Day Nineteen of Closing Speech for the defence

Friday, 15th Nov 96 - Day 301 of the Trial


ADVERTISING (completed), EMPLOYMENT CONDITIONS (commenced)

ADVERTISING STRATEGY

Before Mr Morris began on summing up the Employment section of the case, Ms Steel said there were a few additional points she wished to raise in relation to Nutrition and Advertising.

Paul Preston (McDonald's UK President) had been asked about a Times Newspaper supplement which had been produced to mark the 20th Anniversary of McDonald's arrival in the UK. It stated "McDonald's team, just arrived from America, realised that they had to change the nation's eating habits". Mr Preston said "I think that is true". Ms Steel said that this admission "goes to the point of how McDonald's are influencing peoples diets, invariably for the worse".

Mr Preston had also said he thought the number of people eating out was on the increase and that McDonald's wanted to encourage eating out and taking home to eat. Ms Steel said that this showed again that 'taking from competitors and therefore not making any difference to people's diets' (McDonald's line in the case) was not true. She then reminded the court that in the 1995 Annual Report of the McDonald's Corporation there was a page entitled 'Strategies for Global Dominance' which stated "Our growth opportunity remains significant. On any given day 99% of the world's population does not eat at McDonald's..... yet." She had then asked Paul Preston "So is that what you ultimately hope for, that people would eat at McDonald's every day?", he had replied "I would like more people to eat at McDonald's, absolutely".

Ms Steel said it was clear that the aim of the company was to get everybody eating at McDonald's all the time, obviously they had to be realistic, but in the light of that being their aim, it was especially important that McDonald's $1.8 billion advertising spend was countered and that people had the right to point out that McDonald's food is unhealthy, and to point out the dangers of adopting such a diet, high in fat & sodium and low in fibre.

Going on to advertising Ms Steel referred to the McDonald's Education pack (sent out to students enquiring about McDonald's). In this there was a page entitled 'Competitive Promotion' which says that in relation to its competitors McDonald's normally maintained their share of voice or coverage at 70% of the advertising on TV from fast food or other competitor companies, and up to 95% on radio. 70% of all the spending of fast food companies on TV advertising is spent by McDonald's. So Ms Steel said they obviously are a massive influence.

The education pack also reported that McDonald's total marketing spend for 1993 was 41m. 2m of this was spent on national and community projects such as Mcdonald's Child of Achievement Awards and the McDonald's young Athlete Club. Ms Steel said it was clear from this that so called 'charitable' activities are considered by the company to be advertising for the company, whatever they may claim publicly.

She also reminded the court that Mr Preston had said that for 1996, McDonald's UK expenditure on advertising and promotions would be 54m.

Mr Preston had also said he agreed with the quote "No other marketing factor has been more important in distinguishing McDonald's as a leader in fast food than its early decision to appeal to children through advertising". He said "I think that is basically true, yes, it is a major strength of building the company".

John Hawkes had said that McDonald's "wanted children to start singing about McDonald's, because it keeps the memory of McDonald's at the forefront of their minds, so that they can again ask their parents if they can come to McDonald's"

Ms Steel said this was an indication of the desire by McDonald's to have children repeatedly asking their parents to take them to McDonald's, and that effectively they are brainwashing children to programme them to think fairly constantly about McDonald's, a large multinational which has no personal interest in the child's wellbeing, and therefore there is no reason at all why the children should need to have a constant memory of the company.

The Judge had stated two days ago that the defendants should address him on McDonald's motive for giving away gimmicks of balloons, hats, flags etc as he didn't see anything wrong as such with just giving away. Ms Steel said:

"Whilst we would agree that giving and sharing is generally a good thing, and that there is nothing wrong with it, that isn't the case where it is done with an ulterior motive. I think the point is that it's clear McDonald's do have ulterior motives, they are not giving away these things out of love for the children, they are doing it out of love for the money they will be making out of the children or their parents through selling them junk food."

She went on to say:

"I think the use of a clown character, Ronald McDonald at fetes, school safety shows and charity events is particularly insidious. Ronald McDonald makes his appearances wearing the company colours, he has the company logo on his clothes, he is the symbol, the personification of McDonald's. It is clear that he is there as an advertisement for the company, but children will not realise that, they will think, as intended by McDonald's, that he is a fun character, that he is their friend, he gives them flags, sweets, toys, party hats etc.

