Boulting v Association of Cinematograph, Television and Allied Technicians

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE UPJOHN
Judgment Date04 Feb 1963
Neutral Citation[1963] EWCA Civ J0204-2

[1963] EWCA Civ J0204-2

In The Supreme Court of Judicature

Court of Appeal

From Mr. Justice Salmon

Before

The Master of Rolls

(Lord Denning)

Lord Justice Upjohn and

Lord Justice Diplock

John Boulting and Roy Bulting
Plaintiffs Appellants
and
The Association of Cinematograph, Television and Allied Technicians
Defendants Respondents

MR. ROGER PARKER, Q.C., MR F.P. NEILL and MR RICHARD SOUTHWELL (instructed by Messrs Linklaters & Paines) appeared as Counsel for the Appellants.

MR. GERALD GARDINER, Q.C. and MR.PETER PAIN (instructed by Messrs Pollard Stallabrass & George Martin) appeared as Counsel for the Respondents.

1

THE MASTER OF THE ROLLS: John and Roy Boulting are brothers who have ever since 1939 been managing directors of a film production company called Charter Film Productions, Ltd. Each is bound by his agreement with the Company to give the whole of his time and attention to the business of the Company and at all times well and diligently to serve the Company and use his best endeavors to promote the interests of the Company. Their duties include the production and direction of films and the writing of stories and scripts for films. They represent their Company on the Federation of British Film Makers, which is a trade union of employers. The Association of Cinematograph Television and Allied Technicians is a registered trade union, which consists of all employees engaged en the technical side of film production. It is a 'closed shop" and insists that all persons engaged on the technical side should be members of the union.

2

On the 8th October, 1941 John and Roy Boulting each. applied to be elected a member of the union and their applications were accepted. Each pledged himself to abide by its rules and decisions and to do his utmost to promote its welfare. They attended meetings of committees. And Roy Boulting actually served on the Executive Council for the year 1947. After the war the Boulting brothers found themselves in difficulty in being members of the union and also directors of the Company. Thus in 1947 the Boulting brothers noticed that a man who was third assistant director had done extremely well in "Fame is the Spur" and wanted to promote him to first assistant director. The Union said he had not enough experience' and it would be unfair to promite him over the heads of others. The union insisted and the Boulting brothers had to give way. Again in 1950 Roy Boulting wished to undertake the work of editor of "Seven Days to Noon" as well as director. The union said that this was contrary to union policy, and unless a separate editor was employed, the editorial staff would do no further work. The Boulting brothers'had to come into line and the Company had to engage and pay an editor who did nothing whilst Mr. Boulting continued to edit the film. In view of the difficulties, in March 1953 John and Roy Boulting told a union organizer named Middleton that they were in the position of employers and they considered that membership of the Union was inconsistent with their position of employers and the duties inherent in it, Middleton agreed that on this account their membership should be held in suspense. Thereafter they did not tale part as members at all. They were not asked for subscriptions and paid none.

3

Nearly six years later, on Thursday, 15th June, 1959 John and Roy Boulting were working at the Shepperton Studios engaged in producing a film. Roy was in the dubbing theatre and John was shooting on the floor. The shop steward handed them a letter saying their subscriptions were outstanding and the amount due was £97. 12s.9d. each. The next day, Friday, 16th January, 1959, a union officer named Graik came to the studio and demanded payment. When the Boultings told him of the arrangement with Middleton, he is aid that Middleton had no authority to make it. Craik accompanied the demand with an intimation that, if it was not complied with, he would have to instruct members to stop work on the production. The Boultings refused to accept this ultimatum. Work did in fact stop for some two and a half hours until a formula was arrived at to enable it to continue, - The stoppage had involved the production in a considerable loss.

4

By the demand thus strongly made, the union made it clear that they required John and Roy Boulting to be full members of the union, although they were managing directors of their Company; and the union would not permit their membership to be put into suspense. John and Roy Boulting took exception to this demand. They said in a letter of the 27th January, 1959: "We believe that there is a unique and grave issue that has been raised here: are employers to be compelled to join a union of employees?".

