Gall Hrmj04

Title: British employer resistance to trade union recognition , By: Gall, Gregor, Human Resource Management Journal, 09545395, 2004, Vol. 14, Issue 2 Database: Business Source Corporate

British employer resistance to trade union recognition

Contents EMPLOYER ANTIUNIONISM EXTENT AND CONTEXT OF ANTI-UNIONISM Union recognition and derecognition Employers against recognition Legal status of anti-unionism

METHODOLOGY A REVISED SCHEMA OF ANTI-UNIONISM Fear stuff Sweet stuff Evil stuff Fatal stuff Tame stuff

Following the introduction of a statutory mechanism by which trade unions can gain recognition from employers, this article examines employers' attempts in Britain to resist campaigns for union recognition and to undermine newly granted recognition agreements. Using an array of primary and secondary sources, the extent and nature of these employer activities are documented. The article develops a revised schema, following Roy (1980), to help understand and interpret these anti-union activities. While of significance in deterring and undermining new recognition agreements, these activities are found to represent a minority current in the overall response of employers to campaigns for union recognition. Contact: Gregor Gall, Reader in Industrial Relations, Department of Management and Organization, University of Stirling, Stirling FK9 4LA. Email: [email protected] The dominant focus of practitioners, policy-makers and researchers on union-employer relationships in Britain has centred on 'partnership' and constructing workplace cooperation. As a result, attention has been turned away from examining workplace conflict. This article looks at one aspect of the latter, namely employer opposition to union recognition campaigns. The salience of this concerns employer activities to resist recognition campaigns where access to statutory union recognition is now available and union capacity to establish a presence in the growing number of non-union workplaces. Following the introduction of the statutory recognition provisions and heightened levels of union recruitment, organising and recognition activity (Gall and McKay, 1999, Heeryet al, 2003), a significant number of nonunion employers have been confronted for the first time with the issue of union recognition. After a prolonged and entrenched period of what may be termed 'managerial Thatcherism', evidence exists of not insignificant employer opposition to granting recognition as this enhanced managerial prerogative and heightened union organising meet.

Awkward stuff Harm stuff

DISCUSSION AND CONCLUSION Notes Acknowledgements

This article documents the extent of employer opposition to granting recognition, and analyses the components and purposes of this by developing Roy's (1980) schema on management approaches for remaining 'union-free'. The value of the revised schema is found in its ability to better understand this employer behaviour. In doing so, the article examines a number of specific issues concerning, inter alia, the proportion of recognition campaigns that meet employer resistance, the frequency of use of particular tactics, patterns of behaviour in the use of tactics and variations in these over time.

REFERENCES The period under examination starts from early 1995, the point at which it became clear that the Labour Party would win the 1997 general election and implement its promise to establish a statutory mechanism for gaining recognition. Following this, the tempo of debate and discussion about statutory recognition heightened as a result of a series of events: publication of Labour's manifesto (late 1996), the election (May 1997), publication of Fairness at Work (early 1998), publication of the Employment Relations Bill (early 1999), the passing of the Bill on 29 July 1999 and the enactment of the recognition provisions of the Employment Relations Act (ERA) on 6 June 2000. Thus the issue of union recognition has, in tandem with greater union campaigning activity and success in gaining agreements, increasingly weighed heavily on the minds of a large number of nonunion employers. The endpoint for the period of analysis is the close of 2003.

EMPLOYER ANTI-UNIONISM Traditionally, employers' attempts to remain 'union free' have been categorised as activities or policies of union substitution or suppression (Beaumont, 1987: 26, Blyton and Turnbull, 1998: 267). This dichotomy is useful in distinguishing between employer activities that seek to provide positive benefits for non-membership in order to reduce propensity to unionise/seek recognition and those that seek to impose costs on workers for joining unions. However, it is unable to capture the full range of employer resistance to recognition. Looking further back and to the United States, Roy (1980) provides a potentially much more useful alternative schema for classifying employer resistance to unionisation and recognition. Roy (1980: 397) refers to his 'classification of management's resistive tactics ... focus[ing] on a complex and wide-ranging web of defensive operations' as comprising 'fear', 'sweet', 'evil' and 'fatal' 'stuffs'. Despite the schema being devised from experience in the US and, in particular, the textile industry in the 'Deep South' where anti-unionism is widespread, it can be usefully deployed to consider employer attempts to resist recognition campaigns in Britain because of its core concerns with the differing nature of employer anti-union approaches and tactics. 'Fear stuff' refers to acts of intimidation and suppression, designed to 'instil dread in regard of what management might do' (Roy 1980: 409) about union recruitment and recognition campaigns. 'Sweet stuff' covers acts of union substitution, which are designed to obviate the need for trade unionismper se but, specifically, membership of a union and recognition for representation and collective bargaining. 'Evil stuff' describes ideological acts and propaganda designed to create 'a robust detestation of what unions are by [their] nature' (Roy 1980: 409), often involving communist witch-hunting and 'red-baiting'. Finally, 'fatal stuff' refers to attempts to prevent the signing of a recognition agreement leading to negotiations and, particularly, bargaining on pay and

conditions. Roy (1980: 414) refers to this tactic as 'bargaining [workers] to death'. In the US this is more commonly known as 'bad faith' or 'surface' bargaining, representing a rearguard action where the employer 'lost' the first 'battle' in a longer 'war'. Fear, sweet and evil stuffs are helpful for examining employer tactics and behaviour during recognition campaigns, while fatal stuff is relevant for doing so immediately after recognition has been conceded. They cover a span of behaviour ranging from punitive, rewarding, ideological and negating, and pre-emptive as well as retaliatory. However, further approaches can be stipulated, in order to allow greater specification of employer behaviour over space and time with regard to recognition campaigns. 'Awkward stuff' concerns providing (not unlawful) obstacles that appear to be 'fair' and 'legitimate' such as stonewalling, requiring ballots and refusing access to private premises. 'Tame stuff' seeks to select the type of union and the type of agreement. It is, thus, about both 'damage limitation' and the deployment of union recognition for business purposes. 'Harm stuff', rather than attempting to wreck the new agreement through bargaining in 'bad faith' (ie 'fatal stuff'), seeks to marginalise it by establishing channels of non-union communication and consultation. Consequently, 'awkward stuff' concerns the period of recognition campaigns and 'tame stuff' the point of determining recognition, while 'harm stuff' is the stage immediately after recognition. The seven-fold schema seeks to categorise employer approaches and tactics during and after recognition campaigns. Consequently, it does not address managerial style and practices that may be seen as intimidatory and oppressive towards workers but are not necessarily prima facie conscious and explicit anti-unionism. Similarly, the focus is not on managerial behaviour and policies to avoid unionisation or managerial responses to unionisation per se, such as actions to counter hypothetical union organising or undermine existing union recognition agreements. Rather, the schema concerns employer opposition once certain levels of unionisation are attained and this, allied to union campaigning, means that recognition becomes a serious prospect.