The reality is he is NOT their friend, he is there to get them into McDonald's in order to sell them products. I think that in this day and age when parents warn their children of the dangers of speaking to strangers and accepting gifts from them, it is something of a contradiction that somehow it is acceptable for a complete stranger to speak to children and give them gifts just because he's doing it on behalf of a multinational company.

The reality is that Ronald McDonald is one stranger parents certainly should warn their children about. We KNOW he has ulterior motives, to seduce children into eating junk food, in order to increase the profits of the company he works for."

Ms Steel said the final point she wanted to make was in relation to context in the leaflet. She reminded the court of the first page of text in the leaflet, which stated:

"we're all subject to the pressures of stupid advertising, consumerist hype and the fast pace of big city life but it doesn't take any special intelligence to start asking questions about McDonald's and to realise that something is seriously wrong".

She continued with the 'Everything must Go' section of the factsheet which talks about how other companies also use gimmicks and advertising to manipulate people and to hide the truth from consumers. The factsheet goes onto talk about how the packaging is part of the gimmick as well. It is clear from these two parts of the leaflet that this is an attack, not just on McDonald's but on other junk food companies, and on the responsibility of the industry as a whole for creating a culture which relies on exploiting resources, people and animals for the sake of its profits.

Ms Steel concluded by saying that the factsheet was an attack on these companies for the use of advertising in creating an culture relient on exploitation. She said that the company were nothing more than a load of hype based on billions of dollars spent creating a false image in order to get people to go in. She pointed out that McDonald's own witnesses had accepted that without advertising, they would have no business.

As Mr Morris began his presentation on employment, the defence was quickly asked from the bench to define for the court what 'bits' of the leaflet sectioned 'What's It Like Working For McDonald's' (the Employment section) they considered fair comment and which statement of fact.. Justice Bell continuously tried to draw from a firm committment what if any defamatory meaning there was in the leaflet. He considered this as an attempt to 'help you express' these defamatory sections. However, the defence (untrained in court legalities and their implications) felt that the leaflet was a mixture of fact and fair comment.

During this section the judge intimated his feelings towards this section:

"You see a lot of what is set out in your pleadings at the moment, of the meaning you would seek to justify, does not seem to me to be defamatory at all."

and also:

"there may be areas where in the case, where I think a statement is CLEARLY not defamatory."

However, he expressly said that, though stating McDonald's pay bad wages and have bad working conditions were not defamatory statements on their own - when they were presented together they probably were.

Mr Morris made some points concerning McDonald's claim in that it was adding extra portent to the actual content in the leaflet. For example ,the leaflet says 'wages are low' (at McDonald's stores) but McDonald's claim says that it claiming against what is expressed as UNDULY low wages. Also Mr Morris pointed out:

"Do the Plaintiffs cynically exploit their work force for the sake of a fast buck? Of course the answer to that is yes. And it is always the addition of the extra words, cynicly exploit their work force, the point is, do the Plaintiffs exploit their work, force for the sake of a fast buck, the answer is yes, whether they do it cynicly, of course they do, it does not add anything to the picture, it is just an attempt to raise the stakes to make it more difficult foster you to have a judgment in our favour."

Justce Bell urged Mr Morris to provide a submission regarding what parts of the employement section of the leaflet should be treated as statements of fact, and which should be treated as comment.Mr Morris was reluctant to commit themselves at ths time since they had not yet received suffcient legal advice on this issue. During the exchange that followed, Justice Bell comented on how he might concider part of the case where he could find no defematroy meaning.

Justice Bell said:

"...when I come to write my judgements, I think it is a sheer waste of paper, effort and reading time of those who read the leaflet, to analyse and evaluate the evidence as to whether a statement (which even you have not suggested is defamatory) is true or not."

Justice Bell paused before commenting:

"By the way, CaseView said those 'who read the leaflet'. I thought I said 'those who read the judgment'."

Mr Rampton helpfully replied, "No my Lord, you did not, you said leaflet. I hope nobody is every going to read the leaflet again."

Ms Steel offered, "It is a historic document now." A hastily restrained chuckle could be heard from somewhere in the courtroom.

[Case view is the systm provided by the transcripts company that displays realtime output from the stenographers as they type up the transcripts.]

Continuing on employment, Mr Morris read from the employment section of the factsheet:

"What is it like working for McDonald's. There must be a serious problem: even though 80% of McDonald's workers are part time, the annual staff turnover is 60%, (In the USA it is 300 percent). It is not unusual for their restaurant workers to quit after just four or five weeks. The reasons are not hard to find."

