[1991] OLRB Rep. August 969
0157-91-U John Craven, Complainant v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 128, Respondents
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: Peter Quinlan for the complainant; J. James Nyman and Reg White for the respondents.
DECISION OF THE BOARD; August 8, 1991
I
This is a complaint under section 89 of the Labour Relations Act filed on April 15, 1991. The complainant alleges that the respondents have contravened section 68 of the Act. The complainant contends that in February 1990 the Union acted in bad faith when it settled a grievance that he had against Mid-Valley Industrial Services, his former employer. The complainant contends that his grievance should not have been settled, but rather, should have been taken to arbitration.
The Union replies that there was no bad faith in settling the complainant's grievance in February 1990, and that it is now too late to challenge or unravel a settlement concluded - apparently successfully - some seventeen months ago. The Union further argues that any inquiry would now be an expensive and entirely academic exercise from which the complainant would derive no tangible benefit - other than to provide him with a forum to pursue political grievances which are not properly the subject of a section 68 complaint. In the Union's submission, the Board should exercise its discretion under section 89 not to inquire into this complaint.
In order to understand this preliminary submission, it is necessary to sketch in some background. The parties are agreed on the basic facts, and it will be convenient to recite them in approximate chronological order. For ease of reference, Mid-Valley Industrial Services and Texaco Canada Inc. will be referred to simply as "Mid-Valley" and "Texaco". The Union respondents will be referred to collectively as "the Union" unless it is necessary to distinguish between Local 128 and its international parent body. The relevant provisions of the Act are as follows:
89.-(1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.
[emphasis added]
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
II
The complainant is a boilermaker and a member of the Union. Mid-Valley is a "maintenance" company that had a contract with Texaco to perform repair, renovation and maintenance work at Texaco's facilities in Nanticoke, Ontario. To perform that work, Mid-Valley normally employed between six and eight boilermakers. The complainant was one of them.
Mid-Valley had a collective agreement with the respondent international union. Strictly speaking, Local 128 is not a party to that agreement, however, it does have certain administrative responsibilities under the agreement. The collective agreement includes the following terms:
ARTICLE 5.000- STEWARD
Each Union signatory to this Agreement may appoint or select one (1) working steward from among the Company employees to act as a representative of the Union in connection with Union business and the job superintendents will be so notified in writing. These Stewards shall be allowed reasonable time to conduct Union business related to this project. The Business Manager of the applicable Local Union shall be consulted in advance of the termination of the Steward.
Steward designations must be confirmed in writing to each job superintendent in order to allow recognition of Steward's privileges.
In such circumstances when the number of craftsmen employed on a project are small, and the appointed 5teward does not have the necessary experience, the appointed Steward may be terminated by the Company, when the Business Manager of the Craft Local concerned will arrange the appointment of another Steward.
ARTICLE 5.000 - GRIEVANCE PROCEDURE
5.100 It is agreed that it is the spirit and intent of this Agreement to adjust grievances promptly. All grievances, including discharge for just cause, but not those pertaining to jurisdictional disputes, that may arise on any work covered by this Agreement must be initiated within fifteen (15) working days of the incident by either the employee in Step I or the local union in 5tep II and shall be handled in the following manner:
5.105 Step V: If any dispute or grievance concerning the interpretation, application or violation of this Agreement cannot be settled through the procedure described above within ten (10) working days, the matter may be submitted by a 5ignatory Union to this Agreement or the Company, to a Board of Arbitration for adjudication. This Board shall consist of three (3) Arbitrators, one appointed by each party to this Agreement and the third, who shall act as Chairman, to be selected by the two so appointed.
Union stewards monitor the day-to-day application of the collective agreement on the job, and provide advice or assistance to employees if that is required. Under the Union Constitution, the power to appoint or remove these minor officials rests with the Local Business Manager.
In 1987 the complainant was involved in an automobile accident, and was off work for four months. Thereafter, recurring medical problems made it difficult to perform the ordinary duties of a boilermaker. In November 1989, on the advice of his doctor, the complainant advised Mid-Valley that he would no longer be able to work.
The complainant has been totally disabled since November 1989. It is uncertain when, if ever, he will be able to work at his trade. From November 1989 to the present, the complainant has been receiving disability benefits, payable on the basis that he is totally unable to work.
By letter dated January 12, 1990, Mid-Valley wrote to the complainant as follows:
John;
Due to the present reduction in the Boilermaker work load, and in view of the fact that you have not contacted Mid-Valley regarding your extended absence, we consider you to have quit per Article 8 of the Mid-Valley Job Rules.
In accordance with Article 8.000 of the GPC Agreement, Mid-Valley has informed Local 128 of your termination.
Mid-Valley wishes you well and hopes that your health improves to the point where you can re-join the Local 128 work force. Good luck.