EXTENT AND CONTEXT OF ANTI-UNIONISM Before examining the nature and purposes of different forms of anti-unionism, it is helpful to set the current trends in context: the decline in recognition, the likely scale of employer opposition to recognition and the legal status of anti-unionism.

Union recognition and derecognition WERS98 records the number of workplaces with recognition falling from 53 per cent in 1990 to 45 per cent in 1998 (Cully et al, 1999: 92-3). The Labour Force Survey (Bland, 1999; Hicks and Palmer, 2003) shows a similar trend in regard of coverages of collective bargaining and union recognition. Others have demonstrated that incidences of derecognition increased from relatively small levels in the late 1980s to become significantly greater in the early 1990s (Claydon, 1996; Gall and McKay, 1994). However, this situation has now been reversed following the dramatic rise in recognition campaigns and signing of new recognition agreements since 1997 (Gall, forthcoming).

Employers against recognition Survey and case study evidence has shown an increasing frequency for employers to oppose granting recognition (Brownet al, 1998: 35; Dibb Lupton Alsop, 1999-2002; Dundon, 2002; Heery, 2000: 2-4, 2003; Heery and Simms, 2003). The Confederation of British Industries (1999: 3) reported that 18 per cent of employers would 'definitely' and 45 per cent 'possibly' be prepared to 'fight recognition, if necessary through the statutory procedure', while the UK Business Barometer (2004) survey of small businesses recorded that 64 per cent of respondents would resist the introduction of the availability of statutory recognition for organisations with fewer than 22 employees. Heery and Simms (2003: 5) found high levels of suppressionist and substitutionist tactics deployed in recognition campaigns. Thus, we can posit that there are many thousands of cases where there is likely to be serious employer opposition to granting recognition despite significant union presence. Most employers in these situations are likely to have made calculations of the probability of union success, and the costs of opposition and granting recognition.

Legal status of anti-unionism While the 1999 Act's provisions are important in informing the overall context for unions seeking recognition, they are silent with regard to employer behaviour before and during recognition campaigns. With the accent on voluntarism and avoiding further juridification, employers and unions are being encouraged to achieve voluntary deals. Unions are keen to avoid the prospect of failure should they use the Central Arbitration Committee (CAC), while employers are often unwilling to be subject to what they see as intrusive intervention.(1)Therefore, for the anti-union employer, considerable room exists to engage in anti-union activity, for unions are not always willing to wield the CAC sanction. Furthermore, in the voluntary setting, employers are not bound by any legal or regulatory framework obliging 'fair play' and union access to workers and members. Indeed, the CAC will not intervene, ieaccept an application, unless the union can show clear evidence of it seeking a voluntary approach first. Once an application has been accepted, the CAC still has no jurisdiction over the employer to see that 'fair play' is adhered to. The only point at which the CAC can enforce access is during the period of a CAC-authorised ballot. Whether an application progresses via the automatic or balloting route, there are opportunities at various stages (acceptance, audit or ballot) for employers to freely influence levels of union membership and union support.

METHODOLOGY The data used for this research stems from a wider project examining the context, extent and efficacy of campaigns for recognition under the ERA. The data was generated from four sources. First, data was drawn from the Trade Union Trends surveys (LRD/TUC, 1995-2004). These are compiled from questionnaires to unions that covered, on average, 85 per cent of the

