The decollectivisation of trade unions? Ballots and collective bargaining in the 1980s

Industrial Relations Journal ISSN 0019-8692 53.00

The decollectivisation of trade unions? Ballots and collective

bargaining in the 1980s Roderick Martin, Patricia Fosh,

Huw Morris, Paul Smith and Roger Undy

Balloting has been held to undermine collective decision making within unions. This article, based upon analysis of the rule books of all TUC affiliated unions and case study material, outlines the law on balloting and collective bargaining, and examines the response to legislative changes. The authors argue that although legislation has led to greater formalisation and centralisation in decision-making on collective action, decision-making remains collective.

A major trend identified in industrial relations throughout the 1980s has been the decollectivisation or ’individualisation’ of employment relations[l]. This trend has involved the growth of direct communi- cations systems between management and employees, establishing or building up con- sultative committees outside the union framework, and developing sophisticated supervisory styles designed to increase the individual employee’s commitment to and identification with the employer. Such practices may or may not be accompanied by specific measures designed to affect trade

0 Roderick Martin is Fellow in Management, Tern- pleton College, Oxford, Patricia Fosh is Lecturer in The Management School, Imperial College, Univer- sity of London, Huw Morris is Lecturer in the Kingston Business School, Kingston Polytechnic, Paul Smith is Lecturer in the Department of Industrial Economics, Finance and Accounting, University of Nottingham and Roger Undy is Dean and Fellow of Templeton College, Oxford.

union influence, either directly or indirectly. In some industries, for example provincial newspapers, some employers have sought to derecognise unions[2]. In others employers have restricted the facilities available to shop stewards, making it more difficult to carry out their role effectively, without changing the institutional position of the union.

A second form of decollectivisation involves changes in the unions themselves, through strategies to reduce the significance of collective decision making. The major development has been legislation requiring individual balloting in union elections and before industrial action. The major actor has been government rather than employers. The major justification has been the wish to ’give the unions back to the members’ and to make i t impossible for union leaders to lead their members in directions in which they do not wish to go. As the Green Paper on Democracy in Unions put it-with limited regard for historical evidence-in 1983:

Ballots and collective bargaining in the 1980s 197

Trade union power, which springs from legal immunities and privileges, can be used not just against employers but against individual members of unions. As the law granted these privileges, i t is necessary to consider whether the rights of individual members of trade unions are adequately protected and whether those who exercise power in the name of the membership are properly accountable to the members . . . . The unique legal status which trade unions enjoy and the power their leaders possess to initiate industrial action which can damage the economic and commercial interests of others make it essen- tial for their internal affairs to be conducted in a manner which commands public confidence. That confidence is bound to be lacking if individual members are denied a fair opportunity to register their views on all matters which directly concern them[3].

According to Hyman, proposals for the introduction of secret individual ballots are an initiative designed to erode still further the collective basis of members’ attachment to their unions[4]. Replacing collective, group decision making by individual secret ballots may be thought to undermine-or to prevent the emergence of-the collective solidarity required for effective industrial action. This may reinforce the fragmenting effects of legislation rendering secondary action illegal[5].

The extension of balloting in the collective bargaining process may be seen as an element in a strategy of decollectivisation in several ways. The decision to strike is seen as an individual decision, recorded on an individual piece of paper. The ballot paper is distributed to the individual, either through the postal service or, if that is impractical because of lack of time, at the work place. The information about proposed agreements and industrial action (as well as election candidates) is required to be distributed on an individual basis. The vote should be recorded by the voter in secret. According to the Code of Practice, the ballot paper should be returned through the post. There is no proscription on the organisation of meetings to discuss proposed agreements or possible industrial action collectively, but nor is there any requirement to do so. The decision on how to vote may be made at home-according to the government rhet- oric, in the peace and quiet of the home. The presumption is that decisions will be made on a more rational basis if the individual is insulated from the direct pressures of colleagues and work-mates, and the emotion of the mass meeting. The concept of an

unfair practice is one which does not allow the individual voter to vote freely, or which does not give equal weight to the votes of all individual members.

This paper is concerned to assess how ballots have contributed to the decollectivisation of trade unions. It attempts to do this by fulfilling three specific objectives. Firstly, i t reviews the provisions of recent legislation on the use of ballots in collective bargaining (including industrial action). Secondly, it examines the extent to which unions have changed their rules and practices to increase the use of ballots, both to comply with legislation and in response to members’ wishes. Third, i t analyses the effects of changes in the use of ballots on the collective bargaining process, the outcomes of collective bargaining, and union organisation. The overall conclusion is that the extension of balloting in collective bargaining has not resulted in decollectivisation; it has changed some of the tactics and forms of collective action. Balloting has had a significant impact upon the conduct of collective bargaining, especially upon the tactics followed by the unions. It has also encouraged trends towards centralisation and formalisation in union conduct of collective bargaining; balloting provides a mechanism for devolving decisions on agreements and industrial action to the members directly affected, but the regulatory requirements surrounding the ballot require centralisation of responsibility for .the procedures. But the most important effect has been to legitimate the process of union decision making, without effectively changing its character. Far from under- mining collective consciousness, ballots have been adopted in ways which largely reinforce it.

