Industrial Relations Journal 24:3 ISSN 0019-8692

The behavioural impact on trade unionists of t6e trade

union legislation of the 1980s: a research note

Roger Welch

This note is concerned with research conducted through a survey of trade union lay representatives to identify their perceptions of the current law and attitudes to compliance/non-compliance with it. Emphasis is placed on how any misconceptions could affect the conduct of an industrial dispute.

The main purpose behind the research, which was conducted in Autumn 1987, was to test the prognosis that the complexities of the current legal controls on the taking of industrial action create uncertainties and misunderstandings 'on the shopfloor' which can affect the way an industrial dispute is conducted.* This is of practical importance as it is possible that rank and file trade unionists may unwittingly act in a way which involves their union in legal liability. Conversely, it is important to take into account that an incorrect belief that a particu-

0 Roger Welch is Senior Lecturer in the Department of Law at Anglia Polytechnic University.

At the macro level it is my thesis that the complex interaction between civil liability developed by judges and statutory immunity has created a legal mystification of the realities of industrial relations. This distorts the nature of industrial action and exaggerates trade union power. Ideologically, this mystification has played a major role in justifying the statutory controls imposed from 1980 onwards 111.

lar act is contrary to the law may either restrain the rank and file leader from organis- ing the action, or reduce the effectiveness of arguments used in seeking to persuade union members to support it.

Therefore, it is also of value to identify the attitude of the trade union activist to compliance with the law. If a fear of legal consequences inhibits the organisation or continuation of industrial action this indi- cates that the law, particularly as it has been developed since 1980, is effective in undermining trade union militancy. More- over, if the activists are so inhibited it is likely that their branch members will be even more so.

Conversely, if a significant proportion of trade union activists believe that the law should not be obeyed, and they can convince their branch members as to the 'correctness' of this belief, a situation may well emerge where there is a divergence of attitude, between rank and file members and the union leadership, as to compliance with the law. This has important implications for

@ Basil Blackwell Ltd. 1993, 108 Cowley Road, Oxford OX4 lJF, UK and 238 Main St., Cambridge, MA 02142, USA.

industrial relations as it may involve unions in refusing to support their members, or, alternatively, involve unions in breaking the law and thus putting union funds in jeopardy. In this context it is useful to relate the research findings to the Employment Act 1990 as the central purpose of this Act is to make a trade union legally responsible for industrial action organised at workplace level, even where the lay representatives organising it are acting outside of the union's rulebook.

Research methodology The basis of the research was to use a questionnaire, which incorporated a variety of reasonably typical industrial relations scenarios, to ascertain the extent to which lay representatives understood the law, and the extent to which the respondents felt inhibited from organising industrial action or using particular tactics where such acts could involve their trade union in incurring legal liability.

As a secretary of a trades council (Chelmsford) I decided to use branches affiliated to trades councils as the basis of the sample. It is my experience that such branches and their organisers and represen- tatives are active participants in industrial relations. Therefore, the individual respon- dents to the questionnaire would be likely to have their own distinct views on the use of law in industrial disputes. Moreover, it is this type of trade unionist who is most likely to be involved in the organisation of industrial action at workplace level, and therefore most likely to organise action which could involve her/his union in legal liability. It is also this type of trade unionist who may be expected by branch members to have some understanding of the current law; and who is likely to have some influence in her/his branch on decisions as to whether the law should be obeyed.

It is recognised that the views of the activist may not be representative of those held by the ordinary branch member, but the views of the former for the reasons given above are more pertinent to ascertain. This is particularly so at a time when a union membership is calling for, or is responsive to calls for, the taking of industrial action, which is, of course, the context in which perceptions of and attitudes to the law assume practical relevance. However, as will

be referred to where appropriate, one section of the questionnaire asked the respondents to attempt to assess the views of their own members on the question as to whether, and in what circumstances, the law should be obeyed.

The use of trades councils to distribute the questionnaire also facilitated obtaining responses from different TUC regions, and in ensuring trade unionists in varying occu- pations and unions were included in the sample. The Barnsley, Cardiff, Chelmsford, Deal, Derby, Harlow, Islington, Newcastle, Norwich, Selby and West Bromwich Trades Union Councils distributed the question- naires to their affiliated branches, and indi- vidual questionnaires were received from several others - the total number received being 207. It should be noted that the sample was biased towards the South East and East Anglia (6l%), and towards workers in the public sector (65%). However, analysis by region and occupation revealed that these factors were not of any relevance with respect to perceptions of the law. Nor did regional and occupational differences have a marked effect on attitudes as to whether court orders should be obeyed.

