Case Number: TUR1/523(2006)

27 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:

 

 

Community

 

and

 

FBD System Scaffolding

 

 

Introduction

 

1.         Community (the Union) submitted an application dated 30 June 2006 to the CAC that it should be recognised for collective bargaining purposes by FBD System Scaffolding Limited (the Employer) for a bargaining unit comprising “all shop floor manual grades up to and including supervisors and excluding managers, foremen and administration”. The Employer submitted a response to the CAC on 12 July 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 Frank Burchill, Panel Chairman, and, as Members, Mr John Rugman and Mr Sandy Boyle.  The Case Manager appointed to support the Panel was Kate Norgate.

 

3.         By a decision dated 25 August 2006 the Panel accepted the Union’s application.  Following acceptance of the application, both the Employer and the Union confirmed to the CAC by e-mail on the 2 October 2006 that they had agreed that the Union’s proposed bargaining unit (as described in paragraph 1 of this decision) was appropriate.

 

Issues

           

4.         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:

 

“(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.”

 

5.         In a letter dated 4 October 2006 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit, and if so, whether it wished to submit that it should be recognised for collective bargaining without a ballot.  In a letter dated 6 October 2006 the Union stated that it did wish to claim majority membership within the bargaining unit and should therefore be granted recognition without a ballot.  The Union also explained briefly its position on the three qualifying conditions in paragraph 22(4).

 

6.         On 11 October 2006 the CAC invited the Employer to respond to the Union’s claim that it had majority membership within the bargaining unit and on the three qualifying conditions.  The Employer provided a response by e-mail on the 18 October 2006 in which it stated that it would be in the interests of good industrial relations if a ballot was held.  It also had concerns that not all members were fully paid up.  It had no substantiating evidence to support this but wanted assurance that that the members were “full” members and that all were adhering to their membership.

 

7.         In order to be satisfied that a majority of workers constituting the bargaining unit were members of the Union, the Panel proposed that a check of the level of union membership within the bargaining unit was undertaken by the Case Manager.  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.  The Panel also requested that the Union supplied to the Case Manager the following for each member: joining date. method of payment, frequency of payment, and the last date of payment.  In addition the Union was asked to provide any relevant paragraph from its rule book relating to policy about individulas who had non-financial membership.  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 19 October 2006 from the Case Manager to both parties. The information from the Union was received on 20 October 2006 and the information from the Employer on 20 October 2006.  The list of workers supplied by the Employer was broken down into the following categories: Employer code, Shift, First and Surnames.  The list supplied by the Employer contained 17 names. The list of members supplied by the Union was in two separate forms, the first was entitled the Branch Index Report dated 20 October 2006 and set out basic membership information for 19 Union members.  It included the following titles: Name, Address, Paysource and Joining date.  The second, an audit report, listed the same 19 Union members and provided details including Name, Amount paid, Arrears and Last updated.   All listed members were identified as paying by direct debit and the report demonstrated that all the October payments had been processed.  No Union members were identified as being in arrears and in a covering letter to the Case Manager the Union stated that its Community Union members subscriptions were up to date and that they were fully contributing members.  The list of members supplied by the Union contained 19 names.  According to the Case Manager’s report, the number of Union members in the bargaining unit was 15, a membership level of 88.24%.

 

8.         The parties were invited to submit comments on the membership check.  In an e-mail dated 24 October 2006 the Union stated that it had demonstrated on three occasions that it had majority membership within the bargaining unit by a check that was conducted by Acas and two checks that were conducted by the CAC.  It stated that the check conducted by the Case Manager clearly demonstrated a substantial level of membership at 88.24% and it therefore believed that it should be granted recognition without a ballot.

 

9.         The Employer confirmed by telephone to the Case Manager that it had nothing further to add.

 

Considerations

 

10.       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.

 

11.       The Panel is satisfied that the Case Manager’s membership check, described in  paragraph 9 above, which showed that 88.24% 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.

 

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

 

13.       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 submitted evidence that holding a secret ballot would be in the interests of good industrial relations.  The Panel is satisfied that this condition does not apply.

 

14.      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 CAC has no such evidence, and this condition does not apply.

 

15.       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.  No such evidence has been produced, and this condition does not apply. 

           

Declaration of Recognition

 

16.         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  “all shop floor manual grades up to and including supervisors and excluding managers, foremen and administration.”

 

Panel

Professor Frank Burchill

Mr John Rugman

Mr Sandy Boyle

 

27 October  2006