The law on ballots and collective bargaining

The role of ballots in collective bargaining is governed by the Employment Act (1980), Trade Union Act (1984), Employment Act (1988) and associated regulations{b]. In addition, the Code of Practice Trade Union Ballots on lndustrial Action (1990) provides detailed guidelines for trade unionists organising ballots, and although without statutory force the Code may-in practice, will be taken into account in the proceedings of any court where they appear to be relevant. There have been only small but sig-

198 fndusfrial Relations [ournal

nificant extensions to the interpretation of the legislation by the courts, although over 50 applications for orders restraining trade unions from organising industrial action without a prior ballot have been granted.

The Employment Act 1980 empowered the Certification Officer to refund certain costs incurred in holding ballots for the reference back of collective agreements and for calling industrial action. Funds were initially available for several forms of ballot, but amend- ment of the regulations in 1985 and 1988 has subsequently restricted availability to postal ballots. Trade unions were entitled to com- plain to a tribunal if an employer unreason- ably denied facilities for organising a ballot.

The Trade Union Act (1984) restricted union immunity from action for tort to occasions on which industrial action had been sanctioned by a ballot of the members affected. Remedies were available only to employers and customers, not, at that stage, to aggrieved members. The action was to take place within four weeks of the ballot being held.* The voting paper must specify that industrial action will involve a breach of the individual’s contract of employment. To facilitate postal balloting, unions were required to compile a register of members’ names and addresses by 1st October 1985; such registers are computerised.

The Employment Act (1988) extended the law governing the use of ballots in industrial action in five important ways. Union members were given the right to seek an order from the courts restraining the union from taking industrial action without the approval of a membership ballot, regardless of any union rules purporting to prevent them from doing so. Second, electoral constituencies were restricted and defined as: all members of the union; all members employed by one or associated employers; all members who share a ’common distinguishing feature’ (a bargaining group). The terms of the questions to be asked on the ballot paper were further specified. Two questions must be

* Interpretation of this provision has proved conten- tious, especially over the treatment of the suspension of industrial action. The courts have held that action may be suspended for a short period in order to resume negotiations (Monsanto plc v T&GWU, 1986, IRLR, 406; 1987, ICR, 269 (C.A.). However, this suspension should not be so long that a reasonable trade union member would say to himself that the industrial action has now come to an end (Post Office v UCW, 1989, IRLR, 143).

asked: is the member in favour of industrial action short of a strike, and is the member in favour of strike action. The ballot paper should be accompanied by information per- taining to the questions, but presented in such a way as not to lead the voter to a particular conclusion. (This requirement has proven difficult to interpret, and in practice the courts have favoured distributing the minimum amount of information in the ballot envelope. The 1988 London Under- ground action by the NUR was held to be unlawful because the ballot envelope contained material which did not pertain directly to the primary trade dispute.) Fourth, a union member may not be ‘unjust- ifiably’ disciplined for refusing to obey a call for industrial action. Finally, the Secretary of State was empowered to issue statutory codes of practice to promote good balloting practice. This code of practice was subsequently issued in draft form in November 1988, and in final form in 1990[7].

The Code of Practice, some 29 pages long, provides detailed instructions on the conduct of ballots, focusing especially on the steps to be taken to avoid interference with the votes. Three features are especially important. First, the very detailed terms of the ‘advice’, which led one union official to claim that the objective of the Code appeared to be to discourage balloting. Second, ballots should only be held after existing procedures had been exhausted, thus leaving fertile ground for argument over when procedures have been exhausted. Thirdly, the Code provides for postal balloting where practi- cable, although the 1988 Act does not require postal ballots. Future court decisions will take account of the Code’s negative attitude towards workplace ballots in future decisions involving balloting, the strong guidance for postal ballots becoming enshrined in legal practice through the common law.

The legislation and statutory regulations are concerned with reducing the level of industrial action as well as with ensuring good balloting practice. Where ballots result in a majority for industrial action, the Code stresses that ’there is no statutory obligation on the union to authorise or endorse industrial action’ (Code of Practice, p.21). Simi- larly, there is no legal requirement that the members involved in strike action should be consulted before calling off the action.


Changes in union rules and practices on ballots in the

1980s The first part of this section examines changes in rules, the second in practices.

