Case Number: TUR1/542/[2006]

13 March 2007

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECLARATION OF RECOGNITION WITHOUT A BALLOT

 

 

The Parties:

 

Amicus

 

 

and

 

 

Ritrama (UK) Ltd

 

 

Introduction

 

1.         Amicus (the Union) submitted an application to the CAC dated 8 November 2006 that it should be recognised for collective bargaining by Ritrama (UK) Ltd (the Employer) in respect of a bargaining unit comprising “All Production Workers excluding Management at Supervisory level and above and Office/Administration Staff” at the Employer’s premises in Lynwell Road, Lyntown Trading Estate, Eccles, Manchester.  The CAC gave both parties notice of receipt of the application on 16 November 2006.  The Employer submitted a response to the CAC on 20 November 2006 that 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 John Goodman CBE, Chairman, and, as Members, Mr David Bower and Mr Michael Leahy OBE.  As Mr David Bower was not available at the time of this decision the Chairman of the CAC appointed Mr John Rugman to sit on the Panel in his stead.  The Case Manager appointed to support the Panel was Nigel Cookson.

 

3.         By a decision dated 11 December 2006, the Panel accepted the Union’s application and, as no agreement had been reached on the bargaining unit, subsequently invited the parties to supply the Panel with, and exchange, written submissions relating to the question of determining an appropriate bargaining unit.  A hearing was held in Manchester on 19 January 2007 with Mr John Rugman sitting on the Panel in the absence of Mr David Bower.  During the course of the hearing the parties were able to reach agreement as to the appropriate bargaining unit and it was not necessary for the Panel to make a determination.  The bargaining unit as agreed by the parties was as follows:

 

“All Production Workers including Supervisors but excluding Management above Supervisory level and Office/Administration Staff”

 

4.         As the agreed bargaining unit was different from that which was proposed by the Union in its application the Panel was required by paragraph 30 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application was valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.   The parties were duly invited to supply the Panel with written submissions relating to the matters set out in the aforesaid paragraphs.  The Panel, having considered all the evidence submitted by the parties, was satisfied that the validity tests had been met.  By a decision dated 21 February 2007 the Panel determined that the application was valid and duly gave notice to the parties in accordance with paragraph 20(5) of the Schedule that it would proceed with the application.

 

Issues

 

5.         Paragraph 22(2) of the Schedule requires the CAC to issue a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of a group of workers constituting the bargaining unit if it is satisfied that a majority of the workers constituting the bargaining unit are members of the applicant union, unless any of the three qualifying conditions set out in Paragraph 22(4) are fulfilled.  If any of these conditions are met, or the CAC is not satisfied that a majority of workers in the bargaining unit are members of the applicant union, the CAC must give notice to the parties that it intends to arrange for a secret ballot to be held.  The qualifying conditions in paragraph 22(4) are as follows:

 

a) the CAC is satisfied there should be a ballot in the interests of good industrial relations;

 

b) 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 (or unions) to conduct collective bargaining on their behalf;

 

c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of union members within the bargaining unit want the union to conduct collective bargaining on their behalf.

 

6.         In a letter dated 21 February 2007 from the Case Manager the Union was asked if it wished to claim majority membership within the bargaining unit, and if so, whether the Union wished to submit to the Panel that it should be recognised without a ballot in accordance with paragraph 22(2) of the Schedule.

 

Union’s submissions

 

7.           In an email to the Case Manager dated 27 February 2007 the Union observed that the Case Manager’s membership check conducted on 7 February 2007 had determined that the level of union membership in the bargaining unit was 60.66%.  Further, the level of support for union recognition expressed via the petition was 73.77% which included workers who were not members of the Union but who supported their colleagues.  The level of union members that had signed the petition had been found to be 57.38%.  These figures were far in excess of the 50% plus one required to show majority support.  It was to be noted that many of the members had been in membership since before the 2002 claim despite the Union not being able to undertake collective bargaining on their behalf.    

 

8.         The Employer had been aware for some time that the Union was seeking recognition. In 2002 the Union, as the GPMU, had applied for statutory recognition.  On that occasion the application went through to the ballot stage with the Union losing the ballot by just one vote.

 

9.         During the ballot in the previous case members had alleged that a director of the company was stationed at the approach to the ballot room and that there was another director with the QIP in the room where the ballot was being conducted.  Many of the workers felt intimidated by the Employer’s behaviour.  In addition, prior to the ballot, a letter from the Italian owners of the company was circulated to the workers stating that if they voted in favour of the Union then an investment of £4 million that had been earmarked for the Manchester site, would be withdrawn.

 

10.       The Union believed that the holding of a ballot would not further the relationship at this stage, but that good industrial relations would come about as a result of the Union’s officers negotiating with the Employer in the longer term.

 

11.       The Union believed that it was highly unlikely that any of its members would inform the CAC that they did not want the Union to conduct collective bargaining on their behalf.  The right to be represented by the Union, for the purpose of collective bargaining, was the reason that they had joined the Union.

