Grievance File No.:1754  
IN THE MATTER OF AN ARBITRATION  
Under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A  
B E T W E E N:  
CITY OF HAMILTON  
(the “Employer”),  
- and -  
HAMILTON ONTARIO WATER EMPLOYEES’ ASSOCIATION  
(HOWEA)  
(the “Association”),  
AND IN THE MATTER OF A POLICY GRIEVANCE REGARDING THE ALLEGED  
IMPROPER ELIMINATION OF THE “STORES KEEPER IIPOSITION.  
SOLE ARBITRATOR:  
APPEARANCES  
Gordon F. Luborsky  
For the Association:  
Lisa Triano, Counsel  
Greg Hoath, Business Representative  
Rob Filice, Steward  
For the Employer:  
Martin J. Addario, Counsel  
Nick Winters, Director of Water Wastewater Operations  
Jazz Thandi, Superintendent of Inventory and Fleet  
Management  
Julie Shott, Manager of Labour Relations  
HEARD:  
November 14, 2019 (In Person), July 6, 2020 (Telephone  
Conference), August 19, 2020, August 26, 2020, November 4,  
2020, June 8, 2021, June 16, 2021, and August 31, 2021  
At Hamilton and by Videoconference  
DECISION:  
September 12, 2022  
Page 2 of 49  
A W A R D  
I.  
Introduction  
[1]  
The Employer is a municipality located on the western tip of Lake Ontario, with a 2021  
population of 569,353 residents.1  
[2]  
The Association represents a bargaining unit of employees who work at one of the water  
and wastewater treatment plants and outstations owned and operated by the Employer in and  
around the city.  
[3]  
This grievance claims that the Employer violated the collective agreement when it  
eliminated the position of Stores Keeper IIfrom the Association’s bargaining unit through  
“restructuring”, assigning some or all the duties of that position to city workers represented by  
Local 5167 of the Canadian Union of Public Employees (“CUPE, Local 5167”).  
[4]  
While acknowledging that members of CUPE, Local 5167 are involved in water and  
wastewater operations throughout the city, the Association asserted there has always been a  
division between the work of the HOWEA members, who it says are exclusively engaged in  
water and wastewater “treatment” and related activities, from that of the CUPE, Local 5167  
members who the Association views as traditionally limited to water and wastewater  
“distribution”. According to the Association, the effect of the elimination of the Stores Keeper II  
position and redistribution of its work has been to merge the responsibilities of the workers  
involved in treatment and distribution, which it claims is contrary to HOWEA’s exclusive  
representation rights for employees performing or attending to “treatment” work.  
[5]  
Thus, the Association’s policy grievance dated September 26, 2018, states: “Violation of  
Scope Clause, Art. XX,2 Schedule A, Bargaining Unit work and any other applicable articles of  
1
Per of the 2021 Census. (This does not include the surrounding areas that may receive water and wastewater  
services from the city.)  
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the collective agreement for reassignment of Stores Keeper II position to non-bargaining unit  
personnel.” The settlement requested is that the Employer, “Cease and desist and if applicable  
return [the position] to HOWEA and recall [the] laid off employee to Stores Keeper II.”  
[6]  
The Employer denied the grievance, writing in its response dated January 4, 2019:  
The Employer’s understanding of the grievance, as conveyed by the Union, is that Union (sic)  
believes that the Employer has violated the collective agreement by declaring the HOWEA position  
of Stores Keeper 2 redundant. The Union also objects to the Employer posting a new position in  
another bargaining unit and argues that this position is the same as the former HOWEA position  
and therefore should be included in scope of HOWEA.  
It is the position of the Employer that there is no violation of the collective agreement in this matter.  
The grievance is therefore denied.  
[7]  
Article 1 of the collective agreement dated January 1, 2017 to December 31, 2020, in  
effect as of the grievance, sets out the following express definitions of “Employee”, “Facilities”  
“Outstations” and “Position”, which are germane to the dispute:  
1.  
DEFINITIONS  
1.1  
As used in this Agreement, the following words and phrases shall have the following  
meanings:  
(g)  
“Employee” shall mean any employee who is a member of the Bargaining Unit  
and is employed by the Employer to work at the Facilities.  
(k)  
“Facilities” shall mean the water and wastewater treatment plants and  
Outstations owned by the Employer and operated by the Employer.  
(q)  
“Outstations” shall mean the wastewater and leachate lift stations, combined  
sewer overflow tanks, communal well systems, water pumping stations and  
reservoirs.  
2 There was no dispute that the provision of the collective agreement referred to as “XX” on the grievance form was  
to article 2 entitled: “Scope”.  
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(s)  
“Position” shall include those positions set out in Schedule “A” attached hereto.  
[8]  
The relevant provisions of Articles 2 (“Scope”), 3 (“Employer Responsibility”) 4  
(“Association Responsibility”) 6 (“Overtime Compensation”) and 21.1 (“Contracting Out”),  
referred to by the parties in argument, are also reproduced below:  
2.  
SCOPE  
2.1  
The Employer recognizes the Association as the exclusive bargaining agent for all  
Employees, who are employed by the Employer at the Facilities, save and except  
Excluded Employees.  
3.  
EMPLOYER RESPONSIBILITY  
In accordance with the Labour Act and the Code, the Employer accepts the following  
responsibilities:  
3.1  
The Employer recognizes the Association as the exclusive bargaining agent for all  
Employees coming within the scope of this Agreement and more particularly described in  
Schedule “A” and they are hereinafter referred to as “Employee” or “Employees”  
whichever is the case. In this Agreement, the word “Employee” means a person hired by  
the Employer for either permanent or temporary service for a Position which is set out in  
Schedule “A” and who is on the active payroll of the Employer.  
3.6  
No supervisor or manager shall be entitled to do Bargaining Unit work, except in  
emergency situations.  
4.  
ASSOCIATION RESPONSIBILITY  
In accordance with the Labour Act and the Code, the Association accepts the following  
responsibilities:  
4.4  
The Association recognizes that it is the exclusive right and function of the Employer:  
(a) to direct the working force which includes the right to direct, plan and control working  
operations, change or transfer of asset ownership and operational responsibility  
involving equipment or materials, and to schedule working hours;  
(b) to hire, classify, transfer promote, demote, dismiss or lay-off Employees because of  
lack of work or other legitimate reasons; and  
Page 5 of 49  
(c) to introduce new and improved facilities and methods to improve the efficiency of the  
operations of the Employer, but such exclusive functions of the Employer are subject  
always to the provisions of this Agreement.  
6.  
OVERTIME COMPENSATION  
6.7  
Except as permitted under Article 21, persons outside the Bargaining Unit shall only  
perform work of Employees when Employees are not available, or those Employees who  
are available have refused the opportunity to work overtime.  
21.  
21.1  
CONTRACTING OUT  
The Employer may contract out work of the Bargaining Unit, provided that (a) to (d) are  
satisfied as outlined below:  
(b) No Employee is terminated, laid off or suffers a reduction in his Standard Hours of  
work while the Employer simultaneously contacts out such work;  
[9]  
Within Schedule “A” entitled “Salary Schedules”, the position “Stores Keeper II” is listed  
with a standard wage rate identified for each year of the collective agreement. It is noteworthy  
that Schedule “A” also sets out the wage rates for the following positions: “Maintenance  
Operator I (Pre-October 11, 2017)”, “Maintenance Operator I (Post October 11, 2017)”,  
“Maintenance  
Operator II”, “Maintenance Operator III”, “Mechanic”, “Millwright”,  
“Electrician” and “Instruments & Controls”. Each of these latter positions is associated with the  
holding of a specific certificate level and/or license, which is a factor in the amount of  
compensation for the position. However, there is no requirement for any specialized license or  
certificate for the “Stores Keeper II” position.  
[10] The main responsibility of the “Stores Keeper II” is to provide “inventory control” and  
associated duties related to the operations of the Employer’s water and wastewater treatment  
plants and outstations, working primarily from the City’s “Woodward Avenue Plant” location,  
described below.  
Page 6 of 49  
[11] The Employer maintains that it properly exercised the discretion conferred by article 4.4  
of the collective agreement to reorganize the workforce for legitimate business reasons related  
primarily to economy and efficiency considerations, resulting in the redundancy of the HOWEA  
Stores Keeper II position at the Woodward Avenue Plant and the redistribution of some of its and  
additional duties to other employees, including members of CUPE, Local 5167.  
[12] The Association disagrees, asserting that its bargaining unit work is related to waste and  
wastewater treatment(as opposed to water distribution), which it claims is within the exclusive  
jurisdiction of the Association that has been wrongly transferred to members of another trade  
union thereby violating the collective agreement and undermining the integrity of the  
Association’s bargaining unit.  
[13] The Employer provided written notice dated November 14, 2019, to a representative of  
CUPE, Local 5167, stating that since CUPE’s rights might be affected by the outcome of the  
grievance, they “may wish to participate in this proceeding”. However, CUPE, Local 5167  
declined the invitation.  
[14] The parties agreed at the outset of the arbitration hearing that I was properly appointed  
under their collective agreement with jurisdiction to determine this dispute.  
II.  
Decision  
[15] Having considered the evidence and submissions of the parties, I conclude that the  
Employer has acted within its negotiated managerial prerogative to reorganize the workforce  
resulting in the bona fide elimination of the HOWEA Stores Keeper II position at the Woodward  
Avenue Plant, and consequently the grievance must be dismissed. My reasons are as follows.  
III.  
The Evidence  
Page 7 of 49  
[16] Over a period of two years,3 I heard testimony from four witnesses called by the  
Association: Mr. Jim Hall, the former Stores Keeper II, Mr. Dave D’Alessandro, an  
Instrumentation Technician and HOWEA member, Mr. Darren Lister, a Mechanical Supervisor  
for Plant Maintenance and Technical Services (“PMATS”), who was summoned by the  
Association to testify, and Mr. Joe Sullivan, an Instrumentation Supervisor that is a unionized  
front-line supervisory position within CUPE, Local 1041, which has representation rights for  
such employees.  
[17] The Employer’s sole witness was Mr. Nick Winters, the Director of Water & Wastewater  
Operations for the City of Hamilton.  
[18] The evidence from each witness is summarized below.  
(a)  
The Association’s Evidence  
(i)  
Jim Hall  
[19] Mr. Hall was a Stores Keeper II for 19 years, having officially retired on April 30, 2019,  
but in fact he stopped working on October 10, 2018 (recorded as a paid leave of absence from  
that date to his retirement). Throughout his employment he was the sole Stores Keeper II in the  
HOWEA bargaining unit reporting to the Woodward Avenue Wastewater Treatment Plant,  
located at 700 Woodward Avenue, Hamilton, although he would occasionally travel to other  
water treatment facilities operated by the city identified as “Stoney Creek” and “Dundas”.  
[20] He testified in-chief that the Woodward Avenue Plant was the only water and wastewater  
facility for clean water distribution to the City of Hamilton. Although he was the sole Stores  
Keeper II, he worked with some 40 50 other HOWEA bargaining unit members and an  
unknown number of CUPE, Local 5167 employees that he identified as “mostly office workers”  
(however, later in his testimony he expanded his description to include other categories of  
3
The timing of this hearing was affected by the COVID-19 pandemic and personal illness, for which the arbitrator  
Page 8 of 49  
worker). He stated he was involved in the “treatment” side of the Plant’s activities, candidly  
admitting he had “no knowledge” of the activities of the employees involved in the “distribution”  
of fresh water, which he called, “a different department entirely”. As Mr. Hall described it,  
“treatment” work involved the action of cleaning the water and wastewater through the  
administration of chemicals and otherwise, which was to be contrasted with “distribution” that  
was concerned with the movement of the water and wastewater throughout the city and environs  
via pipes and other methods. Mr. Hall complained he was frequently “overworked”, and the  
Employer refused his requests to hire another Stores Keeper II to assist or to cover Mr. Hall’s  
duties when he was off work due to vacation or illness (although no grievances were filed by the  
Association related to those complaints).  
[21] Between 1994 and 2004 the management of the Woodward Avenue Plant was contracted  
out to a water services company headquartered in Houston, Texas called Azurix Corporation that  
was succeeded in or about 2004 by a different contractor named, American Water Services,  
which the city took over in 2005. Mr. Hall testified that throughout his employment he was  
primarily engaged with inventory control duties, working a regular Monday to Friday, 8:00 a.m.  
to 4:30 p.m. shift, servicing the “treatment” side of the Plant activities.  