Rule changes Trade union conduct of collective bargaining is less regulated by rule than the conduct of elections. Effective collective bargaining requires flexibility in responding to employer action, and elaborate rule book provisions limit the room for manoeuvre. The lack of explicitness was even greater in 1980 than in 1987. With regard to the reference back to the membership of proposed collective agreements, very few unions had mandatory provisions in either 1980 or 1987; 6 unions in 1980 and 4 unions in 1987, including only one union with over 50,000 members in 1987. (Merger activity reduced the number of unions in our survey of the rule books of TUC affiliated unions from 102 in 1980 to 84 in 1987.) In both years, a significant minority of unions referred in rule to discretionary reference back ballots- 42 in 1980 and 29 in 1987. In both years the majority of unions which referred to discretionary reference back ballots gave discretion to the Executive Committee; in 1980 27 unions and in 1987, 19. However, there was one significant change in relevant rule book provisions; in 1987, 13 unions (or 39.4% of unions referring to discretionary reference back in rule) required reference back to be by ballot of the members (and a further 5 required full postal ballot and 2 half postal ballot), whereas no union had such provisions in 1980. The lack of mandatory rules, and the presence of discretionary rules, is consistent with a wish to retain Executive discretion whilst extending the use of ballots.

Ballots were more frequently required before industrial action in 1987 than in 1980, whether at national or at local level. For national level industrial action, ballots were mandatory by rule in 31% of unions in 1987, compared with 24.5% in 1980, and for local level industrial action the respective figures were 22.6% and 16.7%. In both years the unions with mandatory provisions were primarily small unions, with fewer than 50,000 members. Provision for full postal ballots was rare in both years; only 5 unions pro-

vided for this option before national industrial action in 1987 (compared with none in 1980), and only 3 for local industrial action in 1987 (compared with 4 in 1980).

Detailed analysis of union rule book provisions for other collective bargaining practices revealed a similar preference for retain- ing Executive Committee discretion. The authority for signing agreements, the level of strike pay, union discipline, indemnity for union officers, publication of election results, the detailed arrangements for the conduct of ballots where held, were in the hands of the Executive Committee in all but a very small minority of mainly small unions.

Union rules relating to the conduct of collective bargaining, including industrial action, thus changed little between 1980 and 1987; where they did change, they changed in directions indicated by government policy. However, practices changed more exten- sively, with increasing use of ballots in the reference back of collective agreements and in decisions on national or local industrial action.

Changes in practice The research involved interviews with national officials of 24 unions, and detailed case studies of 6 unions-AEU, T&GWU, GMB, CPSA, NCU, and EETPU-and 4 collective bargaining situations-British Tele- com, Derwentside District Council, Jaguar Cars and ‘National Engineering Company’. The following comments are based on analysis of the interviews with the national level officials of 24 unions, covering 75.3% of TUC members, about balloting practices, and case study analysis. For reasons of space, the case studies are not presented here.

According to national officials, collective agreements are usually referred back to the membership concerned (88’/0 of unions), either via secret ballot (57% of unions which refer back) or to delegate conference (62%); of course many unions may do either or both. Where ballots are held the most common form is workplace ballots (9 of the 1 2 unions which referred back did so via workplace ballots). The ballots are usually supervised by union officials or lay members, only one union using an external body for supervision. Information on the agreement is always distributed, but a statement from management is never included (although of course employers may distrib-

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Ute their own circulars, as at the Jaguar cars dispute in 1987). Only 3 unions changed their general policies on the reference back of agreements, to use ballots; NCU, IRSF, and BFAWU. At the time of the field-work, 1988, reference back ballots could be dis- tinguished from industrial action ballots; some agreements were referred to the membership without any specific presumption that rejection necessarily involved strike action. However, the situation was evolving, as unions discovered the difficulties involved in ballots which rejected management offers, but which did not provide any direct guidance on future action. Unions therefore began to collapse reference back ballots into industrial action ballots, and to discontinue the practice of holding 'pure' reference back ballots.

Unions which used ballots routinely on collective agreements saw both advantages and disadvantages with their use. The use of ballots had three important and major advantages for union negotiators. First, it broadened the scope of consultation. Sec- ondly, i t provided a legitimate means for resolving conflicting opinions within the union. Thirdly, it could provide valuable support for negotiators facing management, indicating the strength of membership opinion. The major disadvantages were primarily practical; the length and cumbersomeness of the procedures required, and the reduction in the role of leadership, whether by the Executive Committee or by the national delegate conference: from leaders to postmen. In addition, the preparation of the ballot paper required the simplification of the agreement. Management were able to influence the timing of the consultation with the membership, and postal ballots especially were open to external influence, especially by the media. Finally, the results of ballots were difficult to interpret, especially when they involved rejecting the agreement; this was especially problematic when turn- out was Iow. Despite the perceived disadvantages, none of the unions which had started to use ballots for reference back proposed to stop using them because of the difficulties cited.