Brian R. Simmons
Site Superintendent
By letter dated January 26, 1990, the complainant challenged his purported termination (or lay-off), alleging that it was contrary to the terms of the collective agreement. On January 29, 1990, the Union filed a formal grievance to the same effect:
Dear Mr. Simmons:
Please be advised that the International Brotherhood of Boilermakers is submitting a grievance on behalf of Brother John Craven under article 8.000 and all other related articles.
We feel that Brother Craven had the proper clearance from your company to be absent from work because of a injury sustained away from your project. Brother Craven states that he has contacted your company on different dates with letters from his doctors for an extended leave of absence due to therapy. He was never contacted by your company that this information was not acceptable and Local 128 of the International Brotherhood of Boilermakers will settle this grievance with the Reinstatement of Employment for Brother John Craven when the physician responsible for John Craven releases him from his injury.
If any further information is required with regards to this member, please do not hesitate to contact the writer, I remain
Fraternally yours,
Reg White
Business Representative
Local 128
- These grievances were resolved in accordance with a letter from the company dated February 20, 1990:
Dear Sir;
With regard to our conversation of February 12, 1990 concerning the grievance filed by John Craven against Mid-Valley for alleged wrongful dismissal.
Mid-Valley does not consider that any part of the GPC Agreement was contravened when Mr. Craven was laid-off, however, we are prepared re-hire [sic] Mr. Craven under the following conditions:
When Mid-Valley increases its Boilermaker crew (which is very shortly).
That Mr. Craven provide Mid-Valley with a doctor's note indicating that he is fit for work.
That the Boilermakers' Union and Mr. Craven provide Mid-Valley with some assurance that he (Mr. Craven) will refrain from conducting any further personal union campaigning business on company time and client premises. Mid-Valley does not want a repeat of the situation which took place in May of 1989 (as reported to your Mr. Joe Maloney at that time) when Mr. Craven, without permission, used our client's photocopying facilities to make several hundred copies of union election forms. The hours expended by Mr. Craven on these forms, to say nothing of the copying costs, were significant.
Brian Simmons
Site Superintendent
It will be seen that this alleged "termination" was a little artificial, because the complainant was neither actively at work or able to work at the time it occurred nor able to work at any material time thereafter. In any event, in accordance with the above-mentioned "settlement" the company was prepared to recall the complainant to active employment provided that he was fit for work. The grievor was not then and is not now fit for work.
Sometime in the late Winter or early Spring of 1990, the complainant was removed from his position as the union's job steward. The complainant challenges that removal from union office, asserting bad faith, and contending that the loss of steward status impaired his job prospects. The Union replies that the complainant was removed as union steward because he was no longer actively at work on the job, and reiterates that the appointment or removal of stewards is a discretionary power of the Local Business Manager. The Union argues that this is an internal union matter which has nothing to do with the Union's statutory obligation to fairly represent employees in their dealings with their employer, nor is the holding of this minor union position related to the complainant's job security or right to a job. And, of course, this too is entirely academic because he was not, and may never be, able to return to work.
Under the Union Constitution, the complainant has filed a variety of charges against various union officers and union members involving, inter alia, the appointment of stewards on the Texaco work site. Those charges were dismissed following a trial in March 1990. An appeal under the International Constitution was also dismissed on May 4, 1990. In June 1990, the complainant ran for the elected office of business manager of Local 128.
In June 1990 Mid-Valley lost its maintenance contract with Texaco and left the Nanticoke site. The collective agreement with Mid-Valley also expired in June 1990. Texaco subsequently engaged another company known as "Sheaffer Townsend" to perform maintenance work at Nanticoke.
Sheaffer Townsend did not have a collective agreement with the Union covering maintenance work at Nanticoke, nor was Sheaffer Townsend under any obligation to hire any of the employees who were previously working for Mid-Valley. When one subcontractor replaces another on this work site, the new company often hires the tradesmen formerly employed there by its unsuccessful competitor, but it is not required to do so. Nor is it required to give preference to persons on an out-of-work or recall list maintained by its competitors. Sheaffer Townsend is a total stranger to these proceedings and all of the events of which Mr. Craven complains.
Local 128 operates a "hiring hall" system by which unemployed members are allocated job opportunities as they arise. Members receiving disability benefits are maintained on the "inactive list" until they are able to return to employment. At that point they are transferred to the "active list", and are assigned a position on the list which reflects the period that they have been out of work.