[22] As part of inventory control, Mr. Hall testified he was responsible for tracking the use of  
materials used by employees engaged in treatment work (initially through a “chit” system the  
employees filled out when they took equipment from stores), ordering and taking delivery of new  
supplies as required (while updating the inventory records appropriately), ensuring the supplies  
were properly offloaded (that he sometimes did personally) and stored at appropriate locations in  
the Woodward Avenue site that he was responsible for keeping clean.  
[23] He testified that years earlier he also had “fleet management” responsibilities, which he  
described as scheduling the vehicles used by employees on the treatment side of the Plant for  
maintenance and arranging their replacement as necessary; although he noted those  
responsibilities were transferred later to the “job coordinators” (represented by CUPE, Local  
expresses his appreciation to the parties for their forbearance.  
Page 9 of 49  
5167) as his job changed over time. He was also required to use forklifts, transportation dollies,  
pump trucks, maintenance carts and pickup trucks in fulfilling his responsibilities. In addition to  
his training to operate a forklift, he had to maintain a current license to perform that function  
(which was a requirement of anyone using the forklift, including members of CUPE, 5167).  
[24] Although Mr. Hall identified several technological changes in the way he performed his  
job over the years, primarily associated with the increasing computerization of his inventory  
control duties, he testified his basic responsibilities remained the same as summarized in the  
original Azurix job description (although in cross-examination he identified several changes in  
his duties over time). The original Azurix job description is set out in relevant part as follows:  
SUMMARY OF DUTIES  
Assist Stores Clerk I in the purchasing, inventory control, monitoring of maintenance contracts,  
equipment/tool control, goods and materials unloading and stocking, and all associated  
administrative functions required to undertake the required services per Azurix policies and  
procedures. This will involve exposure to varying climatic conditions, potential exposure to trace  
chemicals of treatment chemicals, sludge, water and wastewater, work at computer terminals and  
lifting/moving equipment and materials.  
Maintain logs and records pertaining to equipment/materials/supplies in accordance with  
established procedures.  
Perform housekeeping/janitorial duties in work areas.  
Undertake all assigned duties in a safe and professional manner, complying with Azurix Safety  
Policies, and in accordance with the Occupational Health and Safety Act, WHMIS and all other  
applicable legislation.  
Perform other duties as may be assigned, which are related to the normal job function.  
[25] Elaborating, Mr. Hall stated the stock or inventory related to the operations of the  
treatment side of the Woodward Avenue Plant were for the use of the employees engaged in  
maintenance, instrumentation, electrical work, operations and sometimes work in the lab. He  
also noted that with technological changes over time the Employer brought in a Computer  
Maintenance Management System for Inventory Control (referred to as “CMMS”), that by the  
end of his employment Mr. Hall worked with daily. According to Mr. Hall, a specific business  
Page 10 of 49  
unit of the Employer known as “SCADA” (standing for “System Control and Data Acquisition”)  
ran the Computer Maintenance Management System for Inventory Control (which he later  
conceded he was wrong about). The way Mr. Hall characterized it, under the new CMMS:  
Most of the stuff was put on the computer system, which we had to maintain, upkeep and  
change. The inventory log was also put on the computer to keep track of everything received and  
sent out. And work order requests from each department were put through the computer to make  
sure people had their equipment to do their jobs.” Mr. Hall’s responsibilities thus evolved with  
the increasing sophistication and application of computer technology.  
[26] On September 21, 2018, Mr. Hall became aware of the city’s intention to restructure the  
water and wastewater operations affecting the Woodward Avenue and other plants through the  
following e-mail entitled, “Upcoming WWW Operations Restructure – Communication to All  
Hamilton Water Staff” written on behalf of Mr. Nick Winters, the Director of Water &  
Wastewater Operations:  
This email is to notify you about an upcoming restructure within the Water & Wastewater  
Operations Group (WWW Ops). The details follow:  
What is Changing?  
1) Inventory and fleet management related responsibilities which are currently spread across  
multiple Sections with WWW OPs are being consolidated into one business unit that reports  
through my office.  
2) Asset management database related responsibilities which are currently spread across  
multiple Sections within WWW Ops are being consolidated into the Water information systems  
business unit within Customer Service & Community Outreach.  
3) Plant Maintenance planning functions will be delivered following a new model.  
4) A supervisor will be added to the SCADA business unit.  
5) A day shift Process Supervisor for the waste treatment plant and water outstations will be  
created and filled.  
A future org chart has been attached to this email for your review. Please note that this org chart  
is not meant to be a holistic depiction of staff within any Section or business unit, it simply shows  
the changes at a high level.  
How do the changes effect each section within WWW Ops?  
Water Distribution & Wastewater Collection (WD&WWC)  
Page 11 of 49  
The Stockkeeper Clerk Water Distribution Positions will be retitled to Inventory & Fleet  
Clerk (Hamilton Water) and some minor adjustments will be made to the Job Description.  
These positions will on longer report through WD&WWC once the transition is complete.  
They will report to the Supervisor, Inventory & Fleet Management position in its new  
alignment. Please note that one Inventory & Fleet Clerk will continue to be located in  
each Water Distribution District Yard under the new structure.  
Responsibilities for inventory and fleet management will be transferred from WD&WWC  
to the new Inventory & Fleet Management business unit.  
Plant Maintenance & Technical Service (PMATS)  
Responsibility for inventory and fleet management will be transferred from the Plant  
Maintenance business unit to the new Inventory & Fleet Management business unit.  
The following positions will no longer exist in the new structure: CMMS  
Supervisor, CMMS Planner/Scheduler, and Stores Keeper II.  
What is the Structure and Role of the Inventory & Fleet Management (IFM) Business Unit?  
The IFM business unit will be headed by the Superintendent, Inventory & fleet  
Management. There will be a Supervisor, Inventory & Fleet Management that reports to  
the Superintendent, and four Inventory and Fleet Clerks (Hamilton Water) that report to  
the Supervisor.  
The Superintendent, IFM and Supervisor, IFM will report out of 700 Woodward.  
There will be one Inventory & Fleet Clerk reporting out of each Water Distribution district  
yard and two Inventory & Flee clerks reporting out of 700 Woodward.  
This business unit will manage fleet assets (replacement, outfitting, fleet planning, etc.)  
for al Hamilton Water Sections.  
This business unit will manage the AVL system for all Hamilton Water Sections.  
This business unit will manage all material, parts, equipment and chemical supply  
contracts for the WD&WWC, PO and PMATS Sections.  
This business unit will establish consistent inventory, equipment, and small took policies  
and procedures for adoption across Hamilton Water.  
This business unit will make recommendations for improvement/modification of inventory  
practices in CS&CO and Compliance & Regulations, but there is no plan for them to  
manage the inventory assets in these Sections.  
Why are These Changes Taking Place?  
All of the changes included in this restructure plan are being made to increase efficiencies and  
consistency, to redistribute workloads, and ensure that appropriate structures are in place to  
support the success of our operations. …  
Page 12 of 49  
When are the Changes Taking Place?  
The current timeline for all of the changes to take effect and for the new structures to be  
completely implemented is January 21, 2019.  
Are There Any Negatively Impacted Staff or Lay Offs as a Result of These Changes?  
Unfortunately, there are a small number of staff that are impacted by this restructure.  
Individual meetings have been conducted with each of these staff members and they will be  
provided with all available support to assist them to pursue other opportunities within  
Hamilton Water or the City.  
[Emphasis added]  
[27] (As Nick Winters testified later in the proceedings, this restructuring was intended, in  
part, to bring together all inventory control and fleet management spread over the different  
Hamilton Water locations and outstations under a single management reporting structure to  
promote efficiencies throughout the system.)  
[28] The restructuring plan directly impacted Mr. Hall as a HOWEA Stores Keeper II,  
contemplating the elimination of his position while spreading his functions among other  
employees in the CUPE, Local 5167 bargaining unit, as described below. Coincident with the  
release of the restructuring e-mail, Mr. Hall and his Association representatives met with city  
officials for a briefing on those plans, which included formal notice of the elimination of the  
Stores Keeper II position and Mr. Hall’s layoff.  
[29] A grievance was subsequently filed by the Association on behalf of Mr. Hall challenging  
the validity of his layoff (filed as Grievance No. 2016-1753), which the parties settled via a  
Memorandum of Agreement dated October 9, 2018, confirming Mr. Hall’s retirement effective  
April 30, 2019, and the terms of a paid leave of absence commencing October 10, 2018,  
reproduced in relevant part below:  
Re: Grievance 2018-1753: Hall, J. (Lay-Off)  
Page 13 of 49  
The parties hereby agree, without precedent and prejudice to the respective positions of the  
parties and without precedent to any future and similar matters between them, to the following  
terms as full and final settlement of al matters in dispute pertaining to the above captioned matter.  
1. The Employee tenders his irrevocable letter of retirement, effective April 30, 2019, attached  
hereto.  
2. The Employee will be placed on a paid leave of absence from October 10, 2018 to April 30,  
2019. All earnings will be subject to all statutory deductions, including but not limited to,  
Canada Pension Plan, employment Insurance, and Income tax.  
3. The Employee will receive any wage increases provided for in the collective agreement  
between HOWEA and the City of Hamilton for the applicable period.  
4. The Employee will earn pensionable service until April 30, 2019 and OMERS contributions will  
be deducted from his wages, and the Employer shall pay their portion of the contribution, as  
required.  
5. The Employee will continue to receive benefits coverage (including health, dental and life  
insurance, but excluding short-term and long-term disability) for the period October 10, 2018  
to April 30, 2019, at which time his retirement will be effective.  
6. The Employee will not accrue vacation entitlement for the period of time of October 10, 2018  
to April 30, 2019.  
7. Any “lieu time”, outstanding vacation entitlement, and any other earned benefit payable to the  
Employee will be paid to him no later than June 30, 2019.  
8. The above offer is inclusive of any entitlements under the Employment Standards Act  
This Memorandum of Settlement constitutes full and final settlement of any and al claims,  
complaints, grievances or actions whatsoever that the Employee has or may have against the  
Employer and/or the Union. Its representative(s), and officials whether under a collective  
agreement, statute, regulation, policy, contract or at common and/or civil law as a result of or  
arising out of employment with the Employer, relative to the matter which gave rise to this  
Agreement.  
[30] Given this Memorandum of Settlement, the Association did not pursue damages against  
the Employer arising out of the alleged improper layoff of Mr. Hall with the elimination of the  
Stores Keeper II position, confining its remedy in the present case to a declaration that the  
Employer violated the collective agreement and an order reinstating the Stores Keeper II position  
within the HOWEA bargaining unit, with potential damages for any employee who may have  
been entitled to that job after its elimination to be remitted to the parties for resolution.  
Page 14 of 49  
[31] In cross-examination4, with the benefit of close questioning, Mr. Hall confirmed that he  
worked with a classification of employees at the Woodward Avenue Plant known as  
“Planner/Schedules” who were members of CUPE, Local 5167. He also confirmed that his  
various front-line supervisors over the years were members of CUPE, Local 1041. And he  
conceded that he was “wrong” when he testified earlier that SCADA (“System Control and Data  
Acquisition”) ran the CMMS computer system when, in fact, he accepted that HOWEA members  
used the SCADA system to operate the process equipment for both water treatment and water  
distribution functions.  
[32] He also eventually concurred, with the assistance of counsel in refreshing his memory,  
that several employee groups ordered their own equipment and product supplies for which they  
kept separate inventory records, including non-HOWEA employees in the laboratory and workers  
using the SCADA programs. He conceded that the primary function of the Computer  
Maintenance Management System (“CMMS”) was to keep track of work orders, supplies, parts,  
and equipment, collectively referred to as “inventory management” used by maintenance workers  
who for the most part were unionized by CUPE, Local 5167. The CMMS program automatically  
kept track of inventory, warning when it was necessary to reorder certain supplies. And Mr. Hall  
confirmed he would occasionally receive e-mails from the Planner/Schedulers instructing him on  
what to order for specific jobs anticipated or ongoing at the Woodward Avenue Water &  
Wastewater Plant.  