Of the 24 unions interviewed only 6 provided for ballots before industrial action by rule, but 23 usually held ballots before undertaking industrial action; the remaining union has since begun to comply with the requirements of the 1988 Act. AS in decisions

on collective agreements, the work-place ballot is the most common type of ballot, used in 17 out of 23 unions. Significantly, the role of external supervision is greater than in ballots on collective agreements; 7 provide for external supervision of the ballot, although the most common form of supervision remains by union officials or by lay members. All unions distribute information on the proposed industrial action, but none include a statement from management. Sig- nificantly, 22 out of the 23 unions which used ballots at the time of the interviews issued instructions on the conduct of disputes.

Figures from ACAS confirm the growth in balloting in the 1980s. The total number of ballots recorded rose from 196 between September 1985-December 1986, to 251 in 1987, 331 in 1988, and 359 in 1989 more than doubling in three years; the number of unions involved in ballots recorded by ACAS rose from 30 in 1985-6 to 53 in 1987. It is impossible to say what proportion of strikes are held after ballots, because the data on the number of strikes as well as on the number of ballots is highly problematic; however, in 1987 the DE recorded 889 strikes, and ACAS recorded 280 ballots, suggesting that ballots were held in approximately a third of disputes.

Among national level union officials there was thus a wide acceptance of the need for holding ballots before taking industrial action by the end of the 1980s. This was substantially as a result of government policy; 11 of the 23 unions using ballots changed their policies following the 1984 Trade Union Act, 11 had always used ballots, and one changed following the Act but claimed it had done so for internal reasons. Although many unions had started to use ballots before the Conservative legislation, for example the T&GWU under the influence of Jack Jones and the EETPU, these unions only used them occasionally; occasional practice in the 1970s became universal practice by the end of the 1980s.

Characteristic of the unions which changed is the AEU: the AEU has only had a policy of holding ballots prior to all industrial action since the introduction of the Trade Union Act in 1984. Prior to this the union held ballots in many areas but this was not formalised or as rigorously policed as is required by the current legislation. The union changed its practice and

Ballots and collective bargaining i n the 1980s 201

adopted workplace ballots in response to the imposition of the Trade Union Act 1984. The reluctance of the union movement’s acquiescence in government policy on ballots on industrial action is suggested by the small number applying for funds under the 1980 Employment Act; only one of the unions interviewed and using ballots before industrial action has applied for public funds- the EETPU. (Apart from the EETPU the TUC unions which have applied for funds since the TUC changed its policy in 1985, to permit affiliated unions to apply, have been smaller unions.) However, this small take up may also indicate the small number of unions using postal rather than workplace ballots. In a minority of unions pressure from the membership, partly itself the result of government publicity, has led union execu- tives to make more extensive use of ballots.

Evidence from the interviews and the case studies thus indicates a reluctance to limit Executive Committee discretion in collective bargaining by introducing changes to union rules requiring mandatory ballots, but con- siderable willingness to use ballots. The effects of this changing practice are discussed in the following section.

The impact of ballots on collective bargaining

The growth of balloting might be expected to have an impact upon the process of collective bargaining, upon bargaining outcomes and upon union organisation. This section discusses each in turn.

Process of collective bargaining The major impact of ballots has been upon the process of collective bargaining; an additional element has been added to the repertoire of union bargaining tools. In collective bargaining the best means of exerting bargaining power is through being perceived by management to possess bargaining power, not in actually using power. The ability to develop tactics which provide a credible threat of action, without actually carrying out the action, is the most effective bargaining resource available to a union. Actually using bargaining ’muscle’ through industrial action creates problems for unions and their members, as well as for employers; industrial action poses problems as to union strategy and cohesion and involves, at best,

short term loss of earnings for union members. The strike ballot is a low cost credible way of persuading management of the strength of membership feeling. The AEU commented that ‘pre-strike ballots can be successfully used as a means to put pressure on employers during negotiations’[8]. It is thus not surprising that ACAS should comment that

in some cases it would appear that ballots on industrial action were a step in seeking to strengthen the unions‘ negotiating positions and secure an improved offer(91.

