Case Number: TUR1/538[2006]
20 November 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:
Amicus
and
Winterhalter Ltd
Introduction
1. Amicus (the Union) submitted an
application to the CAC dated 31 October 2006 that it should be recognised for
collective bargaining by Winterhalter Ltd (the Employer) in respect of a
bargaining unit comprising “Senior Technicians, Service Technicians and the
Installation Team” working from various locations throughout the UK and
reporting to the Employer’s offices in Roebuck Way, Knowlhill, Milton
Keynes. The CAC gave both parties notice
of receipt of the application on 31
October 2006. The Employer
submitted a response to the CAC on 7
November 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 Gillian
Morris, Chairman, and, as Members, Mr Mike Cann and Mr Derek Hodgson. The Case Manager appointed to support the
Panel was Nigel Cookson.
3. The Panel has extended the acceptance
period in this case on one occasion. The initial period expired on 14 November 2006. The acceptance
period was extended until 21 November
2006 in order to allow time for the parties to comment on the
results of a check of Union membership in the bargaining unit and for the Panel
to consider those comments before arriving at a decision.
Issues which the Panel is required to
determine
4. The Panel is required by the Act 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; and is
admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act
(the Schedule); and therefore is to be accepted.
The Union’s
application
5. In
its application the Union stated that it had written to the Employer
on 31 March 2006
with a formal request for recognition. A copy of that letter was attached to
the application. The Union also attached to the application a copy of
a letter from the Employer, dated 6 April 2006, responding to its request. In that letter
the Employer stated that it was not able to enter into a voluntary agreement
with the Union at that time. The Employer’s letter went on to confirm
that, although it was not able to enter into a voluntary agreement, it agreed
that the Union’s proposed bargaining unit would be appropriate and stated that
there were currently 76 staff who were employed in jobs that would be included
in that unit.
6.
In its application the Union gave
the number of workers in its proposed bargaining unit as 72 and stated that 41
of these workers were members of the Union. The Union
stated that the bargaining unit had been agreed with the Employer. The Union
stated that its proposed bargaining unit had been selected as the workers
carried out similar duties and were on the same terms and conditions of
employment. The Union stated that it believed that a majority of
the workers in the proposed bargaining unit would be likely to favour
recognition for collective bargaining as a majority of those workers were
already members of the Union.
The Employer’s response to the Union’s
application
7. In its response to the Union’s
application the Employer stated that it had received the Union’s written
request for recognition on 3 April 2006 and that its response had been to
inform the Union that it did not feel able to enter into a voluntary agreement
at that time.
8. The Employer confirmed that the parties
had, prior to the Employer receiving a copy of the application form from the Union,
agreed the bargaining unit. When asked
if it agreed with the Union’s estimate as to the number
of workers in the bargaining unit the Employer stated that it employed a total
of 142 employees of whom 80 were in the agreed bargaining unit. The Employer did not know why the Union
was claiming that there were 72 workers in the bargaining unit as it had
informed the Union in April 2006 that at that time there
were 76 workers in the bargaining unit. Since
then it had employed further technicians, bringing the current number of
workers in the bargaining unit to 80.
9. When asked whether it agreed with the Union’s
estimate of membership in the bargaining unit the Employer stated that it
currently employed 83 workers in its Field Service Team of whom three were
excluded as they were managers, leaving a total of 80. The Employer stated that it did not believe
that the majority of workers in the bargaining unit would support recognition
of the Union. The
Employer explained that it was currently in the process of establishing a
Technician representative for the Field Service team who would be the main
channel for communication between the team and the management. It believed that this was what the majority of
the team wanted. The Union
had been trying to recruit members for many months and the Employer did not
believe that it had the support of the majority.
10. The Employer did not contend that the Union’s
application failed to meet any of the remaining admissibility or validity
criteria in the Schedule.
Membership check
11. To assist the determination of two of the
admissibility criteria specified in the Schedule, namely whether 10% of the
workers in the bargaining unit are members of the union (paragraph 36(1)(a))
and whether a majority of the workers in the 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)(b)), 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 currently employed within the bargaining unit, and that the
Union would supply to the Case Manager a list of paid up 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 13 November 2006 from the Case Manager to both
parties. The information from the Union
was received by the CAC on 10
November 2006 and the information from the Employer was received on
13 November 2006. The Panel is satisfied that the checks were
conducted properly and impartially and in accordance with the agreement reached
with the parties. A report of the result
of the check of the level of Union membership was circulated to the Panel and
the parties on 13 November 2006.
