Judge says union acted in bad faith in bid to oust Saskatoon Co-op board members

The strike ended six years ago, but the clash over a two-tiered wage system at the Saskatoon Co-op is still reverberating through the courts.

This month, a Court of King’s Bench judge upheld a labour board finding that UFCW — which represents Saskatoon Co-op employees — acted in bad faith when its members actively campaigned to unseat the co-operative’s board members during the negotiation of their contract in 2018 and 2019.

Workers were driven to the picket lines in late 2018 over a board proposal to introduce a two-tiered pay system that would see new employees receive lower wages and benefits than existing staff.

After a full five months on strike through the winter, the members relented. They accepted a two-tiered pay system, albeit with a slightly smaller wage gap.

But the dispute carried on through other means.

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At the outset of the strike Craig Thebaud, a former employee of the Co-op and UFCW, launched a petition calling for an emergency meeting with the board to vote on removing and replacing all nine directors.

“When the Petition Strategy failed, the movement changed course and decided to plan for the 2019 annual general meeting of the Co-op membership [AGM]. At the AGM, certain seats on the board of directors would be up for election or re-election. The individuals behind the movement planned to campaign for candidates who would press for a different bargaining position,” Justice Richard Elson wrote in his Oct. 17 King’s Bench decision.

“This strategy, which I will hereinafter describe as the “Election Strategy”, carried on despite the settlement of the strike and a renewed collective agreement that included a “bridged” two-tier wage schedule.”

According to Justice Elson, the Saskatoon Co-op took exception to both strategies and launched an unfair labour practice application with the Saskatchewan Labour Relations Board.

In 2022, the labour board sided with Saskatoon Co-op, so UFCW turned to the court for judicial review.

The union argued the labour board decision unfairly restricted its members’ constitutional rights to freedom of expression.

The unionized employees also held regular voting memberships in the co-operative, and the union contended it would not be unusual or inappropriate for voting members of a co-operative to advocate for changes at the board level.

“The Board heard testimony that, prior to 2018, it was not unusual for bargaining unit employees to talk about candidates seeking election to the Saskatoon Co-op’s board of directors,” Elson writes.

“Moreover, there has been a history of bargaining unit members supporting specific candidates, all without objection from management. Likewise, there was evidence before the Board that the Co-op’s management also supported specific candidates.”

But Elson says UFCW’s president Norm Neault testified there was an informal agreement in place that neither the union, nor management would specifically run candidates.

Outside the context of collective bargaining, it’s possible Elson would have found the union’s argument more convincing, but he says their actions were constrained by terms of the Canada Labour Code.

Quoting Justice Peter Cory in a 1996 Supreme Court of Canada decision, Elson outlines what’s required of a good faith bargaining relationship.

“In the context of the duty to bargain in good faith a commitment is required from each side to honestly strive to find a middle ground between their opposing interests,” Cory wrote in the 1996 Royal Oak Mines Inc. v Canada (Labour Relations Board).

“Not only must the parties bargain in good faith, but they must also make every reasonable effort to enter into a collective agreement. Both components are equally important, and a party will be found in breach of the section if it does not comply with both of them.”

Though he dismissed UFCW’s application, Elson admits the unique structure of co-operatives added complexity to the case.

Ultimately, he says the question of whether the campaign to oust board members constituted bad faith bargaining came down to distinguishing between “conduct intended to persuade or compromise from that which has the potential to coerce or destabilize the collective bargaining relationship.”