Officials in 15 of the 23 unions holding ballots said that holding successful ballots had major tactical advantages (a view expressed by the NUM official, among others). As the AEU commented, ‘on occasion, the ballot results have strengthened the union’s hand. Where a lot of people are prepared to take strike action and a vote reveals this, the vote may be very effective. The problem however is, if they then come out on strike it is very difficult to get the members back to work’. Union officials were usually confident of their ability to predict the outcome of ballots, and were naturally reluctant to ballot when they did not know what the outcome would be; a successful ballot for industrial action therefore obvi- ously strengthened the union negotiator‘s hand, and an unsuccessful one completely undermined it. The majority of ballots in practice went according to the union leadership’s recommendations; according to the ACAS figures, the proportion of votes which went in favour of the union position rose from 77.5% (196/253) in 1985-6, to 89.6% (2511280) in 1987, 92% (305/331) in 1988 and 93.6% (336J359) in 1989-a steep learning curve. At worst, in a difficult bargaining situation the use of the ballot could prove an effective way of spreading the blame, as in the NCU dispute with BT in 1987, when negotiators attempted to defie pressures placed upon them by conference by holding a membership ballot, and thus spreading responsibility for the difficulties anticipated.

The introduction of strike ballots may have increased the willingness of union members to take strike action, by legitimating the process of decision making. Hence 7 unions commented that ballots made members more willing to take strike action (NUR, T&GWU, EMA, UCATT, BFAWU, CPSA, and STE). However, when unions fail to judge the

202 Industrial Relations Journal

feelings of the membership correctly, and find recommendations for strike action rejected, major problems ensue for bargaining credibility, and bargaining power is weakened. This occurred in the NUR in 1988, in the drivers only dispute. The dispute led to the sacking of 200 drivers for taking unofficial action, after the membership had rejected official recommendations for industrial action; at this time BR warned that the sacked drivers would only be reinstated when agreement was reached.

It might have been expected that some of the detailed regulations on the conduct of ballots would have restricted willingness to vote for industrial action, especially the 'government health warning' about breaking contracts of employment, and the cooling off period. However, although 7 unions mentioned that the government health warning had some effect, i t was only small, and getting smaller. One union mentioned the effect of the cooling off period on the union, but this was balanced by the union which argued that the cooling off period had a greater effect on management, putting pressure on management as the cooling off period came to an end.

One issue raised is whether unions are using strike ballots purely tactically, union members voting for industrial action which they are in reality unwilling to take; there could be tactical advantages in securing a strike vote as a means of exerting pressure. Hence the EEF argued that ballots have become used as a 'bargaining ploy', and Theon Wilkinson of the Institute of Person- nel Management suggested in 1987 that

balloting is now being increasingly introduced by the unions as part of the bargaining process, before the procedure has been exhausted, as a means of trying to improve management's offer[lO].

Hanson and Mather take the argument to a characteristic extreme:

Insofar as pre-strike ballots perpetuate the strike threat , . . they are wholly unwelcome. In Britain, recent pre-strike ballots appear to have encouraged industrial disruption rather than discour- aged i t[ l l] .

However, union officials were reluctant to use pre-strike ballots in this way; the costs of a mistake, which would involve the long term destruction of bargaining credibility, are too great. As one ASTMS official commented in interview, strike ballots are

"a bit like a nuclear deterrent, employers have to believe that you are prepared to do it (take strike action) or it has no credibility whatever".

At National Engineering Company, one of the four major collective bargaining case studies, the use of a strike ballot tactically in 1988 created major problems for the union in 1989. In 1988 union members at the NEC rejected management's pay offer in a reference back ballot. However, in the subsequent industrial action ballot the same unamended offer was accepted. As a result, in the following year's negotiations the union side were worried about misinter- preting membership feeling, and therefore decided to hold an industrial action ballot without a prior reference back ballot. Using ballots tactically creates major uncertainties for the union, as well as for management. For example, in 1987 the NCU leadership hoped that holding a strike ballot would get it out of difficult negotiations with BT, with the membership rejecting the call for strike action; the membership did not oblige, voting in favour of strike action. The dispute caused major difficulties for the union, and was only ended after the second ballot to call off the dispute. Securing the anticipated vote-whether for or against strike action- is only a means to the greater objective, maintaining a credible bargaining posture.

Balloting may affect the timing of industrial action. The purpose of an industrial action ballot may be to bring the management to the bargaining table, at a time convenient for the unions (for example before a known seasonal peak in demand for the firm's products). Management may also try to use the balloting procedure to influence the timing of industrial action, only making a serious offer once a successful strike action ballot has been held-a view expressed by a Personnel Director of Fords, amongst others. However, the significance of the impact of ballots on the timing of disputes may be short-lived. If the courts hold that disputes called outside procedure are unlawful, the room for manipulation of the timing by the union or by management will be limited.

The use of ballots has also encouraged the formalisation of workplace collective bargaining procedures. For example, at NEC information on management offers had to be circulated in written form, which required codification of the union viewpoint to explain and counter the terms of the manage-

Ballots and collective bargaining ill the 1980s 203

ment offer. This formalisation requires a developed workplace organisation, and is only possible in the more sophisticated workplaces-elsewhere the full time officer may be required to intervene directly in plant level organisation, to ensure that pro- per procedures are followed. Formalisation is especially necessary in multi-union workplaces, where bargaining tactics require coordination between unions.

