Loading...
HomeMy WebLinkAboutUnion 17-11-231 IN THE MATTER OF AN ARBITRATION BETWEEN: THE COLLEGE EMPLOYER COUNCIL FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY (the “Employer”) -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF) (the “Union”) AND IN THE MATTER OF SEVERAL POLICY GRIEVANCES REGARDING A 1% LUMP SUM PAYMENT TO APPENDIX "D" EMPLOYEES Louisa M. Davie Sole Arbitrator Appearances For the Union: Richard Blair, Counsel For the College: Robert Little, Counsel 2 Award This arbitration involves grievances at a number of Ontario Colleges. The Ontario Public Service Employees Union ("the Union") has grieved at various Colleges that the College "has violated the Memorandum of Settlement between the College Employer Council and the Ontario Public Service Employees Union dated August 14, 2014 as well as any other article, statutes or legislation that may apply, by omitting to pay the lump sum entitlement to all Appendix "D" employees on the active payroll as of December 1, 2016." The College Employer Council of the Colleges of Applied Arts and Technology ("the Employer") has denied the grievances and maintains that Appendix "D" employees are not entitled to receive the lump sum claimed. For ease of reference hereafter employees covered by Appendix "D" will be referred to as "temporary employees". Bargaining unit employees not covered by Appendix D will be referred to as "permanent employees" hereafter. At the commencement of the hearing the parties agreed I was properly seized to hear and determine the matters in dispute. The parties further agreed that this award will apply to all Colleges where the Union has properly filed a grievance. The hearing was held on July 20, 2017 and the parties made further written submissions on September 21, 2017 and September 28, 2017. At its core this is an interpretive issue revolving around the language of the Memorandum of Settlement ("MOS") executed by the parties on August 14, 2014 and the language of the 2014–2018 collective agreement to which it pertains. 3 The interpretive issue before me is whether, having regard to the applicable language of the MOS and the collective agreement, temporary employees are entitled to receive the December 1, 2016 lump sum payment negotiated by the parties during their collective bargaining. The Union submits that the language of the MOS which concluded the negotiations supports its position that "all employees", including temporary employees, are entitled to receive the lump sum. The Employer submits that the language of the collective agreement, and in particular paragraph 11 of Appendix D of the collective agreement, supports its position that only permanent employees are entitled to receive the negotiated lump sum payment. Temporary employees are excluded and not entitled to receive the lump sum payment. The parties agree that the issue of whether temporary employees were included in, or excluded from, the lump sum payment was not specifically discussed at the bargaining table or raised by either party. I did not hear any evidence of their negotiations. Before turning to the language of the MOS and the collective agreement it is appropriate to set out certain other facts not in dispute between the parties. First, it is agreed that the MOS was ratified on October 1, 2014. The parties subsequently executed the collective agreement in March 2015. The executed collective agreement does not contain any reference to the lump sum payment. The hourly wage rates set out in Appendix E of the collective agreement only incorporate the negotiated across-the-board percentage increases. 4 Secondly, although not referenced in the collective agreement, it is agreed that the December 1, 2016 lump sum payable under the MOS was paid to all "permanent" employees in the bargaining unit. Third, temporary employees are in the bargaining unit. They are persons employed on a casual or temporary basis to replace permanent employees absent due to vacation, sick leave or other lea ves of absence. At times permanent employees may also temporarily replace other permanent employees who are absent due to sick leave or other leaves of absence such as maternity leave. The parties agreed that the employment status of a permanent employee filling a temporary role replacing another permanent employee does not change. Such employee does not become a temporary employee governed by Appendix D but remains a permanent employee. These employees therefore received the negotiated lump sum. The relevant language upon which the parties relied in their submissions is as follows: The Memorandum of Settlement The bargaining representatives of both parties agree to unanimously recommend to their respective principals the following terms and conditions of employment as the full and final settlement of all outstanding matters between the parties: 1. The collective agreement, expiring August 31, 2014, shall be continued except as amended by this Memorandum. ... 3. The Collective Agreement shall be amended by those terms and conditions agreed to between the parties as set out in Appendix 1 to this Memorandum (108 pages). ... 