2026-99-U; 2027-99-R United Food and Commercial Workers Union, Local 175/633, Applicant v. Birrsa Holdings Inc. c.o.b. as East Side Mario’s and Fionn MacCool’s, Responding Parties.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; January 26, 2000
1Board File No. 2026-99-U is an application under section 96 of the Labour Relations Act, 1995 (the “Act”). Board File No. 2027-99-R is an application under section 69/1(4) of the Act.
2A conference call was held on January 24, 2000 to deal with counsel’s submissions concerning various preliminary issues including the location of the hearing, the question of the matters being heard together, the proposed addition of particulars and request for production. This decision confirms the orders and directions made at that time.
Proposed Change of Venue
3With respect to the responding parties’ request that the hearing in these matters be conducted in Thunder Bay rather than in Toronto, the Board has considered the representations of the parties and declines to grant this request. As the parties are no doubt aware, the Board has restricted the number of hearings scheduled outside of Toronto because of the costs associated with out of town hearings. While the Board appreciates that this imposes an additional financial burden on parties appearing before the Board from out of town, there is nothing in the circumstances of this particular case, which persuades the Board to depart from its practice of hearing these types of cases in Toronto. The hearing will therefore proceed in Toronto as previously scheduled.
Addition of Particulars
4Counsel for the applicant has made a number of requests set out in his correspondence to the Board dated November 4, 1999. One of these requests is to amend the applications in Board File Nos. 2026-99-R and 2027-99-U by adding the following particulars:
On November 2, 1999, the writer received the attached correspondence from someone purporting to be “Jacqueline Park” as set out on the fax cover sheet. As is obvious, the correspondence is forwarded on Employer letterhead using a fax communication line paid for by the Employer and assigned to the Employer’s business known as fax #807-345-1828. Furthermore, the Union submits, if necessary, that if in fact the fax was forwarded by Ms. Park (and Ms. Newman) that such fax was sent on Employer time (at 14:42 on November 2, 1999) with the approval and support to the Employer. The Union further submits that the Employer continues to encourage and support (financial and otherwise) a bid to decertify the Union, contrary to the Act.
Counsel for the responding parties did not oppose this request to amend the pleadings. The Board accordingly grants the applicant leave to amend the applications in Board File Nos. 2026-99-R and 2027-99-R by adding the above-noted particulars.
Production of Documents from the Board
5Both parties also requested that the Board provide copies of documentation filed with the Board in previous proceedings between the parties, which are said to be relevant to the matters raised in the present applications before the Board. The documentation requested includes that contained in Board File No. 1119-93-M, 1128-93-R and 1994-96-R. Having considered the representations of the parties, the Board agrees to provide both parties with access to the above-noted Board files (other than any documentation relating to membership evidence referred to in section 119(1) of the Act) at the Board offices in order to review the documentation contained therein. Both parties may also obtain copies at their own expense of any documentation contained therein (other than membership evidence referred to in section 119 (1) of the Act). It is understood that the parties must provide the Board with adequate advance notice of their desire to attend on a particular date and time for this purpose.
Production of Documents from the Responding Parties
6With respect to the applicant’s request for production of certain documents, the Board firstly notes the responding parties’ agreement to provide the following documentation requested at paragraph (5) and (6) of counsel for the applicant’s correspondence dated November 4, 1999:
(5) A copy of the Minutes of Settlement dated May 14, 1994, as referred to in the Respondent’s response at paragraph 4 and 5;
(6) A copy of all relevant payroll documents of Ms. Park and Ms. Newman for the week of November 2, 1999.
7Counsel for the responding parties did not, however, agree to provide the additional documentation referred to in paragraph (6) of the November 4, 1999 correspondence, namely, copies of all staff schedules for the week of November 2, 1999 for all employees of both of the responding parties, Birrsa Holdings Inc. c.o.b. as East Side Mario’s and Fionn MacCool’s. Counsel for the responding parties argued that this documentation is not relevant to either to the unfair labour complaint or the application under sections 69/1(4) of the Act. Having considered the representations of the parties, the Board finds that this documentation is arguably relevant to the allegations contained in the sections 69/1(4) application that there is an interchange of employees between the two companies.
8The Board therefore orders the responding party, Birrsa Holdings Inc. c.o.b as East Side Mario’s to produce the following documentation forthwith to the applicant:
Copies of all staff schedules for the week of November 2, 1999 for all of its employees.
The Board further orders the responding party, Fionn MacCool’s, to produce the following documentation forthwith to the applicant:
Copies of all staff schedules for the week of November 2, 1999 for all of its employees.
9Counsel for the applicant also requested additional documentation referred to in paragraph (1) to (4) and (7) of his correspondence dated November 4, 1999. The parties, however, indicated to the Board that they were in agreement to defer the Board’s consideration of these items pending the outcome of further discussions between the parties. In the event that the parties cannot reach agreement, the applicant may renew its request for production of these documents.
Hearing of Applications together
10Finally, the parties made certain written representations with respect to whether or not these two applications should be heard together. In the parties’ written submissions to the Board, the applicant asked that these matters be heard together whereas the responding parties objected to having these two applications heard together. Shortly prior to the conference call in this matter, a new development occurred that could affect the positions taken by the parties on this issue. In this regard, the applicant indicated to the Board that it had very recently been served with a termination application involving Birrsa Holdings Inc. c.o.b. as East Side Mario’s. In these circumstances, the applicant indicated that it would likely be seeking that that matter also be heard together with the present unfair labour practice complaint and the present application under sections 69/1(4) of the Act. Counsel for the responding parties stated that although he had not yet had an opportunity to consider his position in light of this recent development, it is possible that he would agree to this request. In these circumstances, the parties agreed that the Board should defer a consideration of this issue pending confirmation that the termination application had indeed been filed with the Board and pending further discussions between the parties.
11This matter is referred to the Registrar.
“Caroline Rowan”
for the Board