1. By the Trade Union and Labour Relations Act 1974, s. 1.

2. For a recent discussion of how such premise has affected British trade union history and thought, see Robert Currie: Industrial Politics (1979).

3. See for instance Kahn-Freund: Labour and the Law (2nd edn., 1977) 49; and Wellington: Labor and the Legal Process (1968) 27.

4. Currie, supra, especially pp. 19–25.

5. This has most recently been developed in the English context by Wedderburn: ‘Industrial Relations and the Courts’, (1980) 9ILJ 65. For the American context, see Cox and Bok; Labor Law, Cases and Materials, (7th edn., 1969) 22–37; and Wellington: Labor and the Legal Process (1968) 7–38.

6. Hereinafter referred to as the ‘IRA’.

7. Hereinafter referred to as the ‘EPA’.

8. The 1935 National Labour Relations Act (NLRA) is often called by the name of its sponsor. The alternative titles are here used interchangeably.

9. Cox and Bok, supra, p. 92.

10. George Sayers Bain: Trade Union Growth and Recognition; Royal Commission on Trade Unions and Employers’ Associations (the Donovan report) Research Paper No. 6 (1968) p. 14.

11. As indeed is shown by the pattern of British inter-war union membership figures quoted above.

12. Cox and Bok, supra, pp. 101–4.

13. Cox and Bok, supra, pp. 92–4.

14. Cox and Bok, supra. pp. 9&7.

15. Wellington, supra, p. 44.

16. NLRA, section 1.

17. Sayers Bain, supra. This indeed was the main spur to the recommendation of some form of compulsion in the Donovan report.

18. Wellington, supra, e.g. pp. 289.

19. In the American context Wellington deals with this problem in chapters 8 and 9. In the British context is is worth recalling that the IRA flirted with emergency provisions and cooling-off provisions along the American model, but on the one occasion when they were implemented union attitudes were reinforced - the case became Secretary of State for Employment v ASLEF (No. 2) [1972] 2 QB 455 - and there was no desire for re-enactment when these provisions were repealed with the remainder of the IRA in 1974.

20. This is why Wellington argues (pp. 63–91) that the rigid distinction between mandatory and non-mandatory bargaining subjects as epitomised by the Borg-Warner decision 356 US 342 (1958) involves too great an interference in the content of collective bargaining and as such runs contrary to the purposes of the statute. See infra, p. 203.

21. Really the only characteristic of a good industrial relations system which might command general acceptance in an absence of serious industrial conflict. What its characteristics might be in positive terms hardly focuses in any discussion. See now the Code of Practice on Picketing, para. 38 which defines a list of essential supplies and services which should never be disrupted.

22. EPA, section 23(5)(b). The term ‘worker’ includes independent contractors and is to be distinguished from those working under a contract of employment, who receive the appellation ‘employees’.

23. The right to take part in trade union activities given by Employment Protection (Consolidation) Act 1978, s. 23 applies to employees, but all employees, with no restriction based on the nature of the employment.

24. Apart from those such as railway workers who have their own separate scheme under the Railway Labor Act 1926.

25. NLRA, section 2(3).

26. Ibid., section 2(2).

27. The fact that such employees do not have the Wagner Act protections, and that in particular strikes against the Government are regarded in America as illegal, does not mean that collective bargaining and strikes do not occur in these areas. Indeed the problems of agricultural workers and of public employee trade unionism could be said to be two of the most pressing in American labour law at the present time; Cox and Bok, supra, pp. 957–975.

28. Sayers Bain, supra, p. 14; Clegg: The Changing Structure of Industrial Relations in Britain, (1979) 177.

29. There are certain difficulties in identifying the sole cause of a strike but the Donovan report, for what it was worth, estimated that around 2 per cent of disputes were on recognition issues. See paras. 378–81.

30. Membership grew from 29.9 per cent in 1938 to 45.1 per cent in 1948 but by 1964 was down to 42.6 per cent. Sayers Bain, supra, paragraph 21.