5 6. Wage increases: a) Effective September 1, 2014 - 1.0% increase to base salary b) Effective September 1, 2015 - 1.0% increase to base salary c) Effective September 1, 2016 - 1.0% increase to base salary d) Effective December 1, 2016 - 1.0% lump sum payment e) Effective September 1, 2017 - 1.0% increase to base salary f) Effective December 1, 2017 - 1.0% lump sum payment The lump sum payments are payable to all employees on active payroll as of December 1 and shall be paid within two pay periods thereafter. The lump sum payments are based on the employee's base salary as of December 1st. The lump sum payments are not to be taken into account for the calculation of any other entitlement under the terms of the collective agreement, except that it shall be pensionable. The payment is subject to statutory deductions. The Collective Agreement APPENDIX D Temporary Employees 1. The terms of this Appendix apply to persons employed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence. 2. The rate to be paid to such an employee shall be the appropriate wage rate applicable to the position of the replaced employee, subject to progression steps applicable to the replacing employee, where appropriate. 3. The replacing employee shall be subject to the deduction and remittance of Union dues, as provided in Article 5.4 of the Agreement. 4. The Union shall be notified at the commencement of employment, and upon the expiry of the term of employment. 6 5. In addition to the hourly rate of pay, the employee shall receive an additional eight per cent (8%) in lieu of all fringe benefits, including vacation. 6. The employee shall be entitled to the provisions of Articles 6.6, 7.5 and 10 of the Agreement. 7. The employee may be released by the College before the termination date of any term of employment, for replacement need changes or operational requirements. 8. Employees covered by this Appendix are entitled to utilize the grievance procedure to enforce the rights contained in this Appendix. 9. If an employee is appointed to a regular bargaining unit position after September 23, 1997, he/she shall be credited with full seniority, after completion of the probationary period, based on full credit for Appendix D service calculated at a day’s seniority for each day worked (261 days of work equals one (1) year). When an Appendix D employee is appointed to a regular bargaining unit position and has previous service as a part-time Support Staff employee, seniority shall also be credited in accordance with Article 14.3. 10. For the purposes of job competitions, in addition to any other factor that the College considers relevant, consideration will be given to service with the College. 11. No other provision of the Collective Agreement shall apply to Appendix D employees unless otherwise stated in this Appendix. (emphasis added) In addition, and for different purposes, in their submissions both parties made reference to Article 7.7 of the collective agreement which states: 7 7.7 Special Allowance Starting September 1, 2012, on September 1 of each year or in the pay immediately following September 1 of each year, full-time bargaining unit members on active payroll with at least six (6) months continuous service but less than ten (10) years continuous service shall receive a payment of four hundred and twenty-five dollars ($425) and full-time bargaining unit members on active payroll with at least ten (10) years continuous service shall receive a payment of eight hundred and twenty-five dollars ($825). Submissions of the Union The Union made several alternative submissions. Its primary position was that the language of the MOS was clear and unambiguous. In it the parties agreed to "wage increases" that included a lump sum for "all employees" in the bargaining unit. Although the lump sum is not referenced in the collective agreement it is clear that the Employer agreed to a general "wage increase" which included a lump sum because the Employer has paid that lump sum to some but not all employees. Union counsel submitted that there were no restrictions, conditions or qualifications as to which employees would receive the lump sum beyond the qualifier that employees must be "on [the] active payroll on December 1". The MOS refers to "all employees" and there is nothing in the MOS which excluded temporary employees from receiving the same negotiated "wage increase" (including the lump sum) as other permanent employees. 8 It was the Union's position that these parties clearly know how to lim it payment of a lump sum to only certain members of the bargaining unit. This is evident from Article 7.7 wherein the parties agreed that some bargaining unit members are entitled to receive a special allowance while others are not. In Article 7.7 the parties negotiated language such as "full-time bargaining unit members", "on active payroll" "with at least 6 months continuous service" to describe those entitled to receive the special allowance. It was significant that in paragraph 6 of the MOS the parties did not negotiate any similar qualifiers and agreed simply that "all employees" on the active payroll as of December 1 would receive a specified portion of the general wage increase negotiated. As the parties did not negotiate an express exclusion or limitation to the "all employees" language found in paragraph 6 the Employer violated the MOS, and the collective agreement, when it paid the lump sum which was part and parcel of a negotiated wage increase to some but not all employees. Interrelated with this position the Union maintained that in Appendix D the parties have agreed that temporary employees should receive the "appropriate wage rate". The MOS indicates that the parties characterized and agreed that the lump sum payments due on December 1 was part of a negotiated general wage increase. It therefore forms part of the "appropriate wage rate" to be paid to temporary employees. The lump sum is not characterized as a bonus or a special allowance. It is clearly part of an employee's wages. 