Case Number: TUR1/517/2006

13 September 2006

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

United and Independent Union

and

Wallace Cameron & Co Ltd

Introduction

1. The United and Independent Union (the Union) submitted an application to the CAC dated 30 May 2006 that it should be recognised for collective bargaining purposes by Wallace Cameron & Co Ltd (the Employer) for a bargaining unit comprising “All hourly paid employees” employed at the Wishaw Factory. The CAC gave both parties notice of receipt of the application on 31 May 2006. The Employer submitted a response to the CAC dated 13 June 2006 which 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 of the Panel, and, as Members, Mrs Maureen Shaw and Mr Bill Speirs. Mr Speirs subsequently recused himself from the Panel and the CAC Chairman appointed Mr Ken Cameron in his stead. The Case Manager appointed to support the Panel was Nigel Cookson.

3. By a decision dated 30 June 2006 the Panel accepted the Union’s application. Subsequently, the parties confirmed, in separate emails to the CAC on 9 August 2006, that agreement had been reached as to the appropriate bargaining unit in this matter. The Parties agreed that the appropriate bargaining unit was “all hourly workers in Production, Despatch and Warehouse”. Although expressed in slightly different terms the parties nonetheless agreed that the new definition referred to the same group of workers as in the Union’s formal request for recognition and in its application to the CAC.

Issues

4. Paragraph 22(2) of the Schedule A1 to the Act (the Schedule) requires the CAC to issue a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of a group of workers constituting the bargaining unit if it is satisfied that a majority of the workers constituting the bargaining unit are members of the applicant union, unless any of the three qualifying conditions set out in Paragraph 22(4) are fulfilled. If any of these conditions are met, or the CAC is not satisfied that a majority of workers in the bargaining unit are members of the applicant union, the CAC must give notice to the parties that it intends to arrange for a secret ballot to be held. The qualifying conditions in paragraph 22(4) are as follows:

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

ii) 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 (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 union members within the bargaining unit want the union to conduct collective bargaining on their behalf.

Union’s submissions on majority membership

5. In a letter dated 14 August 2006 the Union was asked if it wished to claim majority membership within the bargaining unit, and if so, whether it wished to submit to the Panel that it should be recognised without a ballot in accordance with paragraph 22(2) of the Schedule.

6. In an email dated 16 August 2006 the Union submitted, inter alia, that the accurate figure as to the number of workers in the bargaining unit was approximately 72 and that a majority of these workers were members of the Union. The Union concluded with a request that the Panel award recognition without the need for a ballot.

Employer’s submissions on majority membership

7. The Union’s email was copied to the Employer and the Employer was invited to make submissions on the qualifying conditions as set out in paragraph 4 above. In a letter to the CAC dated 22 August 2006 the Employer stated that it did not agree that the Union had majority membership in the bargaining unit nor that a majority of the workers therein wanted the Union to conduct collective bargaining on their behalf. Consequently the Employer reasoned that it would be a fair and equitable to arrange for the holding of a secret ballot where both parties would have the opportunity to represent their respective positions to the workforce.

Membership check and the Parties’ comments thereon

8. To assist in deciding whether to arrange for a secret ballot the Panel proposed an independent check of the level of union membership in the bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names and job titles of the workers in the bargaining unit and that the Union would supply to the Case Manager a list of Union members within that unit to enable a comparison to be undertaken. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 29 August 2006 from the Case Manager to both parties. The information from the Union was received by the CAC on 24 August 2006 and from the Employer on 30 August 2006. The Panel is satisfied that the check were conducted properly and impartially and in accordance with the agreement reached with the parties.

9. The list supplied by the Employer showed that there were 82 workers in the bargaining unit. The list of members supplied by the Union contained 50 names. According to the Case Manager’s report, the number of Union members in the bargaining unit was 48, a membership level of 58.54%.

10. The report detailing the result of the check of the level of Union membership in the bargaining unit was circulated to the Panel and the parties on 31 August 2006 and, as the result of the check showed that the Union enjoyed majority membership within the bargaining unit, the Employer was asked whether it wished to submit that one or more of the qualifying conditions set out in paragraph 22(4) was satisfied.