31. Sayers Bain calculated that in 1948 53.1 per cent of manual workers were unionized and 28.8 per cent of white-collar workers; in 1964 the figures were 51 per cent and 29 per cent respectively. Approximately one-third of the white-collar figure is represented by non-TUC unions, which were probably ‘house’ unions or staff associations. Sayers Bain, supra, Table 12, p. 19.

32. Ibid., pp. 7492.

33. Ibid., pp. 99–101.

34. Donovan report, supra, paras. 253–256.

35. These included attempted abolition of the closed shop, enforcement of collective agreements as contracts, a system of trade union registration, and severe limitations on the range of permissible industrial action.

36. See, for example, TSA v Post Office [1974] ICR 97.

37. For an analysis of the overall effects of the IRA, see Weekes, Mellish, Dickens and Lloyd: Industrial Relations and the Limits of the Law (1975). Their conclusions on the recognition provisions were as follows (pp. 131–147) (i) although the procedure was partly designed to reduce strikes over recognition the unions using it would not in any event have been powerful enough to engage in a strike for recognition; (ii) though a few unions benefited greatly, the extension of collective bargaining as a result of the Act's provisions was very small-scale.

38. For example union membership increased by 2 per cent during 1972, the first year of the Act's operation, 81 DEG, No. 11.

39. The relevant part of the Act was sections 11–16. See Kahn-Freund: Labour and the Law, supra, pp. 74–85.

40. This comes within the general conciliation power under EPA. s. 2.

41. For an outline of its methods of working, see Cox and Bok, supra, pp. 935–940.

42. Section 1(2).

43. See for example the 1977 ACAS Annual Report, chapter 9, para. 9.

44. Thus for example in 1977, out of 83 reports under EPA s. 12, 63 recommended recognition while 20 made no such recommendation (1977 ACAS Annual Report, p. 21), while in 1978 the corresponding figures were 35 and 30 (1978 Annual Report, p. 25).

45. See for example Donovan, supra, paras. 670 ff.

46. The relationship between the statutory provisions and the TUC's ‘Bridlington Principles’ caused problems in EMA v ACAS [1979] 3 All ER 227 (CA), [1980] 1 All ER 896 (HL); on the general operation of the procedures see Ball: The Resolution of Inter-Union Conflict - The TUC's Reaction to Legal Intervention (1980) 9 ILJ 13.

47. It has been shown that the provisions contained certain assumptions about employer response which were based on the original Donovan proposals for a recognition tribunal emanating from Flanders and Sayers Bain. James argues that these assumptions were not borne out by the experience of the Commission on Industrial Relations under IRA and thus there was little reason to think that employer opposition would be non-existent and the remedies effective. James: Third Party Intervention in Recognition Disputes: 8 Industrial Relations Journal 29.

48. For example, Sayers Bain, supra, paras. 269–270.

49. This is one of the key relevant assumptions. For example Sayers Bain says at para. 268 that ‘the history of industrial relations in this country suggests that most employers and unions would respect the rulings of a recognition tribunal.’

50. If sanctions were required they ‘could easily be introduced’, ibid. para. 273.

51. This is partly mollified by the importance of conciliation; and conciliation officers would presumably tackle the two issues rather differently.

52. Cox and Bok, supra pp. 169–207, especially NLRB v Virginia Electric and Power Co (1941) 314 US 469.

53. But see ACAS Report 34 - Playboy Club of London Ltd, where a letter to all employees under the signature of the company chairman and managing director referred to union ‘wreckers’. There were further letters arguing the disadvantages trade unionism could bring. Recognition was recommended taking into account ‘the manner in which the company has sought to exert its influence’ but no criteria for how this assessment should be conducted were laid down.

54. For example Cox argues that ‘No civilised jurisprudence could tolerate the inconsistency of requiring a company to bargain exclusively with a union certified by law while doing nothing to stop a rival union from injuring the same employer in order to secure exclusive recognition for itself. Cox: Law and the National Labour Policy, (1960) p. 10. The British law under EPA came very close to just such a position. The fallacy is that there may be other sanctions apart from law which operate to restrain such behaviour and in Britain the TUC Bridlington Principles come into this category.

55. Epitomised of course by the 1932 Norris La-Guardia Act which greatly restricted the availability of the labour injunction.

