Union Recognition: A Comparative Analysis of the Pros and Cons of a Legal Procedure

DOIhttp://doi.org/10.1111/j.1467-8543.1987.tb00708.x
Publication Date01 Jul 1987
AuthorBarbara Townley
British Journal
of
Industrial Relations
2512
July
1987
0007-1080
$3.00
Union Recognition:
A
Comparative
Analysis
of
the Pros and Cons
of
a
Legal Procedure
Barbara Townley*
The question of positive legal rights in the area of collective labour relations
has recently emerged on the political agenda. It has been addressed publicly
by several union leaders (Edmonds
1986,
Graham
1985),
and is currently the
subject of a T.U.C. review and Labour Party -T.U.C. discussions, and an
S.D.P. discussion document.’ Amongst academics there is also debate,
ranging from the more general discussion of ‘rights versus immunities’
(Wedderburn
1985,
Von
Prondzynski
1985)
to McCarthy’s
(1985)
more
specific proposals for a series of legal reforms. Subsumed within these
debates, although not receiving much media attention, is the contentious
subject of union recognition. Several factors, however, indicate that this
issue will receive a far greater degree of prominence, to the extent that a
statutory recognition procedure may well arise on a future legislative
agenda
.’
For trade unions such a procedure may have some appeal. The period
1980-6
has seen the organisational base of trade unions steadily being
eroded, hit not only by high levels
of
unemployment but also by structural
changes which have been taking place in the economy. Areas
of
employ-
ment growth, particularly the private services and part-time employment,
have not traditionally correlated with high levels
of
union organisation (Bain
and Price
1983,
Bain and Elias
1984).
In addition there is evidence that new
employment is increasingly locating outside traditional trade union strong-
holds, especially in smaller-sized establishments in rural locations (Massey
1984,
Massey and Miles
1984).
As union representation is more difficult to
secure in such areas, the argument has been advanced that a legal
mechanism may be required to allow workers the right to be represented by
a trade union (Edmonds
1986),
especially as unemployment, in combination
with more restrictive legislation, has deprived unions of the industrial
muscle to enforce recognition claims. The argument gains some support by
research conducted into the problems encountered in securing recognition
in these areas (Rose and Selby
1985).
*Lecturer in Industrial Relations, Industrial Relations Research Unit, University
of
Warwick.
178
British Journal
of
Industrial Relations
There is also some indication that managements’ attitude towards a
union presence is changing. Some evidence points to increasing manage-
ment resistance (Batstone 1984, MacKay 1986), although the extent to
which this constitutes ‘hard managemept’ rather than ‘anti-unionism’ is
contested (Sisson 1984, Edwards 1985). Undoubtedly, however, there is an
indication that the philosophy which sustained the post-Donovan reforms
of greater formalisation of relationships with trade unions and the role for
the industrial relations specialist is being replaced by an emergent ‘human
resource manager’ schooled in different principles. The T.U.C., in its
consultative document on trade union legislation, addresses this point
‘Clearly
if
unions consider that there has been a marked and possibly
permanent change in employer attitudes since the 1970’s which makes it
very difficult for unions to break into new areas, the case for statutory
support becomes that much stronger’ (T.U.C. 1986, p. 15). For others,
however, the concern lies not with management practising more sophisti-
cated personnel policies but the adoption of more blatant anti-union
strategies. McCarthy (1985, p. 29) is unequivocal ‘there
is
undoubtedly a
need for positive rights in this area. The problem
of
the recalcitrant
employer who fights the workers’ attempts to organise and ‘match’ his
natural power in the labour market has in no way diminished in recent
years’.
These factors in themselves may not be sufficient to prompt consideration
of a recognition procedure, being politically
too
readily open to accusations
of
pandering to the institutional requirements
of
the trade unions in a
climate
of
economic adversity. The broader issue of labour law reform,
especially some
of
the recent debates on positive rights, however, requires
that the issue
of
trade union recognition be addressed. The Social Contract
legislation introduced a number of rights which were premised on trade
unions
being recognised
by an employer for the purposes of collective
bargaining including, the right
to
paid and unpaid time
off
for industrial
relations duties and trade union activities; disclosure of information; and a
right to be consulted on redundancies, the transfer
of
business, health and
safety and pensions.’ The removal
of
the statutory recognition procedure
has left something
of
a vacuum.
As
Clark and Wedderburn (1983, p. 210)
point out, an employer can now remove access to these rights by removing
the voluntary recognition of a union. Addressing this anomaly or any
extension
of
rights to trade unions and their representatives must necessarily
confront the issue of recognition.
As
Lewis and Simpson (1981, p.
145)
have
argued where
so
many rights depend on union recognition ‘the logic
of
the
modern legal framework points to the need for a union recognition
procedure’.
This ‘logic’ raises several important issues, not least the role for the state
in the enforcement
of
recognition, and the relationship between union
recognition and ‘good’ industrial relations. These broader issues, although
pertinent, will not be directly addressed here. The focus
of
this paper
is
rather to consider more specifically the nature of a recognition procedure

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