[33] Mr. Hall also remembered that his previous fleet management responsibilities for  
arranging maintenance of vehicles used at the Woodward Avenue Plant and driving other  
HOWEA employees to and from the service locations for their vehicles, was taken over years  
earlier by the CUPE, Local 5167 Planner/Schedulers (without evidence of a grievance by the  
Association), who assumed responsibility for obtaining quotes for service required on other  
equipment used at the Plant.  
4 As Mr. Hall’s cross-examination was not completed on the first day of the hearing held on November 14, 2019, he  
was recalled completing his cross-examination on the third hearing day held almost one year later, on November 4,  
2020, which had been delayed by the impact of the developing COVID-19 pandemic.  
Page 15 of 49  
[34] And while Mr. Hall handled the procurement and purchasing of “stock items”, which  
were materials used and replenished on a regular basis that were subject to standing orders with  
vendors and delivered two or three times per year (usually for “consumables” such as gloves,  
cleaning agents, nuts, bolts and commonly used supplies that were subject to corporate contracts  
arranged by management), he agreed that the CUPE Planner/Schedulers took care of ordering and  
tracking “non-stock items” (for treatment and distribution work), for which they did the  
procurement themselves with approved suppliers requiring that the Planner/Schedulers obtain  
quotes while ensuring compliance with all municipal by-laws in selecting and monitoring the  
performance of suitable suppliers. To that extent there was a clear overlap of inventory ordering  
and control functions by the CUPE Planner/Schedulers and HOWEA Stores Keeper II at the  
Woodward Avenue Plant.  
[35] Finally, Mr. Hall recalled that when he was absent from work on vacation or during  
illnesses, at least two of the CUPE Planner/Schedulers identified as Mr. Will Balansik (who  
looked after the mechanical trades) and Mr. Mike Runjaic (who handled the instrumentation and  
electrical workers), substantially replaced the inventory functions performed by Mr. Hall5, except  
for moving supplies around the facility by forklift which was assigned to other HOWEA  
employees holding the appropriate forklift license. This included ordering supplies and ensuring  
that materials were properly accounted for on the inventory management (computer) system. (By  
the end of his employment, Mr. Hall was receiving at least five weeks of vacation per year,  
contributing to the increased use of the Planner/Schedulers)6.  
[36] Unionized and non-unionized employees including those in HOWEA and CUPE, Local  
5167 also regularly assisted in conducting the annual physical inventory of the storerooms  
located throughout the Woodward Avenue Plant (referred to as “main” and “lower” stores) and  
elsewhere at Hamilton Water.  
5
Mr. Hall testified that they were not supposed to do that work; however, there was no evidence of any grievances  
ever filed on the matter and from Mr. Hall’s testimony it appears to have been the practice for years.  
6
Per article 8.1 of the collective agreement which provided 5 weeks’ paid vacation beginning the 16th year of  
employment.  
Page 16 of 49  
(ii)  
Dave D’Alessandro  
[37] Mr. D’Alessandro testified he had been an instrumentation technicianand member of  
HOWEA since April 2008, working exclusively at the Woodward Avenue Plant. He  
characterized the Plant as a facility where wastewater from an extensive sewage network is  
treated and put back into Lake Ontario, while lake water is pumped into the Plant for treatment  
and distribution as drinking water throughout the city. He described the Plant workforce as  
electricians, instrument technicians, mechanical maintenance, operations specialists, stores  
keepers, as well as administrative and laboratory personnel located in a separate building (on the  
Woodward Avenue Plant site). He also named other locations that treated water and wastewater  
for the region of Hamilton-Wentworth as Dundas, Freelton, Linden, Carlisle, and Greensville.  
[38] Mr. D’Alessandro testified that his duties were to calibrate instruments required to treat  
the water (from both the water and wastewater side of operations), as well as responsibilities for  
certain repairs and to generally help with process issues. He stated he only worked on the  
“treatment side” of the process as distinct from the “distribution side” from what he identified as  
a “distribution yard” located next to the Plant.  
[39] Aside from that, he asserted that as far as he knew (which was admittedly limited to his  
own job experiences) there was no “distinct operation for distribution” of water and wastewater.  
He also testified that as an instrument technician he often interacted with the Stores Keeper II at  
the Woodward Avenue Plant, which was Mr. Hall before the latter’s retirement.  
[40] The main storesarea under Mr. Hall’s responsibility held most of the materials required  
by the HOWEA members while engaged in treatment work, however after Mr. Hall’s retirement  
they were substantially moved to a different part of the Plant known as “lower stores”, which had  
three separate areas: (1) a cage for mechanical parts; (2) another cage for electrical parts; (3) and  
a smaller area for items related to SCADA activities. Since Mr. D’Alessandro didn’t interact  
with anyone outside of the treatment operation of the Woodward Avenue Plant, he acknowledged  
he didn’t know if there was a separate Stores Keeper for the distribution side of the Plant, but he  
Page 17 of 49  
“assumed” there was. However, after Mr. Hall’s retirement, he identified at least two other  
Stores Keepers for the HOWEA equipment who were CUPE, Local 5167 members (and as  
described below, who are now referred to as IF Clerks).  
[41] In cross-examination, Mr. D’Alessandro confirmed that the only Stores Keeper he  
worked with was Mr. Hall (prior to his retirement), and when Mr. Hall was absent due to  
vacation, holidays, or illness, the HOWEA tradesmen generally helped themselves to whatever  
they needed out of stores, which prior to computerization were accounted for by what was called  
a “pick ticket system” (i.e., paper-based) that was left on Mr. Hall’s desk so that he would know  
what had been removed from stock for updating the inventory records.  
[42] However, with increasing computerization, this paper-based protocol evolved to the point  
that the tradesmen would account for the items they removed from stock directly onto the  
computer themselves. Finally, Mr. D’Alessandro testified he knew from “casual observations”  
that the CUPE Planner/Schedulers ordered parts and materials required for special jobs directly  
from suppliers and vendors through the computerized inventory system before the reorganization  
of the stores department occurred, for work to be performed at the Woodward Avenue Plant.  
[43] He confirmed the names of these Planner/Schedulers as Will Balansik (for mechanical)  
and Mike Runjaic (handling instrumentation and electrical supplies).  
(iii) Darren Lister  
[44] Mr. Lister, who as of this arbitration had been a city employee for 18 years, testified that  
since early 2016 he has been the mechanical supervisor for Plant Maintenance and Technical  
Services (“PMATS”) at the Woodward Avenue Plant, which is a unionized front-line supervisory  
position within the CUPE, Local 1041 bargaining unit. Previously, he was a millwright and  
former chief steward (from in or about 2011) of the HOWEA bargaining unit. He confirmed that  
prior to 2005, the water and wastewater services were operated on behalf of the city by a  
Page 18 of 49  
contractor, American Water Services, which the city took over at that time, transferring all the  
workers involved in water treatment to the city’s direct employ.  
[45] During his examination-in-chief, Mr. Lister described his interaction with the stores  
department from his years of employment as a HOWEA millwright to his current front-line  
supervisory role. As a millwright working out of the “Maintenance Shop”, Mr. Lister testified he  
travelled throughout the Woodward Avenue Plant, including backup stations, booster stations,  
water, and wastewater tanks (which he referred to as the “treatment side”) apart from  
underground piping (that was the responsibility of the “distribution side” with which Mr. Lister  
had limited involvement). He also testified that his HOWEA workers would be assigned to  
duties outside of the Woodward Avenue Plant, occasionally doing work at other locations  
identified as “Dundas” and the “Waterdown Distribution Plant”, as well as satellite stations  
associated with water and wastewater treatment.  
[46] In performing his usual duties (both as a millwright and first-line supervisor), Mr. Lister  
dealt with the HOWEA Stores Keeper II, Mr. Hall, “on a daily basis” for “consumables”,  
identified as “nuts and bolts, washers and fasteners, rubber and leather gloves and all of those  
types of items managed by stores”. These “small consumables” (as Mr. Lister characterized  
them) were kept in the “main stores area”; while larger items such as parts, assemblies and  
rebuilds were housed in an area of the Woodward Plant known as the “lower stores”; all related  
to water and wastewater treatment work. Mr. Hall’s job as Stores Keeper II, until his retirement,  
was to support the eight HOWEA millwrights who reported to Mr. Lister following the latter’s  
promotion to front-line supervisor.  
[47] When Mr. Hall was absent, Mr. Lister testified that “anyone” could take items from the  
stores, which they would account for on a “pick ticket” (and later directly on the inventory  
computer). And items received in the stores department during Mr. Hall’s absence, could be  
accepted “by anyone” who would “leave the paperwork for Jim Hall to process” when he  
returned. Among his description of “anyone”, Mr. Lister listed himself (as a member of CUPE,  
Page 19 of 49  
Local 1041) and the regular involvement of CUPE, Local 5167 members in performing certain  
inventory control work.  
[48] After Mr. Hall left the workplace on October 10, 2018, Mr. Lister became aware of a new  
classification of “clerk” (in the CUPE, Local 5167 bargaining unit) who replaced Mr. Hall with  
what Mr. Lister perceived to be the same basic responsibilities that Mr. Hall performed in  
receiving and distributing “consumables”. Nevertheless, unlike the previous reporting  
relationship that Mr. Hall had with the CMMS, Mr. Lister testified that the new clerks reported to  
a consolidated category of supervision called the Inventory Fleet Management (“IFM”), which  
from Mr. Lister’s perspective did not change the nature of his (and his millwrights’) daily  
interaction with the stores department for their “consumables”. However, Mr. Lister also noticed  
that the IF Clerks(as they were called) had expanded responsibilities that included some  
services for the “distribution side” of the Plant’s operations.  
[49] During cross-examination, Mr. Lister identified the two IF Clerks as Messrs. Balansik  
and Runjaic, members of CUPE, Local 5167. Prior to the reorganization of the stores department  
in or about February 2019, Mr. Lister confirmed that these two workers were  
“Planner/Schedulers”; with Mr. Balansik having worked in that capacity for 8 – 10 years, and  
Mr. Runjaic working about four years in that role prior to the 2019 reorganization.  
[50] Mr. Lister further elaborated that, like Mr. Hall, Messrs. Balansik and Runjaic were  
responsible for ordering supplies for use by all employees (including those involved in treatment  
and distribution), and that during Mr. Hall’s absences they also handled the receipt, distribution,  
and accounting for inventory (in the main and lower stores for all employees), which Mr. Lister  
described as “shared duties” that they had with Mr. Hall. (This was in addition to the activities  
of the tradesmen from both the HOWEA and CUPE bargaining units who took items that they  
needed from stores themselves, which they accounted for on “pick tickets” or directly on the  
inventory computer system whenever Mr. Hall was away.) Mr. Lister confirmed that Messrs.  
Balansik and Runjaic processed most, if not all the items ordered from vendors that went directly  
to the worksite (under the Plant’s “work order” system) rather than being placed into inventory.  
Page 20 of 49  
Messrs. Balansik and Runjaic were also responsible for “helping out” Mr. Hall in maintaining the  
inventory control system for all employees while Mr. Hall was employed as the HOWEA Stores  
Keeper.  
[51] Mr. Lister noted that even before the February 2019 reorganization of the inventory  
department, there was a major upgrade with the replacement of the manual “pick ticket”  
procedures by a computerized inventory control processor, with the increased involvement of  
Messrs. Balansik and Runjaic in the administration of the upgraded system (that included helping  
Mr. Hall directly with his responsibilities for the record-keeping functions concerning the  
HOWEA bargaining unit members).  
[52] Also, prior to Mr. Hall’s retirement, Mr. Lister confirmed his observations that the  
Planner/Schedulers in the form of Messrs. Balansik and Runjaic were directly responsible for a  
number of items under the general heading of “inventory control” including: (a) monitoring  
maintenance contracts; (b) managing elevator and lifting device inspections; (c) overseeing  
generator preventative maintenance; (d) equipment service and rentals; along with (e) weight  
scale inspections and calibration (none of which was ever handled by Mr. Hall, but were of  
general application to all “treatment” and “distribution” side employees at the Woodward  
Avenue Plant).  
[53] Finally, as part of the upgrades in 2017, Mr. Lister testified that some of the vendor  
contracts for “consumables” previously administered by Mr. Hall in the main stores, were taken  
over by the Planner/Schedulers members of CUPE, Local 5167. He confirmed that all the  
foregoing functions, including basic inventory receiving, processing, and accounting for the main  
stores used by the HOWEA bargaining unit employees, were seamlessly assumed by the new IF  
Clerks after the inventory reorganization in February 2019.  
