Case Number: TUR1/521(2006)
24
October 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:
Transport and General Workers Union (T&GWU)
and
Tyco Electronics
Introduction
1. The T&GWU (the
Union) submitted an application dated 12 June 2006 to the CAC that it should be
recognised for collective bargaining purposes by Tyco Electronics (the
Employer) for a bargaining unit comprising “all shop floor employees
(Operators, maintenance, technicians, key operatives and material handling)
across both sites not including
management and administration staff” at
Cheney Manor Industrial Estate (Factories A and B) in Swindon. The CAC gave both Parties notice of receipt
of the application on 14 June 2006. The Employer submitted a response to the CAC
dated 21 June
2006, which was 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 consider the case. The Panel consisted of Professor Paul Davies,
Panel Chairman, and, as Members, Mr Bryan Taker and Dr Susan Corby. Mr Bryan Taker later withdrew from his
position and the CAC Chairman appointed a replacement Member, Mrs Jackie
Patel. The Case Manager appointed to
support the Panel was Kate Norgate.
3. By a decision dated 28 July 2006 the Panel accepted the Union’s application.
4. Following this decision the Parties
were unable to reach agreement as to the appropriate bargaining unit. Both Parties were invited to supply the Panel
with, and to exchange, written submissions relating to the question of the determination
of the appropriate bargaining unit for a hearing held on 14 September 2006. In a decision dated 26 September 2006 the Panel decided that the appropriate bargaining unit was that proposed by the Union in its application.
Issues
5. Paragraph 22 of the Schedule provides that where 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 three qualifying conditions 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 conditions is fulfilled. The qualifying conditions
are set out in paragraph 22(4), which reads:
“(4) These are the three qualifying conditions -
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.”
6. In a letter dated 26 September
2006
the Union was asked by the CAC whether
it claimed majority membership within the bargaining unit, and if so, whether
it submitted that it should be recognised without a ballot. In a letter dated 27
September 2006 the Union stated that it wished to claim majority membership within the
bargaining unit and should therefore be granted recognition without a
ballot.
7. On 29 September 2006 the CAC copied the Union’s email 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. In a letter dated 29
September 2006 the Employer stated that for the following reasons it
believed union members within the bargaining unit would not want the Union to conduct collective
bargaining on their behalf. Firstly,
recent proposed changes to overtime payments would not be supported by the Union and could affect the views of
a significant proportion of union members within the bargaining unit. Secondly,
an event which occurred during 2005 resulted in workers joining the Union but that issue was no longer
relevant for those members, so the Employer doubted that there was current
support for union recognition.
8. In its letter dated 4 October
2006
the Employer explained that there was an employee forum “Swindon Employee
Assembly”, which had been in place since July 2006. The forum was made up of representatives from
all of the Swindon sites. Meetings were held recently
for the purpose of consultation on “24/7 cover” in critical business operating
areas. These meetings indicated that a
major concern for representatives was the potential loss of overtime if new
roles or shift patterns were created.
Discussions between the representatives (who in many cases were self
acknowledged members of the Union) raised concern that the Union would not be able to support their call to
protect their current overtime payments.
9. It further stated that the Company’s decision in 2005 to
remove shift premiums from employees when they had broken absence limits was
referred to on a number of occasions as the “only” reason employees had joined
the Union. This was asserted to staff in HR, Line
Managers, and it was raised as a matter for consideration within the SEA. The Union had previously indicated that it believed this was the
main motivation for employees to join the Union in the latter part of
2005. Following the SEA’s request to
review this decision, it was agreed that as payments had not been deducted from
any employees since the original decision was made, the decision would be reversed
and was no longer applicable.
Reiterating its belief that this was the main reason members had joined
the Union, the Employer contended that
those members would be prepared to reconsider their support for the Union, and a ballot should be held
to give those employees an opportunity to do this.
10. In order to be satisfied that a majority of workers
constituting the bargaining unit were members of the Union, the Panel proposed a check to
be undertaken by the Case Manager of the level of union membership within the
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 bargaining unit
and that the Union would supply to the Case Manager a list of Union members within that unit.
It was explicitly agreed with the Parties that, to preserve confidentiality,
the respective lists would not be copied to the other Party. The agreed
arrangements were confirmed in a letter dated 5
October 2006 from the Case Manager to both Parties. The information from the Employer
was received on 5 October 2006 and the information from the Union on 6
October 2006. The list supplied by the Employer
contained 198 names. The list of members supplied by the Union contained 112 names. According
to the Case Manager’s report, the number of names common to both lists was 106,
a membership level of 53.54%.
11. Since the check
showed that the Union held a majority membership within
the bargaining unit the parties were again invited to submit comments on the
three qualifying conditions (as described in paragraph 5 of this decision). In
response the Employer confirmed by e-mail on 13 October 2006 that it had no further comments to add to
its views already submitted in its letters of 29 September 2006 and 4 October 2006.
