Ontario Labour Relations Board
[1984] OLRB Rep. January 48
2195-83-R Ronald Lewszoniuk, Complainant, v. International Union of Operating Engineers, Local 793, Respondent
BEFORE: R. D. Howe, Vice-Chairman.
APPEARANCES: Dorothy Foran and Ron Lewszoniuk for the complainant; B. Fishbein, J. Redshaw, E. A. Ford and W. Pedder for the respondent.
DECISION OF THE BOARD; January 13, 1984
Decision
1This is a complaint under section 89 of the Labour Relations Act.
2On January 9, 1983, the Board gave the following oral decision in respect of this complaint, which decision is hereby confirmed:
In Board File No. 2509-82-M, the Board, differently constituted, found that Arlington Crane Service Limited ("Arlington") had contravened Article 3.4(b) of the provincial collective agreement binding upon Arlington and the respondent trade union (the "Union"), by subcontracting work covered by that collective agreement to the complainant, Ronald Lewszoniuk, who did not (and still does not) have an "Agreement" with the Union within the meaning of that provision. Mr. Lewszoniuk subsequently sold his crane and ceased to perform work for Arlington.
In the present complaint Mr. Lewszoniuk alleges that he has been dealt with by the Union contrary to sections 68 and 69 of the Labour Relations Act, and requests, by way of relief, that his crane be replaced and that losses of revenue of $40,000 accounts receivable be paid to him by the Union. He also alleges that the Union has violated its International Constitution, the regulations or standards of the International Labour Organization, and the Constitution Act, 1982. However, as submitted by counsel for the Union in his preliminary motion for dismissal, this Board has only such jurisdiction as has been conferred upon it by the Ontario Legislature by statute. It has no authority under the Labour Relations Act (or any other Ontario statute) to undertake any sort of watch-dog role over a union's internal processes under its constitution, nor does it have any general jurisdiction to enforce the standards or regulations of the International Labour Organization or the provisions of the Constitution Act, 1982 (although the Board will interpret and apply the terms of the Canadian Charter of Rights and Freedoms when faced with a challenge to its jurisdiction based upon that Charter: see, for example, Third Dimension Manufacturing Limited, [1983] OLRB Rep. Feb. 261, in which the Board ruled that the "reverse onus" provisions of section 89(5) do not contravene the presumption of innocence provisions of the Canadian Charter of Rights and Freedoms). While the complainant may be able to seek in another forum (such as the Courts) remedies on those bases, to succeed before this Board in the present complaint he must establish a breach of sections 68 or 69 of the Labour Relations Act.
Although the complaint as filed is severely lacking in particulars, the complainant was afforded an opportunity on January 9, 1984 to provide the Board with the details of his complaint, in response to Union counsel's motion for dismissal of the complaint under section 71 of the Board's Rules of Procedure. The complainant was also called upon by the Board to indicate how his complaint differs from the complaint of Peter Walter Dow, which was dismissed by the Board in June of 1981 in a detailed decision reported under the name International Union of Operating Engineers, Local 793, [1981] OLRB Rep. June 692.
Assuming that all of the facts alleged by the complainant in his complaint and in the oral submissions made to the Board on his behalf can be duly proven, I am of the view that this complaint should be dismissed without a hearing on the merits, pursuant to my discretion under section 89(4) of the Labour Relations Act and under section 71 of the Board's Rules of Procedure. There are no legally material differences between the facts alleged by the complainant and the facts set forth in the Board's decision with respect to the complaint of Peter Walter Dow against the Union. I agree with and hereby adopt the reasoning and conclusions set forth in that decision, in which the Board dismissed a substantially similar complaint based upon what are now sections 68 and 69 of the Act (then sections 60 and 60a). As was the case with Mr. Dow, it is apparent from the facts alleged by Mr. Lewszoniuk that he was not, at any material time, an employee in a bargaining unit represented by the Union. Thus, the complainant cannot rely on section 68 in regard to the impugned actions of the Union since the complainant does not fall within the ambit of section 68, which, by its express terms, applies only to representation of employees in a bargaining unit (see the Dow decision at paragraphs 29-36, and see also Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219). Similarly, for the reasons set forth in paragraphs 37 and 38 of the Dow decision, the complainant's case cannot succeed under section 68 of the Act since the Union is not engaged in the "selection, referral, assignment, designation or scheduling of persons to employment" pursuant to a collective agreement, in respect of owner-operators (or dependent contractors) such as the complainant.
For the foregoing reasons, this complaint is hereby dismissed.