Mr Morris talked about the level of wages across the entire catering industry compared to other industries. He spoke about the phrase in the factsheet 'Workers in catering do badly in terms of pay and conditions'.

He added, "The word 'bad' is obviously subjective. There is no definition of it. It is a comment about the general charge that conditions of pay, the pay and conditions, are worse than in other industries and that that is bad. We have proved the wages are low and that they are lower than the European Decency Threshold. Much lower. You could say they are indecent."

Mr Morris went on to say that chances of 'real' promotion were minimal, token promotion giving almost insignificant wage increases. He added that only a tiny proportion of crew could possibly become management, the only effective way of really increasing their wages. Mr Morris continued, "Obviously, at McDonald's, they have about so many levels of hierarchy, that technically, you are promoted when you get your first star or second star." He concluded that those token guestures were not real promotion, which would entail promotion into salaried management postions.

Mr Morris then spoke about how workers within the catering industry could do little to improve this situation without trade union representation. He spoke about how there were no unions specifically for these workers and that existing unions generally did not show much interest in the problems of part timers. He referred to a survey (quoted in the factsheet) of workers in burger restaurants which found that 80% said they needed union help over working conditions.

Mr Morris continued by noting that a high proportion of workers from ethnic minority groups worked at McDonald's. He said that due to lack of job opportunities, such workers had little chance of getting work elsewhere. He said that these people are wary of being sacked, as many have been, for attempting union organisation. He added that while he was talking about the kitchen trade as a whole, union organisation attempts have not exactly been encouraged by McDonald's, and have been vigorously discouraged. Mr Morris concluded by pointing out that within the terms of the McDonald's crew handbook, union activities have been made 'illegal' by the company.

Mr Morris proceeded to the factsheet's claims that McDonald's have a policy of preventing unionisation, by getting rid of pro-union workers. He said, "..unionisation can only take place effectively by people at work communicating with each other, organising themselves, having meetings, giving out leaflets to each other, putting up notices, talking to outside third parties, all of which McDonald's have a policy of preventing. They are disciplinary offences and indeed talking to an outside third party as Mr. Nicholson said, that would include unions, is a summary sackable offence." He later characterised this section of the company's 'Crew Handbook' as an illegal banning of trade union rights in direct contravention of the Employment Protection Act 1978.

Mr Morris continued by saying that it would be impossible to envisage how anyone at McDonald's could unionise, without an enormous amount of effort and laws protecting them, since (according to McDonald's head of personnel) it is a summary sackable offence to communicate with trade unions about conditions at a store.

Mr Morris added, ".. it is all very well to say, as McDonald's have said, 'of course they have a right to join a trade union, as long as they do not do anything about it'" He continued "...organisation and unionisation are the two key words. We are not talking about people joining a model railway club or something, in their part time. We are talking about trying to improve pay and conditions by getting organised in the work place. Unions are not some kind of academic debating society that one joins because you have nothing else to do."

The factsheet had said that 'as there is no legally enforced minimum wage in Britain, McDonald's can pay what they like, helping to depress wage levels in the catering trade still further'. Mr Morris added ,"We have heard that McDonald's wage levels have hardly crept up a few pence since the abolition of the wage council. So whether that was true at the time the leaflet was written or allegedly distributed (whether there was a legally enforceable minimum wage), McDonald's have shown since the abolition of the minimum wage [in 1993], that the criticism implied there is obviously true. Without a minimum wage the already low wages fail to keep pace with inflation."

Ms Steel added, "..at the time of the alleged distribution there was not a minimum wage for under eighteen year olds... they were getting a much lower wage than the other workers."

Mr Morris continued by pointing out that the next part of the factsheet illustrated an important point, that it does occasionally put McDonald's point of view. In this case the factsheet explains that 'McDonald's claim they are providing jobs for school levers and take them on regardless of sex or race'. The factsheet then points out that, 'The truth is McDonald's are only interested in recruiting cheap labour. Which always means that disadvantaged groups, women and black people especially are even more exploited by industry than they are already.'

