Original article by Howard Levitt published in the Financial Post, August 20, 2019.

It seems obvious that, if an employer is worried about unions knocking at the workplace, it should take steps to keep employees content and happy — and monitor for union activity. But at what point do anti-union efforts morph from proactive to problematic?

It is a question that must be haunting A&W Canada this week.

Last week, PressProgress published a column entitled: “A&W Tells Anti-Union Conference It Keeps a Secret ‘Watch List’ to Make Sure Workers Don’t Unionize.” Internet retaliation against the company was fast and furious, with consumers and commentators calling to boycott A&W for its alleged union-busting ways.

But What Did A&W Actually Do?

It attended a conference with other industry representatives participating in various panels, including one about how A&W has maintained a non-union workforce.

It did not, as some vocal internet users suggest, advocate surveilling workers or state that it keeps some type of hit list. It did note which of its franchises were in highly unionized areas and indicated that it took particular care to look for hints that workers were discontent and likely to unionize. It also indicated that it used a rapid-response system for incidents that caused A&W to worry that a franchise might tip towards unionization. These are all things that I recommend to my clients.

Legally Canadian workers have a right to unionize, and a company cannot unfairly interfere in a certification process. It’s understandable that many employers have valid concerns about a union entering their workplace.

For certain companies, unionization raises the spectre of excessive costs. Some unions understand that their interests and the company’s are aligned insofar as a bankruptcy proceeding is not in a union member’s interest.

Others, however, are not as familiar with the industry and insist — even in the face of financial projections to the contrary — that there are substantial funds for any number of perks or pet causes. Unionization does not affect just wages, but also the multitude of other things a union can bargain for: uniform allowances, sick and vacation day allowances, bonuses, benefits, car allowances, training entitlements, and a whole host of other matters. Those are apart from the real cost of unionization: inflexible classifications, the inability to incentivize, and general rigidity in terms of employment.

All of these may appeal to a worker, but an unreasonable stance on these matters can lead to lost jobs, restricted growth or even closure.

An employer may try to fire an employee who is harassing other workers or is a sub-par performer who forces others to pick up the slack, but find itself unable to do so because a union has a policy resisting discipline for its members, however deserving.

Unionization will also create a sudden and drastic change to employee relations — and for an employer who has never dealt with a unionized workforce, there are suddenly a host of new procedures, boards, and issues to deal with, with a well-funded, experienced opponent.

This is not to say employers should have free reign. A company is prohibited from engaging in conduct that affects the right of workers to choose. But if employers take proactive measures to institute policies and remuneration that keeps their workers happy, that is worth supporting.

If the employer falls down on the job, a union will rightfully step in. But if the threat of a union doing so is enough to keep employers in silent races to show employees that they are better off without unionization, I would say that the system is working just fine.