Case Number: TUR1/499/(2006)

18 August 2006

 

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

 

DETERMINATION OF THE BARGAINING UNIT

 

 

The Parties:

 

 

Introduction

The Parties:

 

AMICUS

and

X-Fab UK Ltd

 

 

Introduction

 

1.         AMICUS (the Union) submitted an application dated 10 March 2006 to the CAC that it should be recognised for collective bargaining purposes by X-FAB UK Ltd (the Employer) for a bargaining unit comprising “All workers in Manufacturing Operations at the XFAB UK Plymouth site excluding Managers and Team Leaders.”  The stated location of the bargaining unit was “XFAB UK Limited, Tamerton Road, Roborough, Plymouth, PL6 7BQ.”  The application was received by the CAC on 10 March 2006.  The Employer submitted a response dated 16 March 2006 which was received and copied to the Union by the CAC on 20 March 2006.

 

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 John Purcell, Chairman of the Panel, and, as Members, Mr Mike Cann and Lord David Lea.  The Case Manager appointed to support the Panel was Miss Sharmin Khan.

 

3.         By a decision dated 26 April 2006, the Panel accepted the Union’s application and, as no agreement had been reached on the bargaining unit, subsequently invited both Parties to supply the Panel with, and exchange, written submissions relating to the question of determining an appropriate bargaining unit.  A hearing was held on 14 June 2006.  The Panel, after careful consideration of the Parties’ oral and written submissions, decided that the appropriate bargaining unit should be “All workers up to and including team leaders in the following Departments - Manufacturing and Operations, Quality and Technology”.

 

 

Issues

 

4.         As the determined bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) to determine whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. 

 

5.         By a letter dated 23 June 2006 the Parties were invited to submit their views in respect of the following validity tests as outlined in the Schedule.

 

·         Is there an existing recognition agreement covering any of the workers within the new bargaining unit?

 

·         is there 10% union membership within the new bargaining unit?

 

·         are the majority of the workers in the new bargaining unit likely to favour recognition?

 

·         is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit?

 

·         has there been a previous application in respect of the new bargaining unit?

 

 

Summary of the Union’s views

 

6.         By its letter of 27 June 2006, the Union stated there was no existing agreement that covered the workers within the new bargaining unit and that there was no competing application from another union where the proposed bargaining unit covered any of the workers in the new bargaining unit.

 

7.         It also stated that from the Employer’s previous submission, the Union understood there to be a total of 162 workers in the new bargaining unit.  Within that total it had 42 members or in other words 26%.  The Union did therefore have at least 10% membership in the new bargaining unit. 

 

8.         The Union further stated that a majority of the workers in the new bargaining unit were likely to favour recognition.  The check of its petition submitted previously to the CAC established that 92 of the 95 names on the petition were within the Union’s original proposed bargaining unit.  The Union believed that all 95 names on that petition were from workers in the new bargaining unit which established a support level of 59%. 

 

 

Summary of the Employer’s views

 

9.         In its letter dated 28 June 2006, the Employer agreed with the Union that there was not an existing agreement covering the workers within the new bargaining unit and there was not a competing application made by any other union for which the proposed bargaining unit covered workers in the new bargaining unit. 

 

10.        The Employer did not comment on the 10% test but disputed that a majority of the workers in the new bargaining unit were likely to favour recognition of the Union.  It had received verbal and written feed back from workers indicating that workers who had signed the Union’s petition had subsequently decided that they did not favour recognition or never wanted recognition.  In its view, this rendered the Union’s petition invalid.  To evidence its point, the Employer attached a copy of 4 e-mails received from 4 individual workers.    The Employer also considered that workers in the new bargaining unit who were not in the original bargaining unit had not been approached about the issue of support for recognition.

 

11.        The Union however refuted the Employer’s case in its later letter of 6 July 2006.  Firstly, the heading on the Petition was clear, reading “Petition Seeking support for Amicus recognition – Do you support the Amicus application to be recognized for Collective Bargaining at the X-Fab Roborough Plant?”  Secondly, no worker had come forward and asked for their name to be removed from the petition.  In its view the objections received by the Employer were limited.  Only 2 of the e-mails were from individuals that had signed the petition.  It did not agree that the Panel should now question the intentions of the remaining signatories of the petition.  Finally, it was unlikely that every new individual would vote against recognition but even in that case, on balance, the evidence still suggested that a majority were likely to favour recognition of the Union.        

 

 

Membership and support check

 

12.        To assist the determination of the two admissibility tests under paragraph 45(a) and (b) of the Schedule, namely whether 10% of the workers in the new bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed the Case Manager to carry out checks on the level of union membership within the new bargaining unit and the number of workers who had indicated support for recognition of the Union for the purpose of collective bargaining. 

 

13.        The Parties agreed that the Employer would supply to the Case Manager a list of the names of workers in the new bargaining unit and the Union would supply a list of the names of its members, along with a copy of its petition to enable a comparison to be undertaken.  It was explicitly agreed with both Parties that, in order to preserve confidentiality, the information provided by one party would not be copied to the other and that agreement was confirmed in a letter to the Parties dated 6 July 2006.  Both Parties submitted their information on 10 July 2006.

 

14.        The result of the membership check established that there were 165 workers in the new bargaining unit of whom 45 were Union members, a membership level of 27.27%.  There were two parts to the Union’s petition which in total had 185 signatures on it of which 100 were from workers in the new bargaining unit.  56 of the signatures on the petition were from non-members, 33.94% of the new bargaining unit.   

