457 2002-2196 2002-2244 2002-2068 2003-0268 2003-0891 2003-3699 2003-3765 2003-3952,2003-4110 2004-02512004-1297 2004-1298 2004-1448 2004-1546 2004-1576 2004-1786 2004-2862 UNION# 2002-0234-0068 2002-0234-0106 2002-0234-0107 2002-0233-0035 2002-0233-0037 2002-0234-0105 2003-0521-0020 2003-0521-0057 2003-0467-0048 2003-0999-0033 2004-0467-0002,2004-0999-0001 2004-0582-0002,2004-0467-0013 2004-0467-0014 2004-0234-0398 2004-0368-0045 2004-0368-0049 2004-0234-0448 2003-0234-0129 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cartwnght et al) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION John BrewIn Ryder Wnght Blair & Holmes LLP BarrIsters and SOlICItorS -and- Tim Mulhall Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sean Kearney Semor Counsel Management Board Secretanat HEARING October 5 2005 2 DeCISIon At Issue IS whether the Employer the Mimstry of Commumty Safety and CorrectIOnal ServIces, has vIOlated the collectIve agreement, specIfically ArtIcle 8 5 2, when It faIled to pay to the gnevors the negotIated OPSEU wage Increases whIle they served In temporary actIng assIgnments as OperatIOnal Managers ArtIcle 8 5 2 provIdes as follows When an employee IS temporanly assIgned to a non-bargaInIng umt posItIOn, he or she shall contInue to pay dues to OPSEU and contInue to be covered by the CollectIve Agreements for the entIre term of the temporary assIgnment. It IS the Umon's contentIOn that thIS provIsIOn provIdes that the gnevors, whIle on temporary assIgnment outsIde of the bargaInIng umt, remaIn covered by the collectIve agreement, and are therefore entItled to benefit from all of ItS provIsIOns, IncludIng negotIated pay Increases to theIr home posItIOn. The Employer strongly dIsputes thIS contentIOn. Facts At the heanng, the partIes agreed to an Agreed Statement of Facts and the Employer called one wItness The Agreed Statement of Facts states as follows 1 The gnevors Robert Cartwnght, KevIn D' Andrea and Richard Camman were (and are) correctIOnal officers As of January 1 2002 they were CorrectIOnal Officers 2 at the top step In the pay gnd (page 351 of the CollectIve Agreement) 2 As set out In the ComparatIve AnalysIs [a separate document prepared by the Employer] entered Into as an exhIbIt In these proceedIngs, on November 5 2001 Mr Cartwnght was temporanly assIgned to the posItIOn of OperatIOnal Manager a non-bargaInIng umt posItIOn. He remaIned In the actIng posItIOn untIl February 25 2002 when he returned to hIS C02 posItIOn. He was agaIn gIven a temporary assIgnment as an OperatIOnal Manager as of May 6 2002 and held the posItIOn untIl September 6 2004 on whIch date he returned agaIn to hIS C02 posItIOn. 3 SImIlarly Mr D'Andrea was temporanly assIgned to the actIng OM posItIOn on May 29 2001 He went back to the C02 assIgnment on February 25 2002 and was reassIgned to the actIng OM posItIOn on May 6 2002 He returned to the C02 posItIOn on September 6 2004 3 4 Mr Camman was temporanly assIgned to the actIng OM posItIOn on July 20 2001 returned to the C02 posItIOn on February 25 2002, and was back as an actIng OM on May 6 2002 He returned to hIS C02 posItIOn on February 17 2003 was reassIgned as an actIng OM on Apnl 22, 2003 and held that assIgnment through December 31 2004 5 The CollectIve Agreement In force for the penod January 1 2002 to December 31 2004 was entered Into In May 2002 Included In the terms were those In ArtIcle COR 16 (page 333) provIdIng for wage rate Increases effectIve on the dates set out In the ArtIcle 6 The longstandIng practIce In the Ontano PublIc ServIce for bargaInIng umt employees placed Into temporary management assIgnments outsIde the bargaInIng umt has been to pay them at least 3% more than they were beIng paid In theIr home posItIOn at the commencement of the assIgnment. It IS possIble to be paid more than 3% dependIng on the nature of the temporary management assIgnment that IS beIng commenced. The Umon has been aware of thIS longstandIng payment and never obJected. Nor has AMAPCEO or PEGO ever obJected to theIr members reCeIVIng hIgher pay whIle on temporary assIgnment outsIde