Mr Morris added, "So it is not disagreeing with what McDonald's are saying. It is saying they are not telling you the whole truth." He continued by saying that while it was not disputed by the factsheet, that McDonald's do take on people regardless of sex or race, the real point was that they are taking on people who have little choice but to accept the low pay and poor conditions. He pointed out that despite McDonald's attempts to claim the moral high ground in terms of this apparent adoption of an 'equal opportunity' policy, it is in fact simply a policy of exploitation since the ratio of women and ethnic minorities employed on the shop floor does not get transfered to the higher positions within the McDonald's hierarchy.

He then referred to Paul Preston, who had said he did not consider the starting wage of 3.10 an hour for crew members to be low pay. Mr Morris said that this was a reflection on his inability to see reality when challenged with it. Mr Preston refused to reveal his own salary and when asked why the company could not pay higher wages to crew members out of the one billion dollars profits made in the previous year, he had claimed that people are paid a wage for the job they do. Yet, as Mr Morris pointed out, they work very hard in poor conditions, and there's no reason why they shouldn't be paid as much as the President. He said it was a middle class myth that people in 'positions of responsibility' and power were somehow justified in paying themselves more money than those who really did the work which keeps society going.

POOR PAY

Mr Morris then switched to the evidense of Sid Nicholson, McDonald's UK vice president. He had been a policeman for 31 years, firstly in South Africa, finishing as a Chief Superintendent in the Metropolitan Police in London. He joined McDonald's as Head of Security in 1983, and became Head of Personnel between 1984 to 1991. Mr Morris explained that Sid Nicholson had combined both jobs for much of that period! For a company so determined to keep control mechanisms at all levels, Mr Morris claimed that personnel would be seen as a security problem, in terms of control.

Mr. Nicholson had denied the basic of three pounds an hour, was low pay or that the catering industry was low paid compared could other industries despite not having any experience of analysing other industry's pay. He had admitted that McDonald's higher management got over 70,000 per annum plus perks and bonuses, and had claimed that he was not getting enough pay. It had been his opinion that everybody feels they do not get paid enough but the defendants had explained that the people who are most justified in feeling they are getting low pay are the people who are actually getting at or near the bottom of the pay scale. Mr Morris added, "..if he does not feel he is getting enough pay, then certainly people on 3 an hour are entitled to feel that a thousand times over."

Mr Nichlson had also agreed that, for years, the starting rates of pay had been consistantly either exactly the same as the minimum rates of pay set by the wages council or just a few pence over them. He had continued by agreeing that the company "could not actually pay any lower wages without falling foul of the law"

Mr Morris concluded,

"We would submit that really wraps up the whole case on pay. Obviously we are going to go into more detail to cover ourselves, but that should be enough to establish the truth of what is said in the leaflet."

Mr Morris continued by explaining how McDonald's staff could not supplement their low wages with tips, as was traditional in the catering industry, and that to accept tips was a sackable offence. He said that the normal low wages in the catering industry were compounded at McDonald's - the low pay had continued, but the provision of tips has been taken away.

About 66 percent of all crew at McDonald's are under twenty one and a third are under 18, on even lower pay. Mr. Nicholson had said that the employment of young people was 'a positive decision' for the company.

The company has no guaranteed hours. About eighty percent of crew are part time, averaging about twenty hours per week. Mr Nicholson admitted that managers have the power, while any crew person is working their scheduled shift, to cut or extend the hours being worked. Crew were expected to ask to be 'released' at the end of each shift. Even breaks could be cut, and crew are not paid for their meal breaks.

Mr Morris said that the unpaid meal break was an example of bad conditions. He explained that the effect was not only to reduce the amount of money that workers get, but also - whether deliberate or not - the effect of discouraging people to take the meal breaks they are both entitled to and legally obliged to have. This legal requirement existed for their own protection, Mr Morris claimed, because the law is aware of how employers can be unscrupulous and ruthless in exploiting workers.

Ms Steel added, "..they need the breaks for their own safety, so they are not tired, so that they are more careful about how they are working." Mr Morris continued, "Obviously, meal breaks are something everyone would recognise that people need." He concluded by saying that McDonald's would say that workers do not always want them, but the point was that if you are not being paid for them, then that is an incentive to management and workers to cut the breaks.

Mr Morris ended, "..people should be paid for their meal breaks and they should get them at the right time when they most need them, which is during intense periods of hard work and concentration. None of which of course happens at McDonald's."

Mr. Nicholson had admitted that McDonald's have never paid overtime. He said there was a policy setting a maximum of 39 hours a week for all staff. The court had been shown a memo which said that it was a policy applying to all staff, but had also seen documents showing that at least 5% of hourly paid staff [which is 25% of all full-time staff] were working over 39 hours per week.