 

 

Evidence from workers

 

15.           The CAC had received several e-mails during the period 29 June to 11 July 2006 from workers expressing their views about recognition of the Union.  The Case Manager compared these e-mails to the list of workers and the list of Union members in the new bargaining unit provided by the Parties. 

 

16.           40 e‑mails in total were received by the CAC of which 3 were from workers that were not in the new bargaining unit and 1 was from a worker who did not express a view about recognition of the Union.  The remaining 36 e-mails were broken down as follows:

 

·         25 were from non‑members who were against recognition of the Union

·         10 were from Union members that supported recognition of the Union

·         1 was from a non‑member that supported recognition of the Union.

 

17.        The results of the membership and support check and the check of the e-mails were compiled in a report and issued to the Parties for their comments on 19 July 2006.  A further letter dated 26 July 2006 was issued to the Parties in which the Case Manager clarified the figures stated in the original report.  A summary of the Parties comments follows.

 

 

Union’s Comments

 

18.           The Union’s sole concern was that the Employer may have included agency workers in its list of workers in the new bargaining unit.  The Union did not believe that agency workers could be included in the bargaining unit as they were not directly employed by the company and their terms and conditions were not set by the Employer.  However, the Employer in its e-mail of 10 July 2006 to the CAC had confirmed that 12 workers who were employed on 13 week contracts had been included but that 13 agency workers (who were also employed for 13 weeks) were not included in the list for the membership and support check.

 

 

Employer’s Comments

           

19.        The Employer maintained its position that the Union’s petition was not valid.    Taking this into account together with the Union’s membership list it believed that neither were representative of the current level of support for the Union.  The first part of the Union’s petition contained signatures that were obtained in January 2006.  In its view only the second part of the Union’s petition which contained signatures obtained in June and July 2006 should have been considered.  In respect of the level of union membership that was established the Employer felt that the number of Union members that had joined in the last 6 months should have been reported on.  The Employer also reiterated that employees who had signed the Union’s petition had since advised the Employer by e-mail that they did not support recognition.  It had also been informed that employees felt that they had been misled and subject to peer pressure.

 

20.        The Employer further stated that some workers did not understand what recognition for collective bargaining meant in practice.  The meaning of recognition for collective bargaining had not yet been communicated to the foreign national workers in their own language who may have signed the petition without knowledge or understanding of what they were supporting.  It was aware that the Union itself had recently distributed leaflets to the workforce in the Polish and English language.   

 

           

Considerations

 

21.        The Panel’s decision has been reached having taken full account of all the evidence provided by both Parties.  The Panel is satisfied that on the evidence available, the application is not invalid within the terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. 

 

22.        The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, that 10% of the workers constituting the new bargaining unit are members of the union and that a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

 

23.        The Case Manager’s check established that 27.27% of the workers in the new bargaining unit were members of the Union.  This result clearly establishes for the Panel that at least 10% of the workers in the new bargaining unit are members of the Union and that the Union has met the admissibility test set out in paragraph 45(a) of Schedule. 

 

24.        The second issue for the Panel to consider is whether, under paragraph 45(b), a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.  The Panel is satisfied that the level of support indicated by the Union’s petition, together with the level of Union membership as a percentage can be expressed as an overall support level of 61.21% providing sufficient evidence that the majority of workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the new bargaining unit. 

 

25.        In considering the Employer’s point that a number of workers who had signed the Union’s petition did not subsequently support recognition of the Union, the Panel deliberated over the e-mails the Employer had copied to the CAC and the Case Managers check of the e-mails that were received directly from the workers.  In fact the Case Manager could only verify for the Panel that there was one Union member who had signed the Union’s petition but later submitted an e-mail informing that s/he was not in support of recognition.  Furthermore a significant number of these e-mails were from non-members who were against recognition.  Since these individuals had not signed the Union’s petition and were not Union members this evidence does not influence the Panel’s decision on the majority likely to test.  Indeed none of the e-mails provides additional evidence to assist the Panel with its decision. However, the Panel does accept that there is some evidence of a change of mind but feels that the extent of this evidence is not at a level which leads the Panel to question the over all findings in this case.

 

26.        The Employer also showed concern about the currency of the Union’s petition.   It is the Panel’s view that the most equitable way of determining support is to consider all the signatures on the petition provided by the Union as there was no substantial evidence to indicate that support had been eroding.  Moreover, taken into account the more recently dated signatures together with the current level of membership, this would have been enough to persuade the Panel that there was a majority likely to support recognition of the Union for the purposes of collective bargaining.

 

27.        Finally the Panel is mindful that the test specified in the Schedule is not scientific but rather asks if a majority of the workers in the determined bargaining unit are “likely” to support recognition of the Union.  The evidence and the cases put by the Parties does however confirm to the Panel the impression that this is a contentious issue that can only be resolved by the holding of a secret ballot as specified by the Schedule.

 

 

Decision

 

28.        The decision of the Panel is that for the purposes of paragraph 20 of the Schedule the application is not found invalid within the terms of paragraph 43 to 50.  The CAC will therefore proceed with the application. 
 

 

The Panel

Professor John Purcell

Mr Mike Cann

Lord David Lea

 

18 August 2006