Employer’s submissions in respect of Paragraph 22(4)

11. In an email to the CAC dated 4 September 2006 the Employer challenged the figures provided by the Union on the basis that anecdotal evidence had suggested that membership numbers may have fallen during recent months. The Employer was also concerned as it had heard reports, from what it regarded as a credible source, that suggested that some of the Union executive had previously been involved in dubious practices with regard to ballots, and, it submitted, the only equitable way to resolve this issue was via an independent ballot of the workers in the bargaining unit.

Union’s comments on the Employer’s submissions

12. The Union was duly invited to comment on the points in the Employer’s email above. In an email to the CAC dated 6 September 2006 the Union made the point that the Employer had not responded to the qualifying conditions that were set out in the letter from the CAC dated 31 August 2006. Further, the audit of Union membership clearly indicated a majority supported collective bargaining, and it would therefore not be in the interest of good industrial relations to hold a ballot. The Union concluded by repeating its request that the Panel declare the Union recognised without a ballot.

Considerations

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

14. In this case the check that was undertaken by the Case Manager on 31 August 2006 showed a membership density of 58.54%. The Employer, when given the opportunity to challenge the evidence, commented that anecdotal evidence had suggested that membership numbers may have fallen during recent months. However, having made this statement the Employer did not give any detail nor did it quantify this fall in membership. It is for this reason that the Panel has no alternative but to conclude that the alleged reduction in Union membership, which was not borne out by the evidence submitted by the Union for the check, was merely speculation on the Employer’s part. Accordingly, in the absence of evidence to the contrary the Panel is satisfied that the majority of the workers in the bargaining unit are Union members.

15. Paragraph 22(4)(a) requires the CAC to order a secret ballot even when there is majority Union membership in the bargaining unit where it is satisfied that to do so would be in the interests of good industrial relations. The Union has submitted that it should be awarded recognition without the need for a ballot whilst, on the other hand, the Employer has submitted that it would be a fair and equitable to arrange for the holding of a secret ballot where both parties would have the opportunity to represent their respective positions to the workforce. The Employer also put forward its concern that it had information which suggested that some of the Union executive had previously been involved in dubious practices with regard to ballots, and that the only equitable way to resolve the issue was by an independent ballot of the workers in the bargaining unit.

16. However, what the Employer has failed to do is to demonstrate how industrial relations would be improved by a ballot or adversely affected if the Panel was to award recognition without calling for a ballot. The Schedule is clear in that when a Union can demonstrate majority membership in the bargaining unit, a Panel can only order a ballot if it is satisfied that one or more of the qualifying conditions is met. The Panel cannot take into account whether the holding of a ballot would be “fair or equitable”. The legislation makes no allowances for such considerations. Nor is the Panel persuaded by the second point made by the Employer, namely that a ballot should be held because it was alleged that the Union had been involved in “dubious practices” with regards to ballots. No concrete evidence was provided in support of this allegation so it lacks the necessary specification to affect the Panel’s decision. In any event, it might be argued that to hold a ballot in a case where it was been alleged that one of the parties has been guilty of “dubious practices” with regard to ballots in the past would merely present that party with a fresh opportunity to indulge in such practices again.

17. Having considered the parties’ representations the Panel believes that good industrial relations within the company would be best served by establishing a bargaining relationship between the parties as soon as possible. Accordingly, the Panel is satisfied that the qualifying condition under paragraph 22(4)(a) has not been met

18. Paragraph 22(4)(b) requires the CAC to order a ballot when it has received evidence, which it considers to be credible, that a significant number of union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf. No such evidence has been received by the CAC and the Panel is therefore satisfied that this condition is not met.

19. Paragraph 22(4)(c) requires the Panel to order a secret ballot where 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. No such membership evidence has been produced. The Panel is therefore satisfied that this condition is not met.

Declaration

20. The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union. Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit, namely “all hourly workers in Production, Despatch and Warehouse”.

Panel

Professor Kenny Miller, Chairman

Mr Ken Cameron

Mrs Maureen Shaw

13 September 2006