5

For a year the parties sought a solution but none was reached and in February, 1960, letters passed which defined the issue. On the 16th February, 1960, Mr. George Elvin, the secretary of the union, wrote to John Boulting: "Our General Council regrets that no solution has been found and has therefore asked, me to stress that it continues to be our policy that all individuals doing a job within the scope of this union must be A.C.T.T. members. The furthest they could possibly go to avoid any unfortunate difficulties" - note the phrase - "would be that on the commencement of rour next and all future productions your brother and yourself, if you work in A.C.T.T. categories, should each hold a current A.CT.T. membership card". On the 25th February, 1960, John Boulting wrote to Mr. Elvin: "There is a suggestion contained in your letter of the 10th February which gives rise to considerable concern in our minds: you imply that we can only avoid 'unfortunate difficulties' on our future productions by acceding to your demands. In the circumstances we feel obliged to put to you a direct questions may we have an undertaking from your Union that you will refrain from industrial action, the purpose of which is to coerce into an employees' trade union two persons who are employers? Without such a written assurance, my brother and I would find ourselves in an extremely grave situation, and that being the case, we would feel it necessary to take any action we deemed appropriate to protect our personal position". No such assurance was given and a week later, on the 4th March, 1960, John and Roy Boulting issued the writ in this action claiming, amongst other things: (1) a declaration that, whilst producing or directing films as managing directors of Charter Film Productions, Ltd., they are not eligible for membership of the Union and are incapable of entering into a valid contract of membership; (2) an injunction to restrain the union, their servants or agents from taking any action with a view to compelling them to hold current membershipcards of the union. Later on the same day John and Roy Boulting each wrote to the union resigning membership. They raised in the action the question of the subscriptions which the union had demanded on the 16th January, 1959: but no question arises now about it, because the Union abandoned any claim to collect subscriptions from them, and acknowledged that their membership was in suspense from the 23rd March, 1953, to 4th March, 1960.

6

So the action is concerned with the main issue: The union insist that John and Roy Boulting shall join the union and be members of it Whenever they are doing work "within the scope of the union". In order to enforce this demand, the union, it would seem from their letter, intend to call a strike if the Boultings should engage in the production of a film without joining the union. 'In order to defeat this demand, the Boultings seek to get the Courts to declare that they are not eligible to be members of the union: for if they are not eligible, the union can hardly be justified in calling a strike in order to compel them to be members. I take it that here the word "eligible" is used to mean "legally qualified" and not merely "considered suitable".

7

The reasons the Boultings say they are not eligible are two-fold: (i) The rules on their true construction do not permit managing directors to become members. (ii) Even if the rules did purport to permit it, they would to that extent be unlawful and contrary to public policy.

8

I. The construction of the rules:

9

Rule 7(a) defines eligibility for membership in these words; "The Association shall consist of all employees engaged on the technical side of film production whether working on feature films, short and documentary films, animated and cartoon films, film strips, newsrools, or research, including film directors, employee producers, associate producers, script-writers, and all employees in the cine-camera, allied camera, still camera, alliedstill camera, sound, allied sound, projection, editing and cutting, art, scenario, publicity, and technical floor and production departments, also of all similar employees in the broadcasting and television industries". The key word in that rule is the word "employees". It is a word whose meaning depends very much on the context in which it is used (see Trussed Steel Concrete Co. Ltd. v. Green, 1946 Ch. p. 115). Are the Bolting brothers "employees" within the meaning of that rule so as to be eligible for member ship?

10

The first thing to notice about the context is that this is a union of employee whose principal object is to regular? to the relations between members and their employers(see Rule 3(a)). There is a broad gulf fixed throughout these rules between employers and employees, a dichotomy which runs like a refrain through them (see Rules, (3a), (c), 17, and so forth). There are two side; of industry - employers on the side and employees on the other. Employees are eligible for membership, employers are not. It is one self-same dichotomy as that which runs throughout the Acts of Parliament which deal with trade unions and trade disputes. In 1871 Parliament described it as...

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