TUC's affiliated membership. Secondly, more than 80 semi-structured interviews were conducted with regional field and national full-time officers (FTOs) from the AEEU, BECTU, BFAWU, CWU, GMB, GPMU, IPMS, ISTC, MSF, NUJ, RMT, TGWU, TSSA, UNIFI and USDAW unions, who were either involved with, or responsible for, recognition campaigns. The officials from these unions were interviewed in 1999 (14), 2000 (20), 2001 (25) and 2002 (25). Those interviewed in 1999 were re-interviewed in subsequent years, while new ones were interviewed in 2000 and 2001. Each new 'interviewee' was re-interviewed in subsequent years. Thirdly, CAC determinations were examined; by the end of 2003, 330 applications had been made and, accounting for reapplications following withdrawal, this represented 298 cases. Of these, 199 were accepted and 38 rejected with the remainder awaiting determination. This means that CAC determinations had been made in 237 cases. Generally speaking, applications are for recognition in organisations that are hostile, as opposed to just reluctant, to grant recognition. In many determinations, evidence of employers' past industrial relations histories are given which show anti-union behaviour. The cases are referenced by the nomenclature 'TUR/case number'. These sources were supplemented by the monitoring of over 30 unions' journals and newsletters between 1995 and 2003, information gained from various union-orientated conferences (eg Institute of Employment Rights and LRD), surveying union-orientated publications such as Labour Research, Trade Union News, Morning Star, Socialist Worker and various secondary sources, ie specialist industrial relations publications and provincial newspapers accessed through the Lexis-Nexis database, as well as websites such as labourstart and labournet for the same period. This wide array of sources has been used to identity the incidence and type of different anti-union actions and from this collate as thorough a count as is possible of the frequency of these actions. Relying on largely union and union-orientated sources was mainly a function of logistical difficulties. These comprised identifying instances of anti-unionism from among thousands of employers and gaining data on highly controversial and contentious issues which may reflect badly on employers or at least have contested meanings. Consequently, the easier route was to approach the smaller number of aggrieved parties — the unions. But this comes at a cost, in terms of partiality and rigour. In order to limit the effects of this, only corroborated incidents were used, where an incident was defined as the use of a particular tactic on one or more occasions by a single employer. Where unions allege illegal activity or gross moral turpitude such as dismissal for union activity, spying on workers or organising union resignation letters, employers will counter with assertions of actions of legality (eg fair dismissal), facilitating choice (eg providing anti-union literature), or reasonableness (eg protection of private property). Thus, rather than relying on self-reported cases by the aggrieved party through interviews, only those cases reported by unions that could then be verified by independent third parties (ie media or CAC reports) are used. While this does not guarantee absolute veracity, it does, nonetheless, indicate that the allegations are not regarded as without basis, frivolous and libellous. Moreover, where a union reports on such employer activity in its own publications, it is deduced that this is not without basis either. However, this has the effect of significantly reducing the numbers of incidents of employer anti-union behaviour that can be drawn on. In cases of less contentious and not illegal employer actions such as obfuscation, delay and setting up non-union forums, all incidents identified are utilised. A number of other points are important to bear in mind with regard to the methodology. First, not all union officers interviewed will have been aware of all relevant instances of anti-unionism, particularly given the relatively poor state of information exchange and record keeping within unions. However, given that many were national and regional rather than local officers, the data generated takes account of a fairly wide geographical terrain. Secondly, because the identified incidents are, in essence, self-selecting, a difficulty arises in establishing how inclusive and representative they are. The former refers to the degree to which the identified incidents encompass all such incidents while the latter refers to the extent to which the identified incidents are typical of the wider array of employer's responses to granting recognition. The extent of the Trends surveys' coverage, the interviews and examination of secondary sources suggest that the degree of inclusiveness is high. The most appropriate way to judge the degree of representation is by examining the number of known campaigns for recognition and new recognition agreements in the period under consideration. While doing so relies on the same data sets outlined before, they are the most rigorous and extensive of all existing studies on these issues (this will be discussed later). The number of campaigns gives a measure of the extent to which employers face recognition campaigns, while the number of new agreements gives an indication of the extent to which employers are receptive to requests for recognition, albeit some agreements may result not from employer willingness but from union compulsion.

A REVISED SCHEMA OF ANTI-UNIONISM Using the revised schema, the data on employer response to recognition campaigns is presented by grouping arrays of different anti-union tactics under each form.

Fear stuff The employer's purpose here is to sabotage attempts at union organisation and requests for recognition, or at least prevent them from getting to a 'critical mass', which is increasingly related to ERA thresholds (40 or 50 per cent of the workforce). The tactic is based on intimidation and creating an atmosphere of fear and trepidation, suggesting to the workforce that the union is the source of 'trouble' and 'conflict'. The most obvious tools are dismissals and redundancies, or threats of them. These are achieved by targeting shop stewards or activists, often through stringent implementation of time-keeping and sickness/absence policies, and monitoring work performance. Thus, employers have been deft enough to sack union activists for apparently legitimate reasons.(2)For example, shop stewards at Northcliffe Newspapers' Gloucester print works and Bristol editorial office were unfairly sacked for an inappropriate entry in a pressroom log book and making too many mistakes respectively (Printing World, 23 September 2002;The Journalist, May 2002). At Bells and Sons' factory, two activists were sacked on the grounds, respectively, of being too ambitious and production being slack (USDAW Arena, November 2002) while at King Asia food manufacturers two activists were constructively dismissed for union activities following explicit intimidation (Yorkshire Post, 12 February 2003). These actions try to prevent lay officers from dealing with members' concerns, organising meetings, producing publicity material and recruiting members. Such actions also send signals to existing members about the response they face if they become active in the union and say to potential members that the union and its activities are unwelcome. Alternatively, redundancies targeted at union members may create a fear among other workers about being members or being active, and so reduce union support and activity, eg Lunar Caravans (TGWU Press Release, 27 July 2001) and Montracon trailer manufacturers (Belfast Newsletter, 23 February 2002). Underlying these particular 'fear stuff' tactics is often a general view held

by workers that the employer 'won't allow us to join a union', as one worker expressed this (Labour Research, July 2001; TUC, 1997, 2001). The belief is that sackings or victimisation will follow. Although unlawful to do so, employers have made such statements and let such views develop. An array of other 'fear' tactics is also being used. There is strong union suspicion that management 'plants' (spies) are being used at some union meetings to find out how, when and where unions are organising their campaigns in order to combat them. KFAT reported this at Shoe Zone (TUR/150). Other examples exist of videoing through CCTV, or supervisors or other workers being seen to note down those who speak to union organisers at the entrances to the organisation's premises and those who speak to union reps inside work. Such people are then 'spoken to' by managers. Instances have occurred of employers providing standardised union resignation forms (eg Amazon (Western Mail,12 September 2001), Articline (Evening Times, 16 April 2002), RP Scherer (TUR/71), Ness Furniture (TUR/248) and St George's Hospital (Radio 4, 23 November 1999)), and of companies organising petitions and letters from the employees opposing recognition (Bacardi-Martini, TUR/140; Turikye Is Bankasi, TUR/96; Trafford Park Bakeries, TUR/96; Gatwick Express, TUR/261). There is also some evidence of the use of anti-union consultants in attempts to deter unionisation and recognition, whether of US or 'indigenous' law firms and consultants, eg T-Mobile (Mail on Sunday 27 April 2003). Elsewhere, a 'blacklist' is reported to exist against OILC activists through the 'Not Required Back' system used by North Sea oil contractors.(3)More sophisticated methods that have been used include 'captive meetings' (eg Black and Decker, TUR/219; Cornelius, TUR/185), one-to-one meetings (eg BSkyB, TUR/222; ECN, TUR/51; Grosvenor Hotel, TUR/216; Ritrama, TUR/178) and written and oral communications warning about the 'union threat' to the company's health and profitability and, thus, to wage levels and jobs. The less subtle threat of promising to shut operations if recognition is gained has also been made. At BSkyB workers were told, on several occasions, of plans to move the call centre abroad if recognition was won (Daily Record, 13, 22 November 2002, 11 February 2003), while Decorpart told its workers that: 'if the union came in they would shut the plant' (Bargaining Report March 2002). A similar threat was made at GE Caledonian (TUR/120). Table 1 shows the relative frequency of the incidence of particular 'fear' tactics. By far the most common were instances of threatened or actual dismissal and information from the employer about the 'union threat'. The lower number of instances of union resignation forms and petitions/letters is indicative of relatively few CAC applications (where these tactics have a particular salience) vis-à-vis all recognition campaigns. Also noticeable is the relative paucity of use of some tactics associated with US employers such as redundancies and anti-union consultants.

