Case
Number: TUR1/530(2006)
21 September 2006
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT
1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DECISION ON WHETHER TO ACCEPT THE APPLICATION
The Parties:
GMB
and
Pipeline Engineering
Introduction
1. GMB (the
Union) submitted an application to the CAC dated 23 August 2006 that it should
be recognised for collective bargaining purposes by Pipeline Engineering (the
Employer) for a bargaining unit comprising “Factory shop floor employees i.e.
:- Packing/Despatch, Semi-Skilled Labourers, Welders/Platers, Casters/Turners,
CNC Machinists, Maintenance/Fitters,
Fabrication/Manufacturing Chargehands, Warehouse/Stores, Quality Controller”. The CAC gave both parties notice of receipt
of the application on 24 August 2006. The Employer submitted a response to the CAC
dated 30 August 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 Mr Chris Chapman, Chairman of the Panel, and, as Members, Ms Virginia
Branney and Mrs Maureen Chambers. The
Case Manager appointed to support the Panel was Sarah Kendall and for the
purposes of this decision, Nigel Cookson.
Issues
3. The
Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to
decide whether the Union’s application to the CAC is valid within the terms of
paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is
admissible within the terms of paragraphs 33 to 42 of the Schedule; and
therefore to be accepted.
The Union’s application
4. In
its application the Union, when asked for the date of
its formal request to the Employer for recognition, gave the date of two
meetings that had been held at Acas’ Newcastle
office. The Union
did, however, attach to its application form a copy of a letter it had sent to
the Employer on 2 August 2006
and which the Employer subsequently confirmed, in its response to the
application, as being the Union’s formal request for
recognition. In its application the Union
stated that there were 120 workers employed by the Employer and that 61 of
these were in the proposed bargaining unit.
44 of the workers in the proposed
bargaining unit were members of the Union. As to its evidence that the majority of the
workers in the bargaining unit would be likely to support recognition, the Union
explained that significantly more than 50% of the bargaining unit were in membership. When asked for the location of the bargaining
unit the Union had answered “All permanently employed
hourly paid, factory/shop floor employees” and it then went on to describe the
bargaining unit as set out in paragraph 1 above. However, in its request for recognition dated
2 August 2006 the Union described the bargaining unit in these terms “all
permanently employed, hourly paid factory shop floor employees (excluding all
salaried, agency and temporary employees and office Administration staff)”. In its application the Union
explained that it had selected the proposed bargaining unit on the basis of the
strength of Union membership therein and a request from the members to seek a
recognition agreement with the Employer.
The
Employer’s response
5. In
its response to the application dated 30
August 2006 the Employer confirmed that it had received the Union’s
formal request for recognition on 2
August 2006 but that it had not replied to this letter because it had
responded to an earlier request by arranging a meeting with Acas. The Employer noted that it did not receive a
copy of the application from the Union but had only
received a copy from the CAC.
6. The
Employer stated that it employed 139 workers and that 70 of these were in the Union’s
proposed bargaining unit. The Employer
did not agree the proposed bargaining unit explaining that, as a close knit
company working as a number of small business units with each containing both
hourly and salaried employees, it believed that such a split involving a small
proportion of the workforce as proposed by the Union, unless democratically
accepted by the majority of the workforce, would be divisive and a retrograde
step in improving the performance of the company. The Employer went on to state that it was
unable to comment on the Union’s estimate of its membership within the proposed
bargaining unit as it had not seen the list of members and had been unable to
confirm that they were employed by the company.
As to why the Employer considered that a majority of the workers were
not likely to support recognition of the Union, it
explained that in discussion with members of the Union
there was opposition to collective bargaining but that these individuals were
not prepared to express their opinion publicly for fear of reprisals.
7. The Employer did not contend that the
Unions’ application failed to meet any of the other admissibility or validity
criteria in the Schedule.
Clarification
of the bargaining unit
8. The Panel directed that the Case
Manager obtained clarification from the Union as to why
it had referred to the exceptions in the description of the proposed bargaining
unit in its initial letter to the Employer dated 2 August 2006 but not within the description of the
proposed bargaining unit as detailed in its application to the CAC. The Union, in a letter
dated 4 September 2006 from
the Case Manager, was asked, in addition to the above, for confirmation that
the two descriptions referred to the same group of workers.
9. In a letter dated 6 September 2006 the Union
confirmed that the two descriptions did refer to the same groups of workers. The Union did not
explain in its letter as to why it had referred to the proposed bargaining unit
in differing terms.
Membership
check and parties’ comments thereon
10. To assist the determination of two of the admissibility
criteria specified in the Schedule, namely, whether 10% of the workers in the
proposed bargaining unit are members of the union (paragraph 36(1)(a)) and
whether a majority of the workers in the proposed bargaining unit are likely to
support recognition of the Union as entitled to conduct collective bargaining
on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a
check to be undertaken by the Case Manager of the level of union membership and
support for recognition within the proposed bargaining unit. It was agreed with the parties that the
Employer would supply to the Case Manager a list of the names of workers within
the proposed bargaining unit, and that the Union would
supply to the Case Manager a list of Union members within that unit to enable
comparisons 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 12
September 2006 from the Case Manager to both parties. The information from both parties was
received by the CAC on 12 September
2006. The Panel is satisfied
that the checks were conducted properly and impartially and in accordance with
the agreement reached with the parties.
