Case Number: TUR1/535(2006)

                                                                                                                24 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:

 

Transport and General Workers’ Union

(TGWU)

and

Harrods

 

Introduction

 

1.         The Transport and General Workers’ Union (the Union) submitted an application dated 3 October 2006 to the CAC that it should be recognised for collective bargaining purposes by Harrods (the Employer) for a bargaining unit comprising “Store Service – all Cleaners and Cleaning Supervisors employed in Store Service including the night shift cleaners”.  The location of the bargaining unit was stated as “Harrods – Knightsbridge Store”.  The application was received by the CAC on 10 October 2006.  The Employer submitted a response dated 18 March 2006 which was received and copied to the Union by the CAC on 19 October 2006.

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 John Purcell, Chairman of the Panel, and, as Members, Mr Arthur Lodge and Ms Lesley Mercer.  The Case Manager appointed to support the Panel was Miss Sharmin Khan.

 

 

Issues

 

 

3.         The Panel is required by paragraph 15 of Schedule A1 to 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; is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

 

 

Summary of the Union’s Views

 

4.            The Union provided with its application a copy of previous correspondence between the Parties in which the Employer had expressed its concerns about effective management and fragmented bargaining in respect of the proposed bargaining unit.  The Union also attached a copy of its subsequent letter to the Employer in which it made its formal request for recognition dated 8 September 2006.  

 

5.         In its application the Union stated that the Employer employed 3000 workers of whom 133 were in the proposed bargaining unit.  The Union also stated that 70 workers within the proposed bargaining unit were Union members.  The workers in the proposed bargaining unit were selected as they shared the same occupation, a similar range of terms and conditions of employment and were located in the same place.  The Union stated that the majority of the workers in the proposed bargaining unit had joined the Union to gain collective bargaining rights through recognition of the Union and therefore a majority of the workers in its proposed bargaining unit would be likely to support recognition for collective bargaining.  Finally the Union confirmed that the proposed bargaining unit had not been agreed with the Employer and its application together with its supporting documentation was copied to the Employer on 3 October 2006.

 

 

Summary of the Employer’s Views

 

6.            In its response to the Union’s application, the Employer stated that it had received the Union’s written request for recognition on 18 September 2006 and a copy of the Union’s application on 10 October 2006.  Like the Union, the Employer submitted a copy of the relevant correspondence that had gone between the Parties before the Union had submitted its application to the CAC

 

7.            The Employer clarified that it employed 3,300 workers. In addition there were approximately 1000 agency and concession staff.  It did not agree with the Union that there were 133 workers in the proposed bargaining unit and stated that the head count for Cleaners and Supervisors in the Store Services area was 165 of which 15 were due to transfer to the Food Halls cost centre.  The remaining 150 workers included 139 Cleaners, 10 Supervisors and 1 Assistant Manager.  These workers were responsible for the cleaning of non-catering/food halls areas of the main store as well as its “102” store across the road.

 

8.            The Employer stated that without knowledge of current union membership in the proposed bargaining it did neither agree or disagree with the Union’s claimed level of membership.  The Union had actively been recruiting for 12 to 24 months and the union’s own figures showed that it did not have a majority membership level.  The Employer did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition.  The Employer further stated that it appeared from its pay roll information that the Union had included in its figures members who worked in other cleaning areas.

 

9.            The Employer disagreed with the Union’s proposed bargaining unit on the grounds that it was not, in its view, compatible with effective management or in the interests of good industrial relations.   The Employer provided brief comments in support of its position much of which surrounded the issue of fragmentation with workers with similar roles being required to move between different areas of the business..  These points would be elaborated at the bargaining unit stage if need be.

 

 

Membership and Support Check

 

10.           To assist in the determination of the admissibility criteria specified by Paragraph 36 (1) of the Schedule, the Panel requested that an independent check of union membership in the proposed bargaining unit should be conducted by the Case Manager.  

 

11.           The arrangements for the membership check were confirmed in a letter to both Parties on 24 October 2006 in which it was agreed that to preserve confidentiality the information provided by the Parties would not be copied to the other Party.  Both the Union’s list of its members in the proposed bargaining unit and the Employer’s list of workers in the proposed bargaining unit were provided on 27 October 2006.