Despite being in charge of UK personnel policy for seven years, Mr Nicholson had claimed he did not know the reason the company was opposed to staff working over 39 hours per week. Mr Morris claimed that this showed how the US corporation effectively controls the policy on practices in McDonald's stores worldwide, and that even their Head of Personnel in the UK does does not know why the company has certain policies.

When Mr Nicholson had been presented with the facts showing that the policy was breached so often that it was rendered irrelevant, he had replied that, "it is only policy." Mr Morris said this was a very significant admission about how the company views their so-called 'policies'. He concluded, "Here we have a policy which is clearly to protect the interests of people working long hours in a kitchen environment, and not only does he not know the reason for the policy, but it can be completely disregarded whenever it suits managers."

Mr. Nicholson had been shown a time sheet that contained a number of illegalities and he agreed that was so. That was the first time sheet the defence had been able to obtain, and later they had obtained documents from Bath and Heathrow stores which also contained masses of illegalities and breaches of contract and company policy. McDonald's had also admitted to having been convicted of various offences involving illegal employment practices; a total of 73 offences at Guildford and Luton in 1982, Slough in 1984, and Bury in 1991.

Mr Morris also spoke of the manager who was jailed for six months for inducing a crew member to make a hoax bomb threat to a nearby Burger King in order to increse her own stores sales. Justice Bell commented that he thought that what had happened in Newcastle couldn't actually reflect on McDonald's as a company as a whole, but Mr Morris said that it was clear that the pressure to boost profits manifests itself in a number of ways: illegalities, understaffing and corner cutting.

GENERAL WORKING CONDITIONS

Moving on to general conditions, Mr Morris referred to the 'One Every Mile' Channel 4 documentary (never broadcast) which was filmed with McDonald's permission inside two London stores and portrayed the reality of the high pressure of working conditions for crew members. Mr. Nicholson had agreed the conditions shown were "typical of high volume stores."

Crew had been filmed complaining about the pay, about pay rises being delayed, about hours worked being under recorded, and that the speed of work 'does your head in'. Mr Morris had commented that the film showed a preponderance of managers with an ex military background, and Mr. Nicholson had replied that such people bring a sense of discipline to McDonald's stores.

There had been a great deal of fuss initially from the Plaintiffs, claiming that the film was outrageous, and that the conditions were totally exaggerated. Yet Mr. Nicholson had finally admitted that the conditions shown where typical, and the researcher of the film gave evidence that McDonald's had actually been quite happy with the film as an accurate portrayal. Mr Morris finised, "An accurate portrayal - we would say - of the high pressured, corner cutting, low paid, work environment."

Mr Morris proceeded by remindng the court that, in March 1990 the company's annualised staff turnover in the UK was 196.5 percent. He added that the court had heard that in the USA it was roughly the same around that period and even greater prior to that (as much as 241% in 1986).

The corporation's confidential operations manual was quoted, 'Staffing and retention are closely related issues'. Mr Morris added, "The worse the staffing levels, we say, the more likely you are going to have high turnover because people are under so much pressure." The operations manual goes on to say, 'many problems are the by products of understaffing. Some of the most significant reasons people give for leaving are; poor treatment, no job enjoyment or satisfaction, and 'poor working conditions' which included 'faulty or missing equipment'.

Mr Morris spent some time going through calculations to show that the high turnover of staff could not be 'wished away' by McDonald's saying that it was due to people leaving to go back to college. It turned out that, by McDonald's own 'reasons for leaving' statistics, only 23% of their high turnover was due to 'leaving for school or college'.

He then spoke about the 'acceptable labour costs' targets for each store. The defendants had referred to a former manager in Newcastle who had been ordered to keep his labour costs down within targeted labour guidelines (approx 15% of sales), or face disciplinary action. An internal company profit and loss projection for 1992 had been quoted which revealed that the company had planned to reduce the overall percentage of turnover of crew labour costs as percentage of sales, whilst increasing the planned management percentage. Mr Morris said this was "evidence of a management obsession stemming from head office, through the supervisory grades, down to management, with keeping labour costs as low as possible whilst still being able to serve the customers and rake in the money as quickly as they can."