Sweet stuff This strategy seeks to keep the organisation 'issue-free' by supplanting the union through showing it is unnecessary. Methods include resolving, or being seen to resolve, grievances and establishing 'independent' and non-union-related mechanisms for resolving grievances and giving expression to employee 'voice'. Thus, employers seek to convince workers that there are no issues of contention between them and that, should any arise, they can be easily resolved to the satisfaction of both parties, that the presence of a union is unnecessary and there is a community of interests between workforce and employer. A commonly practised tactic is the sudden resolution of long-standing grievances, better than expected pay increases and general improvements in working conditions. These are usually set in train after employers recognise they face recognition campaigns such as at Gardners (Printing World, 25 June 2001), Honda (IDS Report 832, May 2001) and Fujitsu (TUR/237). Another tactic is the promotion of the policy of the manager's door 'always being open' or the promotion of one-to-one communication. For example, Inverness Medical stated that it operated: 'wide-ranging consultation and communication with all staff members ... Recognition of the GMB is simply not necessary ... our employees prefer direct communication without the need for third party involvement' (Press and Journal, 10 April, 20 July 2002). However, more noticeable are attempts to formalise and institutionalise non-unionism by establishing 'consultative' or 'representative' forums, where staff issues and grievances can be dealt with. While such institutions in non-union settings have a relatively low incidence (Cullyet al, 1999), they appear to be fairly common in situations where the employer opposes a recognition campaign. At Scorpio Print Finishers, the chief executive commented that with a works committee set up recognition was unnecessary (Printing World, 10 June 2002), while TV Travel Shop used an unelected staff focus group as the means for employee voice (Newsquest Regional Press, 5 December 2000) and London Electricity used 'a consultative system [of] nonunion employee representatives' (Unison Focus, May 2003). Elsewhere, non-union representation forums were established to avoid, or in response to, recognition campaigns, eg Benteler Automotive (TUR/4), British Red Cross (MSF Common Ground, Spring 1998), Leonard Cheshire Foundation (MSF Common Ground, Autumn 1997), Winerite (TUR/26), Mastercare (TUR/275), Scope (IDS Report 802, February 2000) and Daryll Industries (TUR/45). Less common were instances of employers establishing staff associations/unions, eg Riverstone Spinning (TGWU Record, August 2002), News International (People Management, 25 February 1999), W. Jordan (TUR/258) and Heathrow Express (ASLEF HEX Newsletter, April 2003). Table 2 displays the incidence of 'sweet' tactics. By far the most common is the non-union means of consultation — primarily company councils or staff forums. This is because forums offer employers a means of giving workers voice as well as a mechanism by which to raise grievances which employers hope will provide a seemingly viable alternation to a union. By contrast, a culture of 'open communication' does not go far enough in providing 'voice', and establishing staff associations are more problematic in terms of being seen to be independent of the employer.

Evil stuff 'Red-baiting' of unions and communist witch-hunting observed by Roy in the US have not been detected in Britain, but 'evil stuff' has still been deployed. Some employers have circulated literature and made presentations that denigrate unions in terms of their threat to jobs and industrial harmony. More pertinent here has been the distribution of materials which argue that unions are

parasitic (taking your money to pay for their empires), undemocratic (run by cliques) and force members to go on strike (following a mandate from a ballot). A more overtly political message emerges when employers link the union 'threat' at the workplace with the union 'threat' to society, arguing that 'returning to the bad old days' of powerful unions would mean more strikes, conflict and economic decline. They ask the question: 'Surely, you don't want to go back to those days?' In all, 42 incidents of such anti-union literature and propaganda were identified. Company documentation exemplifying such messages was obtained from Aberdeen Journals, Bath Newspapers, Exeter Echo and Express Newspapers, Huntleigh Healthcare, MTV, Red Letter, Statex, the Telegraph Group and T-mobile.

Fatal stuff This represents a rearguard action by the employer to undermine, or indeed rescind, the decision to grant recognition. The most common methods are to offer no, or low, pay rises; no, or slight, improvements in conditions; and to refuse to respond, or delay in responding to, union requests for information and meetings. Here, the employer is trying to show that union membership has no benefits and it is a hopeless task to try to prove otherwise. Activists' enthusiasm is, thus, ground down. Newspaper group RIM, which subsequently signed several recognition agreements, commented: 'Costs remain carefully controlled and it is our policy to ensure that the likely recognition of trade unions ... will have no impact on staff costs' (Press Gazette,11 August 2000). At Liverpool harbour, Drake Services refused to give a pay rise (Daily Post, 16 January 2003), Chunghwa imposed a pay freeze (IDS Report 840, September 2001) and Honda imposed unilateral changes in pension arrangements (Financial Times, 22 March 2003). The AEEU, commenting on the closure of Chunghwa's electronics plant, said: 'The first we heard of it was when a television crew turned up on our doorstep asking for our reaction' (Interview). At the Daily Record, redundancies were imposed unilaterally (Herald, 15 January 2003). Casualisation, victimisation and redundancies can also be used here to undermine recognition by eroding a union's strength to deliver bargaining outcomes. For example, at Stoddart's butchers, the shop steward was sacked shortly after recognition was won following a lengthy campaign (Scottish Socialist Voice, 8 September 2000), while Fullarton Computer Industries served redundancy notices on all workers and made another 900 redundant (Herald 25 November 2000). Table 3 indicates that by far the most common 'fatal' tactic is 'bad faith' or 'surface' bargaining. This is because it is the easiest and most cost-effective way of subsequently curbing or reneging on granting recognition.