It is my submission that if, on the basis of this type of sample, general patterns of understanding of the law begin to emerge, then this can be taken as representative of the typical lay official. With respect to attitudes to the law the sample is perhaps only representative of the more politically active rank and file trade union leader, but it can be argued that this layer of lay officials plays a significant role within the trade union movement and thus its perspectives are useful to ascertain.

For the purposes of this note I shall explain the relevant law and discuss the findings in the contexts of industrial action dismissals; industrial action ballots; sympathetic indus- trial action and the use of picketing.

Dismissals for participation in industrial action

The law in this context is to be found in s.62 of the Employment Protection (Consolidation) Act 1978. Employers have the right to dismiss all employees who par- ticipate in industrial action, but if they dismiss selectively they incur the risk of such dismissal being deemed unfair by an industrial tribunal. However, the reaction of

0 Basil Blackwell Ltd. 1993. Trade unionists and the legislation of the 1980s 237

many of the printers, who were dismissed by News International Ltd in 1986, gave rise to the suspicion that a number of trade unionists believed they could not be dismis- sed for going on strike if a majority vote in favour of strike action had been obtained in a secret ballot. In other words, an affirmative vote in a ballot gave rise to an individual right to participate in the strike. (There was a similar reaction from a number of the dockers who were dismissed during the 1989 strike.)*

In fact, 44% of the sample took this view. Furthermore, although 79% of the sample correctly believed the organisation of a secret ballot protected the union from liability if a strike was called in support of a pay claim, just under half of this group also believed the ballot protected the strikers from dismissals. Thus it can be seen that a sizeable proportion of the sample believed that an employer’s rights to dismiss are determined by whether or not a ballot has been held, rather than by the statutory rules governing unfair dis- missal. It should also be noted that 24% of the sample exaggerated an employer’s powers of dismissal in that it was believed the employer had an unqualified right to implement selective dismissals of strike lead- ers.

What is also relevant to take into account is the decision of the Court of Appeal in 1983, in the case of Power Packing Casemakers Ltd v. Faust, that workers still could be fairly dismissed even if industrial action did not amount to a breach of the employment contract. At the time this decision came as a surprise to many lawyers. It is therefore unsurprising that most trade unionists are unaware that industrial action, which is based on ’working to contract’, gives employers the same rights to dismiss as is the case with strike action. In fact, 71% of the sample believed that the employer had no right to dismiss if the industrial action took the form of an overtime ban rather than a strike. Therefore, in this context as well a significant number of lay officials believed that they and their members were

The rules on dismissal have been complicated by the provisions of the 1990 Act, as selective dismissals are now permitted if a trade union acts effectively to repudiate industrial action which is organised at the workplace and, once repudiated, can be con- sidered unofficial.

protected from dismissal when the opposite was the case.t

Secret ballots and industrial action

The research indicated that 79% of the sam- ple were aware that an employer could obtain a court order to restrain a trade union from organising a strike after a majority of union members had voted, by a show of hands, in favour of such action. This finding is, of course, quite unsurprising as the statu- tory requirement for a secret ballot to be held prior to the organisation of a strike is the most well known part of the government’s legislation. It is also this statutory provision which has been the most used by employers who have been prepared to resort to liti- gation to stop a strike.

The respondents were also asked to state whether they believed an employer could obtain a court order if an overtime ban was organised by the union after there had been a vote, by a show of hands, in favour of it. The sample was evenly divided on this question: 44% believed that a court order could be obtained; and 44% believed that an employer had no right of legal redress in this situation (12% did not know). As will be clarified below, depending on the contractual position it is possible that both reactions can be correct.

The latter finding probably indicates some ’gut’ reaction on the part of some trade unionists that whether they work overtime is a matter for them to decide. This would particularly appear to be the case given that 71% believed they could not be dismissed for taking such action, and half of this group also believed the employer had no right to a court order.