theIr bargaInIng umts 7 With respect to those bargaInIng umt members who are placed Into temporary assIgnments In management the Pay on AssIgnment OperatIng PolIcy has been In effect SInce 1996 and sets out how employees are to be paid dunng theIr temporary assIgnments 8 More recently on Apnl 1 2002, the Pay for Performance PolIcy was also Implemented. ThIS polIcy sets out annual pay Increases on Apnl 1 of each year of between 0 and 8% to management and actIng management employees based on theIr performance ThIS polIcy replaced a ment based system for management employees whIch provIded for annual pay Increases of 0 to 5% WhIle those at the top of the management salary range were not entItled to receIve annual Increases under the old ment based system, they are entItled to lump sum payments under thIS new polIcy 9 Both the Pay on AssIgnment OperatIng PolIcy and the Pay for Performance PolIcy were determIned by the Employer and the Umon played no role In the desIgn of eIther polIcy Both polIcIes wIll be entered as exhIbIts for the purpose of these proceedIngs 10 The Employer says that whIle on temporary assIgnments as OperatIOn Managers, the gnevors Cartwnght, D'Andrea and Camman were paid In accordance wIth the Pay on AssIgnment OperatIng PolIcy and the Pay for Performance PolIcy The above gnevors say they were not paid In accordance wIth the polIcIes The Employer maIntaInS that these gnevors have been paid pursuant to the aforementIOned polIcIes whIle the Umon takes no posItIOn on thIS Issue It IS agreed that neIther the PublIc ServIce Gnevance Board nor the Gnevance Settlement Board have JunsdIctIOn to determIne whether the gnevors were In fact paid In accordance wIth the two aforementIOned polIcIes The polIcIes do not provIde for an Independent bIndIng resolutIOn of any dIsputes between the employees covered by the polIcIes and the Employer although the Employer has advIsed that It wIll compensate anyone, IncludIng the three gnevors, who have not been paid In a manner consIstent WIth the pay polIcIes 4 11 The gnevors Cartwnght, D'Andrea and Camman were on actIng OperatIOnal Manager assIgnments dunng all or part of the penod January 1 to March 31 In each of the three years covered by the collectIve agreement. Dunng those respectIve tIme pen ods, they receIved Increases pursuant to the Pay on AssIgnment OperatIng PolIcy and the pay for Performance PolIcy but were not paid the Increases set out In ArtIcle COR 16 Increases paid under the Pay on AssIgnment OperatIng PolIcy and the Pay for Performance PolIcy were effectIve Apnll of each of those years, If they were applIcable to the three gnevors 12 When the three gnevors returned to theIr "home" assIgnments as C02's, they were paid as per COR ArtIcle 16 The Pay on AssIgnment OperatIng PolIcy stIpulates that upon reassIgnment to one's home posItIOn, an employee must receIve the rate of pay he or she would have attaIned If they actIng assIgnment had not happened. The partIes also agreed that the treatment of OPSEU employees In regard to pay whIle on actIng management assIgnments has not been the subJect of collectIve bargaInIng negotIatIOns between the partIes Ms Carmen Penn, a Semor PolIcy Analyst at Ontano Shared ServIces, SInce 1994 testIfied regardIng the Pay on AssIgnment OperatIng PolIcy and ItS practIces pnor to that polIcy as well The Pay on AssIgnment OperatIng PolIcy was Implemented In 1996 and It superseded the Manual of AdmInIstratIOn. She testIfied that under both polIcIes, an employee's salary whIle on temporary assIgnment, dId not track annual Increases to theIr home posItIOn. She stated that the Employer has "never done that." Instead, whIle on the actIng assIgnment, the employee's salary would be "governed by the actIng posItIOn, regardIng adJustments" These Included ment Increases under the old system, and pay for performance Increases under the new system, as well as general, across-the-board Increases for management personnel On cross-eXamInatIOn, Ms Penn acknowledged that those general salary Increases, untIl 2002, were "pretty much the same" as the OPSEU Increases and