12. The Employer provided a spreadsheet with
5 columns headed: Team; Emp No.; Surname; First name and Start date. There were 8 workers listed as being in the
Installation Team, 33 workers in the London team, 19 workers in the Midlands
and South team, 18 workers in the North team and 2 workers in the Workshop
team. The Union
provided a printout showing the Person Id Number; initials; Surname; Address;
telephone number and date of Joining for each of the individuals named
therein. The printout confirmed that the
members listed were current payers only.
13. No additional checks were carried out by
the Case Manager to verify the information supplied by the parties.
14. The list supplied by the Employer showed
that there were 80 workers in the agreed bargaining unit. The list of members supplied by the Union
contained 42 names. According to the
Case Manager’s report, the number of Union members in the agreed bargaining
unit was 40, a membership level of 50%.
Parties’ comments on the result of the
membership check
15. The parties were invited to submit
comments on the results of the membership check.
16. The Union, in a letter dated 14 November
2006, stated that it noted that the membership check indicated that at least
10% of the workers in the relevant bargaining unit were union members and that
the first limb of the test in paragraph 36 of the Schedule was satisfied. The Union further
submitted that there was no reason for the CAC to conclude that Union
membership would not be an indicator of support for collective bargaining. As Union membership constituted 50% of the
relevant bargaining unit, the Union considered that it
could be concluded that on union membership alone at least 50% of the workers
constituting the relevant bargaining unit would be likely to favour recognition
of the Union as entitled to conduct collective
bargaining on behalf of the bargaining unit. The Union noted that
there were an additional 40 workers in the bargaining unit. It submitted that only one of those workers
would be required to vote in favour of union recognition to obtain a majority
vote, even if every single worker in the bargaining unit voted. The Union submitted
that it was overwhelmingly likely that at least one non-union member from 40
would vote in favour of Union recognition.
The Union therefore submitted that the second
limb of the test in paragraph 36 was satisfied and that the application should
be accepted.
17. The Employer confirmed, in a telephone
conversation with the Case Manager on 16
November 2006, that it had received a copy of the membership check
and that it did not wish to comment thereon.
Considerations
18. In
deciding whether to accept the application the Panel must determine whether the
admissibility and validity provisions referred to in paragraph 4 of this
decision are satisfied. The Panel has
considered carefully the submissions of both parties and the supporting
documentation.
19. The
Panel is satisfied that the Union made a valid request to the Employer within
the terms of paragraph 5 to 9 of the Schedule and that its application was made
in accordance with paragraph 11.
Furthermore, the application is not rendered inadmissible by any of the
provisions in paragraphs 33 to 35 or paragraphs 37 to 42 of the Schedule.
Paragraph 36
20. The
Panel is required to decide firstly, under paragraph 36(1)(a) of the Schedule,
whether members of the union constitute at least 10% of the workers in the
bargaining unit and secondly, under paragraph 36(1)(b), whether a majority of
the 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.
21. The
Panel is satisfied that the Case Manager’s membership check, described in
paragraphs 11 to 14 above, which showed that 50% of the workers in the bargaining unit were
members of the Union,
was conducted properly and impartially.
The Employer, although invited to comment on the results of the check,
did not do so. The Panel has therefore
decided that the level of union membership in the bargaining unit does
constitute at least 10% of the workers in the bargaining unit as required by
paragraph 36(1)(a) of the Schedule.
22. The second issue for the Panel to
consider is whether a majority of the 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. To support its position, the Union
relied on the level of union membership in the bargaining unit which, for the
reasons given in paragraph 21 above, the Panel accepts is 50%. The Panel considers that, in the absence of
evidence to the contrary, the level of union membership provides a legitimate
indicator of the views of workers in relation to union recognition. In this case 50% of the workers in the
bargaining unit are members of the Union and, in the
opinion of the Panel, are likely, on the balance of probabilities, to favour
recognition. In addition, the Panel
considers that, on the balance of probabilities, at least one of the 40
non-members would be likely to favour recognition of the Union.
On the basis of the evidence before it
the Panel is therefore satisfied, on the balance of probabilities, that a
majority of workers constituting the agreed bargaining unit would be likely to
favour recognition of the Union as entitled to conduct
collective bargaining on behalf of the bargaining unit.
Decision
23. For the reasons given in paragraphs 19-22
above, the Panel’s decision is that the Union’s
application is accepted by the CAC.
Panel
Professor
Gillian Morris, Chairman
Mr Mike Cann
Mr Derek Hodgson
20 November 2006