9 It was argued that Appendix D sets out the parties' intent that there should not be a distinction in the "wages" received by temporary employees and the wages received by other bargaining unit employees based solely on the temporary employment status of Appendix D employees. Just as temporary employees employed on August 31, 2014 who continued to be employed on September 2, 2014 would see the benefit of the across-the-board wage increase set out in paragraph 6, the temporary employee employed on December 1, 2016 should see the benefit of the remainder of the wage increase negotiated and set out in paragraph 6, namely the lump sum which forms part of the wages of the employee being replaced. There was nothing in the MOS or the collective agreement which permits the Employer to draw a distinction between a wage increase expressed as a lump sum and a wage increase expressed in terms of an across-the-board percentage increase. Finally, the Union placed reliance on the principle of estoppel and argued that the Employer made a representation in the MOS that "all employees" on the active payroll on December 1, 2016 would receive a lump sum payment. The Employer cannot now take a different position and , in effect, say "all employees except temporary employees" will receive the lump sum payment. In this regard the Union relied principally on Re Dunham-Bush of Canada Ltd. and United Steelworkers, Local 3998 (1975) LAC (2d)) 401 (Weatherill ). In that case, following a strike, the parties negotiated a return to work protocol for striking employees which was set out in their MOS. That special recall procedure to 10 return employees to work following the strike was not addressed in the collective agreement subsequently executed by the parties. W hen the Employer recalled employees in accordance with the MOS the Union filed a grievance because the Employer had not complied with the recall to work procedures of the collective agreement. The arbitration board concluded: While we would not consider that employees who are on strike wou ld properly be said to be on lay-off, it is our view that once the strike had ended, employees who were not recalled were in fact in the position of employees laid off, and would be entitled to recall in accordance with the provisions of the collective agreement. Were it not, then, for the assertion of estoppel, we would proceed to hear the claims of the grievors on their merits. On the agreed facts, however, it is clear that both parties agreed to a special "recall" procedure to be used in bringing employees back to work following the strike. This agreement quite clearly involves the representation by the Union that the seniority provisions of the collective agreement (which, as we have indicated, would otherwise apply), would not apply in that instance. The company's acceptance of this representation is set out in the memorandum and in the subsequent confirmation. It relied on that representation and called the employees in to work in compliance (so it is said) with the memorandum, which clearly gives the company a greater leeway in the selection of employees for the available jobs than does the collective agreement. In thus acting differently than it would otherwise have done, and if the claims of the grievors were now to prevail, then it is clear that the company has relied to its detriment on the representations made by the Union. The grounds of estoppel are thus made out: the memorandum of agreement constitutes, in effect, the assertion by the Union that the regular provisions of the collective agreement would not be relied on for the recall to work following the strike; this grievance, relating to the recall to work following the strike, is put forward on the basis of the regular seniority provisions of the collective agreement. It is a claim which, in the circumstances, it is unfair for the Union to advance, and which, we conclude, it is estopped from making. It was submitted by the Union that in this case the Employer also cannot rely on the strict language of Appendix D, paragraph 11 to overcome or undermine the 11 comprehensive agreement reached at bargaining that all employees were to receive the lump sum payment. The MOS was intended to fully and finally resolve the collective agreement employment terms for all employees in the bargaining unit, including temporary employees. The Employer is therefore estopped from taking the position that certain employees are to be excluded from receiving the lump sum portion of the negotiated wage increase simply because part of the MOS did not make its way into the executed collective agreement. This is particularly so when the Employer does not dispute it is obliged to pay the negotiated lump sum to eligible employees although that lump sum is not specifically referred to in the collective agreement. It was the Union's further position that if the Employer intended to exclude temporary employees from the lump sum payment it was obliged to say that at the bargaining table. The Employer was required to put the Union on notice that it did not consider temporary employees to be entitled to the payment because of the provisions of Appendix D paragraph 11. The Employer's silence at the bargaining table means it is now estopped from taking that position. Submissions of the Employer It was the Employer's position that the grievances must be decided having regard