 

12.           The Employer provided a list of 138 names of workers that were included in the proposed bargaining unit.  The Employer had also included on its list the names of individuals with the job title “Shift Manager” and “Assistant Manager” which were posts that did not fall within the Union’s description of the proposed bargaining unit.  For this reason the individuals with these job titles were not included in the Case Manager’s check.  The Union provided a list of 71 names of Union members.  The Case Manager carried out the membership check and the results of the comparison of the lists were produced as a numerical report.  The membership check established that 59 workers in the proposed bargaining unit of 138 were Union members, resulting in a membership level of 42.75%.   


13.           On 2 November 2006 the Membership Check Report was circulated to the Parties, and their comments in respect of paragraph 36 of the Schedule were invited, a summary of which follows.

 

 

Summary of the Union’s comments

 

14.           In its initial response to the CAC on 2 November 2006, the Union requested the names of the members that did not appear on the Employer’s list.  As there was no breach in confidentiality, the Case Manager provided (in a letter of the same date) to the Union the names of 12 of its members that did not appear on the Employer’s list of workers.  Both the Union’s letter and the CAC’s response were copied to the Employer. 

 

15.           In a letter dated 7 November 2006, the Union provided the CAC with a full response.  The Union accepted that two of the members that had not appeared on the Employer’s list had transferred out of Store Service and that one member had been dismissed.  However, it felt that 5 of the members should have appeared on the Employer’s list but due to different use of their family name and typographical errors on the Union’s list were not counted.  The Union failed to see an explanation as to why 4 of these members did not appear on the Employer’s list as they appeared on roster lists.  The Union offered to identify the names of the nine workers and copy of the roster list to the CAC on a confidential basis.  In its view, these nine members increased its level of membership within the proposed bargaining unit of 138 to 49.27%.   The Union believed it had met the criterion required by the 10% test of paragraph 36(1)(a) of the Schedule. 

 

17.           The Union also stated that the results of its campaigning, conducted in difficult conditions, demonstrated that a majority of the bargaining unit would be likely to favour recognition of the Union and it therefore met the test set out in paragraph 36(1)(b).  Its membership level of almost 50% was a result of recruitment activity that took place outside of working hours, without the agreement of management and in an environment where union membership was disapproved of by management.

 

18.           Finally, the Union informed that it had recruited another member since the date of the CAC’s membership and its level of membership now exceeded 50%.  The Union was confident that with proper access its membership would continue to grow and it would be able to win a ballot.

 

 

Summary of the Employer’s comments

 

19.        In its letter dated 6 November 2006, the Employer submitted that it was inappropriate for the membership check to be carried out against a snapshot of the bargaining unit whereby 8 vacant posts had been excluded.  Some or all these posts were likely to be filled by the time any ballot of the bargaining unit proposed by the Union would be held.  The Employer also commented that its view remain that the Assistant Manager and Shift Managers should be included in the proposed bargaining unit and included in the count.

 

20.        The Employer did not accept the Union’s point that names had been missed in the CAC’s check due to the way names were listed. The CAC had been provided with other employee details such as the date of birth, job title and address..          The Employer was also certain that its data on the employees in the proposed bargaining unit were correct and suggested that the union was incorrect as to the location (the cleaning department or area) in which individuals were working.   It believed that four workers the Union referred to were part of the broader cleaning workforce and not in Store Services.

 

21.        In its view there was no evidence that the Union’s membership was more than the 42.75% as established in the CAC’s membership check, neither was there evidence that suggested that a majority would be likely to favour recognition of the union.

 

22.        The Employer disputed the Union’s point that there was a climate of fear about union membership and felt it was an inaccurate assertion.  The Employer also expressed its concern that the union, in distributing misleading material as part of its campaign during the preliminary procedure, was not complying with its obligations under paragraph 27A of the Schedule.

 

24.        The Employer also requested that the CAC checked and confirmed whether the members on the Union’s list were fully paid up current members i.e. they were up to date members and not in arrears on their membership fees. 

 

 

Considerations

 

25.           The Employer asserted in its response to the CAC that the Union’s proposed bargaining unit was inappropriate.  However, as it is the duty of the Panel to apply the statutory tests to the bargaining unit proposed by the Union at the acceptance stage, the Panel has not considered this aspect of the Employer’s submissions for the purposes of this decision.  Similarly the matter of whether the Union is complying with its obligation under paragraph 27A of the Schedule is not one that applies at this stage of the statutory process and the Panel has not therefore included this in its considerations.