Tame stuff Single-union deals and union 'beauty contests' to determine these (where there are competing unions) are now more common than at any time since the early 1990s. Employers here have recognised that the question they face is not 'Should we grant recognition?' but 'To whom should we grant recognition?'. Faced by 'irresistible' requests for recognition by virtue of union strength, employers are here attempting to dictate the nature of the recognition by selecting what they regard as the 'appropriate' union. Often they will invite interested unions to outline the types of recognition agreements they are prepared to offer, before selecting which union will be chosen. What is meant by 'appropriate' may be a union prepared to eschew traditional bargaining in favour of 'business unionism' or 'social partnership'. Further pressure for single-union deals has emerged because the ERA is predisposed to these whereby a claim for recognition can only be made by a single union and because new claims for recognition cannot be made where there is already (voluntary) recognition.(4)This places a premium on employers signing deals with certain unions to pre-empt the recognition of others. Ninety-seven incidents of attempted and actual single union deals were identified. Areas of industry and services where such deals have become noticeable include airlines, transport, electronics, offshore oil industry and private prisons. Two Sisters Food Group agreed to recognise the TGWU after it recruited 80 per cent of the workforce but then cancelled the meeting for framing a recognition and signed an agreement with another union (TGWU Record, January 2002). Similar turns of events took place at Ampheno (Scottish Socialist Voice,6 October 2000), Bosch and Lomb (TUR/8), Eurotunnel (IDS Report 812, July 2000), JVC (IDS Report 812, July 2000), MFI (Northern Echo,10 September 2001), Nestlé (AEEU News, July 1999), National Autoparts (TUR/28), Securicor Custodial Services (TUR/5) and Wells Hinton Plastics (labourstart, 18 August 2000). 'Constrained' recognition agreements can often be found within single-union deals; here, 41 were identified. These are defined as agreements that fall short of full recognition, ie including unrestricted collective bargaining on pay, hours and holidays. The components of constrained recognition agreements are proceduralde facto no strike/no disruption clauses by virtue of extended dispute procedures, compulsory and/or binding arbitration, and restricted bargaining scope. However, such restrictions may also extend to curtailed substantive and relational issues such as initial pay freezes and partnership clauses. Those unions that have signed single-union deals are generally more likely to also sign constrained recognition agreements. Sometimes this may result from a union following a 'business unionism' or partnership approach, or the wish to secure recognition from an anti-union employer in the face of inter-union competition. However, there are other circumstances where such deals may be signed. First, in the absence of inter-union competition, a union does so because it believes it is not in a position of strength to gain full recognition and so is prepared to accept a lesser agreement. Secondly, where employers have no choice over which union to recognise, given union strength, they then seek to impose constrained agreements as the price for granting recognition. Employers' motivation here is not merely to lessen the concessions that they may have to grant in bargaining but also to establish the limited nature of the new relationship, providing the option for returning to non-recognition by undermining union members' faith in their union. Examples of 'constrained' agreements are; Go! (AEEU News, January 1999), Intelligent Finance (Labour Research, October 2000), JVC (IDS Report 812, July 2000), Monarch Airlines (Financial Times, 29 May 2000), Lite-on (Recognition Agreement, 1999), P&O (Herald, 24 June 1999), Virgin Atlantic (AEEU News, May 2001), and the UK Drilling Contractors Association (Press and Journal, 21 June 2000). Constrained bargaining agreements are, thus, examples of pre-recognition 'concession bargaining'. They undermine unions' potential strength and independence by relinquishing the sanction of industrial action and by obfuscating what the purpose of a union is through emphasising compatibility of employee-employer interests. Forms of 'enterprise unionism' may, thus, ensue.

The other side to 'tame stuff' is that employers, having decided to recognise, are not only concerned to limit recognition but also ensure that recognition is beneficial to them. Here, employers seek to realise the 'business case' for union recognition, primarily ease of communication and legitimacy of joint-decisions, making for a 'smoothing' out of the processes of restructuring and rationalisation of work practices and work organisation that are deemed vital to organisational survival or success.