(iv)  
Joe Sullivan  
Page 21 of 49  
[54] As of the date of his testimony, Mr. Sullivan had been the Instrumentation Supervisor  
(and member of CUPE, Local 1041) for four years.  
[55] Previously, Mr. Sullivan was a Project Manager (for one year) and an instrument  
technician in the HOWEA bargaining unit for 13 years (commencing in or about 2003 under the  
employment of American Water Services before its transfer to the city in 2005), assigned to the  
Woodward Avenue Plant. For a period commencing in or about 2015, Mr. Sullivan was the  
project manager responsible for security at the Woodward Avenue Plant, working out of the  
Administrative Building (along with many CUPE, Local 5167 bargaining unit members). After  
becoming Instrumentation Supervisor in 2016 (and moving back to the Maintenance Building at  
the Woodward Avenue Plant), he became responsible for five technicians who were members of  
HOWEA. Their primary function was to maintain and calibrate the instrumentation within  
Hamilton Water as part of overall Plant maintenance and technical services related to the  
“treatment” side of the Plant operation.  
[56] Mr. Sullivan’s interactions with the HOWEA inventory Stores Keeper II were like those  
of Mr. Lister7 and his testimony was to the same effect. In servicing the “treatment” side of the  
Plant (which included the “Dundas” location and several outstations), he had reason to see Mr.  
Hall in stores on almost a daily basis for “consumables”; both as a HOWEA instrument  
technician and front-line supervisor. From Mr. Sullivan’s observations, it appeared Mr. Hall’s  
responsibilities included sourcing parts and keeping in contact with vendors for parts, managing  
vehicle services at one time, stocking, unloading, and loading trucks, and generally accounting  
for the movement of inventory in and out of the stores. During Mr. Hall’s absences, the  
tradespeople or supervisors took the required items and filled out the pick ticket or entered the  
disposition on the computer system themselves.  
[57] After the reorganization of stores in 2019, their interaction with stores continued under  
the direction of at least two Inventory Fleet Clerks who provided the same services (although Mr.  
Page 22 of 49  
Sullivan noted they asked him many more questions about the needs of his group than Mr. Hall).  
Also, a portion of Mr. Hall’s role in obtaining quotes for parts from outside vendors was replaced  
by at least one of the CUPE Planner/Schedulers working with the CMMS group (under the new  
title of IF Clerk). However, unlike Mr. Hall’s prior absences, there was always an IF Clerk  
available to dispense and electronically account for inventory withdrawals on the computer  
system and to receive new deliveries as they came into stores. Since the IF Clerks were not  
licensed to operate forklifts used to move inventory around the Plant, that incidental function  
(performed by Mr. Hall) continued to be assigned to a HOWEA worker.  
(b)  
The Employer’s Evidence  
(i)  
Nick Winters  
[58] Mr. Winters faced extensive examination, in-chief and in cross during two hearing days,  
as the only witness called by the Employer. He was the decision-maker whose reasons for  
implementing changes in the organization of the stores across the water and wastewater facilities  
throughout the city were subjected to close review.  
[59] Mr. Winters has been a city employee since 2005, progressing within the water and  
wastewater division to become the Director of Waterworks Operations in May 2017. His hiring  
coincided with the transfer of the Woodward Avenue Plant administration from American Water  
Services to the city’s control. All the employees of American Water Services also became city  
employees as of the transfer, who were hired by the city with recognition of past service to  
maintain the facilities previously operated by American Water Services (and its predecessor,  
Azurix Corporation).  
[60] These employees worked out of the Woodward Avenue Plant location who to Mr.  
Winters’ understanding, were already unionized (in their prior employment) by a Local of the  
7 During cross-examination, Mr. Sullivan substantially repeated the evidence of Mr. Lister, confirming the use of the  
Planner/Schedulers to perform Mr. Hall’s functions when he was absent, and the role of the CUPE, Local 5167  
Planner/Schedulers to order parts and supplies for special projects at the Woodward Street Plant and at Dundas.  
Page 23 of 49  
International Union of Operating Engineers (IUOE) under the name HOWEA.8 They worked  
as “water treatment operators” with responsibilities for operating the Plant treatment facilities,  
along with the trades staff that maintained the treatment equipment within the facility. It had its  
own Stores Keeper II responsible for inventory control who was Mr. Hall acting as the sole stores  
keeper for the facility.  
[61] Mr. Winters testified that at the time the employment of the 40 50 HOWEA members  
was transferred from American Water Services to the city in 2005, there were at least two other  
facilities under the direction and control of Hamilton Water providing water distribution services  
to the municipality, located at 135 King Street East, Dundas, Ontario (“Dundas”) and 911 Arvin  
Avenue, Stoney Creek, Ontario (“Stoney Creek”). The employees at both locations were  
unionized members of CUPE, Local 5167, including a “Stockkeeper/Clerk” at each facility. The  
job description for the Stockkeeper/Clerk, which was filed into evidence,9 demonstrates that the  
duties of the Stockkeeper/Clerks were substantially the same as those of Mr. Hall working as the  
HOWEA Stores Keeper II at the Woodward Avenue Plant, with additional responsibilities that  
Mr. Winters identified in his testimony. The relevant provisions of the job description for the  
Dundas and Stoney Creek Stockkeeper/Clerk are reproduced below:  
STOCKKEEPER/CLERK (WATER DISTRIBUTION) CUPE 5167  
SUMMARY OF DUTIES  
Under the direction of the Supervisor, Inventory, Fleet & Facilities, provides delivery of sectional  
inventory management, fleet monitoring, and facilities maintenance activities while ensuring that  
these services are provided in an effective and efficient manner consistent with guidelines and the  
City’s mission and division, and with minimal disruption to staff, clients, vendors, contractors and  
the public.  
GENERAL DUTIES  
8 There was a hearsay nature to this testimony in that Mr. Winters was admittedly testifying from his “understanding”  
and not from first-hand knowledge having himself been hired by the city after the transfer of the employees to the  
city’s employ. However, I permitted the evidence to be admitted as part of the general background which was not  
disputed by Union in either cross-examination or when it had an opportunity to present reply evidence.  
9
The job description filed into evidence was updated to July 2015, was nevertheless identified as the description  
substantially in effect as of the transfer of the Woodward Avenue Plant to the city in 2005.  
Page 24 of 49  
Oversees and administers the operations of stock areas. Receives, identifies and verifies parts,  
consumables and assets. Provides information to and assists customers.  
Maintains inventory. Uses inventory management software (Hansen). Prepares purchase  
requisitions for the replacement of stock. Contacts suppliers or searches catalogues to determine  
price and additional details concerning new items.  
Makes claims with transport companies if delivered merchandise has been damaged.  
Maintains files appropriate to the activities of the unit, such as invoices, order number, receiving  
date shipping date, etc. Prepares reports.  
Is responsible and accountable for own City of Hamilton issued visa purchases and submissions.  
Verifies ledgers statements and supporting documents.  
Communicates with others in order to receive or transmit information.  
Handles and stores parts or special products that require some knowledge of spontaneous  
combustion, toxicity, fragility, rapid deterioration, contamination, etc.  
According to requirements and established procedures arranges stock. In case of emergency or  
in order to replace outdated material, suggests substitutes available in the store.  
Controls and carries out the lending and renting of tools, equipment, furnishings, and devices.  
Ensures that they are kept in good condition and that they are repaired or replaced as necessary.  
Oversees the delivery of merchandise following an established schedule and coordinates special  
deliveries by transmitting the necessary details to the persons concerned.  
Conducts minor maintenance of equipment and instruments. Ensures cleanliness of work areas.  
Uses equipment necessary for the handling shifting, or moving of material, such as a hand truck,  
forklift, hydraulic platform, etc. Uses office equipment such as a computer, smart phone, camera,  
computerized information system, calculator, photocopier, fax machines, etc.  
Works with internal and external services providers, vendors, contractors and clients for the supply  
and administration of parts, equipment, vehicles and other inventories, and to oversee and liaise  
with the maintenance of applicable facilities.  
Utilization and optimization of Hansen or other relevant inventory software to manage inventory of  
parts, and supplies for the smooth operation of Water Distribution and Wastewater Collection  
Section, along with pertinent fleet and facilities inventories.  
Works in accordance with the provisions of applicable Health and Safety legislation and all City of  
Hamilton corporate and departmental policies and procedures related to Occupational Health and  
Safety.  
Page 25 of 49  
Performs other duties as assigned which are directly related to the major responsibilities of the job.  
[62] In addition to performing the same type of duties as the HOWEA Stores Keeper II  
working the Woodward Avenue Plant, Mr. Winters testified the CUPE, Local 5167  
Stockkeeper/Clerks at Dundas and Stoney Creek were responsible for purchasing and monitoring  
the performance of contracts by suppliers and vendors which Mr. Hall was not doing for the  
HOWEA workers other than taking delivery of “consumables” that had already been arranged  
through existing supply contracts.  
[63] According to Mr. Winters, the purchasing functions performed by Mr. Hall were limited  
to “picking up materials and paying by corporate credit card”, while the CUPE  
Stockkeeper/Clerks were responsible for: (a) monitoring vendor contracts for compliance with  
performance expectations; (b) ensuring annual certification of personal protective equipment and  
lifting devices; (c) procuring contract services for needed supplies following city bylaws, which  
included tendering and requesting tenders from interested suppliers; (e) verifying contract prices  
(to ensure compliance with negotiated contractual terms); (f) auditing the work of the contractor  
to ensure it was properly done and/or parts and materials were received as per the contractual  
terms; and (g) recommending invoices for payment (or not) based on the results of the work  
audit. Contrastingly, Mr. Hall’s only involvement with vendor contracts was to order items and  
take delivery from “preferred vendors”.  
[64] Thus, for the HOWEA maintenance and treatment personnel at the Woodward Avenue  
Plant, Mr. Winters testified that the functions not performed by Mr. Hall (that were done by the  
Stockkeeper/Clerks at the other facilities) were in fact within the job responsibilities of the  
CUPE, Local 5167 Planner/Schedulers at the Woodward Avenue Plant working under the  
Computerized Maintenance Management System.  
[65] Mr. Winters also noted that a particular problem in dealing with Mr. Hall was that there  
was no relief in the form of another HOWEA Stores Keeper II whenever Mr. Hall was absent on  
Page 26 of 49  
vacation or for illness. (However, it was noted in cross-examination that the Employer could  
have, but decided not to, add additional HOWEA Stores Keepers II personnel to cover during the  
Mr. Hall’s absences, who had complained that he was “overworked”.)  
[66] Consequently, in addition to permitting the trades staff to select items out of stores  
themselves (while accounting for them on pick tickets or leaving them for Mr. Hall to enter on  
the computer when he returned), Mr. Winters testified that the Employer typically assigned other  
HOWEA staff on modified duties to assist in the stores department when Mr. Hall was away,  
who didn’t have much, if any, inventory experience. At most, these temporary replacements  
could receive and deliver items to the different storage areas located throughout the Woodward  
Avenue Plant (via forklift or other means), but they were not trained to log those items into the  
computerized inventory system. From Mr. Winters’ perspective, this way of operating promoted  
a significant backlog of items waiting for Mr. Hall to process when he returned, resulting in  
difficulties for the efficient functioning of the Woodward Plant stores department.  
[67] Apart from those difficulties when Mr. Hall was absent, Mr. Winters testified he was  
becoming increasingly concerned at the inefficiencies in dealing with two groups of stores  
keepers in different bargaining units, reporting to different supervision, but who nevertheless  
were sometimes purchasing and accounting for the same or similar supplies at different locations  
while all within and under the same Hamilton Water. In Mr. Winters’ assessment, “it made  
sense to standardize those functions”.  
[68] To that point, Mr. Winters identified a city corporate audit completed in 2013 on the  
inventory management practices at Hamilton Water, which was filed into evidence. Among its  
“Recommendations for Strengthening System”, the report urged that, “Management develop,  
approve and implement inventory management procedures [that] should be standardized among  
all sections within Hamilton Water, where possible.” In response, Hamilton Water developed an  
“action plan” for upgrading the inventory management function with enhanced computerization  
and software applications, and as part of “the ongoing work plan” that Hamilton Water hire a  
Page 27 of 49  
full-time supervisor for inventory control to “be directly involved in the development of  
procedures and processes to address findings of [the] audit.”  