56. The main immunising legislation being the 1875 Conspiracy and Protection of Property Act and the 1906 Trade Disputes Act.

57. Supra, p. 194.

58. Membership in Britain declined from a peak of 37.6 per cent of the workforce in 1921 to only 22.5 per cent in 1933. Sayers Bain, supra, p. 14.

59. Thus Cox argues that one of the consequences of collective bargaining as envisaged by the framers of NLRA was to ‘eliminate low wages and adverse working conditions’, and that ‘in the 1930's price increases were not unwelcome’. Cox, supra, p. 12.

60. US Bureau of Labour Statistics show that union membership among the non-agricultural workforce has declined from 35.5 per cent in 1945 to 24.5 per cent in 1976 the lowest figures in any Western industrialized country. Hart: ‘Union Recognition in America - The Legislative Snare’ (1978) 7 ILJ 201 at 213.

61. For an outline of the actual procedure see Hart, supra, pp. 204–209.

62. See Matter of Truitt Manufacturing Co (1956) 351 US 149; and General Electric 150 NLRB No. 36 (Cox and Bok, p. 430). The literature is immense; see for example, Wellington, supra, pp. 52–63; Cox: The Duty to Bargain in Good Faith; (1958) 71 Harv LR 1401.

63. IRA, s. 65(1)(b); EPA, s. 15(2). See Davies and Freedland: Labour Law - Text and Materials (1979) 102–4.

64. The two leading cases are NLRB v Wooster Division of Borg-Warn (1958) 356 US 342 and Fibreboard Paper Products v NLRB (1964) 379 US 203. See also Welling ton, supra, pp. 63–90, and Cox and Dunlop: Regulation of Collective Bargaining by the NLRB, (1950) 63 Ham LR 389.

65. Kahn-Freund, supra, pp. 756.

66. It is only since 1975 that the law in Britain has had to define what is meant by recognition. The EPA gave many rights to ‘recognised’ unions, which of course included those recognised voluntarily. One such right, conferred by s. 99 of EPA, is the right to be consulted over proposed redundancies. The leading case on the definition of ‘recognised’ is NUG-SAT v Albury Bros [1979] ICR 84. See (1979) 8 ILJ 37.

67. See, for example, Hart, supra, pp. 209–15; also ‘The Recidivist’ New Republic, 17 September 1977 which shows how it can be beneficial for an American company to ignore the law on recognition.

68. EPA, ss. 15 and 16.

69. In a similar vein James argues, discussing the role of the CIR, that, by the mere fact of asking employees about their attitudes, ‘union membership ceased to be as unthinkable as might previously have been the case. The natural bias of an inquiry was therefore in favour of a union. This was resented by many employers’, James, note 47 supra, p. 38.

70. Hart, supra, pp. 2145.

71. NLRB section 8(b)(4)(c). See Cox, supra, pp. 23–31.

72. In particular the restrictions on secondary picketing and industrial action and attempts to control what are seen as the worst excesses of the closed shop.

73. In a letter to the Secretary of State for Employment the ACAS Chairman points out that by the end of 1978 some 40,000 workers had had collective bargaining extended to them as the result of an agreed settlement of a claim under the statutory provisions compared with 10,000 workers as the result of the full operation of the statutory procedure leading to the publication of an ACAS report. 1979 ACAS Annual Report. p. 108.

74. See above, pp. 195.

75. The proposal was designed to guarantee union activists equal footing with employers in promoting their cause during a unionisation campaign. At present unions may have to campaign off-hours, off premises, and with no access to a list of employee addresses. The Bill would have given the union equal access to the workforce, but only if the employer triggered it by stopping work for the purposes of his campaign or by systematic mailing of employees. See ‘Labor Pains’, New Republic, 13 May 1978.

76. NLRA, section 9(c)(1)(A)(ii), inserted by the 1947 Taft-Hartley Act. In this Act ‘the policy of encouraging the spread of union organization and collective bargaining yielded to official indifference’, Cox, supra, p. 15. The frequency of decertification elections has increased steadily from 97 in 1948 to 811 in 1977, in which year 628 resulted in decertification, causing collective bargaining to be lost to almost 23,000 employees. Anderson et al: Union Decertification in the USA Industrial Relations: A Journal of Economy and Society (1980), vol. 19, p. 100.

