VEXATIOUS

[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
Duty of Fair Representation – Practice and Procedure – Unfair Labour Practice – Complainant
alleging bad faith in settling grievance against former employer – Union denying bad faith – Union also
pleading delay and arguing that any Board inquiry would be expensive and entirely academic exercise
from which complainant could derive no tangible benefit – Board declining to inquire further into
complaint – Complaint dismissed
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
1. 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.
2. 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.

13. Under the Union Constitution, the complainant has filed a variety of charges against various
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.

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3. 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

23. 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 relation
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.

26. 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 his 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 of 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 sometime 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.
27. 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 situation 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.

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