The complainant has been on the inactive list for some time. If he is ever fit to return to work he will be placed on the top of the hiring hall's active list. He will then be able to choose from among any job opportunities which may arise - including those with companies on the Texaco site. He suffers no penalty if he rejects any of these job opportunities. He stays at the top of the list. In other words, it/when the complainant is able to return to work he will be able to claim any work opportunities then available. And, of course, the Union is under a statutory obligation to run the hiring hall fairly (see section 69 of the Act), so that any alleged impropriety could, at that stage, be the subject of a complaint.
As I have already mentioned, this complaint was filed on April 15, 1991. Neither Mid-Valley nor Sheaffer Townsend was named as a party respondent. Nevertheless, it appears that the remedy the complainant seeks involves - albeit very indirectly - some right or preference to continued employment at the Texaco site either by Sheaffer Townsend, Mid-Valley, or whatever maintenance contractor happens to be working there when/if the complainant is fit to return to work as a boilermaker. The complainant was not very clear about where that preference might come from, or what it would be based upon, but he felt sure that, as a first step, the Board should set aside the above-mentioned settlement and direct Mid-Valley and the Union to arbitrate the propriety of his purported termination in January 1990.
The complainant's theory of the case requires further elaboration.
As I understand it, the complainant's assertion is that the settlement of his grievance (referred to above) was motivated or influenced by "bad faith" on the part of union officials. He seeks a Board direction that his case against Mid-Valley be taken to arbitration in the expectation that an arbitrator might direct his "reinstatement" to a notional inactive list maintained by Mid-Valley. This, the complainant says, would somehow enhance the possibility of employment by Sheaffer Townsend should the complainant subsequently be fit to work. The complainant was unable to say how such arbitration award would significantly alter the situation created by the settlement, or how it was legally relevant to his future job prospects with other companies.
Counsel concedes that such arbitration award would have little or no practical significance. The complainant has not lost wages or related benefits because, at all material times, he has been unable to work. Mid-Valley itself has not been on the site since June 1990. The "notional reinstatement" to Mid-Valley's inactive employment roles is quite academic and counsel was unable to explain precisely how a favourable arbitration award would differ from the settlement in which Mid-Valley undertakes to rehire the complainant when he is fit to work. There is no job at the Texaco site to which the complainant may be returned, even if he becomes fit to work, and Sheaffer Townsend, a new contractor, is not bound to employ the complainant in any event. And when/if the complainant is able to return to work, the Local hiring hall rules will give him a right of first refusal on any job openings with any contractor with whom the Union then has bargaining rights. That right is unrelated to the events in 1990 of which Mr. Craven complains, or the terms of the now expired collective agreement.
In summary, the scenario envisaged by the complainant appears to be this: litigation before the Board for three or more days focusing on the Union's settlement of his grievance, followed by an arbitration proceeding involving Mid-Valley. That arbitration proceeding against Mid-Valley would focus upon the complainant's purported "termination" and conditional reinstatement. He seeks an arbitrator's finding that he was unjustly terminated and a direction that he be placed upon a "notional" recall list for potential job openings that, in practice, he was never in a position to claim and which now no longer exist, even as a possibility, because Mid-Valley is no longer on the site. This litigation is necessary, the complainant asserts, because he is entitled to establish that he has been unfairly dealt with by the Union, and does not trust the Union to fairly administer its hiring hall rules when/if he is able to work and wants to return to the Texaco site.
In the Union's submission, these layers of litigation would involve substantial public and private cost, with little tangible benefit to the complainant, other than to provide him with a platform to air his personal grievances against the Union. It would entail an examination of questions raised and settled seventeen months ago, and would involve a third party - Mid-Valley - that is not named as a respondent, cannot itself contravene section 68, and which has no practical interest in the outcome of either the alleged unfair labour practice or an arbitration proceeding. And at the end of this process, (apart from a declaration) the complainant would be in precisely the same position as he is today: unable to work, but entitled to make a preferential claim to any work opportunities which arise after he has regained his health. The Union argues that the Board should exercise its discretion under section 89 and refuse to inquire into this complaint because it is too late to attack the settlement or re-examine the events of February 1990, and there is no sound labour relations reason for doing so. In the Union's submission, there is no practical reason to engage in costly litigation of a doubtful claim which, on the most optimistic scenario, would not significantly alter the status quo. In the Union's submission, this complaint is misconceived and vexatious.
III
There is no doubt that Mr. Craven is unhappy about the way that he has been dealt with by certain union officials, and that unhappiness has surfaced, in part, in the present complaint under section 68 of the Act. But the fact is, that the events upon which he relies all took place more than a year ago, the settlement he now attacks was not challenged in a timely fashion, and the labour relations circumstances are now quite different than they were in 1990. Mid-Valley has not been on site since June 1990 and the collective agreement with Mid-Valley also expired in June 1990. There is no claim, legal or otherwise, against Sheaffer Townsend which remains a stranger to all of these events, and proceedings. And the terms of the collective agreement upon which the complainant's rights would ultimately turn, contemplates the expeditious resolution of grievances and a referral to arbitration within a couple of weeks. Against that background, the Board cannot ignore the fact that Mr. Craven waited more than a year to file the present complaint, and by that time, the collective agreement had long since expired and Mid-Valley (which, I repeat, is not here named as a respondent) was no longer in the picture.