that, untIl Apnl 2001 those general Increases took place on January 1 the same tIme as the OPSEU Increases In 2001 however wIth the advent of the Pay for Performance polIcy all management salary Increases 5 (general Increases and pay for performance) became effectIve Apnll Instead of January 1 or the employee's IndIVIdual anmversary date ThIS was done to alIgn salary Increases to the Employer's fiscal year Ms Penn further testIfied that when employees on a temporary actIng assIgnment return to theIr home posItIOn, they are paid theIr home posItIOn salary as If they had never left. If there had been an Increase In theIr home posItIOn salary whIle they were In the actIng assIgnment, they would receIve the Increased rate, effectIve theIr date of return. They would not, however be provIded wIth any retroactIve payment for the penod of the actIng assIgnment. Ms Penn testIfied that between 2000 and 2004 there were approxImately 1700 actIng management assIgnments, WIth approxImately 400 of them In the Mimstry of Commumty Safety and CorrectIOnal ServIces The average pay Increase receIved by an employee In an actIng management posItIOn In the Mimstry was 4% To her knowledge, there have not been any other gnevances concermng pay whIle In actIng posItIOns The Employer prepared a comparatIve analYSIS, whIch compared the salary (includIng all Increases) for each gnevor that they actually receIved versus what they would have receIved If they had been paid the OPSEU salary Increases In ArtIcle COR 16 It also showed what they would have receIved If they had remaIned In theIr home posItIOn of CO2 The analysIs shows that, for Mr Cartwnght, for the penod of January 1 2002 to February 25 2002, hIS salary as an actIng manager was less than It would have been If he had remaIned a CO2 The same IS true for Mr D' Andrea and Mr Camman. Overall, however due to vanous management general Increases and Pay for Performance Increases, the gnevors earned more under the Employer's approach than they would have If they receIved the C02 rate, plus three percent. 6 Positions of the Parties The Union The Umon alleges that ArtIcle 8 5 2 IS an unusual provIsIOn In that It specIfically states that employees, whIle on temporary assIgnment to posItIOns outsIde of the bargaInIng umt, remaIn "covered by the CollectIve Agreements for the entIre term of theIr assIgnment." ThIS provIsIOn, the Umon submIts, reqUIres that the terms of the collectIve agreement, IncludIng all negotIated wage Increases, apply to the gnevors whIle In theIr actIng assIgnments The Umon notes that the partIes were more specIfic In ArtIcle 8 5 1 In regard to an employee temporanly assIgned to a posItIOn In another bargaInIng umt. That provIsIOn reads Where an employee IS temporanly assIgned to a posItIOn In another bargaInIng umt for a penod of more than thIrty (30) days, he or she wIll on the thIrty-first (31 st) day commence paYIng dues and be governed by the terms of the CollectIve Agreement of the posItIOn to whIch he or she has been assIgned except that penSIOns, Insured benefits entItlements, and entItlements under ArtIcle 20 (Employment StabIlIty) wIll contInue to be governed by the rules applIcable to the employee's posItIOn In the OPSEU bargaInIng umt. In contrast, It argues, ArtIcle 8 5.2 IS a more general provIsIOn, proVIdIng that the OPSEU collectIve agreement contInues to apply The Umon submIts that under ArtIcle 8 5.2, the Employer at a mImmum, must provIde actIng employees wIth the Increases negotIated under the collectIve agreement, plus 3% It may choose, then, to pay them more, as It has In the past, wIth no obJectIOn from the Umon. It submIts that although the Umon could obJect to such extra payments, as the employees' exclusIve bargaInIng agent, the Umon has not obJected. Any such extra payments, It contends, are gratuItous payments But what the Employer cannot do the Umon submIts, IS fall to pay 7 actIng employees the negotIated Increases In support, It cItes to Re Hamilton Health Sciences Centre and DNA (2004) 125 L AC (4th) 217 (Slotmck) The Umon submIts that, for many years, the pay for