United Food and Commercial Workers Union, Local 175/633 v. Birrsa Holdings Inc., 2000 CanLII 13364

Ontario Labour Relations Board

2026-99-U 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.

2027-99-R United Food and Commercial Workers Union, Local 175/633, Applicant v. Birssa Holdings Inc. c.o.b. as East Side Mario’s and Fionn MacCool’s, Responding Parties.

3167-99-R Jill Gibson, personally and on behalf of the Employees of East Side Mario’s, Applicant v. United Food and Commercial Workers International Union, Local 175-633, Responding Party v. Birssa Holdings Inc., c.o.b. as East Side Mario’s, Employer.

BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

DECISION OF THE BOARD; June 2, 2000

Reasons for Decision

1. These are unfair labour practice applications and a termination application under the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”).

2. The union applicant in the unfair labour practice applications, the employer and Jon Essa, described by the parties as “the directing mind of the employer”, (hereafter together described as “the settlement parties”) have concluded Minutes of Settlement (“the Settlement”/ “the Minutes”) which substantially resolve many of the matters in issue between the parties. The Minutes read as follows:

Between:

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 175/633

(the "Union")

• and -

BIRSSA HOLDINGS INC. c.o.b. as

EAST SIDE MARIO'S and FIONN MACCOOL'S

(the “Employer”)

-and -

JON ESSA

(“Essa”)

MINUTES OF SETTLEMENT

DATED MAY 15, 2000

WHEREAS the Union commenced an organizing drive of the Employer’s operations in Thunder Bay, Ontario in 1993, and subsequently became certified as the exclusive bargaining agent of the employees so employed by the Employer;

AND WHEREAS the Union and the Employer have been engaged in protracted litigation involving numerous Applications before the Ontario Labour Relations Board (the "Board") wherein the Union has alleged that the Employer has violated the Labour Relations Act, 1995 as amended (the "Act”). As well, to date there have been no less than three (3) Decertification Applications filed before the Board which the Union has challenged on the basis of, among other things, Employer misconduct contrary to Section 63(16) of the Act;

AND WHEREAS the Union recently filed an Unfair Labour Practice Complaint against the Employer pursuant to Section 96 of the Act on or about October 14, 1999, known as Board File No. 2026‑99‑U (the “Unfair Labour Practice Complaint"). Thereafter the Union on several occasions amended its initial Complaint to provide for further and other additional particulars of improper conduct by the Employer;

AND WHEREAS the Union recently filed an Application under Section 69 and/or Subsection 1(4) of the Act on or about October 14, 1999, known as Board File No. 2027‑99‑R (the "Related Employer Application") alleging that the Employer was engaging in associated or related activities involving two (2) restaurants located in the City of Thunder Bay known as East Side Mario's and Fionn MacCool's;

AND WHEREAS the directing mind of the Employer, Essa, has commenced a civil proceeding by issuing a Statement of Claim dated September 17, 1999, against the Union's representative, Ms. Colby Flank in the Superior Court of Justice known as Court File No. 99‑0639 alleging damages for defamation, slander, intentional or negligent infliction of mental anguish, punitive and exemplary damages and costs when Ms. Flank was carrying out her duties as a Union representative;

AND WHEREAS the Union served notice to bargain on the Employer on or about December 14, 1999, with respect to negotiating a renewal Collective Agreement;

AND WHEREAS Ms. Jill Gibson on her own behalf and on behalf of other employees of East Side Mario's filed a Decertification Application before the Board known as Board File No. 3167‑99‑R (the "Decertification Application") on or about January 26, 2000;

AND WHEREAS the Union has made further allegations of Employer misconduct pursuant to Section 63(16) of the Act in relation to the Decertification Application known as Board File No. 3167‑99‑R as well as asserting that the Decertification Application is untimely for the reasons set out in its Response filed before the Board in Board File No. 3167‑99‑R;

AND WHEREAS the Board directed that a representation vote be held of the employees of East Side Mario's in order to ascertain whether they wished to decertify the Union in relation to Board File No. 3167‑99‑R. Such vote was held on or about February 17, 2000, and the Board directed that the ballot box be sealed and segregated;

NOW THEREFORE the parties wish to enter into a settlement agreement and do so based upon the following terms and conditions:

1. The parties agree that the recitals are true and accurate and form part of this Agreement.

2. The parties agree to adjourn sine die the Unfair Labour Practice Complaint and additional particulars of wrongdoing and the Related Employer Application.

3. The Union agrees to withdraw any and all objections raised with respect to the Decertification Application in consideration for the mutual covenants and undertakings set out herein:

(a) The parties agree that in resolving this dispute that there is no finding or admission of wrong doing as against the Employer as long as there is no act of default by the Employer referred to in paragraph 3(c) and 4(a)(i) below.

(b) The parties agree that the ballot box shall be forthwith opened and ballots counted