Awkward stuff Given that recognition requires at least a minimal amount of employer consent and cooperation, employers have often used stonewalling tactics to frustrate and demobilise campaigns. Refusals to and delays in replying to unions' letters, having meetings or discussions, allowing access to the organisation's premises for recruiting and organising and allowing members to meet on the organisation's premises are common. An opera impresario locked his company into the studio to prevent Equity gaining access (Independent, 7 February 2001). Egg internet bank refused access to its car park, as did a security company to its entrance (Derby Evening Telegraph, 18 April 2000;Guardian, 27 December 2002). Kent Salads and Bemac Engineering have refused to respond to letters for talks on recognition (GMB Action, Summer 1999;AEEU Connect, April 1999) and Maidstone Paper Converters was reported to be 'drag[ging] out the process in the hope that people would leave the company' (GPMU Direct, June 2001). At Alan Worswick Engineering, JJB Sports, and EMAP Healthcare, management agreed to recognition but then reneged on this (Newsquest Regional Press, 11 December 2000; TUR/230;Press Gazette, 26 October 2001). These tactics may lead a union to end its campaign where it has overstretched FTOs, low membership or members who are not assertive. Should a union persist and get to the point where recognition becomes more probable, other 'awkward' methods are available to employers. These include restructuring the organisation by splitting it up into separate legal personalities, contracting out certain activities to influence union density and introducing personal contracts to take some members out of potential union membership. An emerging issue, particularly in CAC cases, is employer attempts to enlarge bargaining units on the grounds of 'effective management' but with the effect of reducing union density levels by including other employees. While employers' use of ballots to determine support for recognition is not new, it has now become a prime method of assessment because of the ERA, as ACAS's increased workload in conducting ballots testifies. Under a CAC ballot, a union must achieve the support of a simple majority (50 per cent + 1) but which also equates to 40 per cent of all those entitled to vote (where non-returns are counted as 'no' votes). Many cases exist where employers have requested a majority before recognition discussions commence. The setting of thresholds has made some employers more resistant to granting recognition under voluntary means such that they will insist on at least 50 per cent + 1 support. Furthermore, with the increase in employers requiring ballots in voluntary recognition claims, some employers have sought to influence their outcomes by various means. One tactic has been to challenge unions before they are 'ready'. Here, employers push for a ballot or audit before the union has secured a high level of support in the hope of forestalling a recognition campaign. Sometimes, fear, sweet and evil tactics are also deployed. Alluding to the reason for challenging the GPMU to a voluntary ballot, Amazon stated afterwards: 'Employees have given this matter due consideration and I hope the GPMU will take their views into account by leaving the workforce alone' (Printing World, 24 September 2001). Similarly, employer organised petitions can be used in the same way: Internet provider Iomart wrote to MSF enclosing a 'copy of a letter which has been signed by the majority of staff ... which clearly shows that we, the staff, are in favour of an internal forum. ... Please respect our feelings in this matter' (Correspondence, 10 July 2002). Another tactic is where the employer agrees a ballot but still refuses to grant recognition after the union has won. This occurred at the British Diabetic Association (MSF Common Ground, Spring 1999), Dixons (Financial Times, 23 May 1998), FCI (ISTC Press Release, 16 October 1998), IPC (IDS Report 863, August 2002), Optare (Morning Star, 4 July 2001), Fletcher and Lowe (TUR/93) and Readmans (TUR/96). Alternatively, some have denied unions the opportunity to demonstrate their majority support in a ballot by refusing to hold one. Finally, a further tactic has been to delay and lengthen negotiations for procedural agreements in order to undermine the momentum created by a union's ballot victory. This puts bargaining back further, eg Bradford Telegraph and Argus (The Journalist, December 2000). Table 4 shows that the most common 'awkward' tactic has been obfuscation, ie delay and refusal of the kind outlined above. This reflects the relative ease and low cost of this tactic for employers, which puts the onus back onto the union to keep the campaign going. Again, some of the tactics concerning the bargaining unit, reorganisation and procedural delay are concentrated among employers facing CAC claims.

Harm stuff Like fatal stuff, 'harm stuff' seeks to make assaults on recognition once conceded. However, whereas fatal stuff represents a frontal assault on the existence and worth of consultation and collective bargaining, harm stuff constitutes an indirect assault on these by establishing, or continuing with, non-union communication and consultation mechanisms. Harm stuff thus represents the use of the same tools of sweet stuff but in a different context and with a different purpose. Under harm stuff, recognition is not exclusive but limited to being one party in a works council or similar forum where there is representation for non-union workers or where the union has to compete in elections to secure seats.(5)In addition, or separately, employers have established parallel means of communication and consultation in order to sideline or counter recognition. Of the former, 56 instances were found (eg JJS Electronics (Leicester Mercury, 23 November 1999) and Monarch Aircraft Engineering (AEEU News, October 1999); while 81 were found of the latter (eg LG (IDS Report 815, August 2000) and London Network News (Press Gazette, 25 July 2003)). With these methods, employers are trying not only to undermine the value of recognition but also show that there is a credible alternative to union recognition.

DISCUSSION AND CONCLUSION The revised schema of employer responses to recognition campaigns has been used to categorise and distinguish between an array of different types of anti-union tactics. But as the discussion of the methodology alluded to, there is no available means by