to the language of Appendix D of the collective agreement, not the language of the MOS. My jurisdiction as arbitrator flows from the collective agreeme nt and not from the MOS. The Employer submitted that in the circumstances of this case it was not taking the position that I was without jurisdiction and that the grievances are not arbitrable because they are based solely on the MOS. Instead, and for purposes of this arbitration only, the Employer was prepared to accept that the MOS was part of the collective agreement and could be referred to and relied upon in 12 interpreting the collective agreement. Employer counsel maintained that the MOS was merged into the collective agreement once the collective agreement was ratified and executed by the parties (see below). The MOS therefore could only be considered as part of the collective agreement and not as an independent document. As part of the collective agreement the MOS must also be in terpreted having regard to paragraph 11 of Appendix D which clearly and specifically provides that "no other provision of the collective agreement shall apply to Appendix D employees unless otherwise stated in this Appendix." The Employer maintained that Appendix D was the starting point when interpreting the rights, benefits and entitlements of temporary employees. Appendix D is a complete code governing the employment status of temporary employees (see Re George Brown College and Ontario Public Service Employees Union unreported decision dated May 22, 1997 (Kruger) and Re Cambrian College of Applied Arts and Technology and Ontario Public Service Employees Union (2015) Can Lii 32501 (Bendel). There is nothing in Appendix D, or any other provision of the collective agreement, which entitled temporary employees to the lump sum payment. In response to the Union's submissions that temporary employees were to receive the same "appropriate wage rate" applicable to the employee whom they are replacing, and that such "appropriate wage rate" includes the negotiated lump sum payment, counsel for the Employer asserted that in paragraph 5 of Appendix D the parties have specified that employees covered by Appendix D receive an "hourly rate of pay". Moreover, article 7.1 of the collective agreement defines "wage rates" stating that "The ranges of wage rates are as set out in Appendix E hereto on the effective dates as therein provided." As a result the "wage rate" reference in Appendix D can only refer to the hourly wage rate set out in Appendix E. Appendix E does not include or make any reference to any lump sum payment. 13 It was the Employer's position that both in terms of the language of this collective agreement and in legal and labour relations terms a "lump sum" could not be equated with a "wage rate" or a "hourly rate of pay." Lump sum payments do not form part of a hourly wage rate and are generally made to avoid adding to a base hourly wage rate. Employer counsel submitted that contrary to the Union's position the parties to this collective agreement clearly intended to treat temporary employees in a manner different from permanent employees. Not only are temporary employees excluded from the "special allowance" set out in article 7.7 relied upon by the Union, in Appendix D the parties have specifically agreed that these temporary employees will not receive the same entitlements as permanent employees. Temporary employees do not receive the special allowance. They have fewer benefits (but are paid an additional eight percent (8%) in lieu of fringe benefits). Temporary employees do not have the same job security protections afforded permanent employees because paragraph 7 of Appendix D specifies that they "may be released by the College before the termination date of any term of employment for replacement need changes or operational requirements." The only thing the temporary employee receives is the same wage rate, or the same hourly rate of pay, as the permanent employee they are replacing. The parties have emphasized that this is all a temporary employee is entitled to by the clear and unambiguous language of paragraph 11 of Appendix D. It was submitted that in drafting the MOS the parties did not need to specifically exclude temporary employees from the lump sum payment because paragraph 11 of Appendix D of the collective agreement already did that. Paragraph 11 states in unequivocal terms that unless an entitlement or benefit is contained in Appendix D a temporary employee is not eligible to receive it. If the Union wanted temporary employees to receive the lump sum it was obliged to either state this specifically in the MOS or amend Appendix D to indicate that any lump 14 sum payable to permanent employees would also be paid to a temporary employee replacing an absent permanent employee. With respect to the Union's reliance on the MOS and the award of arbitrator Weatherill in Re Dunham-Bush of Canada Ltd. supra, Employer counsel took the position that this award was confined to its unique facts. Moreover, since Re Dunham-Bush of Canada Ltd. supra was issued arbitral jurisprudence, including a subsequent award by arbitrator Weatherill, has clearly established that an MOS is a transitory document that ceases to have effect once the collective agreement has been signed (see Brown and Beatty Canadian Labour Arbitration at 4:1100, Re Ontario Liquor Boards Employees Union and the Crown in Right of Ontario (Liquor Control Board of Ontario) 1981 29 L A C (2nd) 289 (Kennedy), Re Venturetrans Manufacturing Inc. and