With respect to that proportion of the

t It should be noted that in Secretary of State v ASLEF [1972] 2 ALL ER 949 the Court of Appeal implied terms into contracts of employment imposing duties of fidelty and co-operation. This decision has recently been applied by the Court of Appeal in Ticehurst & anor v British Telecommuni- cations plc [19921 IRLR 219. The effect of these decisions could be that all forms of industrial action involve workers breaking their employment con- tracts. It, however, can still be argued that a ban on genuinely voluntary duties - including overtime - cannot amount to such a breach of contract. It is clear that such a ban does amount to industrial action, and thus gives rise to rights of dismissal.

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sample who did believe that a court order could be obtained, it is improbable that there is an understanding as to why an employer has such a right. The legal problem here is that the fact that there is no ballot, or the fact that industrial action is unofficial, do not in themselves provide the reasons why an employer can obtain a court order. In law, the employer must establish that the industrial action involves a tortious act. As explained above, it is at least arguable that organisation of an overtime ban does not involve workers in breaking their employ- ment contracts, and if this is the case organis- ation of such action may not amount to a tort. Therefore a failure to hold a ballot may not give the employer legal rights to prevent the action taking place.

It thus seemed reasonable to conclude that a significant proportion of lay officers believed it was illegal (ie. a criminal offence) for industrial action to be organised by a trade union if it did not first hold a ballot. This belief was and is even more likely to be held by the passive union members who will be aware that there are laws requiring strike ballots but not understand the ways in which the relevant rules operate. On an anecdotal note in this context, it is interest- ing to refer to a mass meeting of ambulance workers during the 1989/90 dispute which was attended by the author. At one stage an official, probably in all sincerity, informed the meeting that even to call a for a show of hands with respect to escalating industrial action would be illegal. None of the workers present challenged the accuracy of this state- ment. As a statement of the law it is totally erroneous.

On the other hand, it can be seen that a significant number of the respondents were unaware that organising industrial action short of a strike without a secret ballot could involve their union incurring legal liability. This is one important example of how work- place representatives may unwittingly enable employers to go to court to prevent industrial action from taking place - at least until and if a valid ballot is held.

Secret ballots and attitudes The questionnaire asked the respondents to state if they believed that the union should comply with a court order to call off a strike over wages which had been called on the basis of a show of hands. Their responses

were as follows: Very likely to favour compliance 29% Quite likely to favour compliance 18% Not very likely to favour compliance 25% Not at all likely to favour compliance 28%

Although a narrow majority of the respon- dents favoured defiance it must be empha- sised that a large majority of the respondents were of the view that the members of their branches were in favour of their unions complying with statutory requirements with respect to strike ballots. This would seem to suggest, that if, under a threat of a court order, a trade union repudiates industrial action which has not been sanctioned by a secret ballot then the members taking the action will return to work. It can be assumed that this will be equally the case where an overtime ban has been organised without a ballot; even although at the time the action was organised the members were unaware that this could involve their union in liab- ility.

However, analysis also revealed that in the case of those branches, which were not very likely to support or were opposed to compliance, in all but a tiny minority of cases this was also the position of the respondent. There was, moreover, a sizeable proportion, that is 33%, of the respondents who adopted a more militant position than that of their branches. It is always possible that such trade unionists may in the future persuade their members that the law should be ignored/defied. These findings permit speculation that there may be circumstances where industrial action, not sanctioned by a secret ballot, will take place and continue, notwithstanding attempts to repudiate by the relevant union.

Sympathetic action and picketing

The findings showed that a least two-thirds of the respondents were aware that the organisation of sympathetic industrial action in a number of contexts could involve their union in incurring legal liability. However, in a number of varying situations approxi- mately two thirds of the respondents leaned towards or clearly supported defiance of the law. Moreover, just over one third of the respondents believed their branches would adopt such a position. With respect to sym- pathetic action it can thus be concluded that many workplace representatives have a basic

0 Basil Blackwell Ltd. 1993. Trade unionists and the legislation of the 1980s 239

understanding of the law, but would wish to act in violation of it; at least where the balance of forces so permit.

It was in the context of picketing that the respondents revealed the most significant misunderstandings of the law. Indeed, 78% of the respondents believed they were break- ing the criminal law if there were one of two pickets at the entrance of a supplier to their employer. In fact, depending on the circumstances such picketing might not result in the commission of a tort, let alone a crime. Moreover, 70% believed (againly wrongly) that participation in a mass picket at their own workplace would definitely constitute a criminal offence[2]. As detailed below, these misconceptions did not neces- sarily have an inhibiting effect on the use of such picketing if i t was regarded as a necessary tactic in a dispute.