 

12.       In conclusion the Union stated that it believed that its members and other colleagues working within the bargaining unit had expressed their wishes, by joining the Union and signing the petition.  Those who had signed the petition had understood that it was an aid to advance the Union’s claim to represent them in collective bargaining.  They had also joined the Union in significant numbers which were far and above the 50% plus one requirement of a ballot.  Therefore the Union would urge the Panel to declare it recognised without the need for a ballot and the detrimental effect that such a ballot would have on industrial relations within the company. 

 

Employer’s submissions

 

13.       On 27 February 2007 the Case Manager copied the Union’s submissions to the Employer and invited its comments on the Union’s claim to majority membership and the qualifying conditions as set out in paragraph 5 above.  The Employer responded by email on 2 March 2007 which was copied to the Union.   

 

14        The Employer contended that the figures quoted by the Union in its submission only served to reinforce its case that those that the Union claimed had been members since before the 2002 claim, were the same members that had voted against recognition in the CAC ballot.   

 

15.       As for the petition, the Employer reminded the Panel that it had already set out in earlier correspondence how it believed that a petition of this nature could carry no persuasive weight.  If the Union’s claim was correct then it was in the interests of both parties that a ballot be held to confirm to the Employer the wishes of the workers and it would certainly be in the best interest of good industrial relations and for a positive working relationship in the future.

 

16.       The ballot in 2002 was carried out according to CAC procedures and by the QIP appointed by the CAC.  The Union’s claim that many of the workers felt intimidated was unqualified hearsay.  The Employer observed that no grievances were lodged with the company and workers continued to work and prosper within the company.  Furthermore, the reason that the directors took a keen interest in the ballot was to ensure that it was a smooth effortless process but also to verify that each person who was eligible to vote was allowed to vote.

 

17.       The Employer was worried that union recognition in the UK would severely hinder Group investment into the UK operation when this had clearly happened in Monza, Italy, where the owners of Ritrama had had very bad experiences when dealing with the Italian union.  This had led to the closure of one plant.  It explained that the Ritrama Group was privately owned by one family and there are other companies within the Ritrama Group, e.g. in Spain and the USA, which were non-unionised and which also sought Group investment.

 

18.       The Employer disagreed with the Union’s claim that a ballot would not further good industrial relations in the short term.  If the workers wanted the Union recognised for the purpose of collective bargaining, the only way to properly verify this was through a properly conducted secret ballot.  Without this verification, the Employer believed that good industrial relations would be very difficult from the outset.

 

19.       The Employer also disagreed with the Union as to why workers had become members arguing that workers had joined the Union for the benefits it offered and the fact that they could be represented by the Union in cases such as disciplinary proceedings.  This in no way implied that they wished to be represented for the purpose of collective bargaining.  This, the Employer argued, was proven by the result of the 2002 ballot.  The fact that many of the workers had remained in membership even though the Union had not been able to undertake collective bargaining on their behalf demonstrated this point. Whilst workers wished to be members of the Union, they did not wish to be represented by the Union for the purposes of collective bargaining.

 

20.       The Employer contended that, if it was not given a chance to find out what its workers really desired, through an independent ballot, then it would never be certain of the truth.  The Union’s arguments were, the Employer submitted, essentially the same arguments put forward by the GPMU in 2002.  At that time, the CAC was persuaded to hold a ballot with the result showing that the workers did not support the Union's claims.  It was the Employer’s submission that nothing had essentially changed since that time and not having a ballot would make assumptions that flew in the face of the facts of the 2002 application.

 

21.       It was for these reasons that the Employer submitted that a ballot should be held in the interest of good industrial relations.

 

Considerations

 

22.       The Act requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are union members.  If the Panel is satisfied that the majority of the bargaining unit are union members, 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.

 

23.       The membership check conducted by the Case Manager on 7 February 2007 established a membership level of 60.66% which, being over 50% of the bargaining unit, meets the requirement as set out in the Schedule.  The Panel considers the date of that check is sufficiently recent for the purposes of this decision and neither party has informed the CAC of any significant changes in the composition in the bargaining unit since the check was conducted.  The Panel also notes that, whilst the Employer has questioned the reason why workers joined the Union, claiming that it was to take advantage of the benefits on offer and for individual representation rather than for collective bargaining, nonetheless it did not dispute the Union’s claim to majority membership.  The Panel observes that at this juncture it simply has to decide whether or not it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union.  For this assessment it does not have to go deeper and establish the individual’s motives as to why they became members of the Union although evidence as to the circumstances in which workers became members is a consideration under the qualifying condition under paragraph 22(4)(c) below.   Accordingly, on the basis of the evidence presented in the form of the Case Manager’s report of 7 February 2007 and the subsequent submissions received, the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union.

 

24.       Having established that the Panel is satisfied that a majority of the workers in the bargaining unit are members of the Union the Panel must now consider whether any of the three qualifying conditions under paragraph 22(4) is fulfilled. 