United Au tomobile Workers, Local 1837 (1985) 18 L.A. C. (3rd) 215 (Weatherill) Re Barber Industries Ltd. and International Brotherhood of Boilermakers, Local 146 (1990) 17 L. A. C. (4th) 94 (Rooke)). As the MOS has been merged into the collective agreement it cann ot on its own create an obligation on the Employer to pay the lump sum to temporary employees. Neither can the MOS be construed as a "representation" creating an estoppel as proposed by the Union. Employer counsel argued also that because there was no discussion about the entitlement of temporary employees to a lump sum at the bargaining table it could not be said that the Employer made any representations or that its silence indicated acquiescence that "all employees" included temporary employees. Finally, counsel for the Employer submitted that it was counterintuitive for the parties to have agreed to pay a lump sum to employees who may only be in their temporary position for a very brief period of time. 15 Decision I have determined that these grievances must be dismissed and that temporary employees are not entitled to the December 1, 2016 lump sum payment set out in the MOS. I agree that my jurisdiction flows from the collective agreement and not the MOS executed by the parties on August 14, 2014. In this regard I accept the prevailing and now well established arbitral jurisprudence that upon execution of the collective agreement the August 14, 2014 MOS was "merged" with the collective agreement. As noted in Brown and Beatty Canadian Labour Arbitration (4th edition) at 4:1100 In any event, when a formal collective agreement is preceded by a written, signed, and ratified memorandum of agreement, usually execution of the collective agreement will cause the memorandum to be merged with the agreement unless the parties have manifested an intention to the contrary. 14 As described by one arbitrator: . . . where a Union and a company have agreed in writing on some of the terms and conditions of employment in a memorandum of settlement of a strike, and have subsequently signed a full collective agreement the preliminary document will not normally be considered part of the collective agreement. This is so because, unless there is some indication to the contrary in the subsequent document (some incorporation by reference of the memorandum of settlement perhaps) an arbitrator would assume the memorandum of settlement was intended only to represent a stage of negotiations and could not stand in contradiction with the final agreement. ... The parties here did not manifest an intention to the contrary in either the MOS or the collective agreement. It is apparent from the opening paragraph of the MOS that the MOS is a transitory document which can be considered only to represent a s tage of negotiations. In the opening paragraph the parties agree only to recommend to their respective principals the terms and conditions of the MOS so that the collective agreement can be settled. That phraseology suggests that further steps must occur before the collective agreement can be executed. In paragraph 3 of the MOS they note how the collective agreement yet to be executed is to be amended. 16 I do not agree that the Employer's payment of the December 1, 2016 lump sum to permanent employees (although the lump sum is not mentioned in the collective agreement) manifested an intention that the MOS was not merged in the collective agreement but, in effect, that the MOS continued to exist independent of the collective agreement. In my view, when the collective agreement was signed, the MOS could not be used to establish rights and benefits independent of the signed collective agreement. Leaving aside for the moment the Union's submissions with respect to an estoppel based on the MOS (addressed below) I find that as a transitory document which has been merged into the collective agreement the language of the MOS can only be interpreted and applied in context of the application and interpretation of the entire collective agreement, including Appendix D. I accept also that by reason of Appendix D, and more specifically paragraph 11 of that Appendix, temporary employees have only the limited rights set out in that Appendix. It is clear from Appendix D that temporary employees employed in accordance with that Appendix do not have the same rights, benefits and entitlements as permanent employees. In Cambrian College supra arbitrator Bendel dealt with the issue of his jurisdiction where a temporary employee covered by Appendix D filed a grievance alleging harassment, bullying and discrimination in addition to his claim of termination without just cause. In that case the Union argued that the management functions article of the collective agreement (Article 3) applied to temporary employees who could therefore grieve that the Employer exercised its management functions in bad faith and in an unreasonable manner. Arbitrator Bendel stated: The first observation I would make is that I am satisfied that the Union cannot rely on any of the express provisions of the collective agreement in advancing the grievor’s claim. Being a temporary employee subject to Appendix D, he enjoyed only the rights described in Appendix D. None of 17 those rights offered him any protection from termination of employment or from harassment. Appendix D could not be clearer on the subject: after the rights of Appendix D employees are enumerated, paragraph 11 states that “[n]o other provision of the Collective Agreement shall apply to Appendix D