employees In actIng managenal assIgnments dId not cause concern to the employees or the Umon because management pay Increases followed the OPSEU negotIated Increases Consequently an employee on a temporary assIgnment, who receIved at least a 3% Increase upon the commencement of the assIgnment, kept pace wIth theIr home posItIOn because management Increases paralleled the OPSEU Increases That all changed, the Umon submIts, In 2002, wIth the sIgmficant wage Increases negotIated by OPSEU for CorrectIOnal Officers, effectIve January 1 2002 The new collectIve agreement provIded, for CorrectIOnal Officer 2s at the hIghest step a wage Increase of 8 69% ThIS payment was made In the Fall of 2002, and when the gnevors' dId not receIve It, these gnevances followed. In support of ItS posItIOn, the Umon cItes to Robert Cartwright and MinistlY of Community Safety and Correctional Services PSGB No P-2003-1986(2005), In whIch Vice- Chair O'NeIll determIned that the PublIc ServIce Gnevance Board (PSGB) dId not have JunsdIctIOn to hear the gnevance of Mr Cartwnght - the same gnevor In thIS matter In that case, Mr Cartwnght, whIle on an actIng assIgnment as an OperatIOnal Manager gneved regardIng applIcatIOns he had made for a number of managenal postIngs The Employer obJected to the JunsdIctIOn of the PSGB on the basIs that the gnevor was a member of the OPSEU bargaInIng umt, CItIng ArtIcle 8 5 2, and therefore not elIgIble to gneve the demal of a managenal postIng before the PSGB Vice-Chair O'NeIll agreed, concludIng that because Mr 8 Cartwnght was a member of the bargaInIng umt at the tIme he gneved, he could not, under the PublIc ServIce Act, file a gnevance before the PSGB In the Umon' S VIew the Employer cannot have It both ways - argue before the PSGB that Mr Cartwnght IS a member of the bargaInIng umt covered by the collectIve agreement, and argue here that he IS not entItled the benefits negotIated under that collectIve agreement. The Umon also relIes on OPSEU (Gallaghel) and Ministry of Government Services (1990), GSB No 1522/89 (Watters) In that case, the Board ruled at p 7 that ArtIcle 6 1 [whIch IS the same as ArtIcle 8 1 1] "IS applIcable to a temporary assIgnment outsIde of the bargaInIng umt as occurred In thIS Instance" The Board reasoned "ThIS result flows naturally from a readIng of artIcle 6 5 [now ArtIcle 8 5 2] whIch preserves collectIve agreement nghts 'where an employee IS temporanly assIgned to perform the dutIes and responsIbIlItIes of a posItIOn not covered by thIS CollectIve Agreement. '" FInally the Umon cItes to Brown and Beatty Canadian Labour Arbitration ThIrd EdItIOn, regardIng "AlteratIOn of Wages" and "Overpayment" The Umon notes that an IneqUIty was created when the Employer adJusted the payment of managenal wage Increases and faIled to follow the OPSEU Increases ThIS resulted In havIng actIng managers, who started after the January 1 2002 OPSEU Increases took effect, make more money than the gnevors who had been actIng managers SInce 2001 The Umon contends that thIS IneqUItable result must be consIdered In the InterpretatIOn of ArtIcle 8 5 2 of the collectIve agreement. The Employer The Employer asserts that the language of ArtIcle 8 IncludIng ArtIcle 8 5.2 IS ambIguous, and must be read In lIght of the partIes' consIstent past practIce to tIe an actIng employee's salary 9 to theIr actIng posItIOn, not theIr home posItIOn. The Employer submIts that the employee's home salary IS Important only for determInIng theIr startIng salary In the actIng posItIOn, based on ArtIcle 8 1 1 From that pOInt on, however untIl the employee returns to hIS or her home posItIOn, the employee's salary IS tIed to the actIng posItIOn. It submIts that thIS IS how actIng assIgnments have been treated for at least twenty years, and IS clearly set out In the Pay on AssIgnment OperatIng PolIcy The Employer asserts that the Umon's posItIOn, If accepted, would completely alter thIS consIstent past practIce The Umon's InterpretatIOn, the Employer submIts, would financIally dIsadvantage many employees on actIng assIgnments - IncludIng the gnevors, and