IS THE ROOKES V. BARNARD CASE a storm in a tea cup? Sir George Pollock, Q.C., Director of the British Employers Confederation says “Not to worry, it is not expected that the ‘closed shop judgment’ will encourage employers to take legal action”. He then quietly points out that in law there is no “right” to strike in breach of contract. The strike in breach of contract is not a right, but a legal wrong.
The Rookes case itself appears to be a very smelly affair; according to Rookes’ statement in the Sunday Telegraph he was the paragon of virtue; according to D.A.T.A., he was a militant who because his union was not taking a strong enough line, resigned, thus provoking a “closed shop” dispute. Rookes was one of the members who met the Corporation officials to register the fact that 100 per cent. membership had been established. B.O.A.C. in reply, said they would take no action to prejudice this position.
The “closed shop” policy is always presented as a controversial issue: the freedom of the individual to join a union or not. To a trade unionist the issue is not controversial, to fight and win needs unity, so the “closer the shop” the better. Who are these bods who claim to cherish personal freedom so highly? In the majority of cases they are people who believe that because they are getting the recognised TU rate or over, trade unionism is not necessary. They believe in the jungle technique of survival of the fittest, the strongest go up the ladder, and the weaker are used as the rungs. In other cases, to join a union means the sack. This still happens in the Britain of 1964.
In the J. T. Stratford & Son Ltd. v. Lindley case, the Watermen, Lightermen, Tugmen and Bargemen’s Union wanted recognition for their members by J. T. Stratford who claimed that the T & GWU had the majority of members and therefore they were the negotiating body. J. T. Stratford’s barges were declared “black” by the WLT & BU, and they were thus immobilised: The Watermens’ union was ordered to desist from continuing their embargo by the court, but this ruling was reversed at a later stage and so the union won its case.
Where do the unions stand now in the light of these two judgments? To quote Barnard’s counsel in the Court of Appeal, the judgment of Mr. Justice Sachs drove a “coach and four” through the 1906 Trades Disputes Act which gave protection from the law for acts which may have been actionable in other circumstances, but which were taken in pursuance of a trade dispute.
The Rookes v. Barnard decision means in effect that a third party other than the union and the employer can be involved and can sue, not only shop stewards but the fulltime officials of the union involved. As Aidan Crawley MP stated in his articles in the Sunday Times (1 /3/64). “The right to call an official strike. is untouched, but if the courts continue to interpret the law in the light of the recent decision, men who strike suddenly without giving due notice, may find themselves being sued for damages not by their employers (who have always had the right but seldom used it) but by anyone who has suffered loss as a result of their action. It is also possible that anyone who threatens to strike without notice might be guilty of intimidation and lay himself open to criminal prosecution”. He then poses the question “Is this fair”? Aidan Crawley by the way is in favour of a Royal Commission on the unions.
Just what are these self-professed patriots after? Frankly they want trade unions to act like a “fan club“, with the same degree of militancy. The Swedish set-up is looked upon as a rough blue print, employer and employee working hand in hand for the common good: master and man, and all that jazz. Strikes in Sweden are virtually impossible by the time all the necessary rigmarole is gone through. The advantage of the strike weapon is lost, which of course is the sole purpose of the rigmarole. As Mr. G. H. Doughty, General Secretary of the Draughtsmen’s and Allied Technicians Association (DATA) stated in a speech printed as a pamphlet called Keep the Unions Free.*
“What will happen in federated firms where spontaneous action takes place against victimisation and provocation by employers, only time will show. Spontaneous actions often take place when an active trade unionist is discharged. If you have to wait three months you may as well forget it.”
The Rookes v. Barnard case in conjunction with that of Stratford & Son Ltd. v. Lindley, has given the would-be union reformers a taste of blood, a Royal Commission on the Unions is now their battle cry. The National press in their editorials all supported an investigation, although in some, such an investigation was couched in the vaguest of terms.
In the Financial Times (24/3/64) it was said that, “Until recently the unions had for a long time seemed to be getting the best of both worlds in their legal status—enjoying a substantial degree of legal protection with very little legal responsibility. Consequently there was no incentive for them to co-operate in steps to regularise and tighten up trade union law.” The editorial concludes that “A great deal of clarification is needed. Conflicts of interests can never be eliminated, but conflicts over rights, and over the interpretation of agreements, can and should be.” The Times and The Guardian both called for a new look at trade union legislation. The Daily Mail in its ‘Comment’ (24/2/64) calls for a Royal Commission and states that present industrial relations are “anarchy”.
The chief advocate of smashing the unions in their present form is Edward Martell, Chairman of the “Freedom Group” and editor of the New Daily, whose editorial on 23/1/64 says, “There have been various interpretations of the House of Lords decision in the Rookes case on Tuesday. It is agreed, however, that this decision curtails the almost unlimited freedom formerly enjoyed by the trade unions under
* Keep the Unions Free, published by DATA, Onslow Hall, Richmond, Surrey.
the Trade Disputes Act 1906. Officials will no longer be able to victimise individual workers in the certainty that they cannot fight back. Unofficial strikes outside the context of union-negotiated agreements may now be ground for damages and moves to start “sympathy strikes” and “black” products in places not directly connected with a dispute may have to stop.”
Over the past six months Martell has been actively campaigning for a Royal Commission on the unions and has gathered support in one way or another from half the back benchers of the Conservative Party.
We can rest assured that the first opportunity that Martell gets for testing the Rookes v. Barnard judgment, he will take. During the power workers’ discussion with the Electricity Board, Martell took counsel’s opinion, after which he stated that a legal clash would take place if, for a few minutes, work had to stop at the Saphire Press (New Daily) or if the life of anybody relying upon electricity in an iron lung had been endangered. (Power workers would never have allowed that situation to arise.)
In Yorkshire a dispute has been in progress for very many weeks over the “closed shop” issue, and the local branch of the NUR agreed to try and black the firm’s products. “Brutus” in the New Daily (4/3/64) says, “Offhand, I cannot recall a previous instance of this. I would very much doubt whether such action in a nationalised industry would be legal.”
This is the exact position that the trade unions fear; striking in breach of contract has gone by the board (legally) in the past, because employers are more interested in getting production restarted than going through the rigmarole of the courts. They realise that if they started to sue shop stewards or full-time union officials, production would never be restarted and also there would be a strong possibility of the strike spreading. For example whilst Bill Lindley of the Watermen’s union was in court on a contempt of court charge, 3,000 lightermen of the Port of London stopped work.
Having said that, where lies the danger? The danger lies in Martell or someone like him who is prepared to “take the unions on”. Once a clear breach has been made, the rest of the industrial toads will climb on the band waggon.
As I see it, the job of trade unions is not to help perpetuate the present system of society but to help get shot of it, although I must confess that the modern trend is “if you can’t beat ’em, join ’em”. All our would-be reformers and some trade union leaders want to get in and help run this murky society of ours, sit on the board of directors and kid themselves it’s Workers’ Control. If this train of thought takes serious hold, trade unions will be reduced to the position of benevolent societies and sports clubs.
Let’s be frank: 99 per cent. of the time it’s the rank and file members who force strike action, and rank and file militants have never had any illusions as to whose side the law will take in any strike action. Getting down to rock bottom, what’s really new? In any case successful militant action does not necessarily mean traditional strike action:
just conform to the rules and regulations made by the employers themselves, and things would be chaotic.
The Rookes v. Barnard judgment presents the challenge. Some one will take it up, this intensifying the fight between labour and employers, and exposing the co-partnership, “fair day’s work for a fair day’s pay” baloney for what it is really worth.