[69] That ultimately resulted in the proposal that Hamilton Water explore “the possibility of  
consolidating all staff and equipment/inventory from the Wentworth, Dundas and Stoney Creek  
locations into one centralized facility” for inventory control purposes, with the limitation that it  
would “not include any of the equipment/inventory from the Woodward facility (Lab and Plant),  
due to the large differences in types and quantities of items that are in the different inventories.”10  
But having different inventory programs and staff at the various wastewater and water facilities  
was, from Mr. Winters’ perspective, “the big barrier for satisfying [the audit] recommendations.”  
[70] Consequently, Mr. Winters testified that to maximize organizational and cost efficiencies,  
there was a drive to consolidate and reorganize the inventory control functions throughout  
Hamilton Water, which included the Woodward Avenue Plant. He also testified that among the  
three major facilities, the Woodward Avenue Plant “was our worse performer in terms of  
inventory accuracy on a regular basis which led to budget deviations”.  
[71] In addition to the inconsistencies of inventory control practices at the Woodward Avenue  
Plant operated by the HOWEA Stores Keeper II compared with Dundas and Stoney Creek under  
the direction of the CUPE, Local 5167 Stockkeeper/Clerks, Mr. Winters identified the fleet  
management services as another ongoing difficulty. As Mr. Hall noted in his earlier testimony,  
his responsibility for arranging the maintenance and replacement of vehicles used by the  
Woodward Avenue HOWEA employees was eliminated several years before the present  
controversy, with that function transferred to the CUPE Planner/Schedulers. This, of course,  
included the vehicles used by the HOWEA personnel at the Woodward Avenue Plant, requiring  
the direct interaction of HOWEA and CUPE bargaining unit members.  
10  
The report also noted that the Lab and Plant staff at the Woodward Avenue facility required access to chemicals  
and consumables daily, so their inventory needs were to remain located in their current facilities, which nevertheless  
did not affect the desirability of a standardized inventory purchasing and control process covering all three of the  
Dundas, Stoney Creek and Woodward Avenue locations.  
Page 28 of 49  
[72] Given the foregoing realities and the corporate audit recommendations, Mr. Winters  
testified that the decision was made to reorganize and consolidate all fleet (or vehicle)  
administration and inventory into a single business unit having practical application throughout  
Hamilton Water referred to as, “Inventory and Fleet Management” (or “IFM”). Under the  
reorganization plan, a new position called Inventory and Fleet Clerks (“IF Clerks”), was created  
to satisfy all inventory and fleet responsibilities throughout Hamilton Water, including its  
facilities at Woodward Avenue, Dundas and Stoney Creek, reporting to the same supervisor  
through the overall administration of a single superintendent responsible for the program.  
[73] The new IF Clerk classification did all the tasks that Mr. Hall performed as a HOWEA  
Stores Keeper II, in addition to the more complex purchasing functions of putting through and  
monitoring vendor contracts, obtaining quotes and negotiating contracts with vendors while  
complying with all city procurement bylaws, as well as coordinating the management of fleet  
resources throughout the organization.  
[74] Given Mr. Hall’s pending retirement and the broader responsibilities of the IF Clerks than  
Mr. Hall’s more limited duties as the HOWEA Stores Keeper II, Mr. Winters considered it  
appropriate to assign the new position to the CUPE, Local 5167 bargaining unit, where its  
incumbents would be able to work at all three facilities utilizing a common computerized  
platform to keep track of supplies, and thus affording the flexibility of being able to relieve each  
other when one was absent on vacation or because of illness at any of the facilities (i.e. not like  
what Mr. Winters considered to be the inefficient situation with Mr. Hall). The Employer  
eventually appointed the two CUPE Planner/Schedulers to fulfill the inventory role at the  
Woodward Avenue Plant, eliminating the HOWEA Stores Keeper II position in the process.  
[75] The job description accordingly established for the new Inventory and Fleet Clerk,  
combining the essential elements of Mr. Hall’s role as the HOWEA Stores Keeper with the  
ongoing responsibilities of the then existing CUPE Stockkeeper/Clerks, now provides in relevant  
part as follows:  
INVENTORY & FLEET CLERK (HAMILTON WATER) CUPE 5167  
Page 29 of 49  
SUMMARY OF DUTIES  
Under the direction of the Supervisor, Inventory & Fleet Management, provides delivery of  
sectional inventory and fleet management, while ensuring that these services are provided in an  
effective and efficient manner consistent with guidelines and the City’s mission and vision, and  
with minimal disruption to staff, clients, vendors, contractors and the public.  
Provides information to and assists customers, issues requests for quotes and prepares purchase  
requisitions. Maintains inventory. Receives and issues parts and equipment. Maintains files and  
prepares reports. Monitors fleet and coordinates major maintenance and outfitting.  
GENERAL DUTIES  
Oversees and administers the operations of stock areas. Receives, identifies and verifies parts,  
consumables and assets. Provides information to and assists customers.  
Maintains inventory. Uses inventory management software (INFOR IPS and INFOR EAM).  
Prepares purchase requisitions for the replacement of stock. Contacts suppliers or searches  
catalogues to determine price and additional details concerning new items.  
Coordinates major maintenance and outfitting of fleet assets. Arranges for rental/replacement  
vehicles as required to maintain operations.  
Maintains fleet inventory and tracks assignment of vehicles. Maintains/supports AVL system for  
Hamilton Water Fleet assets.  
Makes claims with transport companies if delivered merchandise has been damaged.  
Maintains files appropriate to the activities of the unit, such as invoices, order number, receiving  
date, shipping date, etc.  
Handles and stores parts or special products that require some knowledge of spontaneous  
combustion, toxicity, fragility, rapid deterioration, contamination, etc.  
According to requirements and established procedures, arranges stock. In cases of emergency or  
in order to replace outdated material, suggests substitutes available in the store.  
Controls and carries out the lending and renting of tools, equipment, furnishing, and devices.  
Ensure that stores tools are kept in good condition and that they are repaired or replaced as  
necessary.  
Oversees the delivery of merchandise following an established schedule and coordinates special  
deliveries by transmitting the necessary details to the persons concerned.  
Coordinates minor maintenance of equipment and instruments. Ensures cleanliness of stock  
area(s).  
Page 30 of 49  
Uses equipment necessary for the handling, shifting, or moving of material, such as a hand truck,  
forklift, hydraulic platform, etc. Uses office equipment such as a computer, smart phone, camera,  
computerized information system, calculator, photocopier, fax machine, etc.  
Works with internal and external service providers, vendors, contra actors and clients for the  
supply and administration of parts, equipment and to oversee and liaise with the maintenance of  
applicable facilities.  
Utilization and optimization of inventory software to manage inventory of parts and supplies for the  
smooth operation of all sections within Hamilton Water.  
Assists Supervisor in the preparation of technical specifications for parts, materials, and services.  
Purchases materials, parts and services under $5,000 via quote or on P-Card.  
Maintains accurate records of P-Card expenditures for reconciliation and audit trail.  
Establishes minimum and maximum inventory levels based on price, availability, source, usage  
history, and trends.  
Meets with supplier and vendor representatives to discuss delivery and quality problems in order  
to ensure a supply of materials on hand.  
Participates in or leads discussions and evaluates new parts and technologies in conjunction with  
subject matter experts and/or staff.  
Negotiates pricing, warranties, and possible items for contract.  
Prepares and issues quotations, requests for proposals, and tenders for parts, materials, and  
services over $5,000.  
Informs Supervisor of areas for possible cost savings and instances of high and/or unusual  
demand on high-dollar items.  
Ensures inventory and related data in INFOR IPS, INFOR EAM or other relevant software is  
current and valid.  
Maintains up-to-date Safety Data Sheets (SDS) records.  
Maintains a secure Stores’ area by limiting access to unauthorized personnel, controlling access  
to authorized staff, and reporting any non-conformances.  
Trains employees who are providing coverage for job specific tasks.  
Works in accordance with provisions of applicable Health and Safety legislation and all City of  
Hamilton corporate and departmental policies and procedures related to Occupational Health and  
Safety.  
Page 31 of 49  
Performs other duties as assigned which are directly related to the major responsibilities of the job.  
[76] Mr. Winters thus expressed the opinion that the new IF Clerk position with coverage at  
all of Hamilton Water was more efficient than the prior system. He testified that previously, over  
the three main facilities at Woodward Avenue, Dundas, and Stoney Creek, two locations were  
managed by a single team under one supervisor at Dundas and Stoney Creek, while the third,  
Woodward Avenue location, was managed by a completely different team.  
[77] As a result of the reorganization, all of the purchasing and inventory functions performed  
by the Purchaser/Schedulers (then in the CUPE, Local 5167 bargaining unit at the Woodward  
Avenue Plant) became IF Clerks, who along with the previous Stockkeeper/Clerks were  
interchangeable so that they could work out of any of the Hamilton Waterworks locations,  
following the same process for the procurement of goods, and using the same data base systems  
for inventory management, reporting to the same supervisory authority and business unit.  
[78] Consequently, Mr. Winters testified the restructuring resulted in the elimination of the  
single Stores Keeper II position occupied by Mr. Hall as of October 10, 2018, and its replacement  
by two CUPE, Local 5167 Stockkeeper/Clerks under the new title, Fleet & Inventory Clerkor  
“IF Clerk”.  
[79] In Mr. Winters’ view, the personal impact of this change was mitigated by Mr. Hall’s  
paid leave of absence effective that date and his later retirement on April 30, 2019. And,  
referring to the HOWEA seniority lists, Mr. Winters testified that all the HOWEA employees at  
the Woodward Avenue Plant affected by the reorganization continued in an employment  
relationship with the city, with many of them also retiring in subsequent years before the date of  
the present arbitration proceedings.  
[80] Furthermore, while HOWEA had some 47 budgeted positions prior to the reorganization  
in February 2019 (further identified as 16 tradespersons, 30 water operators and 1 stores keeper),  
Mr. Winters noted that as of January 2021, the budgeted HOWEA workforce had grown to 58  
Page 32 of 49  
positions, out of which eight remained vacant as of the date of Mr. Winters’ testimony; thereby  
dispelling any notion that the Employer was attempting to eliminate or reduce the amount of  
HOWEA representation among its employees, according to Mr. Winters.  
[81] Nevertheless, in the course of a detailed and exacting cross-examination, Mr. Winters  
conceded that all the functions performed by Mr. Hall as a HOWEA Stores Keeper II continued  
under the new IF Clerk system; that management might have but decided not to train additional  
HOWEA Stores Keepers to assist and/or replace Mr. Hall during his absences (in order to  
maintain the efficiencies of HOWEA Stores Keeper position before and after the reorganization);  
and that consistent with the recommendations of the corporate auditor, the Woodward Avenue  
Plant maintained extensive and separate storage facilities for the specialized parts and chemicals  
related to the processes of the treatment (as opposed to distribution) of water and wastewater at  
the Woodward Avenue Plant under the direction of the HOWEA bargaining unit members and  
specialized laboratory (non-HOWEA) personnel; acknowledging further that the auditor did not  
recommend the replacement of the Woodward Avenue Plant stores.  
[82] In the face of an exhaustive review of the auditor’s recommendations, Mr. Winters also  
agreed during cross-examination that the auditor had not expressly recommended the elimination  
of the HOWEA Stores Keeper II position at the Woodward Avenue Plant, but rather that was the  
conclusion of management after considering the auditor’s report.11  
[83] Furthermore, he conceded that before the reorganization, the CUPE, Local 5167  
Stockkeeper/Clerks had no experience or training in dealing specifically with wastewater and  
water treatment inventory (as opposed to inventory related to the distribution side of the  
Hamilton Water operations), and that an effective decision had been made by Hamilton Water to  
give preference to the CUPE, Local 5167 Stockkeeper/Clerks to fulfill the overall stockkeeping  
function given their broader range of dealings with the purchasing, monitoring and computerized  
11  
I have not recounted details of all the cross-examination of Mr. Winters by the Association on this point. It is  
sufficient to note that the Association took Mr. Winters through an almost line-by-line review of the auditor’s  
conclusions.  
Page 33 of 49  
inventory system and fleet management experience than the HOWEA Stores Keeper II, according  
to Mr. Winters.  
IV.  