11. The Employer provided a list showing 67 names and the Union
provided a list containing 43 names and addresses.
12. According to the Case Manager’s report, the number of Union
members in the proposed bargaining unit was 40, a membership level of 59.7%.
13. A report of the result of the check of the level of Union
membership was circulated to the Panel and the parties on 13 September 2006 and the parties’ comments duly
invited.
14. In a
letter dated 14 September 2006
the Union expressed its satisfaction that it had passed
the test under paragraph 36(1)(a) adding that its members had joined for
collective bargaining purposes.
15. In a letter also dated 14 September 2006
the Employer asked that the Panel took into consideration the fact that many of
the members had not appreciated what full recognition would mean on an
individual basis. In particular, a
number of members had informed the Employer that they had joined the Union for benefits such as representation
at disciplinary hearings and for employment advice. These members had stated that they did not
wish the Union to have full recognition as they
understood collective bargaining would take away any flexibility that they
currently had, but these individuals were reluctant to express this view
openly. The Employer concluded by
submitting that a ballot of the workers in the bargaining unit would be a fair,
democratic and reasonable way to gauge the workers’ true opinions on this
matter.
16. On 18 September 2006 the CAC received a
copy of a letter that the Union had written to the
Employer. This letter enclosed a copy of
the application. The Union
informed the Employer that it enclosed a copy of the application form because
of the point the Employer had made in its response as to not having received a
copy of the application direct from the Union. It had done so, the Union
explained, in order to satisfy the statutory requirement.
Considerations
17. In
deciding whether to accept the application the Panel must decide whether the
admissibility and validity provisions referred to in paragraph 3 of this
decision are satisfied. The Panel has
taken into account all the evidence and argument submitted by the Employer and
the Union in reaching its decision.
18. The Panel is satisfied that the Union
made a valid request to the Employer within the terms specified in paragraphs 5
to 9 of the Schedule. Although the Panel
was initially a little uncertain about the precise delineation of the proposed
bargaining unit, it was clear that the Union and the Employer both understood
its range exactly and that the proposed bargaining unit had not changed between
the request for recognition made by letter to the Employer from the Union on 2
August 2006 and the subsequent application for recognition to the CAC. The Panel is also satisfied that the
application is not rendered inadmissible by any of the provisions in paragraphs
33 to 35 and 37 to 42 and was made in accordance with paragraph 11 of the
Schedule.
19. The
remaining issue is whether the admissibility criteria set out in paragraph
36(1) of the Schedule are met. In
accordance with paragraph 36(1)(a) and (b) of the Schedule, the Panel must
determine whether members of the Union constitute at least 10% of the workers
in the Union’s proposed bargaining unit, and whether a majority of the workers
constituting the Union’s proposed bargaining unit would be likely to favour
recognition of the Union as entitled to conduct collective bargaining on behalf
of the bargaining unit.
Paragraph
36(1)(a)
20. The
Panel is satisfied that the check of Union membership referred to in paragraphs
10 to 12 of this decision, which showed that 59.7% of the workers in the
proposed bargaining unit were members of the Union, was
properly conducted. The Panel has
therefore decided that the level of membership in the bargaining unit does
constitute at least 10% of the workers in the proposed bargaining unit as
required by paragraph 36(1)(a).
Paragraph
36(1)(b)
21. The test in paragraph 36(1)(b) is whether
a majority of the workers constituting the proposed 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 mindful that at this stage of
the process it is obliged under the Schedule to assess support for recognition
of the Union by deciding whether the majority are ‘likely’ to support the
application and not to test ‘actual’ support for recognition. To support its position the Union
relied on the density of membership in the proposed bargaining unit which
stands at 59.7%. On the other hand, the
Employer has put forward an argument that several members had privately
expressed their opposition to the Union being recognised
but were not prepared to publicly express this concern for fear of
reprisal. However, the Employer has not
put forward any evidence in support of its claim that some members had joined the
Union for reasons other than a wish to secure
recognition for collective bargaining. The Employer had the opportunity to have
put forward evidence of opposition to recognition at the time that the Case
Manager undertook the check of Union membership and the confidentiality that
was afforded the parties’ lists of names would have extended to a list of those
members that did not favour recognition of the Union. The Case Manager would then have had the
opportunity of confirming whether these workers were in the proposed bargaining
unit and whether or not they were members of the Union. However, no such information was forthcoming.
22. It is the Panel’s view that, in the
absence of any persuasive evidence to the contrary, membership of a union can
be accepted as indicative of that person’s likely support for collective
bargaining by the union with the employer on matters related to terms and
conditions of employment. The Panel is
therefore satisfied that, based on the level of existing membership in the proposed
bargaining unit, the majority of workers would be likely to support recognition
of the Union and therefore the test under paragraph 36 (1)(b) is met.
Decision
23. The Union’s
application is valid within the terms of paragraphs 5 to 9, is made in
accordance with paragraph 11, and is admissible within the terms of paragraphs
33 to 42 of Schedule A1. The application
is therefore accepted.
Panel
Mr Chris Chapman
Ms Virginia Branney
Mrs Maureen Chambers
21 September 2006