which to accurately survey all employer activity in order to identify all salient incidences of anti-unionism. Consequently, a variety of sources was utilised in order to provide as robust as possible a foundation from which to judge the extent and nature of these activities in the period under consideration. Thus, it is with a fair degree of certainty that the following discussion is undertaken. A significant number of instances of employer anti-union behaviour have been identified, totalling 1,105 among 712 employers between 1995 and 2003 (Table 5). These findings can be contextualised by examining the extent to which this behaviour is representative of wider employer practice, the existence of patterns of such anti-union behaviour over time and characteristics associated with such anti-union behaviour. Despite the number of incidents identified, this form of anti-union behaviour is a minority current among employers faced by recognition campaigns. Put another way, the majority of campaigns do not experience such employer resistance, albeit they do not necessarily meet with favour or support either. The evidence for this is threefold. First, since 1995 more than 2,500 new agreements have been signed, covering 1.1m workers (Table 5). In this regard, some employers have entered into new recognition agreements with varying degrees of enthusiasm and pragmatism. While partnership agreements are accorded high profile, the more long-standing notion of mutualism has been more common, where employers seek 'added value' from improved communication and greater legitimacy given to decisions as a result of recognition, while unions search for greater organisational rights to advance and defend members' interests. Secondly, of 836 campaigns between 1997 and 2003 identified in the Trends surveys, employers in 313 cases (where membership density was 50 per cent or above) refused recognition, accounting for 100,000 workers out of 500,000 covered by recognition campaigns (LRD/TUC, 1995-2004). Thirdly, the number of CAC applications has been relatively low. The CAC expected around 150 in the first year (Financial Times, 7 June 2000) but only 80 were made, followed by 109 in the second and 81 in the third. Where employers do accede to recognition, other strategies are available to maximise common interests as well as contain union influence should that prove 'necessary' (Purcell, 1979). However, it is important to note that the frequency and volume of incidents identified is likely to under-represent the number of anti-union employer actions, since only corroborated cases have been used and because of the weaknesses of union reporting systems. Turning to patterns of employer behaviour over the period, the aggregate number of incidents per annum has increased dramatically since 1995 (Table 5). This reflects the growing number of recognition campaigns, indicating the impact of the new law on the level of union organising activity whereby unions have committed more resources to union organising. Employers thus appear to have become more obdurate in response to actual, rather than hypothetical or potential, union presence and recognition campaigns since 1995. However, it is interesting to note that the ratio of employers using anti-union tactics to the number of recognition agreements signed rose from 1995 (1:5) to 1998 (2:3) then fell from 1999 (1:5) to 2001 (1:7) before rising again after 2001. This reflects two trends. First, it shows the relative ease of unions signing a large number of new agreements in the imminence and immediate presence of the new legal provisions, by using their (existing) strong cases. Secondly, having used up their strong cases, it reflects the unions' difficulty in creating further strong cases and encountering entrenched antiunionism among the remaining non-union employers which they target. These trends are most graphically illustrated in 2003 where the numbers of cases of new recognition agreements, instances of anti-unionism and employers using anti-union tactics all fall significantly. Apart from 2003, each tactic has generally been found to experience a consecutive year-on-year increase. The most commonly used tactics (see Table 5), in descending order, were the fear, awkward, sweet, tame and harm stuffs, with relatively little use made of the evil and fatal stuffs. The preponderance of fear, sweet and awkward stuffs reflects their ease of use and legality. The relative prevalence of harm and tame stuffs indicates many employers have accepted the 'inevitability' of recognition but are dealing with its challenges pragmatically, again reflecting the little use of the more risky and conflictual fatal stuff, and that harm stuff may be taken to represent HR 'best practice'. Table 6 indicates the sweet and tame stuffs were most commonly (respectively 68 per cent, N = 136; 78 per cent, N = 95) found among the larger organisations larger (> 250 employees), suggesting that better resourced employers with HR expertise deploy the more sophisticated tactics. The use of 'fear' and 'awkward' 'stuffs' was found more commonly (respectively 73 per cent, N = 147; 62 per cent, N =140) among smaller organisations (< 250 employees), suggesting that more poorly resourced employers with lack of HR expertise deploy the more blunt and less sophisticated tactics. Tables 7 and 8 indicate that the majority of anti-union activity (by employer and tactic) concerns attempting to avoid union recognition and the use of between 1 and 3 tactics to do so. Minorities of anti-union employers mounted resistance before and after recognition or only after recognition (respectively 22 per cent, 14 per cent, N = 712). Taking Tables 7 and 8 together, and alongside other data (see below), indicates the relative success of tactics to avoid recognition ('fear', 'sweet' and 'awkward' 'stuffs') and the use of relatively few tactics to do so. Even where recognition was conceded, relatively few tactics from the 'tame' and 'harm' 'stuffs' were used to resist recognition, again indicating when taken alongside other data (see below), the relative success of these tactics to undermine recognition as well as the use of relatively few of these tactics to do so. Table 9 highlights that a higher proportion of resistant employers subject to CAC applications used more than three tactics (19 per cent, N = 128) than those resisting but not subject to the CAC (8 per cent, N = 584). This suggests that some of the 'hardcore' cases of anti-unionism are coming before the CAC. For example, the TSSA reported that Culina Logistics (TUR/236) had 'created their own staff representative structure, offered staff a free employment rights service, and even awarded a 10 per cent pay rise. ... Further, it ... dismissed one of our key activists'. (TSSA Journal, May 2003). To this can be added Culina's leaflet to employees during the CAC ballot, headed 'Vote no way to the TSSA' (Labour Research, January 2004). Finally, it is worth noting that, while the tactics have been generally effective in preventing union recognition, they have not been universally so, with recognition granted in 21 per cent (N = 584) of cases where a purely voluntary route was pursued (Table 10). In the 128 CAC cases where employer opposition existed over and above challenging the veracity of levels of union membership and levels of worker support for collective bargaining and opposing the unions' preferred bargaining unit, union performance has been far better. In 58 per cent of cases settled by the end of 2003 (N = 99) recognition (statutory or voluntary) has been won (Table 10). In 41 per cent of settled cases (N = 99) unions have experienced defeat (ballots lost, declared 'not entitled to recognition' or withdrew applications without gaining recognition). In 13 ballots the unions received fewer votes than they had

members. In terms of employer success in undermining or resisting recognition once conceded, there is a higher degree of employer success in agreement signed entirely in the voluntary arena (65 per cent, N = 122) than those signed with some involvement of the statutory route (36 per cent, N = 58). The differences in the success rates between the two routes reflect unions applying to the CAC with their stronger cases, the utility of the statutory provisions to gain or solicit union recognition, and the more tightly defined nature of the statutory agreements. Turning to employer types using anti-union tactics, there are several notable characteristics. First, there are those in sectors with previous records of 'bad' experiences of industrial relations, comprising assertive unions (such as printing and newspaper companies and some offshore oil contractors). DC Thomson & Co Ltd wrote to its workers: 'Recognition would be likely to lead to a change of atmosphere and raise the possibility of disruption to our operations' (Herald, 13 April 2000), while Shell told its employees: We do not wish a third party to be part of the relationship [we] have with yourselves. We believe it will get in the way of progressing that relationship ... We play to win and intend to fight for your votes because this is so important to us. OILC, 2001: 11 Secondly, there are those with a low ideological regard for trade unionism and collective relations such as companies from the US, other overseas countries and many charities. The belief here is that unions cause 'trouble' because the employees are believed to have the same interests and purpose as the organisation. Thirdly, many resisters appear to be relatively new companies where the managing director is also the founder, in the mould of the Thatcherite 'entrepreneur', such as the Cauldwell Group (Red Pepper, September 2002). This accords with the features of small businesses as employers (Rainnie, 1989; Scase and Goffee, 1980). Fourthly, there are employers who believe that their profit margins are sufficiently low as to be wiped out by the union 'mark-up', such as BSkyB (Personnel Today 18 February 2003) and Synseal windows (Channel 4, 6 June 2000). This article has demonstrated that considerable numbers of employers are attempting to influence workers' values and perceptions through 'hard' and 'soft' means as well as by tailoring workers' agendas to their needs. This constitutes a form of employer counter-mobilisation (Kelly, 1998). Although a minority current in Britain, and of a smaller magnitude in proportionate terms than experienced in US unions, nonetheless some unions believe such employer opposition contributed to a fall in the number of new recognition agreements signed in 2003 (TUC, 2004) and constitutes an important barrier to signing further agreements (Morning Star, 6 September 2003). To this end, unions have lobbied the government to create an 'unfair labour practice' in law, carrying significant financial penalties and greater rights of access to the workforce of an employer during a statutory recognition application (TUC, 2003). However, the majority of employer anti-union opposition takes places outside the statutory framework where there is no regulation (apart from unfair dismissal for union activities) and the success of this opposition may inhibit statutory applications. Indeed, an 'unfair labour practice' seeks only to tackle employer anti-union tactics of the fear stuff-type, such as threats of closure, and not what may be described by the human resource profession as employer 'non-union' tactics of the sweet stuff-type such as staff forums. Further, while employer action is a determinant of the outcome of the recognition process, it is but only one and must operate through the medium of employees who may have access to resources (financial, ideological and organisational) for resistance, and the unions themselves who have such resources by which to proselytise. This indicates that the prospects for unions securing further significant numbers of new recognition agreements is more heavily dependent on their ability to generate the independent capacity to create further strong cases with which to go forward.