The Parties’ Arguments  
[84] The arguments of the parties come down to essentially two contrasting perspectives on  
the effect of the contractual language on the abilities of the Employer to eliminate the HOWEA  
Stores Keeper II position, while assigning the essential responsibilities of that position to two  
former CUPE Storekeeper/Clerks under the new name, Inventory & Fleet Clerks.  
(a)  
The Association’s Detailed Submissions  
[85] On behalf of the Association, Ms. Triano acknowledged the Employer’s general right to  
reorganize the workforce with the bona fide intention of maximizing operational economies and  
efficiencies. However, in doing so the Employer was required to follow the limiting provisions  
negotiated in its collective agreement with HOWEA, which the Association claimed it had  
violated in the present case.  
[86] Under article 2.1 of the collective agreement, the Employer has recognized “the  
Association as the exclusive bargaining agent for all Employees, who are employed by the  
Employer at the Facilities, save and except Excluded Employees”, and that an “Employee” has  
the agree-upon definition under article 1.1(g) as “any employee who is a member of the  
Bargaining Unit and is employed by the Employer to work at the Facilities”, the latter term,  
“Facilities” also expressly defined in article 1.1(k) as “the water and wastewater treatment plants  
and Outstations owned by the Employer and operated by the Employer”. Since the wages set out  
in Schedule “A” of the collective agreement lists an hourly rate for the “position” of “Stores  
Keeper II”, which Mr. Hall had fulfilled to the Employer’s expectations for some 19 years prior  
to the reorganization at the Woodward Avenue Plant (along with the other HOWEA employees),  
the Association submitted that the Employer could not eliminate the HOWEA bargaining unit  
position of “Stores Keeper II” while at the same time having other workers unionized by CUPE,  
Page 34 of 49  
Local 5167, under the new title, “Fleet & Inventory Clerk” performing essentially the same job  
occupied by Mr. Hall.  
[87] While acknowledging that some of Mr. Hall’s duties had changed (particularly with the  
earlier elimination of his responsibilities for fleet maintenance work), and that the way he  
performed his work had obviously evolved with the introduction of computer technology that  
replaced the old “pick ticket” system, the Association contended that such changes did not alter  
the fundamental nature of the Stores Keeper II’s responsibilities, which continued throughout the  
many years of Mr. Hall’s employment. To the extent the Employer seemed to complain that  
HOWEA trades personnel (as described by Messrs. Lister and Sullivan) and CUPE, Local 5167  
Planner/Schedulers were required to perform some or most of the Stores Keeper’s duties when  
Mr. Hall was absent due to vacation or illness, the Association asserted that was really something  
within the Employer’s control which it could have easily remedied by training and assigning  
another person(s) within the HOWEA bargaining unit to act as backup or assistant to Mr. Hall,  
but chose not to. The Employer could hardly rely upon its own failure to take reasonable steps to  
properly staff the position to account for Mr. Hall’s expected absences (particularly where his  
increasing seniority entitled him to more vacation time off as the years went by), to then justify  
the wholesale replacement of the HOWEA Stores Keeper II position by a non-HOWEA  
bargaining unit employee, according to the Association.  
[88] In any event, while acknowledging that other HOWEA or CUPE employees were  
assigned to take over some of the functions that Mr. Hall had performed in his role as the  
HOWEA Stores Keeper II when Mr. Hall was absent, which was in the Association’s submission  
exclusive to the treatment function at the Woodward Avenue Plant that was the traditional role of  
the HOWEA bargaining unit in contrast to the responsibilities of CUPE bargaining unit  
employees for work on the distribution side of Hamilton Water (which had always been the  
dividing line between the two unionized groups), it was: (a) within the Employer’s control that it  
improperly directed to benefit CUPE bargaining unit employees; and (b) was for the most part  
done on a “temporary basis” to cover those periods when Mr. Hall was absent from work.  
Page 35 of 49  
[89] The decision of the Employer to remove Mr. Hall’s responsibilities at an earlier time for  
the fleet (vehicle) management function at the Woodward Avenue treatment facility was, in the  
Association’s submission, another example of the gradual eroding of the HOWEA Stores  
Keeper’s role over the traditional work of the position, that the Employer could, but neglected to  
address by hiring at least one other HOWEA Stores Keeper II, where the evidence supported the  
finding that Mr. Hall had requested on numerous occasions.  
[90] Finally, in response to Mr. Winters’ assertion that his decision to consolidate the  
inventory functions at all the Employer’s facilities at Woodward Avenue, Dundas, and Stoney  
Creek, under a single supervisory structure was sparked by the much earlier 2013 corporate  
auditor’s report, the Association submitted there was nothing in that report specifically calling on  
the Employer to eliminate the HOWEA Stores Keeper II job. Consequently, where the new job  
description for the IF Clerks was really an amalgamation of the duties that the HOWEA Stores  
Keeper II and CUPE Stockkeeper/Clerks had always performed in separate bargaining units, the  
Association contended there was nothing preventing the Employer from making the changes  
recommended in the audit report by consolidating the management or reporting structure of the  
stores function throughout all the Employer’s wastewater and water facilities, provided it  
continued to recognize the Association’s right to represent the workers engaged in the traditional  
HOWEA Stores Keeper II role at the Woodward Avenue Plant, which the Employer was  
contractually bound to respect under its collective agreement with HOWEA.  
[91] Given Mr. Hall’s leave of absence with pay beginning October 10, 2018, and his  
retirement effective April 30, 2019 (settling an earlier grievance on the matter), the Association  
confirmed it was not claiming damages for breach of contract for Mr. Hall, personally. However,  
in the interest of preserving the integrity of its bargaining unit, the Association submitted the  
appropriate remedy for the breach of contract by the Employer was: (a) a declaration that the  
Employer violated the collective agreement; (b) an order that the Employer cease and desist  
violating the collective agreement by reassigning the duties of the HOWEA Stores Keeper II to a  
HOWEA bargaining unit member; and (c) damages payable to the person or persons within the  
HOWEA bargaining unit who would have been entitled to occupy the position previously held by  
Page 36 of 49  
Mr. Hall, remitted back to the parties to resolve with the arbitrator remaining seized to settle the  
matter in the event they were unable to do so.  
[92] In support of its representations the Association also referred to the following authorities:  
Brown, Donald J. M. & David M. Beatty, Canadian Labour Arbitration, 5th ed. (Toronto:  
Thomson Reuters, online), ¶4:2100 The Object of Construction: Intention of the Parties, O.N.A.  
Joseph Brant Memorial Hospital v. Joseph Brant Memorial Hospital, 1972 CarswellOnt 1445,  
[1972] O.L.A.A No. 83, 24 L.A.C. 104 (Ont. Arb.) (Hinnegan), U.A.W., Local 112 v. De  
Havilland Aircraft of Canada Ltd., 1959 CarswellOnt 275, 10 L.A.C. 90 (Ont. Arb.) (Cross), Re  
British Columbia Rapid Transit Co. and CUPE, Local 7000, 2021 CarswellBC 196, 147  
C.L.A.S. 236 (B.C. Arb.) (Kinzie), Re Air Canada and C.A.L.E.A., 1974, CarswellMan 164, 7  
L.A.C. (2d) 420 (Man. Arb.) (Huband), Re Kelsey-Hayes Canada Ltd. and United Automobile  
Workers, Local 195, [1975] O.L.A.A. No. 79 (Ont. Arb.) (Hinnegan), Re Westroc Industries Ltd.  
and United Cement, Lime and Gypsum Workers, Local 366, [1973] O.L.A.A. No. 58, 3 L.A.C.  
(2d) 102 (Ont. Arb.) (Beatty), Re Health Sciences North and CUPE, Local 1623 (Work of the  
Bargaining Unit), 2018 CarswellOnt 16578, 137 CC.L.A.S. 132, 296 L.A.C. (4th) 282 (Ont.  
Arb.) (Schmidt) and Scarborough General Hospital v. O.P.S.E.U., Local 575, 2004 CarswellOnt  
3224, [2004] L.V.I. 3477-10, [2004] O.L.A.A. No. 484, 78 C.L.A.S. 142 (Ont. Arb.) (Knopf).  
(b)  
The Employer’s Detailed Submissions  
[93] Mr. Addario, counsel for the Employer, submitted that in the absence of clear contractual  
language to the contrary, the Association had no “ownership” right in any job or classification  
which remained subject to adjustment or even elimination in the good faith exercise of the  
Employer’s management right to promote operational efficiencies.  
[94] According to the Employer, this was recognized by the Association in article 4.4 of the  
collective agreement which acknowledges “the exclusive right and function of the Employer…(a)  
to direct the working force which includes the right to direct, plan and control working  
operations, change or transfer of asset ownership and operational responsibility involving  
Page 37 of 49  
equipment or materials…(b) to…classify…or lay-off Employees because of lack of work or other  
legitimate reasons; and (c) to introduce new and improved facilities and methods to improve the  
efficiency of the operations of the Employer…subject always to the provisions of the  
Agreement.” The Employer placed particular emphasis on article 4.4(c), that was claimed to  
confer express authority to “improve the efficiency of the operations of the Employer”, which the  
evidence supported as the sole reason for its decision to reconfigure the coverage and reporting  
relationship for the inventory and fleet management duties at the Woodward Avenue Plant  
consistent with the Employer’s other facilities.  
[95] Focusing on the evidence, the Employer noted that contrary to the Association’s claims,  
inventory and fleet management work had always been performed by non-HOWEA bargaining  
unit members at the Woodward Avenue Plant; both temporarily to replace Mr. Hall when he was  
absent, and permanently in the case of the CUPE Planner/Schedulers who took over the fleet  
management responsibilities from Mr. Hall several years earlier, and who were always assigned  
to source and account for parts required by tradespersons for special projects on the “treatment”  
side of operations, without challenge or any grievances by the Association.  
[96] Not only was there nothing in the collective agreement suggesting that HOWEA members  
had exclusive jurisdiction for all work at the Woodward Avenue Plant that could be characterized  
as associated with the “treatment” activities of Hamilton Water, but as a mater of practice the  
Employer submitted there was no distinction between employees on the basis of whether they  
worked on the “treatment” or “distribution” of water and wastewater at the Woodward Avenue  
Plant, or at the Employer’s other facilities at Dundas and Stoney Creek. While the seniority list  
filed by the Employer shows that the majority of the HOWEA bargaining unit members are  
“water treatment operators” (being 30) who must be specifically licensed by the province to  
perform their work, and who are assisted by a number tradespeople to maintain or replace  
specific treatment related equipment (shown to be 16), the Employer noted that Mr. Hall’s role  
as the Stores Keeper II was isolated as a singular position for that function, which it characterized  
as “an outlier” when compared with the specialized operator and trades classifications, having no  
Page 38 of 49  
skills that were unique to the role that in fact was being performed by CUPE members inside the  
Woodward Avenue Plant and elsewhere in Hamilton Water.  
[97] Given the contractual language and the factual reality of the way that non-HOWEA  
bargaining unit members have been assigned to inventory and related work in the Woodward  
Avenue Plant over many years, coupled with what the Employer pointed to a good faith  
determination by Mr. Winters that the combination of inventory and fleet management functions  
under a common supervisory structure throughout Hamilton Water would result in greater  
efficiencies and economy of operations, the Employer submitted that it had acted in good faith  
and complied with all its obligation under the collective agreement.  
[98] Moreover, the fact that Mr. Hall was not laid off because of the reorganization (where the  
Employer chose to effectively allow him to retire early without loss of pay), and that since its  
reorganization of the department the Employer has increased the number of HOWEA bargaining  
unit members by some 25% from 47 to 58 budgeted positions, contradicted the Association’s  
charge that the Employer was attempting to undermine the integrity of its bargaining unit.  
Rather, in all the factual and contractual circumstances the Employer submitted there was no  
support for finding that the Employer violated the collective agreement leading to the dismissal  
of the Union’s grievance.  
