[1989] OLRB Rep. August 850
Between: Mr. Ivan Gudelj, Complainant v. Glass, Molders, Pottery, Plastics and Allied Workers International Union, Respondent v. Canron Inc., Intervener
Before: Robert Herman, Vice-Chair, and Board Members W. A. Correll and K. Davies.
Appearances: M. Gorodensky and Ivan Gudelj for the complainant; Joanne L. McMahon, Ross Armstrong and Mohammedali Inshanally and Carl Hamilton for the respondent; Karen J. Weinstein, Brenda Kops and Alex Mestres for the intervener.
DECISION OF THE BOARD; August 24, 1989
1In a decision dated July 17, 1989, the Board dismissed those aspects of this complaint arising out of a grievance filed in September, 1985 by the complainant Mr. Gudelj. In that decision the Board noted that it would "remain seized with respect to the remaining matter, the issue of the publication by the union of a retraction letter concerning Mr. Gudelj's ability to run for union office. If no party notifies the Board by August 12, 1989, either that this matter is settled or that any or all of the parties want the matter listed for hearing, then this remaining aspect of the complaint will be dismissed."
2With respect to the remaining issue, the Board received a letter dated July 27, 1989, from counsel for the union which asserted that the union had published the retraction in question, and further asserted that counsel for Mr. Gudelj had agreed that the letter was properly posted and that the union had therefore fulfilled its undertaking in that regard. The letter further requested that the remaining aspect of the complaint therefore be dismissed.
3In response to this letter, counsel for Mr. Gudelj wrote to the Board in part, as follows:
We have had further discussions with Joanne McMahon, solicitor for the Glass, Molders, Pottery, Plastics and Allied International Union and have consented that the letter dated February 16th, 1989 was posted. At no time did we consent that the contents of that letter is [sic] to our satisfaction and hereby confirm that our client Mr. Ivin Gudelj is not satisfied with same.
Mr. Gudeli has instructed us that he would require an acknowledgement by the Glass, Molders, Pottery, Plastics and Allied Workers International Union that they have violated the Ontario Labour Relations Act by prohibiting him from holding any union position. We reiterate that at no time did we acknowledge that the union had fulfilled its undertaking but rather consented only to the fact that the letter dated February 16th, 1989 was duly posted at Canron Incorporated.
Counsel thereafter noted that he no longer represented Mr. Gudelj in this matter.
4Counsel for the union responded, in part, as follows:
Please be advised that at the close of the hearing before Vice Chair R. Herman, Mr. Gudelj's complaint against the union was dismissed. One matter remained outstanding. Mr. Gudelj was not satisfied that the letter dated February 16, 1989, retracting the penalty imposed upon him by the union trial committee, was publicized to the members. In fact the letter was published verbally at a union membership meeting, was voted on and approved by the members, and was then posted on plant premises. However, in order to avoid further proceedings, the union undertook to re-post the letter on plant premises and subsequently did so in two locations on July 13, 1989 and July 14, 1989. Mr. Gudelj was present on July 14, 1989 and witnessed the posting. There was no question at that time with respect to the contents of said letter, and the union undertaking incorporated only the re-posting.
As you can see from Vice-Chair Herman's decision (copy enclosed), the last paragraph indicates that the Board remains seized with respect to the issue of the publication by the union of a retractive letter concerning Mr. Gudelj's ability to run for office. If no party notifies the Board by August 12, 1989 that the matter is settled or that any party wants it listed for hearing, the remaining aspect of the complaint would be dismissed.
The union notified the Board on July 27, 1989 (copy enclosed) that it had fulfilled its undertaking to re-post the letter retracting Mr. Gudelj's penalty. We submit to you that our obligations on this matter have been fulfilled, and it is not incumbent upon the union to redraft the letter with which Mr. Gudelj has now decided he is not satisfied.
5In a letter from his counsel dated April 5, 1989, Mr. Gudelj did allege that the decision by the respondent union to ban him from holding union office was a contravention of the Labour Relations Act. However, subsequently, at the commencement of the hearing into the complaint, counsel for Mr. Gudelj submitted to the Board that Mr. Gudelj had received already a full retraction of the prohibition against holding union office and therefore Mr. Gudelj was only seeking in this respect a direction from the union to fellow employees that the sentence had been retracted. The complaint proceeded on this basis, that the only matter at issue with respect to the prohibition against holding elected office was the publication by the union of a retraction, and not the initial decision to bar Mr. Gudelj from holding office, or for that matter the subsequent decision to completely and fully retract that sentence. The only issue that remained outstanding in light of our decision of July 17, 1989, was the issue of the publication by the union of the retraction letter, and not the issue, as now asserted by Mr. Gudelj, of whether the initial decision to bar him from running for union office constituted an unfair labour practice.
6Mr. Gudelj is attempting at this late stage to expand the proceeding to litigate a matter not previously understood by the parties, nor the Board, to be an issue. Evidence has been led with respect to the events surrounding the decision to bar Mr. Gudelj from running for office, and to allow the complainant to now seek to raise this matter would involve prejudice to the other parties. Witnesses would have to be recalled and the hearings greatly protracted. This matter could have and should have been raised at the commencement of the proceedings. To the contrary, the Board was specifically advised at the commencement that Mr. Gudelj was no longer complaining about the prohibition against his running for office, only about the failure of the union to properly communicate the retraction of the prohibition. It would not be fair to allow him now to raise this matter.
7Apart from this belated attempt at expansion of the proceeding, there is another more fundamental reason for declining to enquire into this matter further. Whether or not the decision of the union to prohibit Mr. Gudelj from running for or holding union office could or did constitute a breach of the Labour Relations Act (and was not strictly an internal union matter), there is no question that that decision has been fully and completely retracted. There is no assertion that Mr. Gudelj remains prejudiced by the (since nullified) decision barring him from running for office. To force the parties through lengthy and expensive litigation when the sole result might be a declaration that the initial conduct contravened the Act, and when the conduct complained of has already been fully retracted and its effects fully nullified, would serve no useful labour relations purpose and would be contrary to sound labour relations. Parties should be encouraged to settle their disputes and differences without requiring Board intervention. The threat of litigation has always been an impetus to consideration of alternative means of resolving the problem. If litigation will still result when the discipline or penalty has been rescinded by the party who imposed it, there would be less incentive for a party to seriously consider a complaint about its behaviour and to respond to a complainant's concern. And to allow litigation in the circumstances would be to invite litigation over every act in the workplace which someone felt was unjustified. Matters of principle can be, in given circumstances, important apart from any practical ramifications and can be worth pursuing to litigation. And there may well be cases where the retraction or recession of the penalty is not sufficient to repair the damage. But this is not the case here. The only reason for Mr. Gudelj further pursuing this complaint is to extract a declaration that the union breached the Act.
8Accordingly, we decline to enquire into whether the decision to bar Mr. Gudelj from holding union office was a violation of the Act. To do so would not be consistent with sound labour relations principles or practice. Further, no meaningful remedy would issue in the circumstances. In this respect we might usefully refer to Captall Investments Limited [1985] OLRB Reports February 221.
9For the above reasons, the remaining aspect of this complaint is dismissed.