77. IRA, s. 51–3.

78. Weekes et al, supra, pp. 147–150.

79. Sayers Bain, supra, note 10.

80. See Hart, supra, pp. 2W7. Both in Britain and America delay can amount to partial non co-operation over such matters as the procedure to be adopted, the relevant workers, and the form of a questionnaire. By 1978 ACAS was taking an average of 12 months between a recognition claim and the publication of a report.

81. It is only if the degree of support for the union was between 40 per cent and 50 per cent that ACAS was likely to use other factors in deciding whether or not to recommend recognition. 175 IRRR 23.

82. The company has been found guilty of 22 Unfair Labor Practices since 1963, but in 1980 contracts were signed with the Textile Workers’ Union for the first time, although in only 7 of the company's 77 plants. The Times, 21 October 1980.

83. The proposal was to introduce a ‘make whole’ remedy which would require an employer which disobeyed an order to recognise to pay an increase in wages and benefits large enough to bring them up to the level paid by the largest unionized companies in the country. It would have to continue paying until it signed a contract with the union. See ‘Labor Pains’, note 75 supra.

84. ‘Labor Pains’, supra, note 75.

85. Cf. note 67 supra.

86. Union membership increased from 3 million in 1935 to 15 million in 1947. However, equivalent increases seen common in wartime because of the need to include unions in decision-making in order to prevent industrial disruption. It is an impossible question to answer how far the American increase was due to the NLRA.

87. Above, note 60.

88. Clearly one important distinction is the political weakness of American unions. The reason for this is very complex, but one may note firstly that the Democratic party is far more than a representative of the working-class or the trade unions, and secondly in any event the party system is much less rigid in America than in Britain.

89. It is necessary to distinguish three ways in which ACAS could be involved in recognition issues. In 1978 451 cases and in 1979 392 cases were dealt with by the Service under its general powers of conciliation in s. 2 of EPA. No indication is given of success beyond the general statement that progress was made in 78 per cent of all conciliation cases, and no indication is available of the numbers of workers to whom recognition was extended in consequence. Secondly by the end of 1979, settlements had been reached in 959 of the 1512 cases referred to ACAS under the statutory provisions, in 479 of which the union achieved full or partial recognition and in 435 it was unsuccessful. ACAS estimated that in consequence 46,000 employees had collective bargaining extended to them. Thirdly, by the end of 1979 1209 reports had been issued under the statutory provisions where a voluntary settlement had not been forthcoming, of 136 recommendations for recognition, it had been achieved in 56 cases and not achieved in 80. ACAS estimated that in consequence 16,000 employees achieved the benefits of recognition as a result of a report under the statute. 1979 ACAS Annual Report, pp. 11, 23–27, 93.

90. EPA sections 11(3) and 12(5)(c) allowed ACAS to make a recommendation that collective bargaining, even if already occurring on some topics, should be extended to new topics. Kahn-Freund, supra, pp. 75–6.

91. In particular see Bercussion: The Employment Protection Act 1975 (1976) especially his commentary on s. 12(5)(c). This whole commentary is very helpful both on the technicalities of the legislation and on comparisons with the American system.

92. Among many others Wedderburn has pointed out that trade unions still mistrust ‘law’. ‘Tradition and legend tell them instinctively that it is something against which they need protection’. The New Structure of Labour Law in Britain, 13 Israeli LR 435 at p. 456.

93. In Powley v ACAS [1977] IRLR 190 Browne-Wilkinson J said at 195 ‘As a result of the statutory machinery an individual can have a substantial measure of control over his own working life compulsorily delegated to an agent, a trade union, whom he has not selected and may even have his own contract of service varied without his consent’.