have huge ramIficatIOns It contends that what the Umon IS seekIng - to tIe an actIng employee's salary to theIr home posItIOn rate plus 3% - would be detnmental to many actIng employees It argues that the Umon cannot have It both ways - tIe an actIng employee's salary to theIr home posItIOn and yet also be gIven raises tIed to theIr actIng posItIOn, even though that IS what It seeks The Employer contends that because the collectIve agreement IS ambIguous when consIdered as a whole ItS meamng must be determIned In lIght of the partIes' consIstent past practIce In support of ItS posItIOn that past practIce controls where the language of a collectIve agreement IS ambIguous, the Employer cItes to Re Community Living Oakville and OPSEU Local 249 (1997) 61 LAC (4th) 289 (Tims) Quaker Oats Co of Canada and Service Employees Union, Locla 183 (Robichaud Grievance) (2000) 91 L.AC 94ht) 1 (Emnch) OPSEU McEyt,an and Norman) and Ministry of Community and Social Services (1987), GSB No 519/85 et al (Venty) 10 AlternatIvely the Employer submIts that the Umon IS estopped from relYIng on ItS InterpretatIOn of ArtIcle 8 5 2 It submIts that all of the elements of estoppel are present In thIS matter In thIS regard, the Employer notes that the Umon has never before obJected to the Employer's pay practIces In regard to actIng assIgnments, nor have the partIes tned to bargaIn any changes In these cIrcumstances, the Employer contends that the Umon cannot rely on ItS nghts under the collectIve agreement. In support, the Employer cItes to Re City of Lethbridge and CUPE, Local 70 (1986) 26 L.A.C (3d) 81 (England) Re CN CP Telecommunications and Canadian Telecommunications Union (1981) 4 L.A.C (3d) 205 (Beatty) endorsed, Re Canadian National Railyt,ay Co et al. and Beatty et al.[1981], 128 D.L.R. (3d) 236 (Ont. DIV Ct.) Decision After carefully consIdenng the language In the collectIve agreement, the facts and arguments of the partIes, I conclude that the gnevances must be dIsmIssed. ArtIcle 8 5.2 states as follows When an employee IS temporanly assIgned to a non-bargaInIng umt posItIOn, he or she shall contInue to pay dues to OPSEU and contInue to be covered by the CollectIve Agreements for the entIre term of the temporary assIgnment. Contrary to the Employer's posItIOn, I find nothIng ambIguous about thIS language - patently or latently Employees In actIng assIgnments - where there IS no other bargaInIng umt - "contInue to be covered by the CollectIve Agreements for the entIre term of the temporary assIgnment." Where the employee IS temporanly assIgned to a posItIOn In another bargaInIng umt, ArtIcle 8 5 1 applIes In that case, the employee, after 31 days IS "governed by the terms of the CollectIve Agreement of the posItIOn to whIch he or she has been assIgned" wIth certaIn 11 exceptIOns Therefore, ArtIcle 8 5 1 and ArtIcle 8 5 2 must be read together to mean that where an employee IS temporanly assIgned to a "non-bargaInIng umt posItIOn" the OPSEU collectIve agreement contInues to apply I find no substantIve dIfference In the partIes' use of the term "governed by" under ArtIcle 8 5 1 and "covered by" under ArtIcle 8 5.2 ThIS conclusIOn that the collectIve agreement contInues to apply to employees In temporary posItIOns outsIde the bargaInIng umt IS supported by decIsIOn of the PSGB In Cartwright et al. and Ministry of Community Safety and Correctional Services supra, as well as OPSEU(Gallagher) and Ministry of Government Services supra. The questIOn then becomes whether the collectIve agreement entItles the gnevors to negotIated wage Increases In theIr home posItIOn, such as found In ArtIcle COR-16 whIle they are workIng In an actIng management posItIOn? In my vIew for the reasons expressed below the answer IS "no" The collectIve agreement establIshes wage rates for work performed In a classIficatIOn. One must perform work In the classIficatIOn In order receIve pay for that work. When an employee IS on a temporary assIgnment, they are no longer performIng work In theIr home posItIOn, but are workIng In another classIficatIOn, and theIr pay IS tIed to that