Multi-union situations raise a particular range of issues. The legislation requires that each union should ballot its members separately, and requires a separate majority vote from each union. However, different unions have different rules and procedures for the conduct of ballots, including differ- ences in the type of ballot and in the level of majority required before calling strike action.

The EETPU, for example, requires postal ballots, which take longer to carry out than workplace ballots (and can result in consider- able difficulties for management if the union brings in its results only after other unions have made their decisions, as at Ford in 1989). The GMB requires a two thirds majority before calling industrial action, although most other unions require only a simple majority (although a strike vote carried only by a narrow majority does not carry much weight, since the bargaining credibility is low). There are particular difficulties when members of different unions are differentially affected by the same agreement, or when members of different unions have different traditions of militancy. In some circumstances, traditions of militancy and pro-strike ballots in one union may influence the outcome of ballots in other unions, especially where one union is clearly the ’lead’ union. Hence in the 1988 local government pay ballots the NALGO pro- strike ballot influenced the APEX vote. In multi-union situations the terms of the legislation-requiring each union to ballot its members separately-increase the difficulties of managements trying to simplify the workplace bargaining structure, for example by seeking to establish a common bargaining table (although union mergers may resolve this issue in the long term).

Collective bargaining outcomes Collective bargaining outcomes are influenced by a wide range of factors, inside and

outside the enterprise; the significance of union bargaining tactics may be small, and the significance of union decision making procedures negligible. In distributive bargaining, the normal type of collective bargaining, the willingness of the employer to concede is primarily influenced by his perception of the costs of not-conceding, which may have more to do with the level of demand for the firm’s product than with the content of union demands, or the short run bargaining power of the unions. It is therefore difficult to allocate an independent weight to the contribution of the introduction of ballots to the outcome of the process of collective bargaining in the majority of cases. Union officials interviewed said that they did not believe that the introduction of ballots had had a perceptible effect on the outcome of the bargaining process. How- ever, in a small number of cases balloting clearly has had a major effect. In the NCU, for example, the 1987 dispute would prob- ably not have occurred but for the provisions of the 1984 Act. More generally, in the cases in which employers have sought injunctions against unions for failing to hold ballots, or for holding improper ballots, the requirements of the balloting legislation have had a clear impact upon the outcome of the bargaining process.

The most extensive study of employer injunctions has been carried out by Evans, whose study of the use of injunctions up to April 1987 has been supplemented by data from the Labour Research Department[l2]. Evans reported 80 cases of employers seeking injunctions to lift industrial action, including 47 on balloting grounds; between April 1987 and July 1988 there was only a further single case reported (LRD, September 1988 p7). Of the 47 cases analysed by Evans, 43 involved no ballot before strike action, 3 were over the wording of the ballot form and one related to the balloting procedures. Evans reports that 26 cases involved injunctions over primary industrial action, and 10 over secondary action. Of the 26 primary cases in which injunctions were granted, 10 led to the withdrawal of the industrial action; of the cases identified as secondary, 6 resulted in withdrawal of the action. Thus, 16 cases are clearly identified in which balloting requirements led to a different outcome to the bargaining process from what would otherwise have been expected. This is clearly only a tiny fraction of the total

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number of disputes which occurred over the period.

The other circumstances in which the use of ballots makes a perceptible difference to bargaining outcomes is when union members reject official recommendations for strike action. Evidence cited above, p.203, shows that in a small minority of cases (slightly more than 20% at the peak, in 1985-6) union recommendations were not followed by the membership, presumably involving the rejection of recommendations for strike action (although it may be that in some cases the converse occurred).

The use of ballots may also be expected to influence union leaders by ‘anticipatory socialisation‘ ie. union leaders being unwilling to put a recommendation to ballot because they expect or fear that the vote would go against strike action. Hence in the engineering industry hours dispute in 1989-90 AEU leaders only held ballots on strike action in companies where it was known that substantial majorities in favour of strike action would be achieved. The fear of losing ballots may thus inhibit industrial action, but it is impossible to estimate how widespread this experience is.

Ballots may also make a difference to outcomes by affecting the ending of industrial action. Some union officials commented that the campaign required to achieve a large majority for industrial action in a ballot raised expectations which could not simply be discounted later. Moreover, although the legislation does not require that ballots be held to call off industrial action, unions in practice find i t difficult to justify calling off action without a ballot if a ballot has pre- ceded the action, as detailed research on the NCU dispute with BT indicates.

Ballots have thus made an identifiable difference to the outcome of collective bargaining in a small number of cases, in which injunctions granted on balloting grounds led to the withdrawal of industrial action. In a larger number of cases the outcome may have been affected by fear of losing a strike ballot, but there is no systematic evidence on this. According to union officials, ballots have made no difference to the outcome of the process of collective bargaining and there is little empirical evidence to contradict their view.