Section 89 of the Act provides a relatively informal and expeditious mechanism for resolving unfair labour practice complaints, but it is important that aggrieved parties bring those complaints to the Board without undue delay. The importance of expedition was discussed in The Corporation of The City of Mississauga, [1982] OLRB Rep. Mar. 420 in a long passage to which we might usefully refer:
It is by now almost a truism that time is of the essence in labour relations matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once chrystallized [sic], could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge [sic] later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C. G.E. 3 L.A. C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 L.A.C. 51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
The Board has recently had occasion to review its approach to the issue of delay in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan. 113 - a case which bears some resemblance to the present one, (although there the delay was 2½ years and here it is five). In Sheller-Globe, the complainant was discharged in March 1979, and filed her complaint with the Board in October 1981. In between, she had discussions with union and employer officials, she took legal advice (in March of 1979), she filed a complaint with the Human Rights Commission, and in December 1980, she filed a wrongful dismissal action. Finally, two and a half years after the alleged offence, she complained to this Board that her union had not represented her adequately and requested that this Board direct that the propriety of her discharge be considered by a board of arbitration constituted in accordance with the collective agreement in effect at the time her employment was terminated. The Board dismissed the complaint with the following observations:
"13. A delay of the present magnitude carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending. Here the respondent was justifiably under the impression that the grievance route, or any further demands against the union, had been abandoned in favour of other actions against the company. The lingering discussions which the complainant's husband had with Mr. Pattison and the stewards were clearly of an amicable nature; they provided no indication that action would subsequently be directed against the trade union itself, so that notes or other forms of evidence could be more actively maintained. The defence of the employer is not the defence of the trade union in these proceedings. The Board would be concerned not with the matter of cause for discharge, but rather the steps which the respondent's officials went through in concluding in their own minds that no grounds for a grievance existed. That defence would turn upon the recollection and credibility of the respondent's own officials. It might be noted parenthetically that the Labour Board, in administering the Labour Relations Act, is primarily concerned with the ongoing labour relations of a workplace, and such workplaces do not remain static over time. The Board as a result has always been conscious of the need for expedition in its practices and procedures. The delay in the present case raises concerns over an appropriate remedy, if the Board were to permit this complaint to now proceed, which are not fully answered by the complainant's concession as to damages. In circumstances such as the present, the onus shifts to a complainant to satisfy the Board that there are compelling labour relations reasons to cause the Board to exercise its discretion and entertain the complaint under section 89.
- In the present case, the delay has indeed been "extreme", and the factors put forward by the complainant are insufficient to deliver her from the consequences of that delay. Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching a section 68 application with the Board. But a point is reached, after a reasonable period of time, when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely on the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless. The important point to note here is that the other forms of action being pursued by the complainant were directed solely against the employer. Not a word was said to the trade union during that period to indicate that its conduct was being viewed as unlawful, or that its own position might still be placed in jeopardy. The complainant will not now be permitted, at this date, to use section 68 against the trade union as a last resort to reach the employer."
Those considerations are equally applicable here, where the complainant seeks to set aside a settlement concluded more than a year before the complaint was filed, and pursue a grievance under a collective agreement long since expired, against an employer that is no longer on the scene.
But quite apart from questions of delay, what would be the result of this time-consuming and costly exercise engaging the time of lawyers, public and private adjudicators, and witnesses who might be compelled (by subpoena or otherwise) to testify about what happened in early 1990? Counsel for the complainant concedes that a declaration of a breach of section 68 would have little practical utility and no real impact on the complainant's employment situation, even assuming that at some time in the future he is able to return to his trade. The complainant has suffered no monetary losses and the conduct of which he complains neither has had, nor can have, any practical effect on his future employment prospects. Indeed (and paradoxically) it is the Union's internal hiring hall rules to which the complainant may look for preferential hiring rights -not this litigation or an expired collective agreement with a former employer. I am not inclined to give much weight to the complainant's fear that when/if he is fit to return to work at some time in the future, the Union might discriminate against him in the application of its hiring hall rules. If that situation actually materializes, it can be dealt with, in a timely fashion, under section 69 of the Act.
For the foregoing reasons, and in the exercise of its discretion under section 89 of the Act, the Board declines to inquire further into this complaint. There may well be situations in which a mere declaration would serve some useful public or labour relations purpose. This is not one of them. The complaint is therefore dismissed.