Connect

Legal News

foreseeable problem was emergency
August 2, 2002

In a recent BC arbitration award, arbitrator Robert Pekeles dismissed the grievance of PPWC Local 15, alleging that Tombec Industries had failed to properly notify the union of its intention to contract out, and had not afforded the union the opportunity to review the decision to contract out.

The company agreed that it had not given the union the opportunity to review, but claimed that the circumstances of the case constituted an emergency, in which case the company would have been relieved of its obligation to afford the union the opportunity to review the decision. During the arbitration, the union acknowledged upon cross-examination that the company had given notice at the appropriate time.

Virtually all the facts in this instance were agreed to by both parties. The company had modified a boiler so that it could be fuelled with “hog”, a fibre unsuitable for pulping. The company, however, had experienced significant difficulties with the both of the systems it had installed to feed hog into the boiler. The alternative measures attempted by the employer with materials and tools on site proved to be unsuccessful as well. The upshot of all these difficulties was that the boiler became plugged on December 28, 2000 to such an extent that it required a backhoe to unplug. The employer did not have a backhoe, and consequently contracted out for that service. Prior to doing so, the employer attempted to contact the union representative on the Joint Contracting Committee. That attempt being unsuccessful, the employer contacted a union representative who had previously served on that Committee, and had attended recent meetings on the subject. The employer informed the union representative that the situation was an emergency, and was told by the union representative to take whatever steps necessary.

The employer then employed the backhoe to unplug the boiler on December 28, 2000, and continued to use the backhoe to feed the boiler on the following day. The employer alleges that this also constituted an emergency because all other methods used to feed the boiler had been unsuccessful, and the employer had realized on December 28 that should it be unable to properly feed the boiler, it would be forced to purchase natural gas on the open market, and at that point the spot price for natural gas was approximately five fold more than it had been at any point over the previous eighteen months. This combination of circumstances meant that the employer would have become unprofitable rather than profitable for the duration of the time it was forced to purchase natural gas on the open market. Lastly, the price of pulp had begun to drop, which exacerbated the company’s struggle to remain profitable.

The union argued that the situation was not an emergency as it had been defined in labour law, most prominently in Canadian Forest Products and International Woodworkers of America, Local 1-367 unreported, October 9, 1981, (McKee):

“I read emergency to mean a sudden, unexpected occasion or combination of events calling for immediate action – in short, a situation where it is impossible for the Company to have foreseen an event or events which would necessitate it not being able to adhere to the collective agreement.”

The union argued that the company could have foreseen the difficulties with the boiler that occurred on December 28, given that it had been experiencing difficulties with it since it first began operation. Further, the union argued that market fluctuations are foreseeable, and that consequently, the company’s decision to contract out the work of feeding the boiler on December 29th, 2000 did not meet the definition of an emergency.

In rejecting these arguments, the arbitrator noted that whether a situation is an emergency must be determined on the basis of the specific circumstances of the case. In this instance, the arbitrator held that the unique combination and sequence of events did indeed render the situation an emergency. In this respect he noted that the company was not expecting to experience as serious a problem as it did with the second means of feeding the boiler, nor did it expect to have to purchase natural gas at such a high rate and be faced with falling pulp prices. Combined, all these factors brought about a situation which fell within the definition of an emergency, and the union’s grievance was dismissed.

(Click here for link to Decision)