Mr Morris concluded, "I don't think it is possible to understand McDonald's system, employment system, without putting the fanatical obsession with reducing labour costs at the centre. Otherwise, all the other bits and pieces such as: the flexible working with no guaranteed work hours, and shorter breaks, and understaffing, hustle, everything - seems like there is just some kind of you know, psychological authoritarianism in the system for no reason." He continued by saying that it was not that management have some kind of personal grudge against crew members...it is the central plank of their employment practice that's at fault - the determination to keep crew labour costs as low as possible.

The court was reminded that the labour cost percentage is monitored daily, some times hourly. There had been evidence of phone calls from supervisors asking managers what their percentage was that day. It was apparently something which managers were constantly aware of and had to do a report on every day.

Mr. Nicholson had explained how McDonald's chose their 'store of the year' on what he called 'exemplary practices' including personnel matters, and that they would be used as an example to others. In 1987, Colchester was chosen, and the defence had called half a dozen witnesses who worked there around that period including people from managerial grades. The court heard that special clean ups were ordered when senior management were due to visit. Some employees had to work through the night so that an artificial image was created for higher management. Admissions were made reluctantly by McDonald's witnesses (in the face of overwhelming evidence) about breaks being shortened, and hours being compulsorily cut or extended. They had also admitted that staff sometimes work very long hours, which Mr Nicholson said indicated "that it was under staffed" - or did double shifts, about which he commented "they would be exhausted".

Mr Morris concluded by stating that while these things were occuring at one of McDonald's 'exemplary' stores (those with supposedly best practises) then they were likely to be happening everywhere.

Mr Morris continued by saying that not only do McDonald's exploit the workers with low play and poor conditions, but on top of that, they try and hype them up and involve them in the goals of the corporation to try to get them to work faster and more obediently. He said that this had the effect that if some people actually do end up believing in the corporation and its goals, they might be recruited as managerial potential.

He added that for the majority of staff, it is another imposition and a particularly annoying and obnoxious imposition. He said that they are mostly young people who have had no experience of employment elsewhere and generally no experience of trade union protection. He claimed that young people were (as David Green had said in relation to children and advertising) 'virgin ground' as regards employment conditions.

Mr Morris continued by saying that not only were workers expected to put up with the corporate hype, but at the same time they were assessed on their attitude towards it. He claimed that if workers failed to have or to fake the 'correct' attitude to store success goals, they could even be sacked.

He added, "Which of course is always a way of getting rid of anyone who criticises the company. Criticise McDonald's you are out of the door - 'because of your attitude', as said by Mr. Nicholson."

Mr Morris continued by noting that despite working continuously in a hot environment, workers have to obtain permission to have a drink. He added that, "if there is this happy family atmosphere, as McDonald's claim, then people are quite capable of having other people cover for them - unless they are so under staffed that if they walk off their station for five minutes or one minute, they could not possibly find someone else to cover, which would indicate massive understaffing that everyone is basically at full stretch the whole time."

Mr. Nicholson had been shown the crew handbook listing dozens of examples where management could direct, restrict or ban employees' activity and behaviour, under threat of disciplinary action and summary dismissal. But when asked, he failed to think of a single right that workers had except where there was statutory protection [such as to get their wages that they had contracted for]. Mr Morris said that management were armed with with all kinds of sanctions that they could use, while workers apparently had no rights beyond statutory protection.

OPPOSITION TO TRADE UNION RIGHTS

Mr Morris proceeded to the subject of unions. He said that McDonald's does not want unions, and backed up the claim by refering to Mr. Mehigan, owner of McDonald's, Ireland, who had let slip under questioning that the reason he did not want the union in Dublin was he did not want to 'lose control' of his business. Mr Morris said that when workers had rights, it means conversely that management no longer has all the rights, and that if workers have collective representation then the management does not have a completely malleable workforce where they can easily push workers around.

Mr Morris said that having the backing of experienced union representation, officials, literature, and legal advice, would greatly assist McDonald's workers. Mr. Nicholson started with the view at that the company was not anti-union and all staff had a right to join one. Mr Morris said that the issue was the ability to do the things that would allow a union to develop and operate.

Mr Nicholson had said that McDonald's was very much in support of performance related pay. He claimed that those who work well are paid well. He had added, "For that reason, we would rather not deal with trade unions." Mr Morris criticised McDonald's 'Mickey Mouse' performance pay system and said that Mr Nicholson's statement was a recognition that the issues of low pay and unions were directly linked.