employees unless otherwise stated in this Appendix.” In particular, Article 3 of the agreement, where management rights are listed, has no application, in my view, to Appendix D employees. As Mr. Liznick observed in his submissions, the Employer has no need, in the case of Appendix D employees, for the Union’s acknowledgment of its management functions since nothing in Appendix D could conceivably affect the exercise of management’s functions. To hold that Article 3, with its implicit restrictions on the exercise of management powers, applied to Appendix D employees would be to fly in the face of paragraph 11 of Appendix D. I accept and adopt this analysis and also find that the collective agreement in clear, unambiguous and unequivocal terms limits the rights and entitlements of temporary employees to those enumerated in Appendix D. The Union has argued that in Appendix D the parties have clearly manifested their intention that when it comes to wages the temporary employee replacing a permanent employee is entitled to receive the same wages as the permanent employee being replaced. As the permanent employee is entitled to receive the lump sum as part of their wages, the temporary employee replacing them should also receive the lump sum as part of their wages. I am unable to accept that submission and instead find the counter arguments put forth by the Employer more persuasive. Although paragraph 2 of Appendix D indicates temporary employees are to receive the "appropriate wage rate" it is clear from the remainder of Appendix D, and the rest of the collective agreement, that the "appropriate wage rate" is the hourly wage rate set out in 18 Appendix E of the collective agreement. Paragraph 5 of Appendix D refers to temporary employees receiving an "hourly rate". "Wage rate" itself is defined in the collective agreement as the rates set out in Appendix E. The title of Appendix E is "hourly wage rate." The lump sum payment referred to in the MOS is not referenced in Appendix E or any other part of the collective agreement. In the employment and labour relations context one would not commonly equate a "lump sum" with a "wage rate" or an "hourly rate". In my view it would require clear collective agreement language to find that a "lump sum" is the same as the "appropriate wage rate" or "hourly rate" or "hourly wage rate". It would also require clear language to find that a lump sum payment is to be included in the definition of any of those terms. Such language does not exist in this case. This leads me then to the Union's submissions regarding the application of Dunham- Bush of Canada Ltd. supra and the principle of estoppel to the facts of this case. The Union has argued that the case law regarding the "merger" of the MOS into the collective agreement does not apply to the facts of the instant case because, despite the fact that the collective agreement is silent on the matter, the Employer agrees that it must pay a lump sum and has in fact paid that lump sum to a number of employees. The Union emphasized that in this case the Employer does not dispute that the lump sum must be paid even though it is found only in the MOS and not in the collective agreement. The Union asserted that the dispute between the parties is about the interpretation of the MOS. The Employer agrees that pursuant to the MOS it is obliged to make lump sum payments to employees. It disputes only the class of employees to whom a lump sum payment must be made. 19 The Union asserts these facts therefore are similar to those in Dunham-Bush of Canada Ltd. supra. Here the collective agreement is silent on the payment of the lump sum agreed upon in the MOS. In Dunham-Bush of Canada Ltd. supra the collective agreement was silent on the recall from strike protocol agreed upon in the MOS. In Dunham-Bush of Canada Ltd. supra the Union wanted to rely on the strict language of the recall rights found in the collective agreement. The arbitration board found that it was improper and unfair for the Union to rely on the strict language of the recall rights found in the collective agreement when it had agreed to a special recall provision for striking employees in the MOS. Similarly the Union argues that in this case it would be unfair for the Employer to rely on the strict language of the collective agreement ( which is silent on the lump sum payment issue and which limits the entitlements of temporary employees) when it agreed in the MOS that "all employees" would receive the lump sum. As a corollary to that submission the Union maintains that when the Employer agreed in the MOS to pay "all employees" the lump sum set out in the MOS the Employer in effect "represented" that it would not rely on the strict language of Appendix D of the collective agreement to limit the entitlement of temporary employees . As indicated herein I do not agree that the MOS can be viewed or interpreted in isolation. In the circumstances of this case the MOS does not, on its own, give rise to the Employer's obligation to pay a lump sum. The obligation to pay a lump sum to employees arises from the MOS in context of the collective agreement subsequently executed by the parties. The MOS is part of the collective agreement and must be interpreted and applied within the context of that collective agreement. From a labour relations perspective I consider the law with respect to the "merger" of the MOS into an executed collective agreement to be sensible. Among other things it creates certainty and can eliminate uncertainty about the terms of the collective agreement. 