[99] The Employer also relied upon the following arbitration decisions: Re J. S. Jones Timber  
Ltd. and I.W.A. Canada, Local 1-3567, 2000 CarswellBC 2964 (B. C. Arb.) (Ready), Central  
York Fire Service v. I.A.F.F., Local 2511, 2012 CarswellOnt 446k [2012] O.L.A.A. No. 42, 109  
C.L.A.S. 102 (Ont. Arb.) (Luborsky), Sobey’s v. U.F.C.W., Local 175, 2003 CarswellOnt 9154,  
[2003] O.L.A.A. No. 480, 74 C.L.A.S. Re Ontario (Ministry of Government Services) and  
OPSEU (Union), 2013 CarswellOnt 307, O.G.S.B.A. No. 6, 113 C.L.A.S. 250, 229 L.A.C. (4th)  
211 (Ont. GSB) (Petryshen), N.A.P.E. v. Health Care Corp. of St. John’s, 1999 CarswellNfld  
374, 57 C.L.A.S. 24, 81 L.A.C. (4th) 70 (Nfld. Arb.) (Oakley), C.U.P.E., Local 67 v. Sault Ste.  
Marie (City), 1995 CarswellOnt 1882, [1995] L.V.I. 2094-2, 39 C.L.A.S. 209 (Ont. Arb.)  
(Hinnegan), Brantford (City) v. A.T.U., 2012 CarswellOnt 8891, [2012] L.V.I. 4012 - 1, 111  
Page 39 of 49  
C.L.A.S. 281, 221 L.A.C. (4th) 381 (Ont. Arb.) (Brownlee), Re University of Toronto and USWA  
(Ip), 2003 CarswellOnt 10161 (Ont. Arb.) (Teplitsky) and Re Sudbury Memorial Hospital and  
CUPE, Local 161, 1986 CarswellOnt 3866, 1 C.L.A.S. 33 (Ont. Arb.) (Knopf).  
V.  
Reasons for Decision  
[100] I agree with and substantially adopt the Employer’s submissions in dismissing the  
Union’s grievance. My reasons are as follows.  
[101] The Association primarily relied upon arbitration decisions under distinguishable factual  
circumstances, where the duties within a job classification changed giving rise to grievances  
demanding that the employer renegotiate (with a view to increasing) the rate of pay for the  
position in accordance with specific terms of a collective agreement establishing a procedure for  
the mid-contract adjustment of wages. These arbitration awards have consistently held that for  
changes in a job to constitute a “new occupational classification” justifying an increase in the rate  
of pay for the position under contractual language expressly requiring the employer to renegotiate  
the wage rate, there must be more than the incremental evolution of the job and/or use of new  
technologies to perform the work, but rather the evidence must support the finding of a  
substantial, qualitative change, affecting the core or foundation of the job itself.  
[102] For example, in the 1972 decision of Joseph Brant Memorial Hospital, supra, a board of  
arbitration chaired by Arbitrator Hinnegan considered a grievance of the Nurses’ Association  
demanding an increase in pay for pediatric nurses assigned to duties as a “Team Leader”, where  
the collective agreement provided [in what was identified as “article 16.02”] a procedure for mid-  
contract negotiations of wage increases when the employer changed or created a new  
occupational classification. The evidence established that along with their previous duties as a  
registered pediatric nurse, the Team Leaders were assigned certain responsibilities of the  
formerly higher-rated position of “charge nurse” that the Nurses’ Association claimed as a new  
classification obliging the employer to increase the wage rate for the registered nurses engaged in  
that enhanced role.  
Page 40 of 49  
[103] In denying the grievance the board of arbitration referred at paras. 17 and 18 to the earlier  
award of Re U.S.W. and Algoma Steel Corp. (1968), 19 L.A.C. 236 (Ont. Arb.) (Weiler), where  
in determining whether alterations in work assignments constituted a change in an employee’s  
classification, Arbitrator Weiler held at p. 239 that: “…there is no implied obligation, inferred  
from the “climate of collective bargaining” to maintain, in whole or in part, the status quo as far  
as the assignment of work tasks is concerned [but rather] management has the presumptive right  
of making changes in the organization of its work forces, as long as it is exercised in good faith  
and for purposes of business efficiency, rather than the undermining of provisions of the  
agreement. No one has a proprietary interest in the specific set of job functions he is or has  
been performing” (emphasis added). Nevertheless, Arbitrator Weiler later noted (at p. 244-5)  
that prior cases also “tacitly recognize that where a work assignment infringes on a specific,  
express provision of the agreement, it is not permissible.”  
[104] Considering the foregoing principles, the majority in Joseph Brant Memorial Hospital,  
supra, proffered the following test at paras. 22 23, for determining whether changes in the job  
duties and responsibilities constituted a new classification requiring the employer to renegotiate  
the wages for the position of “Team Leader” under the terms of the collective agreement:  
[22]…In our view, in order to constitute a changed occupational classification within the meaning of  
art. 16.02, there must be more than a mere change, addition to, or subtraction from the actual job  
content of a classification. Rather, there must be a substantial, qualitative change in the  
actual function performed by the employees in the classification. The employees’ basic job  
function, subject of course to the de minimis principle, must have change in fact even if not  
in name. To hold otherwise would be contrary to the terms of this collective agreement and the  
weight of authority in this area…  
[23] This board must look at all of the tasks performed by the relevant employees over an  
extended period to see if there is a substantial, qualitative change in their actual job  
function. The obligation of the board under this article is to decide if an employee’s total job has  
changed in fact, even if not in name. In order to constitute a “changed occupational classification”  
within the meaning of this article, it must be found that there has been more than merely a change  
or addition to the job content of the classification, general duty nurse…  
[Emphasis added]  
[105] The principle that a union or employee can claim no “property” in the duties and  
responsibilities of a job classification identified as a position under a wage scale in a collective  
Page 41 of 49  
bargaining agreement unless expressly provided for to the contrary, remains some 50 years after  
Arbitrator Hinnegan’s decision to the present date: See Southampton Nursing Home and Service  
Employees International Union, Local 1, Canada, 2022 59961 (ON LA) (Luborsky) and  
Sudbury Regional Hospital and O.N.A. (2008), 177 L.A.C. (4th) 394 (Ont. Arb.) (Surdykowski)  
at paras. 13 14.  
[106] And the need to show a “substantial, qualitative change in the actual function performed  
by the employees” before triggering an express obligation under a collective agreement to  
renegotiate the wage rate for the position (which is not a feature of the collective agreement  
before me), remains a fundamental requirement in such cases, as illustrated by the recent 2021  
decision of Arbitrator Kinzie in Re British Columbia Rapid Transit Co. and CUPE, Local 7000,  
supra, who in the context of a factual dispute of whether changes to the duties of the “Control  
Operator” responsible for the function of a remote rail transportation vehicle adopted the same  
analytical premise where he stated at para. 162: “The question [in cases of this nature] is  
whether there has been a “substantial” or “qualitative” change to a core duty or basic job function  
of the Control Operator position”. Having found on the evidence at para. 169 that, “while there  
have been a variety of changes to the Control Operator position since 2000, those changes have  
been primarily evolutionary in nature and none of them have altered the position’s core duties or  
basic job functions in any substantial or qualitative way” the arbitrator concluded that no  
adjustment to the Control Operator’s wage rate was called for based on the changes that  
occurred, consequently dismissing the grievance.  
[107] Thus, relying on the foregoing arbitral authorities, the Association argues that in the  
present case there has been no “substantial or qualitative change to the core duties” of the  
HOWEA Stores Keeper II position by its replacement with the new Inventory & Fleet Clerk  
classification recognized as a position within the CUPE, Local 5167 bargaining unit, with which  
I must respectfully agree. While the duties and responsibilities of the IF Clerk as documented in  
the job description for that position are certainly broader and include the use of enhanced  
computer technologies, I accept the Association’s submission that at its core it basically  
represents an evolution of the same job as the HOWEA Stores Keeper II from its original Azurix  
Page 42 of 49  
job description under which Mr. Hall initially worked, recognizing at the same time that the  
HOWEA Stores Keeper II does not include the fleet management responsibilities taken over  
years earlier by the CUPE Planner/Schedulers at the Woodward Avenue Plant.  
[108] However, that is insufficient to establish a violation of the collective agreement between  
HOWEA and the Employer, where I also find on the evidence before me that the position of  
Stockkeeper/Clerk (Water Distribution) staffed by members of CUPE, Local 5167 at the Dundas  
and Stoney Creek locations, shares at its core the same basic inventory control function with the  
use of similar or evolving computer technology over the years, as illustrated by the job  
description for that position reproduced above. It is also undisputed that the CUPE, Local 5167  
Planner/Schedulers have always performed inventory control work at the Woodward Avenue  
Plant for specific orders and that during Mr. Hall’s absences, they along with other HOWEA and  
non-HOWEA bargaining unit employees (represented by different CUPE locals) performed the  
same inventory control work or a version of that work while awaiting Mr. Hall’s return.  
[109] The evidence thus establishes that there has always been substantial overlap between the  
inventory control work of the HOWEA Stores Keeper II at the Woodward Avenue Plant, with  
non-HOWEA bargaining unit members performing the same basic work at Woodward Avenue  
and other Hamilton Water facilities. Notably, the same inventory control work (albeit in the  
context of the “distribution side” of the Woodward Avenue Plan function) has consistently been  
performed by members of CUPE, Local 5167.  
[110] It is also the case that other than identifying the classification of Stores Keeper II in  
Schedule “A” of the collective agreement, the collective agreement expressly contemplates the  
use of non-HOWEA bargaining unit personnel in different circumstances: Article 3.6 permits  
supervisors to perform bargaining unit work in the case of emergencies (who may be unionized  
front-line supervisors). Article 6.7 permits the use of non-HOWEA bargaining unit employee to  
perform work when HOWEA bargaining unit members are either unavailable or unwilling to  
perform the work required (under which the Employer was entitled to appoint non-HOWEA  
workers to fill the void created by Mr. Hall’s many absences). And article 21.1(b) expressly  
Page 43 of 49  
permits the employer to contract out bargaining unit work provided (among other things) that  
“No employee is terminated, laid off or suffers a reduction in his Standard Hours of Work while  
the Employer simultaneously contracts out such work”.  
[111] These contractual provisions along with the longstanding history of the intermingling of  
HOWEA and non-HOWEA bargaining unit members performing inventory control functions at  
the Woodward Avenue Plant, without challenge by the Association, support the conclusion of a  
much more flexible appreciation of the parties towards the use of non-HOWEA bargaining unit  
members to fulfill that role.  
[112] The authorities filed by the Employer also indicate that along with the principle that  
neither unions nor bargaining unit employees can claim a property interest in any job or  
combination of work activities in the absence of express contractual terms to the contrary, there  
is no rule or presumption against an employer transferring duties or an entire job from one  
bargaining unit to another where some aspects of the job in question constitute shared or  
overlapping functions between members of different unions.  
[113] In Sudbury Memorial Hospital, supra, for example, Arbitrator Knopf considered a union  
policy grievance challenging the employer’s decision to provide nursing units with necessary  
disposable and reusable supplies through an “exchange cart system”, where fully stocked supply  
carts were transported from the stores area of the hospital to individual nursing units by “Stores  
Clerks”, who were members of the OPSEU bargaining unit, exchanging them for the depleted  
unit carts that they returned to the stores area for replenishing. This replaced the previous system  
where supplies were physically transported by Supply Processing Distribution Aides” (referred  
to as “S.P.D. Aides”) from a centralized distribution area to individual storage cupboards  
maintained at each nursing unit, who were members of CUPE.  
[114] The union claimed the new work assignment and consequent elimination of bargaining  
unit work violated article 4.05 of the CUPE collective agreement providing in relevant part that,  
“Employees not covered by the terms of this agreement will not perform duties normally  
Page 44 of 49  
assigned to those employees who are covered by this agreement”. However, the arbitrator found  
there had always been a degree of overlap in the functions of the OPSEU Stores Clerks and the  
duties of the CUPE Supply Processing Distribution Aides, with both groups of employees  
responsible for moving supply carts around the hospital. The arbitrator also found that the  
employer exercised its prerogative under the negotiated management rights clause of the  
collective agreement to manage the hospital’s operation having come to the good faith  
determination that the new cart exchange system operated by the OPSEU Stores Clerks promoted  
economy and efficiency considerations.  
[115] Thus, the arbitrator denied CUPE’S grievance, articulating the appropriate test and  
reasoning at paras. 22 25 which included the arbitrator’s acceptance that even a limited or  
partial overlap in the job duties of the two bargaining units was sufficient to support the  
assignment of the new or combined job exclusively to one of those unionized groups, having  
taken a broad perspective of the duties in issue:  
[22] …in order to determine whether or not there has been a violation of the collective agreement,  
and Article 4.05 in particular, I must determine what in fact constitutes the “work of the bargainin  
unit” or the “duties normally assigned to the employees” in the bargaining unit, because only the  
work of the bargaining unit or the duties normally performed are those protected by Article 4.05 of  
the collective agreement.  