classIficatIOn. ThIS IS clearly eVIdent from ArtIcle 8 Under ArtIcle 8 1 1 when an employee IS temporanly assIgned to perform the dutIes of "a classIficatIOn WIth a hIgher salary maxImum" for more than five days, he or she must be paid actIng pay "In accordance wIth the next hIgher rate In the hIgher classIficatIOn " Conversely where the temporary assIgnment IS to a "posItIOn In a classIficatIOn WIth a lower salary 12 maxImum" and there IS no work reasonably avaIlable to hIm In hIS home classIficatIOn, the employee "shall be paid the lower applIcable classIficatIOn rate to whIch he or she was assIgned " Only If there IS work avaIlable In the employee's home classIficatIOn does the employee's salary contInue "to be paid at the rate applIcable to the classIficatIOnfrom yt,hich he or she was assIgned." (emphasIs added) ThIS provIsIOn ObvIOusly protects employees from beIng assIgned to lower classIfied posItIOns, when work In theIr own, hIgher paid classIficatIOn IS avaIlable Yet the fundamental Idea that an employee IS paid for the work performed In a temporary assIgnment - whether lower or hIgher - remaInS EssentIally when the gnevors were temporanly assIgned to actIng operatIOnal manager posItIOns, they were not workIng as C02s, and were not entItled to receIve the negotIated wage Increases for C02 work under ArtIcle COR 16 Even though the collectIve agreement contInued to apply to them, they were not entItled to benefit from that provIsIOn SInce they dId not perform C02 work. Nor were the gnevors entItled to the negotIated Increases under ArtIcle 8 1 1 In the Umon's submIssIOn, the gnevors, whIle workIng as temporary actIng managers, should have receIved the pay Increases provIded to the C02s under ArtIcle COR 16 In part, thIS IS based on the VIew that an actIng employee receIves theIr home posItIOn pay plus a mImmum of 3% ThIS IS based on ArtIcle 8 1 1 But that provIsIOn deals only wIth determInIng the level of pay at the commencement of the actIng assIgnment. Under thIS provIsIOn, the employee's home posItIOn salary IS compared to the "next hIgher rate In the hIgher classIficatIOn." If that results In at least a three percent Increase, he or she IS paid that next hIgher rate However If "such a change results In an Increase of less than three percent (3%) [then] he or she shall receIve the next 13 hIgher salary rate agaIn." ThIS provIsIOn, however does not thereafter tIe the actIng employee's salary to theIr home posItIOn, plus three percent, for the duratIOn of the actIng assIgnment. By ItS terms, ArtIcle 8 1 1 does not provIde for that, nor does the partIes' past practIce support such an InterpretatIOn. On the contrary the partIes' past practIce clearly demonstrates that an actIng employee's salary whIle In the temporary assIgnment, IS tIed to the actIng posItIOn. The Umon submIts, however that the partIes' past practIce reveals no such thIng. It notes that Increases receIved by actIng managers, untIl 2001 always paralleled the OPSEU Increases, thereby maIntaInIng the mImmum three percent dIfferentIal - IrrespectIve of whether the Increases were labelled the OPSEU Increases or the management ones The eVIdence of Ms Penn, however was that the Increases receIved by actIng managers were managenal Increases, not OPSEU Increases, although the management Increases generally followed the OPSEU Increases But even more Importantly she testIfied that actIng managers also receIved ment Increases, and more recently pay for performance Increases - Increases only avaIlable to managenal employees The Agreed Statement of Facts and the comparatIve analysIs confirm that the gnevors receIved Increases pursuant to the Pay on AssIgnment OperatIng PolIcy and the Pay for Performance PolIcy dunng theIr actIng assIgnments ThIS fact demonstrates that an employee on a temporary actIng assIgnment IS paid based on the work they perform dunng that assIgnment - not based on theIr home posItIOn. Further when employees return to theIr home posItIOn, theIr salary IS agaIn tIed to theIr home posItIOn, IncludIng any negotIated Increases to that posItIOn, sInce that IS