However, the findings do reveal that trade unionists are prone to accept employer, media and state depictions of picketing as criminal even if this not the case in law. Arguably this is damaging ideologically and facilitates coercive state intervention such as that seen during the Miners‘ Strike and the Wapping dispute. It may also diminish support from the more moderate union member for use of forms of picketing as a tactic in industrial disputes. Indeed, 70% of the respondents believed their members would support the calling off of ’flying’ picketing in compliance with a court order. On the other hand, 49% of the respondents believed that their members would favour defiance of a court order to end mass picket- ing at their own place of work.

With respect to the respondents’ own attitudes the findings were as follows.

Own Other Work- Work-

place place Very likely to favour

Quite likely to favour compliance 14% 24%

compliance 14% 22% Not very likely 29% 26% Not at all 45% 28% In the context of ‘flying‘ picketing there was thus rather less support from the respon- dents for defying the court, and there was a significant variation between the positions likely to be adopted by the respondents and the perceived respective positions of their branches. The reason for these differences would not appear to be entirely based on

respect for the law given the level of support for defiance of court orders restricting picket- ing at their own places of work. Possibly the difference is because ’flying’ picketing is regarded as a particularly militant tactic which many trade unionists are more reluc- tant to use for one or more reasons-includ- ing quite possibly the fear of a militant response by the police and other sections of the state. Again for more cautious or moderate trade unionists it is possible that a clarification that such picketing is not automatically criminal in nature might have some bearing on a decision as to whether or not a court order should be obeyed.

Conclusions The findings do confirm the prognosis that misunderstandings of the law by lay rep- resentatives do have important practical implications for the conduct of industrial disputes.With respect to employers’ rights of dismissal and the organisation of industrial action short of a strike many lay representa- tives underestimate the consequences of the law with respect to themselves, their mem- bers and their unions. Such misunderstand- ings of the law may adversely affect their credibility with their members if and when the correct legal position is ascertained. Moreover, particularly in light of the further controls imposed by the 1990 Act, they could quite unexpectedly involve their unions in either having to repudiate their members’ actions or incur legal liability. Most dis- turbingly, they could result in union mem- bers and their lay representatives being faced with dismissals in circumstances where the latter had stated the employer had no such right.

With respect to balloting requirements and picketing the nature of legal liability is exaggerated in that it is believed that breach of the criminal law is involved. This is of importance given that the findings indicate that trade unionists are more likely to favour compliance with, rather than defiance of, the law. Thus, approximately two thirds of the respondents believed their branches would generally support or favour com- pliance with the law. Moreover, of the respondents, that is the active trade union- ists, just over a third were normally in favour of compliance. This suggests that in the here and now legal controls are working to restrain the forms of industrial action that

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trade unionists take, and that the law has an inhibiting impact at workplace as well as national level. Misunderstandings as to the nature of legal liability can clearly reinforce this inhibition.

However, the findings also indicated that many of the respondents generally favoured defiance irrespective of whether they thought the relevant action was contrary to the law. Thus where an activist favoured defiance, but thought that the branch did not, it can be seen that an ability to be able to clarify precisely what is permitted by the law is clearly an advantage in seeking to gain support for industrial action.

The most significant finding is that the majority of the respondents were consist- ently in favour of defying court orders. It seems reasonable to assume that this is because they resent the use of the force of the law to prevent them from taking industrial action in circumstances in which they regard it as legitimate to use trade union organis- ation and power. In this context perhaps the 1990 legislation occupies a ’make or break’ position. If it results in even the activists

deciding the law must be obeyed then from the government’s point of view it will have been a success. If, however, the desire to defy the law, identified by the research, continues unscathed then the 1990 Act may have opposite and unintended conse- quences. It is still possible that workpIace leaders and activists may wish to and be able to convince their members that they have no choice, if they are to defend or further their interests, other than to take or spread particular forms of industrial action; even if in so doing they are defying both the law and their own trade unions.

References 1. See Welch, R. ‘The Legal Mystification of

Industrial Relations’, Employee Relations, 1991 13(4) Welch, R. The Right to Strike: A Trade Union View, Institute of Employment Rights, 1991

2. For a discussion of the view that mass and ’flying’ picketing are not automatically crimi- nal in nature see ibid. and Wallington, P. ’Policing the Miners’ Strike’, Industrial Law Journal, 1985 pp. 14559.

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