Number: TUR1/528/2006

 14 December 2006

 

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

 

AGREEMENT OF THE BARGAINING UNIT

 

 

 

The Parties:

 

Public and Commercial Services Union (PCS)

 

and

 

National Gallery Company Limited

           

 

 

 

Introduction

 

1.         The PCS (the Union) submitted an application to the CAC dated 16 August 2006 that it should be recognised for collective bargaining by the National Gallery Company Limited (the Employer).  The Union’s proposed bargaining unit was described as “all staff employed as Retail Supervisors, Managers, Senior Sales Assistants and Retail Assistants in the National Gallery Company shops situated within the National Gallery”.  The CAC gave both Parties notice of receipt of the application on 18 August 2006.  On 25 August 2006 the Employer submitted a response to the CAC, which was then 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 (Deputy Chairman) and as Members, Mr Bob Hill and Mr Paul Gates.  The Case Manager appointed to support the Panel was Kate Norgate.

3.         By a decision dated 15 September 2006, the Panel accepted the Union’s application.  The Parties then entered a period of negotiation with the assistance of Acas in an attempt to reach agreement on the appropriate bargaining unit.  The Union and the Employer cofirmed in writing to the CAC on the 20 and 23 November 2006 respectively, that they had reached an agreement that the appropriate bargaining unit was as follows:    

 

“all staff employed as Retail Supervisors, Retail Part-Time and Full-Time Assistants and a Senior Retail Assistant in the National Gallery Company Shops situated within the National Gallery.”

 

Issues

 

4.         As the agreed bargaining unit differed from that proposed by the Union in its application, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.  In a letter dated 23 November 2006 the Case Manager invited both Parties to make submissions on the matter for consideration by the Panel.

 

5.         In a letter dated 23 November 2006 the Union made the following submissions:

 

a)         There was no recognition agreement covering any of the workers within the bargaining unit. 

b)         The level of union membership within the agreed bargaining unit was over 50% and it therefore sought recognition without a ballot.

c)         It had already provided a petition to the CAC that showed a clear majority of the workers had joined the Union for the purposes of collective bargaining.  All of its members had joined the Union by signing recruitment forms that included the wording “I agree to join PCS for the purposes of collective bargaining”.  A copy of the recruitment form was attached to its response. 

d)         If the CAC considered that there was insufficient evidence to show that a majority of the workforce would favour recognition, if the CAC granted an extension it would be able to collect more signatures on a petition and would avoid the need for a ballot.

e)         There was no competing application from another union.

f)          There had been no previous application in respect of the new bargaining unit.

 

6.          In its letter of 23 November 2006 and its later letter dated 27 November 2006, the Employer made the following points.

 

(a) It was not in a position to confirm or deny that the agreed bargaining unit met the requisite criteria and requested that a membership check was undertaken as there had been a high turnover of staff within the bargaining unit over the last few months.  

 

(b) It doubted whether a significant number of union members within the bargaining unit would want the Union to conduct collective bargaining on their behalf.  It thought that a number of individuals had joined the Union in response to the Company’s proposals to introduce some changes to flexible contracts, some of whom may have now left the Company. 

 

(c) It was unsure of the level of Union membership amongst newly recruited employees who were not affected by the consultation on the new changes to contracts. 

 

(d) The Union should provide to the CAC evidence of the circumstances in which union members were recruited and the length of time these individuals had been members.

 

 

7.          In its further letter dated 1 December 2006, the Employer expressed concern that the Union was seeking to rely on the petition that was previously signed in support of the Union’s original application to the CAC.  It believed that the original petition was not reflective of current support within the bargaining unit which had now changed.  It also noted that the Union’s membership form included the statement that the individual joined the PCS for the purposes of collective bargaining but was concerned as to whether the impact of collective bargaining had been adequately explained to employees.  Individuals did not appear to have the opportunity to indicate separately whether they would like the Union to be recognised for collective bargaining.

 

Case Manager’s membership and support check

 

8.         Following the submissions received from the parties and to assist the determination of the two admissibility tests under paragraph 45(a) and 45(b) of Schedule A1, namely whether 10% of the workers in the agreed bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed that the Case Manager carry out checks on the level of union membership within the bargaining unit and the number of workers who had signed a petition supporting recognition of the Union. 

 

9.         In letters to both Parties dated 29 November 2006, the Case Manager requested that the Employer provided a list of the workers within the agreed bargaining unit giving their full name, address, and job titles, and that the Union provided a list of its members stating their full name, date of birth, date of joining, paid up to date and confirmation of membership status within the agreed bargaining unit, and a copy of the petition.  The Employer provided a list of 53 workers within the agreed bargaining unit and the Union provided a list of 27 union members within its agreed bargaining unit, and a copy of its petition.  Both parties provided the information on a confidential basis.  

 

10.       The result of the membership check showed that there were 53 workers in the bargaining unit of whom 22 were members of the Union, giving a membership level of 41.50%.  The petition consisted of 35 signatures and the check showed that it had been signed by 35 workers in the bargaining unit (66.03%).   A report of these results was circulated to the parties on 5 December 2006 and their comments invited.

Views of the Union

 

11.       In its response the Union disputed the number of workers on the list provided by the Employer.  It stated that during its meeting with Acas to discuss the bargaining unit, the total figure of workers employed by the National Gallery Company was noted to be 42 and not 53.  It asked that the CAC, without providing the names individuals, supplied to the Union the Job title, Grade and Start date for those workers.    

 

Views of the Employer

 

12.       In a letter dated 7 December 2006 the Employer stated that it notes the results of the membership check and it did not have any further comments regarding the validity tests.

 

Considerations

 

13.       The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force covering any of the workers in the determined bargaining unit, that there is no competing application and that there has been no previous application to the CAC in respect of the determined bargaining unit.  The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and that a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.  

 

14.       With regard to the first test and whether union members constitute at least 10% of the workers in the bargaining unit the case manager’s membership and support check established a union membership level of 41.50%. The Panel notes the points made by the Union in which it disputed the figures provided by the Employer for the purpose of the membership and support check. However, the Panel did not investigate this further as the level of union membership established at the membership and support check clearly showed that the Union had met the validity criteria.  The Panel is therefore satisfied that the 10% test set out in paragraph 45(a) is met. 

 

15.       The second issue for the Panel to consider is whether, as required by paragraph 45(b)a majority of 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.  The Union’s petition was signed by 66% of the workers in the bargaining unit.  The Panel is satisfied that in the absence of any evidence to the contrary, the level of support indicated by the Union’s petition, and the level of union membership provides sufficient evidence that the majority of workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. It should be noted that the Employer’s concern about the high level of staff turnover since the petition signatures were collected is catered for in the structure of the support check, which leaves out of account any signatories of the petition who are not on the Employer’s current list workers in the bargaining unit.

 

Decision

 

16.       The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application. 

Panel

 

Professor Paul Davies

Mr Bob Hill

Mr Paul Gates

 

14 December 2006