94. The four leading decisions are Powley v ACAS, supra; Grunwick Processing v ACAS [1978] 1 All ER 338; UKAPE v ACAS [1980] 1 All ER 612 (HL) and EMA v ACAS [1980] 1 All ER 896 (HL). Some of the already considerable literature generated by these cases is to be found in Simpson: Judicial Control of ACAS, 8 ILJ 69; James and Simpson, Grunwick v ACAS 41 MLR 572; and Elliott: ACAS and Judicial Review: 43 MLR 580.

95. Note 94 above.

96. Thus by their Annual Report for 1978, ACAS were concerned that there was ‘a small but growing number of employers who co-operate only very reluctantly’, and they quoted a figure of 35 out of 400 cases then on their books, 1978 Annual Report p. 29. A year later the figure was 90 out of 339, 1979 Annual Report p. 27.

97. It would have introduced the words ‘so far as reasonably practicable' into the duty to ascertain workers’ opinions in EPA s. 14.

98. 1979 ACAS Annual Report, pp. 108–112.

99. UKAPE v ACAS and EMA v ACAS (supra note 94). The Court of Appeal decision in the former case is to be found at [1979] 2 All ER 478 and in the latter at [1979] 3 All ER 227.

100. Report No. 68.

101. The ACAS Chairman objected to the Court of Appeal's decision, which had required the Report to be set out in a much more formalistic manner, on the ground that ACAS ‘could be required to pronounce on the appropriateness of a trade union for a particular group of workers. This would be quite contrary to the normal traditions of British industrial relations where trade unions organise on the basis of spheres of influence rather than on imposed structural criteria’. 1979 Annual Report p. 110. He is here saying that ACAS has neither the power nor the inclination to engage in any re-structuring of British collective bargaining.

102. EPA, Schedule 1.

103. In a sense the legislation made no attempt to answer the question of what is meant by ‘working adequately’. All such issues of policy and principle were left to ACAS discretion.

104. EPA, s. 16. For a discussion of this section see Doyle: A Substitute for Collective Bargaining - the CAC's approach to s. 16 (1980) 9 ILJ 154.

105. Also in EPA was a provision enabling low-paid workers to claim higher pay on the basis of a straight comparison with similar firms in the locality whether or not a union was recognised, EPA, Schedule 11. This however was repealed by the Employment Act, s. 19(b).

106. As is shown by the lack of unanimity concerning the proposals for industrial democracy contained in the Bullock Report.

107. Doyle's conclusion was that section 16 ‘proved to be a poor substitute for collective bargaining, for recognition…entails rights and advantages over and above the…regulation of pay and other substantive terms’. Further, and significantly, he reasoned that ‘those who argue the status of recognition is capable of direct enforcement without disturbing further the voluntaristic framework of labour relations must look beyond the inviting expedient of legal formulae or the re-enactment of a section 16 provision’, 9 ILJ 154 at, 165–6.

108. Wedderburn has argued that ‘the attempt to re-construct in 1974 a non-interventionist structure of collective labour law may be inconsistent with too many interventions by statute at the collective level’. 13 Israeli LR, supra, p. 455.

109. Wedderburn further argues: ‘It may seem obvious that a modern democracy ought to have laws that compel an employer to bargain collectively with trade unions…yet the British paradox is that even this small degree of intervention may be too strong a burden for the traditionally “voluntary” system of collective labour law to bear’. Ibid., p. 456.

110. 1978 AC AS Annual Report, p. 30 ‘This essential voluntary role (of collective conciliation) does not sit easily with the statutory duties in sections 11–16 of EPA.

111. See also the alternative means for securing recognition canvassed in Sayers Bain, supra, pp. 101–6.

112. If one takes Grunwick as the epitome of the hard-line employer, all the legal procedures in the end failed to bring about a situation where the union was recognised, though there is some evidence that wages in the factory have improved as a result of the publicity. See Rogaly, Grunwick (1977) pp. 32–37.

113. H.L. Deb. Vol. 410 cols. 784–792. He maintained that ‘an alternative system for statutory recognition is still required’ as without one ‘there is no alternative for workers…other than to drive themselves…down a line of country which ends with disputes of the Grunwick type’. It seems that the Labour party would like some form of statutory provision, but at present there is absolutely no agreement as to the form it should take.