[23] In the Mattawa General Hospital case, supra, [unreported decision of Professor Rayner  
issued January 4, 1984] that board of arbitration was called upon to interpret an article of the  
collective agreement that is precisely identical to Article 4.05 of the collective agreement between  
these parties. In the Mattawa General Hospital case, the union’s complaint related to the  
assignment of duties of a registered nursing assistant who was a member of a bargaining unit  
represented by CUPE, to a registered nurse who was a member of a bargaining unit represented  
by the Ontario Nurses’ Association. That Board of Arbitration concluded that the issue in the case  
was whether there was an overlap of the functions of the registered nurse and the registered  
nursing assistant. The majority concluded:  
If there is in fact, an overlap, this Board cannot conclude that the Hospital has  
violated Article 40.01. If registered nurses also normally perform the work of  
registered nursing assistants as part of their job duties, the Hospital is not in  
violation of the Article.  
After reviewing the evidence, the Board of Arbitration concluded that there was indeed such an  
overlap and that the collective agreement did not protect job functions where there was an overlap  
of two bargaining units. It was concluded that the equivalent of Article 4.05 did not protect duties  
or functions that overlap with other bargaining units or employees of the Hospital.  
Page 45 of 49  
[24] I am in agreement with the analysis and reasoning in the Mattawa General Hospital case.  
Applying that to the facts, the question must be asked as to what constitutes the job or duties  
in question and whether or not there is any overlap. If the duties are defined narrowly as  
the replenishing of particular carts, then CUPE could be recognized as having the exclusive  
function of replenishing the seven carts with which they have established a historical  
relationship. However, if the job function is the broader job function of replenishing carts in  
general, it must be recognized that both OPSEU and CUPE members have been  
replenishing carts in the Hospital since 1981.  
[25] On the basis of the facts presented to me, it must be concluded that the job function I am  
dealing with is that of the replenishing and refurbishing of the exchange carts in the Hospital as  
part of a chain of supply of goods and materials to the nursing units. To define the job so narrowly  
as to confine it to particular carts on particular units is too narrow a restriction or definition of the  
job duties. Further, it ignores the fact that the S.P.D. Aides and Aides were going exactly the  
same function as the Stores Clerks in the replenishing of the cars and in the handling of all the  
items. Further, this would ignore the fact that when Stores Clerks are absent due to illness or  
vacations, the S.P.D. Aides were able to fill in for the Clerks. Thus, there was an overlap an indeed  
an interchange of the functions and in the work on the carts. Thus, I cannot accept that the “work  
of the bargaining unit” or the “duties normally assigned” to the employees should be restricted by a  
definition pertaining to work on the seven carts alone. Instead, the work must be recognized in  
the broader more general sense as replenishing the carts. Having reached that conclusion,  
the facts clearly establish that the task of replenishing the carts was shared by both CUPE  
and OPSEU members. Thus, CUPE can find no protection in Articles 3, 4 or 5 or the rest of the  
collective agreement for that particular job function.  
[Emphasis added]  
[116] The same broad perspective of the work in issue and conclusion is applied by V-Chair  
Petryshen in the more recent decision of Ministry of Government Services, supra, where the  
union grieved the employer’s elimination of a number of “Human Resources Assistant” positions  
which provided divisional human resources support to managers in the Ministry of the  
Environment after the employer centralized its general human resources while reassigning the  
functions performed by those employees to the non-bargaining unit managers themselves. In  
reviewing the relevant arbitral authorities, the following principles were identified at para. 8 in  
determining whether the employer was prohibited from making that change:  
[8]…As a general rule, management can exercise its rights to assign work to employees unless it  
is restricted from doing so by the Collective Agreement. In the absence of an explicit restriction,  
there may be an implied restriction that impacts on management’s transfer of work that exclusively  
belongs to the bargaining unit to persons excluded from the bargaining unit. The lay-off of  
bargaining unit employees and the transfer of work performed by these employees to persons  
outside the bargaining unit alone do not constitute a contravention of the Collective Agreement.  
Page 46 of 49  
The integrity of the bargaining unit is affected and a contravention of the implicit restriction arises  
when the excluded persons are assigned bargaining unit work to the extent that they spend close  
to the majority of their workday performing that work. When this occurs, the excluded employees,  
in effect, become drawn into the bargaining unit. In determining whether the implied restriction has  
been triggered in any given case, it is necessary to consider the factors referenced in the Pilon  
decisions, i.e. quality of work quantity of work and overlap of duties. The focus when examining  
the quality of work is on the time devoted to the transferred work by those outside the unit. Apart  
from the quality of the work, an overlap of duties may disclose that the transferred work did not  
exclusively belong to the bargaining unit and may therefore not be protected by the implied  
restriction….12  
[117] Thus, on the facts in that case demonstrating among other things, “there was a fairly  
significant overlap in duties performed by bargaining unit members and employees outside of the  
unit” (at para. 13), it was determined the overlap in duties, “compels the conclusion that the  
functions performed by both bargaining unit and non-bargaining employees are not protected”.  
[118] The same approach was adopted by Arbitrator Oakley in Health Care Corp. of St. John’s,  
supra, where the evidence showed that the employer’s operations at the subject emergency  
department included several Registered Nurses (“RN”) who were outside of the scope of the  
union’s bargaining unit and one Registered Nursing Assistant (“RPN”), or Licensed Practical  
Nurse (“LPN”) referred to as a “minor emergency nurse” represented by the grieving union.  
When the incumbent LPN retired and was not replaced by a member of the bargaining unit but  
rather the employer posted for an RN position, the union grieved that the employer violated  
article 3.02 of the collective agreement which provided in relevant part that: “”Persons whose  
jobs are not in the bargaining unit shall not work on any jobs which are included in the  
bargaining unit except for the purpose of instruction, experimenting, emergencies or when  
regular employees are not available…”. The arbitrator found no violation of the collective  
agreement because there was already an overlap in the duties of the LPN and RN and the  
employer exercised its managerial right in good faith to reorganize the work in a manner  
promoting efficiencies, reasoning at para. 31 that:  
[31] The collective agreement does not provide a guarantee that there will be a position for an  
LPN in the Emergency Department. The Employer decided that the minor emergency nurse  
should be an RN for various reasons including the fact that an RN is qualified to work in the  
trauma and recovery areas of the Emergency Department when needed. The same work  
12 O.P.S.E.U. v. Ontario (Ministry of Community & Social Services) (Pilon Grievances).  
Page 47 of 49  
performed by an LPN was already performed by an RN. The Employer’s actions did not violate  
the integrity of the bargaining unit. The reasons stated by the Employer indicate that the Employer  
did not act in bad faith, arbitrarily or unreasonably. There was no violation of Article 3.02 of the  
collective agreement.  
[119] Applying the foregoing principles, the facts in Health Care Corporation of St. John’s,  
supra, are similar in many respects to those before me. Like that case, I find on the evidence  
there has always been significant overlapping in the functions of the HOWEA Stores Keeper II as  
exercised by Mr. Hall and the Planner/Scheduler at the Woodward Avenue Plant, with the  
Planner/Scheduler having a broader range of responsibilities (including special orders and for  
fleet management) than the HOWEA Stores Keeper II. Unlike the Maintenance Operator,  
Mechanic, Millwright, Electrician, Instruments & Controls positions listed in Schedule “A” that  
require certification by the province (in the case of all but the lowest level of the Maintenance  
Operators) and the licensing trades authorities, the Stores Keeper II requires no certification other  
than a license to operate a forklift, which is of a general nature having application throughout  
Hamilton Water. It is not specialized in the sense of being associated with water treatment as  
opposed to water distribution or any other qualifications of a person administering the inventory  
control function. In that regard I agree with the Employer’s characterization of the Stores Keeper  
II as an outlier in the sense of having a different community of interest among the HOWEA  
bargaining unit members otherwise being a unit of licensed water operators and tradesmen.  
There is nothing of a specialized nature or by licensing requirements distinguishing the HOWEA  
Stores Keeper II from the Stockkeeper/Clerks in other Hamilton Water facilities unionized by  
CUPE, Local 5167.  
[120] On the evidence before me all inventory duties of the Stores Keeper II (except for the  
minor task of operating a forklift), were consistently performed by both the HOWEA Stores  
Keeper II and CUPE Planner/Schedulers prior to the disputed reorganization of the inventory  
control function throughout Hamilton Water in February 2019. In fact, as noted above, the  
evidence shows that many important aspects of the Stores Keeper II job description were  
performed by the CUPE Planner/Schedulers at the Woodward Avenue Plant, such as in sourcing  
and negotiating for the purpose of specialized supplies and equipment required by the HOWEA  
Page 48 of 49  
operators (in fulfilling their treatment responsibilities) and for their supporting tradespersons.  
This contrasted with the relatively limited role of Mr. Hall in processing and accounting for the  
“consumables” used on a regular basis and subject to contractual arrangements with suppliers  
that were for the most part (if not exclusively) negotiated by higher management.  
[121] Aside from its reference in the wage scale, there is nothing in the collective agreement  
expressly or inferentially limiting the Employer’s ability to alter or even eliminate the job of  
Stores Keeper II, in whole or in part, which the Employer did many years earlier by removing the  
fleet maintenance function from Mr. Hall’s list of duties and replacing it with members of the  
CUPE, Local 5167 bargaining unit, without challenge by HOWEA.  
[122] Rather, HOWEA’s collective agreement includes the express right of management under  
article 4.4 (a) to “change or transfer…operational responsibility involving equipment or  
materials” and under article 4.4 (c), the ability “to introduce new and improved facilities and  
methods to improve the efficiency of the operations of the Employer” subject to express  
limitations in the collective agreement to the contrary.  
[123] On the facts recounted by the witnesses and in the documents before me, as supported by  
the inventory controls audit and studies by the Employer that it relied upon at least in part, I must  
also find that the Employer acted with the good faith desire to improve the efficiency of its  
operations throughout Hamilton Water creating the new position of IF Clerk, that represents an  
amalgamation of the overlapping inventory control duties performed by both the HOWEA Stores  
Keeper II and the CUPE, Local 5167 Planner/Schedulers at the Woodward Avenue Plant,  
consistent with its right to do so under article 4.4 (c)of the collective agreement  
[124] Consequently, where the evidence demonstrates significant historical overlap in the  
functions of the HOWEA and CUPE inventory control clerks before the reorganization in  
February 2019, I conclude that HOWEA was not entitled to maintain the inventory control work  
exclusively for its members at the Woodward Avenue Plant in the face of the good faith exercise  
of the Employer’s managerial prerogative to consolidate the operations of the inventory clerks  
Page 49 of 49  
throughout its organization, with the reasonable assignment of that work to members of CUPE,  
Local 5167, which has held representation rights for the same work throughout the Employer’s  
organization for many years.  
[125] Moreover, the fact that Mr. Hall, who was the only Stores Keeper II in the bargaining  
unit, was not terminated or laid off because of the reorganization of the work; but by agreement  
of the parties was granted a paid leave of absence commencing October 10, 2018 until his  
scheduled retirement on April 30, 2019, supports the Employer’s intention to minimize the  
practical impact of the reorganization to individual employees.  
[126] And, where the evidence shows that the number of HOWEA members increased by some  
25% from 47 to 58 budgeted positions after the reorganization, it cannot be said that the  
Employer sought to undermine the HOWEA bargaining unit by eliminating the Stores Keeper II  
position in the circumstances of this case.  
VI.  
Disposition  
[127] I therefore conclude for the foregoing reasons that the Employer did not violate the  
collective agreement by eliminating the HOWEA Stores Keeper II position at the Woodward  
Avenue Plant and replacing it with the CUPE, Local 5167 Inventory and Fleet Clerk having  
wider responsibilities for the inventory control functions throughout the Employer’s multiple  
facilities, consistent with the Employer’s right under article 4.4(c) of the collective agreement to  
“improve the efficiency of the operations of the Employer”.  
[128] Consequently, the Association’s grievance must be and is hereby dismissed.  
DATED AT STOUFFVILLE, ONTARIO THIS 12TH DAY OF SEPTEMBER 2022  
“G. F. Luborsky”  
Gordon F. Luborsky,  
Sole Arbitrator  

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