The Union, in its letter dated 11 October 2006 stated that it
believed it would not be difficult for the Union to deal
with the issue of overtime payments through the normal procedures of collective
bargaining. It disputed the Employer’s
assertion that its members only joined the Union for
reasons concerning a dispute over shift payments. The Union referred to the wording in its
petition that it had submitted for the membership and support check during the
acceptance stage, which read “I the undersigned wish to see the Transport and
General Workers Union fully recognised for collective bargaining purposes at
Tyco...” and its petition did not demonstrate that only one issue i.e shift
payments would be the subject of collective bargaining.
12. The Union also asked the Panel to note that it had 105 union members at
the time of the initial check conducted by the CAC in July 2006 and the most
recent check in October 2006 showed 112 union members. It stated that contrary to the Employer’s
assertion that members would reconsider their support for the Union, this has not occurred as more
employees joined the Union even though, according to the Employer, their shift
pattern decision “had been
reversed”.
Considerations
13. 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 bargaining unit are members of the Union, 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. The Panel is
satisfied that the Case Manager’s membership check, described in paragraph 10 above, which showed that 53.54%
of the workers in the bargaining unit were members of the Union, was conducted properly
and impartially and in accordance with the arrangements agreed with the
parties. Accordingly the Panel is satisfied that a majority of the workers
constituting the bargaining unit are members of the Union. It should be noted that the Case Manager calculates the number
and percentage of workers in the bargaining unit who are members of the union
on the basis of the number of workers on the employer's list of workers in the
unit together with the number of workers on the union's list who also appear on
the employer's list.
15. The Panel has given
thorough consideration to each of the qualifying conditions laid down in paragraph
22(4).
16. The first condition
is that the Panel is satisfied that a ballot should be held in the interests of
good industrial relations. In this case neither party
has expressly submitted that holding a
secret ballot would be in the interests of good industrial relations.
17. 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.
18. 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.
19. In letters
dated 29 September and 4 October the Employer put forward two reasons for
holding a ballot, despite the Union’s majority
membership in the bargaining unit. First, the stimulus for the workers to join
the Union has been a decision by the Employer in 2005 to
remove shift premia from employees whose absence exceeded the permitted limits.
The employer had now reversed that decision. Second, a current significant
topic for collective relations in the bargaining unit was proposed changes to
overtime payments. Although the issue was not fully spelled out in the letters
in question, it appeared to the Panel that the Employer’s argument was that the
workers had a view on overtime payments which was not at one with the Union’s
official policy, so that the Union would not be able to represent the workers
effectively in collective bargaining.
20. Although
these arguments were not put in terms of the statutory structure, it appears to
the Panel that they can be regarded as ‘membership evidence’ within paragraph
22(4)(c), in particular evidence about the circumstances in which union members
became members. The letters might also be regarded as evidence going to good
industrial relations within para 22(4)(a). It is less clear that they fall
within paragraph 22(4)(b) since it is not evidence
‘from’ a significant number of union members (as opposed to evidence ‘about’
them). In any event, the Panel has been more
concerned with the weight of the evidence rather than its characterisation. It
appears to us that the first argument is not necessarily persuasive, since the
workers might want to maintain their membership and to secure collective
bargaining in order to be represented in relation to future action by the
Employer to which they took exception, even if the issue which caused them to
join the union initially had been resolved to their satisfaction. As to the
second argument, the Employer’s assertion that the Union will not be able to
act effectively for the workers on the overtime issue is met by the Union’s
assertion (in its letter of October 11) that ‘there is no difficulty for the
union in dealing with the issue of overtime payments through the normal
procedures of collective bargaining.’ What we singularly lack in this case is
any relevant evidence which is not simply assertion or counter-assertion,
except for the one fact, established by the case manager’s own checks, which is
that between acceptance in July and October the Union’s membership underwent a
modest increase (from 98 to 106 or in percentage terms from 51.6% of the
bargaining unit to 53.5%). Although this fact may be open to a number of
possible explanations, it does not appear to be consistent with a widespread
feeling among the members of the bargaining unit that there is no longer a need
for a union presence in the workplace or that the Union would not be able to do a good job as
representative. In the circumstances we are unable to conclude that either
membership evidence has been produced which lead us to conclude that a ballot
should be held or that it would be in the interests of good industrial
relations to hold a ballot. We should also say that we do not think that, even
if the evidence above falls within sub-paragraph (b), it amounts to credible
evidence that a significant number of workers in the bargaining unit do not
want the union to conduct collective bargaining on their behalf.
Declaration of Recognition
21. Following careful consideration of all
aspects of the case and all relevant evidence before it, the Panel declares that the Union is recognised by the Employer as entitled to
conduct collective bargaining on behalf of
“shop floor employees (Operators, maintenance, technicians, key
operatives and material handling) across both sites not including management
and administration staff” at Cheney
Manor Industrial Estate (Factories A and B) in Swindon.
Panel
Professor
Paul Davies
Dr
Sue Corby
Mrs
Jackie Patel
24 October 2006