Trade union organisation

The concept of trade union organisation enshrined in the legislation on ballots is confused. On the one hand, the objective is to make union leaders more responsive to membership opinion, through regulating election procedures for union officials and through requiring ballots before calling industrial action (and on the political levy). On the other hand, the objective is to increase the authority of the union leadership by making union officials responsible for actions done by union members in the course of industrial action. The legislation thus has decentralising and centralising strands. But the major effect of the balloting provisions is to increase centralisation; union officials see the need for increased central control to avoid putting the institutional resources of the union at risk through unlawful industrial action which would leave the union open to injunctions and to substantial fines.

Nearly all union central offices now issue detailed instructions on the conduct of disputes to workplace representatives; at the time of the national level interviews 22 out of the 24 unions did so. The instructions cover the conduct of disputes in detail. In the AEU, for example, the union General Secretary wrote to District Secretaries asking them to distribute copies of his letter to all shop stewards. The letter warned of the need to follow the guidelines of the union strictly; ’in order to preserve the Union’s immunity from court proceedings the ballot must comply with the statutory requirements in every respect. The following guidelines should therefore be followed strictly and if any problems arise advice should be sought from the District Office’. Union officials are warned about the importance of ’minding their ps and qs‘, especially the need to qualify expressly any public statement about the dispute with the phrase ‘conditional on the favourable outcome of the ballot’[l3]. The NALGO Industrial Action Handbook runs to 40 pages, covering a wide range of issues relevant to the conduct of disputes, including balloting.

Three financial pressures lead union head offices to be especially concerned about pre- venting union members from acting outwith the balloting legislation; the threat of injunctions and subsequent damages for contempt of court; the danger of tort proceedings; and


the rules relating to the payment of strike benefit. The threat of financial penalties for breaching injunctions granted following a failure to ballot appropriately has been par- ticularly important; the f200,000 fine imposed on the T&GWU for contempt of court following non-compliance with an injunction granted during a dispute at Aus- tin Rover in 1985 proved a major restraining influence. Several unions (15 of the 24 head office unions interviewed) introduced rules providing indemnities for union officials against penalties incurred through carrying out union policy in the 1980s, although such indemnities have subsequently been rendered unlawful by the 1988 Employment Act. Ensuring compliance with the balloting legislation is especially important where strike pay is involved since providing strike pay is a clear endorsement by the union of the action undertaken by the membership; failure to comply with the legislation may be an unexpected way of saving unions money, as has occurred in the AEU and the EETPU.

Parallel with a growing centralisation in the conduct of disputes has been a growing formalisation. This stems in part directly from the requirements of the legislation, especially the requirements for a full register of members and their addresses and for the inclusion of specific details in the ballot material. The EETPU has carried the process of formalisation furthest, with a sophisticated listing of members and their interests, but other unions have proceeded in the same direction. As Brown and Wadhwani comment, ‘unions have been obliged to develop computerised membership records, to keep better accounts, to run more orderly elections, to exert greater influence over their shop stewards, and to communicate better with their members’(l41. Legislative requirements have coincided with other motiv- ations (especially recruiting strategies designed to recruit new members through increasing service provision) and techno- logical opportunity to increase bureaucratic efficiency within unions.

Conclusion The fundamental concern of this article has been to explore how far the extension of balloting has led to the ’decollectivisation’ of trade unions. It has done this through an outline of recent legislation on balloting on

industrial action, an account of changes in union rules, policies and practices, and an analysis of the impact of balloting on bargaining processes, bargaining outcomes and union organisation. A major objective of government legislation on ballots has been to change the relationship between the union member and the union, to individualise the relationship. This has been reflected in the legislation on balloting in union elections and in collective bargaining generally, but especially in the preference for postal ballots. The changes have involved reducing the significance of collective decision making, ending the mass meeting and the union branch meeting as arenas for deciding upon industrial action.

However, the increased use of ballots has not transformed a collective into an individual decision. The effects of ballots on union decision making in collective bargaining have been ambivalent. On the one hand, balloting clearly requires individual decision making; ballot papers are received, marked and returned individually. However, the social processes which surround this action remain collective. Industrial action ballots are usually workplace ballots: where workplace ballots are held, ’active’ balloting is common-ballot papers are given out by the steward, and issues are discussed between the steward and the member, increasing collective consciousness through increasing contact between stewards and their members. This is especially necessary where membership dues are collected through check-off. Similarly with ’desk-top’ ballots in white collar workplaces. Moreover, once the results of a ballot have been declared, it may be easier for stewards to maintain cohesion after a ballot than under other methods of decision making for two reasons. Firstly, because of the accepted legitimacy of balloting, and secondly because opponents of the majority decision have no means of knowing who their fellow opponents are-it would be an unusual trade unionist who would defy a majority vote and cross a picket line alone. The social processes associated with balloting have thus helped to maintain collective cohesion at the work-place. At the same time, the linkage between the workplace and the union hierarchy has been strengthened, especially between the workplace and the district level; to maintain institutional integ- rity against possible legal action officials