20 In the face of the law of "merger" of a MOS I find that the language or terms of an MOS cannot on their own, or separate and apart from the executed collective agreement, be construed as a "representation" by a party sufficient to give rise to an estoppel. I do not think the Dunham-Bush of Canada Ltd. supra award stands for such a broad proposition. Instead I find that the ratio in Dunham-Bush of Canada Ltd. supra must be considered having regard to the unique facts of that case. The ratio in Dunham-Bush of Canada Ltd. supra is not that the MOS in and of itself can constitute a "representation" sufficient to found an estoppel. Instead, whether the MOS constitutes a representation must be assessed having regard to the facts and circumstances surrounding its execution, and the collective agreement of which the MOS forms a part. In this regard I note that in Dunham-Bush of Canada Ltd. arbitrator Weatherill appears to agree that a claim can't be based solely on the MOS. He accepts that an arbitrator is without jurisdiction to hear a grievance or claim based solely on the language of the MOS which preceded the formal execution of the collective agreement when he states: The Anthes Steel Products (1962) Ltd. v. U.S.W., Local 4515 (November 3, 1966), unreported (Fuller), which Mr. Nicol referred to, must be distinguished. There the Union filed a grievance seeking payment of "settlement pay" pursuant to the terms of a memorandum of agreement. The collective agreement, which was entered into subsequently, made no provision for settlement pay or retroactive pay. The company did make a certain payment "in lieu of retro- activity", but it was not the payment called for by the memorandum of settlement. It was held that the board had no jurisdiction to deal with the claim before it, which was based on the memorandum of settlement. We are sure, with respect, that that decision was correct. In the instant case the union bases its claim on the collective agreement, and that is certainly a claim which this board has jurisdiction to hear.. (emphasis added) I note parenthetically that the facts in Anthes Steel Products, where the board refused to deal with a grievance based solely on the MOS, are more closely akin to the facts of the instant case. In contrast, the facts of Dunham-Bush of Canada Ltd. supra where the Union's claim was based entirely on the language of the collective agreement are 21 distinct from the facts of the instant case where the Union's claim is based principally on the language of the MOS. Finally I turn to the Union's submissions that use of the term "all employees" in the MOS, or the Employer's silence at the bargaining table about the meaning to be given to "all employees" was a representation and created an estoppel so that the Employer can't now take the position that "all employees" does not include temporary employees.. With respect to the first branch of this argument, in the context of this collective agreement, the use of the term "all employees" in paragraph 6 of the MOS does not give rise to a representation by the Employer sufficient to found an estoppel. This collective agreement is replete with references to "employees." There is no suggestion that those references to "employees" include temporary employees covered by Appendix D. In these circumstances, because Appendix D is a complete code, and paragraph 11 clearly indicates that no other provision of the collective agreement applies to temporary employees, it simply cannot be said that the Employer's agreement to make lump sum payments to "all employees" was a rep resentation that "all employees" included temporary employees. As to the Employer's silence at the bargaining table about what it meant by "all employees" and which employees it considered to be included in, or excluded from, the lump sum payment, I find that in the circumstances of this case that silence cannot be construed as a representation by the Employer that it agreed with the Union that temporary employees were to receive the lump sum payment notwithstanding the paragraph 11 of Appendix D. 22 This is not a case such as Re Hallmark Containers Ltd and Paper Workers Union, Local 303 (1983) 8 L.A.C.(3d) 117 (Burkett) where, upon proposing language during collective bargaining, the Union provided a detailed explanation of the meaning and purpose it attributed to the proposed language and the Employer remained silent. In Hallmark Containers supra the Employer's total silence in the face of the Union's explanation was found to be a representation by the Employer that it acquiesced or agreed to the Union's interpretation of the proposed language. In this case the parties have agreed that there was no discussion at the bargaining table about the meaning to be attributed to "all employees" and no discussion by either party about which class of employees would receive the lump sum payment. Neither party discussed the issue as to whether temporary employees would be eligible to receive the lump sum payment. In these circumstances it cannot be said that either party made any representation by its silence. The issue was not discussed at the bargaining table and, in the circumstances of this case, there was no independent obligation on either party to explain to the other what it thought the language used in paragraph 6 of the MOS meant. For all of these reasons the grievances are dismissed. Dated at Mississauga this 23rd day of November, 2017. Louisa Davie Louisa M. Davie