 

26.        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 considered all the evidence submitted by the Parties in reaching its decision.  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 as the Union provided a copy of the request made to the Employer on 8 September 2006 to recognise it for collective bargaining in respect of the proposed bargaining unit described in paragraph 1 of this decision.  The request was made in writing and identified the Union, the proposed bargaining unit and stated that the request was made under the Schedule.  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 is in accordance with paragraph 11(2) of the Schedule. 

 

27.        The remaining issue for the Panel to address then is whether the admissibility criteria of paragraph 36(1) of the Schedule are met.

 

28.        In accordance with paragraph 36(1)(a) 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.  In consideration of the evidence submitted by the Parties and the results of the membership check, which showed that 42.75% of the proposed bargaining unit are members of the Union, the Panel is satisfied that the 10% test is met.

 

29.        According to paragraph 36(1)(b) of the Schedule, the Panel must assess whether a majority of the workers in the Union’s proposed bargaining unit would be likely to favour recognition of the Union.

 

30.           There remains some ambiguity around the issue of the 9 individuals who the Union claim should have appeared on the Employers list.  To carry out checks to verify the claim raised issues of confidentiality.  However this does not affect the Panel’s consideration of the initial check made.  

 

31.           The Employer requested further assurance that the members included on the list provided by the Union for the membership check were legitimate current members.  However, the Panel notes that the Case Manager’s Report of the membership check dated 2 November 2006 stated the payment method used by individuals, some of which were shown to pay their membership fee through the Employer’s own pay roll system.  Dates of joining were also reported on.  The Panel did not feel there was any evidence to doubt the information supplied by either Party to the Case Manager for the check and is satisfied that the results of that check was sufficient evidence on which to base its decision on. 

 

32.           It also appropriate to clarify that it is for the Panel to consider evidence that exists at the time the Panel is required to make its decision.  In respect of obtaining information on the level of membership in the proposed bargaining unit in this case, this was the date of the Case Manager’s Membership check on 2 November 2006.  The Panel does not take into account speculative evidence or in other words events that may have or have occurred after that time.  Therefore the Employer’s submission that there were vacant posts that were to be filled and the Union’s point that it had obtained an additional member was not considered by the Panel for the purposes of this decision. 

 

33.        The Panel accepts the Union’s point that it has achieved a membership level close to a majority in circumstances that were not ideal for the Union.  However, the Panel is mindful that the Union is not required at this stage of the application process to achieve majority membership within the proposed bargaining unit.  The Panel at this stage of the process is obliged under the Schedule to perform its duty to assess support and not membership of the Union by deciding whether the majority are ‘likely’ to support the application as specified by paragraph 36(1)(b).  To this end the Panel is satisfied that this admissibility criterion has been met for the following reasons.

 

34.        The Panel considers that membership of a union, can be accepted as being indicative of that person’s support for collective bargaining on his or her behalf by the union in relation to the employer and, in the absence of evidence to the contrary, it is more likely than not that a worker who has joined a union would be in favour of that union negotiating with the Employer on matters related to terms and conditions of employment.  Indeed the Union has asserted that collective bargaining was a central issue in its recruitment campaign and there is no evidence to suggest this is not the case.  In this case no evidence was offered to the Panel on the views of non-union employees, for example a petition.  It is the panel’s experience that it can safely be assumed that some of the employees in the bargaining unit who are not members of the bargaining unit would be likely to support recognition.  To assume otherwise, that all non union employees would not support recognition would be perverse. The Panel therefore concludes that the overall likely support for recognition would be in excess of 42.75% membership level. This excludes consideration of the nine union members who did not appear for whatever reason on the employer’s list.  It is satisfied that there is sufficient evidence to show that the majority of 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 proposed bargaining unit.  The Panel finds that the test under paragraph 36(1)(b) is met.

 

 

Decision

 

35.        The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance to with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of schedule A1.  The application is therefore accepted by the CAC.        

 

 

Panel 

 

 

Professor John Purcell – Panel Chairman

Mr Arthur Lodge

Ms Lesley Mercer

 

24  November 2006