 

25.       Paragraph 22(4)(c) requires the Panel to order a secret ballot where 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.   Membership evidence being evidence about the circumstances in which union members became members and evidence about the length of time for which union members have been members.  No such membership evidence has been produced save for the Employer questioning the motives of individuals that have joined the Union.  As set out in paragraph 19 the Employer argued that workers had joined the Union for the benefits it offered and the fact that they could be represented by the Union in cases such as disciplinary hearings.  Membership of the Union, according to the Employer, did not imply that the individual wished to be represented for the purpose of collective bargaining.  However, the Employer did not support its statement with any evidence that persuades the Panel that this is the case.  In opposing this view the Union maintained that its members that had signed the petition had done so in the knowledge that this was in support of the Union’s claim to represent them for collective bargaining.  The Panel notes that 35 out of the 37 Union members in the bargaining unit had signed the petition over a two day period.  Consequently, as no membership evidence has been put forward that would lead the Panel to conclude that there are doubts that a significant number of the union members want the Union to conduct collective bargaining on their behalf, the Panel is therefore satisfied that this condition is not met.

 

26.       Paragraph 22(4)(b) requires the CAC to order a ballot when it has received evidence, which it considers to be credible, that a significant number of union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf.  No such evidence has been received.  The Panel is therefore satisfied that this condition is not met.

 

27.       The Employer has made a number of points that it claimed supported the conclusion that a ballot should be held in the interests of good industrial relations.  On the other hand the Union argued that a ballot would have detrimental effects on industrial relations in the company.  It argued that events surrounding the previous ballot reinforced its submission that recognition should be awarded without a ballot and the partisan campaigns which would inevitably be associated with it. 

 

28.       The Employer argued that those currently in membership were the same members that voted against recognition of the Union in 2002 and inferred that, given the opportunity, would vote in the same manner.  However, no evidence has been put forward to the Panel to show that the members were exactly the same nor how they voted in the previous ballot.  The Employer also argued that the petition, signed by 73% of those in the bargaining unit, should carry no persuasive weight at all.  The Employer suggested that this outcome was the result of peer pressure, and contended that if the Managing Director was to take round a petition against trade union recognition an exactly opposite result would be obtained, for the same reason.  However, the Employer did not put more specific arguments or facts to counter or undermine the petition when it had the opportunity to do so. 

 

29.       Both parties referred at length to the 2002 ballot process and outcome.  The Union argued that the last ballot result was affected, to their detriment, by intimidation.  In other words, the Union was asking the Panel to set aside the outcome of the previous ballot in so far as this case was concerned as the process was flawed.  The Employer, in turn, said that there were no grievances lodged during the previous ballot and that the process was fair.  In the normal course of events, there would be no reason why the Panel should be much influenced by a previous ballot result anyway and there would be no reason to require the Union to explain why it lost last time.  It must be said however, that, on the evidence before  it, the Panel was not in a position to decide either way and, in any event, having regard to all the circumstances, believed it was not necessary to do so.

30.       The Union also argued that the last ballot outcome was influenced to their detriment by a letter from the Employer to the workers indicating that if they voted in favour of Union recognition, then planned investment at the site would not go ahead.  The fact of the letter is confirmed by the Employer.  Both sides seemed to agree that it had affected the vote in 2002.  The Employer argued that this issue remained very relevant to the present application as it perceived a threat to the business if recognition was granted, presumably whether with or without a ballot.    

 

31.       Finally, the Employer asserted that industrial relations would be difficult from the outset if recognition was granted without a ballot.  This, the Panel noted, was not expanded upon nor developed in any detail and therefore it was difficult to put much weight on the claim.

 

32.       To summarise the Employer’s position, it believed that a ballot was needed to obtain clarity and that it would never be certain of the truth unless given a chance to find out what the workers really desired through an independent ballot.  It said that the arguments run by the Union were the same as in 2002 and that the facts were essentially the same and the Union failed in those circumstances last time.

 

33.       The key point that the Employer appeared to be making was that, based on the behaviour of the workers in the last ballot in 2002, and, given what the Employer regarded as the near identical circumstances this time, if there was a ballot, workers would vote against recognition.  At least having the opportunity to do so again was in their own interests.  However, it is the view of the Panel that the Employer’s arguments were essentially about the effect that recognition of a union might have on the parent company’s attitude towards it in the future and thus on what it perceived to be the workers’ best interests.  It did not give arguments that the Panel found convincing that industrial relations would be adversely affected by not having a ballot.  Accordingly, having carefully considered the parties’ submissions the Panel is satisfied that the qualifying condition under paragraph 22(4)(a) has not been met.  

 

Declaration

 

34.       The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union.  Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met.  The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit as particularised in paragraph 3.

 

 

 

Panel

 

Professor John Goodman CBE, Chairman

Mr Michael Leahy OBE

Mr John Rugman

 

 

13 March 2007