Notes 1. 2. 3. 4.

There is a three-year bar on applying for recognition again in the same bargaining unit if the union loses after their initial application has been accepted. The determination processes are complex, a CAC awarded recognition deal is of a minimal nature and an application to the CAC may further polarise industrial relations. ERA raised the ceiling for compensation for unfair dismissal to £50,000, but also abolished the 'specific award' for victimisation for trade union activities. 3. Their use is outlawed under ERA, Section 3. The ERA precludes multi-unionism defined as separate UR agreements within an organisation but not multi-unionism where there is a single UR agreement. This is far less likely than traditional multi-unionism and adds further pressure towards single unionism. The introduction of the Information and Consultation Regulations in March 2005 may well serve to increase the use of this tactic.

Acknowledgements I would like to thank John Purcell, Ed Heery and an anonymous referee for their comments in the process of revising and redrafting this article. TABLE 1 Incidents of 'fear stuff' Incidents (N = 245) Threat/action % Dismissal 36 Redundancies 6 Membership prohibited 4 Surveillance 6 Resignation forms 9 Employer petitions 8

Anti-union consultants 4 'Union threat' information 21 Closure 6 Source See Methodology TABLE 2 Incidents of 'sweet stuff' Incidents (N = 228) Threat/action % Resolving grievances 17 Open communication 4 Non-union consultation 74 Staff association 5 TABLE 3 Incidents of 'fatal stuff' Incidents (N = 69) Threat/action % Surface bargaining 76 Casualisation 8 Redundancies/sackings 16 TABLE 4 Incidents of 'awkward stuff' Incidents (N = 235) Threat/action Obfuscation 42 Reorganisation 5 Bargaining unit change 22 Pre-emptive ballot 11 Ballot ignored 7 Ballot refused 5 Procedural deal delayed 8 Legend for Chart: A - Year B - Fear C - Sweet D - Evil E - Fatal F - Tame G - Awkward H - Harm I - Totals J - Number of employers using tactics K - Recognition agreements TABLE 5 Incidents of anti-unionism by category, 1995-2003 A B C D E F G H I J K 1995 7 10 1 0 9 6 2 35 18 88 1996 13 16 2 0 12 9 3 55 31 85 1997 17 22 4 1 16 13 5 78 52 108 1998 25 28 5 2 20 21 12 113 68 119 1999 29 31 5 4 28 25 21 143 85 358 2000 31 41 6 6 30 26 20 160 107 525 2001 34 29 3 4 15 47 31 163 101 676 2002 49 25 10 26 11 52 30 203 113 372 2003 40 26 6 26 8 36 13 155 98 257 Totals 245 228 42 69 149 235 137 1,105 712 2,588 (%) (22%) (21%) (4%) (6%) (13%) (21%) (13%) Source for recognition agreements: Gall (2004) Legend for Chart:

A - Size of employer by no. workers B - Fear C - Sweet D - Evil E - Fatal F - Tame G - Awkward H - Harm I - Totals TABLE 6 Use of 'stuff' tactics by employer size (workforce size) 'Stuff' type A B C D E F G H I 1-100 59 17 3 12 4 51 9 155 101-250 50 26 18 14 17 37 16 178 251-500 21 56 6 27 34 30 31 205 501-1000 10 29 4 13 31 18 25 130 1000+ 7 8 1 3 9 4 12 44 Totals 147 136 32 69 95 140 93 712 N = 712 Legend for Chart: A - Use of number of tactics B - Pre-recognition C - Post-recognition D - Totals TABLE 7 Simple periodisation of employer use of number of 'stuff' tactics A B C D 1 to 3 493 147 640 4 + 41 31 72 Total number of employers 534 178 712 using tactics Total number of tactics used 750 355 1,105 N = 712 Legend for Chart: A - Use of number of tactics B - Pre-recognition only C - Pre- and post-recognition D - Post-recognition only E - Totals TABLE 8 Developed periodisation of employer use of number of 'stuff' tactics A B C D E 1 to 3 425 134 90 649 4 + 31 22 10 63 Total number of 456 156 100 712 employers using tactics N = 712 Legend for Chart: A - Use of number of tactics B - Voluntary route (entirely) C - Statutory route (at some point) D - Totals TABLE 9 Employer use of number of 'stuff' tactics vis-à-vis voluntary or statutory routes A B C D 1 to 3 536 104 640 4 + 48 24 72 Total number of employers 584 128 712 using tactics N = 712 Legend for Chart: A - Outcome of tactics B - Voluntary route (entirely): no. employers C - Statutory route (at some point): no. employers

TABLE 10 Outcomes of use of tactics vis-à-vis simple periodisation A B C Avoiding recognition successful 462 70 Avoiding recognition unsuccessful 122 58 Total 584 128 Undermining recognition successful 79 21 Undermining recognition unsuccessful 43 37 Total 122 58 N = 712 Note: In the case of 'avoiding recognition successful' under the statutory route, there are 29 cases where the final outcome is not yet known or has not yet been decided on. Thus, N = 99 is used in the discussion.

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