have increased supervision over the conduct of local industrial action. At the same time, the attenuation of the union branch has been accelerated, with the demise of the branch meeting as a means of deciding on industrial action. Unions may differ in their ability to provide such supervision effectively, with service providing bureaucracies having least difficulty, already possessing accurate membership details, including up to date home addresses, and effective methods of com- munication with the membership. But the previous analysis has shown that balloting does not, in itself in any case, change tra- ditional sources of cohesion, certainly not in the short run.

The effect of the balloting legislation on the conduct of coIIective bargaining is perverse. The legislation requires decentralising decision making on industrial action, but encourages centralising the conduct of industrial action. This is the reverse image of management handling of collective bargaining. Management procedures involve centralised decision making on pay offers and settlements, which are seen as strategic decisions because of their financial impIi- cations, and decentralised decision making on the conduct of industrial disputes, which is seen a s an operational issue[l5]. There is thus a tension between the directions in which the union handling of collective bargaining is being pulled by the balloting legislation, and the directions in which it is being pushed by management. To exagger- ate, where management is centralising substance and decentralising procedure, the legislation is leading unions to decentralise substance and to centralise procedure.

Trade union ballots on industrial action are not an invention of the 1980s; major unions, notably the EETPU, used them before 1980. But their use expanded strongly in the 1980s. However, there is little evidence that ballots have had the anticipated effects on trade unions; trade unions have not become decollectivised. Instead, ballots have been absorbed into the repertoire of union bargaining tactics, and have helped to legit- irnise union decisions. As one AEU official commented in interview, the government have opened up ”a Pandora’s box (with the balloting legislation) which they are now trying to close (with the Code of Practice)”. The Institute of Economic Affairs has come to the same conclusion[l6].

Acknowledgements The authors are grateful to the Economic and Social Research Council for their financial support for the research on which this article is based.

References

1. See, for example, Millward, N., and Stevens, M., British Workplace Industrial Relations 2980-7984, Gower, 1986; Terry, M., ’How d o we know if shop stewards are getting weak- er?‘, British journal of Industrial Relations, Vol. xxiv, 1986; Kelly, J., ’British Trade Unionism 1979-89: Change, Continuity and Contradic- tions’, W o r k , Employment and Society, Vol. iv, 1990; Hanson, C. G., and Mather, G., Striking Out Strikes, Changing Employment Relations in the British Labour Market , Hobart Paper 110, Institute of Economic Affairs, 1988, pp. 76-7.

2. Smith, P., and Morton, G., ‘Derecognition in Provincial Newspapers’, W o r k , Employment and Society, Vol. 4, 1990; Claydon, T., ’Union Derecognition in Britain in the 1980s’, British journal of Industrial Relations, Vol. xxvii, 1989, pp. 214-24; Towers, B., ’Trends and Develop- ments in Industrial Relations: Derecognising Trade Unions’, Industrial Relations Journal, Vol. 19, 1988, pp. 181-5; Advisory, Conciliation and Arbitration Service (ACAS), Annual Report 2987, p. 11.

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6. For a detailed analysis of the 1980 Employment Act provisions on ballots, see Undy, R., and Martin R., Ballots and Trade Union Democracy, Basil Blackwell, 1985.

7. Department of Employment, Code of Practice: Trade LInion Ballots on Industrial Act ion, 1990.

8 . AEU Circular on Ballots, 1984. 9. ACAS, Annual Report 2987, p . 11.

10. Wilkinson, T., Guide on Workplace Balloting, Institute of Personnel Management, 1987, p. 34.

11. Hanson and Mather, op cit., p. 77. 12. Evans, S., ’The Use of Injunctions in Industrial

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13. AEU circulars, 1984 and August 1988. 14. Brown, W., and Wadhwani, S., ’The Economic

Effects of Industrial Relations Legislation Since 1979‘, National I n s t m e Economic Review, February 1990, p. 62.

15. Marginson, P., Edwards, P. K., Martin, R., Purcell, J., and Sisson, K., Beyond the Work- place: Managing lndustrial Relations in the Multi-Establishment Enterprise, Basic Blackwell, 1988; Confederation of British Industry, The Structure and Processes of Pay Determination in the Private Sector: 2979-86, (CBI, 1988).

16. Hanson and Mather, o p cit., pp. 76-7.


The decollectivisation of trade unions? Ballots and collective bargaining in the 1980s

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