the work they wIll agaIn be performIng Thus, the gnevors when they returned to theIr home posItIOn of CO2 on February 25 2002, receIved the benefit of ArtIcle COR 16 An employee returmng to theIr home posItIOn, however does not receIve any retroactIve payments for those Increases for the 14 tIme penod that they worked In the actIng posItIOn. Consequently It IS clear that an employee's pay IS tIed to the classIficatIOn of the work they are performIng. In sum, whIle the gnevors were In actIng operatIOnal manager assIgnments, they were no longer workIng as C02s They were therefore not entItled to the C02 wage Increase Instead, whIle they were actIng as operatIOnal managers, theIr pay was tIed to that hIgher classIficatIOn. I find, therefore, that the Employer dId not vIOlate the collectIve agreement when the Employer dId not apply ArtIcle COR 16 to the gnevors' wages, whIle they worked In theIr actIng assIgnments Further In the alternatIve, even If I am wrong regardIng thIS InterpretatIOn of the collectIve agreement, I would find that the Umon IS estopped from assertIng ItS nghts under the collectIve agreement. In thIS regard, I find all of the reqUIred elements of eqUItable estoppel to be present. There has been a very lengthy past practIce to tIe an actIng employee's salary IncludIng any Increases, to theIr actIng posItIOn, not theIr home posItIOn. Throughout thIS tIme, the relevant collectIve agreement language has remaIned unchanged. The Umon has never challenged management's actIOns In thIS regard, untIl these gnevances, and consequently the partIes have not dealt wIth thIS Issue In collectIve bargaInIng. In these cIrcumstances, It would be IneqUItable for the Umon to now assert that that the Employer IS vIOlatIng the collectIve agreement In the manner alleged. In so rulIng, I realIze that for a penod of tIme due to the substantIal wage Increase provIded for C02s under ArtIcle COR 16 - an 8 69% Increase - the gnevors were temporanly financIally dIsadvantaged by theIr actIng assIgnment. From January 1 2002 untIl February 25 2002, they were actually makIng less than the C02s they were managIng, a sItuatIOn whIch IS 15 qUIte strange LIkewIse, an employee startIng an actIng assIgnment ImmedIately after January 1 2002, would have been paid more than the gnevors for the same work. These cIrcumstances, though dIfficult for the gnevors, were not caused by any vIOlatIOn of the gnevors' nghts under the collectIve agreement. Consequently although I am sympathetIc to the gnevor's sItuatIOn for the penod from January 1 2002 to February 25 2002, I have no authonty to provIde a remedy SInce there has been no vIOlatIOn of the collectIve agreement. SImIlarly I have no JunsdIctIOn to rule on the gnevors' assertIOns that they were not paid In accordance wIth the Pay on AssIgnment OperatIng PolIcy or the Pay for Performance OperatIng PolIcy Nevertheless, I would note that It seems very unfair that no process eXIsts for an actIng manager to challenge the Employer's complIance wIth ItS own polIcIes The gnevors, when In an actIng managenal posItIOn, appear to be In a "no man's land" whereby neIther the PSGB nor the GSB have JunsdIctIOn over such claims I would urge the Employer to reVIew thIS sItuatIOn and determIne an appropnate method of provIdIng the gnevors, and sImIlarly sItuated others, wIth an avenue for potentIal redress Conclusion 1 I conclude that under ArtIcle 8 5.2, the collectIve agreement contInues to apply when "an employee IS temporanly assIgned to a non-bargaInIng umt posItIOn." 2 I conclude, however that the collectIve agreement does not gIve the gnevors, whIle workIng In a temporary operatIOnal manager assIgnment, the nght to receIve the negotIated wage Increases under ArtIcle COR 16 for a C02 posItIOn. Nor are they entItled to that wage rate under ArtIcle 8 1 1 3 Even If thIS InterpretatIOn of the collectIve agreement IS wrong, I conclude that the Umon IS eqUItably estopped from enforcIng ItS nghts under the collectIve agreement. 4 The gnevances are dIsmIssed. 16 Issued at Toronto thIS 11th day of October 2005 Ranch H. Abramsky Vice-Chair