Mr Morris continued to talk about trade unions. He said that there had been a general drift over the last 10 years to smash the trade unions in this country.

Justice Bell interupted, "No, I cannot have that. Stay out of politics with a big P. I know there are some matters which are bound to go into politics with a small one. "

Mr Nicholson had also said that if majority of the staff at a restaurant held an election and voted to be represented by a trade union, then could be represented by a trade union. Mr Morris said that if the company was not hostile to unions then unions would become a reality in McDonald's but Mr Nicholson's assurances were academic, because despite these acknowledgments, he had also said that no one would be allowed to collect subscriptions, put up notices, pass out leaflets, organise any meeting for staff to discuss conditions at the store on the premises or to inform the union about conditions inside the stores. The last one, informing the union about conditions inside the stores, Mr Nicholson had said would be deemed gross misconduct and as such a summary sackable offence.

Mr Morris concluded:

"This is effectively a complete assault on any attempt to unionise or have union rights or any workers rights inside McDonald's stores. Faced with that, you [the judge] had put to him, that in summary, 'hey would not be allowed to carry out any overt union activity on McDonald's premises' and he had agreed, in fact he said 'absolutely correct'. That was his answer... so again, we would say that is the end of that subject really. That is is the Head of Personnel, at the relevant time in the UK, where this case is based."

Justice Bell said that there may be two considerations here, one is McDonald's being against unionisation and the other is McDonald's dismissing people or forcing them out if they show interest in joining a union or in union organising. He said that it was the second allegation that seemed defamatory to him at the moment and that most people would say that being sacked for otherwise lawful union activity was not good enough. He said that he was not convinced that it was defamatory to say of a firm that they are anti union, or that they have a policy of not having union organisation.

Mr Morris countered by saying that the right of trade union activity was recognised in all international conventions. He added that as far as he was concerned, the right to organise, freely associate, distribute information, to contact outside third parties are all part of basic human rights that nobody in the world has any right to prevent. Hence, he said, the McDonald's crew handbook is a direct attack on basic civil rights against the most vulnerable people (predominantly young inexperienced people in a state of low pay, poor conditions).

Mr Morris continued, referring to the evidence of the McDonald's personnel department in Germany which sent out a memo in 1979 to all managers calling on them to refuse employment to anyone with union sympathies. Although not saying much more than the Crew Handbook, this memo had come to the attention of the public and created controversy. Apparently the person who wrote the memo was shifted to another department but not sacked. Mr Morris said that this indicated that McDonald's were not that upset about what had been written, only that they were probably upset that it had come out. Mr Morris said that it was just one of many examples from different countries, indicative of the underlying resistance to any collective workers' rights and ability to organise at McDonald's.

Mr. Nicholson had also admitted, having apparently changed his view by this point, that if everyone in the store had joined a union, McDonald's would still not negotiate with it. Mr Morris said that having said the opposite previously, Mr Nicholson then recognised that if there was a massive national drive, and a very large proportion of McDonald's employees joined a union and took industrial action, McDonald's might be left with no alternative but to negotiate.

Mr Morris concluded the day by pointing out that McDonald's witnesses had all been people who either were directly under their control in current managerial positions or above, or were in a commercial relationship, such as consultants. He finished bv saying that every single one of the defence witnesses were independent and in absolutely no commerical relationship, or any other relationship with either of the defendants. He said thay they, in contrast to McDonald's witnesses, were free to speak as they saw the truth. This contrast was highly significant he said, and generally applied to all the witnesses on both sides in the case. He said that the defendants could not possibly have the time or energy to trawl through the tens of thousands of pages of testimony (unlike the Plaintiffs who had every legal and financial advantage - and were even now, as he spoke, frantically still preparing their closing speech, making use of the extra 6 or 7 weeks they'd been given and the opportunity to hear the defence case first). In the light of this he urged Mr Justice Roger Bell to be very cautious about the biased written submissions he would soon receive from the Plaintiffs. Mr Morris stated that one significant verbal admission from a McDonald's witness under cross-examination was worth a hundred platitudes.

[The Court Adjourned]



Note:Due to the unavailability of the official court transcripts at this time, this report has not been checked for accuracy against the transcripts but was complied from extensive notes taken during the day by volunteers.
See also: The report for the previous day
The report for the following day
and, for summaries of all the key evidence given during the trial;
Trial News 1, Trial News 2, and Trial News 3