Recognition Decision

Case Number: TUR1/746/2011

23 December 2011

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Unite the Union

and

Interserve Industrial

Introduction

1. Unite the Union (the Union) submitted an application to the CAC dated 13 June 2011 that it should be recognised for collective bargaining by Interserve Industrial (the Employer) in respect of a bargaining unit comprising "Scaffolders, Labourers, and Power Washers employed at Dalry". The location of the bargaining unit was given as: "Dalry Ayrshire". The CAC gave both parties notice of receipt of the application on 14 June 2011. The Employer submitted a response to the CAC on 17 June 2011 that was duly copied to the Union.

2. In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller, Chairman, and, as Members, Mrs Maureen Shaw and Mr Dennis Cameron. The case manager appointed to support the Panel was Adam Goldstein.

3. By a decision dated 2 August 2011, the Panel accepted the Union's application. By a further decision dated 17 November 2011 the Panel determined that the appropriate bargaining was that specified by the Union in its application.

Issues

4. Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that "membership evidence" is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

The Union's claim of majority membership

5. In a letter dated 17 November 2011 the Union was asked by the CAC if it claimed majority membership within the bargaining unit, and if so, whether it submitted that it should be recognised without a ballot. The Union replied by a letter dated 21 November 2011 that the membership check at the acceptance stage showed 61.11% of the bargaining unit in Union membership and it therefore claimed recognition without the need for a ballot. None of the three qualifying conditions specified in paragraph 22(4) of the Schedule were fulfilled. In particular:

  • A ballot and attendant canvassing would be likely to polarise the positions of the Parties and therefore be "bad for industrial relations."
  • There was no evidence that a significant number of Union members within the bargaining unit did not want the Union to conduct collective bargaining on their behalf.
  • No membership evidence had been produced to suggest that a significant number of Union members within the bargaining did not wish the Union to conduct collective bargaining on their behalf.

The Employer's submissions

6. On 22 November 2011 the CAC copied the Union's letter to the Employer and invited it to make submissions on the Union's claim that it had majority membership within the bargaining unit and on the three qualifying conditions specified in paragraph 22(4) of the Schedule. The Employer replied by an e-mail dated 28 November 2011 to say it disagreed that a ballot would be detrimental to good industrial relations between the Parties as both had confirmed to work constructively together. Further, a number of individuals had stated openly in writing, and others only verbally due to perceived peer pressure, that they did not wish to be party to recognition by Unite. A ballot would allow those individuals and any others to make their feelings known. The Employer therefore supported a ballot taking place to clearly establish to opinions of the total workforce.

Further information on numbers of Union members and members of the bargaining unit

7. A letter from the case manager dated 29 November copied the Employer's letter to the Union and asked it to state whether there had been any changes to the number of Union members in the determined bargaining unit since the acceptance decision was issued on 2 August 2011. A letter from the case manager also dated 29 November 2011 asked the Employer to state whether there had been any changes to the number of workers in the bargaining unit since the unit decision was issued on 17 November 2011. A reply was received from the Employer by e-mail on 1 December 2011 confirming that the staff numbers had not changed since 17 November 2011. No reply was received by the Union by the deadline of 2 December 2011. A letter was sent to both Parties on 6 December 2011 stating the Panel wished to conduct a membership check. This was to provide information about the current Union membership level in the determined bargaining unit given that the lapse of time since the last check, conducted on 5 July 2011.

The membership check

8. In the letter of 6 December 2011 the Union was asked to supply of list of the names of Union members in the determined bargaining unit and the Employer was asked to supply a list of the names of workers in the bargaining unit. The information from the Employer was received by the CAC on 7 December 2011 and from the Union on 13 December 2011. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in the letter from the Case Manager to both parties dated 6 December 2011. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties. A report of the results of the check was circulated to the Panel and parties on 15 December 2011. The results of the check showed that there were 17 workers in the bargaining unit of whom 10 were Union members; a membership level of 58.82%.

Summary of the Union's comments on the membership check

9. In a letter dated 19 December 2011, the Union noted it that a majority of employees were in membership and therefore requested automatic recognition without the need for a ballot.

Summary of the Employer's comments on the membership check

10. The Employer accepted that the Union still met the required membership level for making a request for recognition without a ballot but argued that the CAC should undertake a ballot as there were a number of "employees/union members" who had verbally stated that they were "under duress" from their peers and did not wish to have Unite bargaining on their behalf.

Considerations

11. The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

12. The Union claimed majority membership and the membership check showed that the proportion of Union members in the bargaining unit was 58.82%. The Employer, in its comments on the check of 20 December 2011, did not challenge that the Union had majority membership in the bargaining unit. Therefore, the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the union.

13. The Panel has given thorough consideration to each of the qualifying conditions laid down in paragraph 22(4) of the Schedule.

14. The first condition is whether the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Union argued that this condition was not fulfilled and stated that a ballot may polarise the Parties' positions, damaging industrial relations. The Employer countered that a ballot would not harm industrial relations. Further, the Employer referred to members of the bargaining unit who were under "duress" to support the Union's recognition bid but did not, in fact, support it. The Panel has noted the broad statements made by the Employer but has not seen any fresh, specific evidence relating to this condition. Therefore, the Panel concludes that this condition is not fulfilled.

15. The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The Union stated that his condition did not apply and the Employer offered no arguments or evidence related to it. Therefore, the Panel concludes that this condition does not apply.

16. The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. Again the Union argued that this condition was not fulfilled and the Employer did not supply any arguments or evidence pertaining to this question. Therefore, the Panel concludes that this condition is not fulfilled.

Declaration of recognition

17. The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the majority of the workers in the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. Pursuant to paragraph 22(2) of the Schedule, the CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising, "Scaffolders, Labourers, and Power Washers employed at Dalry."

Panel

Professor Kenny Miller, Chairman

Mrs Maureen Shaw

Mr Dennis Cameron

23 December 2011