Case Number: TUR1/554/[2007]

19 March 2007

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:

GMB

and

Bisley office Equipment

Introduction

1. GMB (the Union) submitted an application to the CAC dated 19 February 2007 that it should be recognised for collective bargaining by Bisley office Equipment (the Employer) in respect of a bargaining unit comprising “all those workers directly employed by Bisley at the Newport site who are hourly-paid and who fall within the manufacturing and warehousing areas”. The CAC gave both parties notice of receipt of the application on 26 February 2007. The Employer submitted a response to the CAC on 28 February 2007 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 Purcell, Chairman, and, as Members, Mr John Rugman and Mr Bob Purkiss. The Case Manager appointed to support the Panel was Nigel Cookson.

3. The Panel extended the statutory deadline for it to decide if the Union’s application was to be accepted to 19 March 2007 in order to allow for a check of Union membership and support for recognition in the proposed bargaining unit to be conducted and for the parties to comment on the results of the check before the Panel arrived at a decision.

Issues which the Panel has 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 8; 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 confirmed that it had made a previous application to the CAC in respect of the same or a similar bargaining unit but that its claim for recognition had been rejected by way of a ballot held on 4 December 2003. The Union confirmed that it had made a formal request for recognition to the Employer on 16 November 2006 and that the Employer was not prepared to concede voluntary recognition. The Employer had indicated a wish to ballot the workforce to determine whether the workers wanted to be represented collectively by the Union however, to the Union’s knowledge, no ballot had been held. The Union attached a copy of its formal request to the application.

6. The Union gave the total number of workers employed by the Employer as 500 with 450 of these in the proposed bargaining unit. It confirmed that the Employer agreed both the composition of the proposed bargaining unit as well as the number of workers in the bargaining unit. The Union stated that 121 workers in the bargaining unit were members of the Union and that it was willing to provide evidence to the CAC, on a confidential basis, that a majority of the workers in the bargaining unit were likely to support recognition for collective bargaining.

7. The Union explained that it had proposed a traditional bargaining unit of workers that carried out similar functions and who had similar terms and conditions of employment. The Union believed that this made industrial commonsense and was fully compatible with effective management. Finally, the Union stated that there was no existing agreement that covered any of the workers in the proposed bargaining unit.

The Employer’s response to the Union’s application

8. In its response to the Union’s application dated 27 February 2007 the Employer confirmed that it had received the Union’s request for recognition on 16 November 2006 and that it had responded by letter dated 27 November, a copy of which was enclosed. In its response to the request the Employer had informed the Union that since the recognition ballot on 4 December 2003, when the Union’s previous application had been defeated by 279 votes to 141, the Employer had no evidence to suggest that opinion amongst the hourly-paid workers had changed. The Employer went on to say that it was not prepared to agree to voluntary recognition and would first wish to ballot the workers within the bargaining unit. Once the Employer had the results of such a ballot it would then consider its position.

9. The Employer confirmed that it agreed the Union’s proposed bargaining unit and explained that it employed approximately 900 workers in total with 500 employed at Newport, South Wales and the remainder in Bisley, Surrey and that, as at 27 February 2007, there were 448 workers in the agreed bargaining unit.

10. The Employer commented that it had no detailed knowledge as to the level of Union membership in the agreed bargaining unit. As to whether a majority of the workers in the bargaining unit would be likely to support recognition of the Union the Employer said that since the previous application was made in August 2003, when Union membership stood at 214 members, the figure for supporting the current application of 121 members suggested support for the Union had declined by 43%. The Employer stated that there was no existing agreement for recognition in force that covered workers in the proposed bargaining unit

11. The Employer did not contend that the Union’s application failed to meet any of the other admissibility or validity criteria in the Schedule.

Membership and support check

12. To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit are likely to support 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 and support for recognition 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 within the bargaining unit, and that the Union would supply to the Case Manager a list of Union members within that unit and a copy of its petition in support of recognition to enable comparisons to be undertaken. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party. These arrangements were confirmed in a letter dated 5 March 2007 from the Case Manager to both parties. The information from the Employer was received by the CAC on 6 March 2007 and the information from the Union on 8 March 2007. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

13. The information from the Employer contained the names of 448 workers with the following job titles: Administrator, Operator, Section leader, Chargehand, Technician, Leading Hand, Welder and Apprentice.

14. The Union provided a list of 121 members and a petition containing 214 names/signatures. The petition took the form of a series of A4 sheets with each sheet headed:

“PETITION FOR GMB RECOGNITION FOR COLLECTIVE BARGAINING

PURPOSES AT BISLEY, NEWPORT

We, the undersigned, being employees at Bisley, Newport, want the GMB to be recognised by the Company for the purposes of collective bargaining on matters such as pay, hours and holidays”

Individuals were then invited to print and sign their names under this proposal. There then followed a further space for the individual to give details of their job and to confirm if they were members of the GMB. The pages of the petition were undated.

15. No additional checks were carried out by the Case Manager to verify the information supplied by the Parties.

16. According to the Case Manager’s report, the number of Union members in the bargaining unit was 110, a membership level of 24.55%. The petition supplied by the Union contained 214 names and signatures, of which 189 were in the bargaining unit, a figure that represented 42.19% of the bargaining unit. Of those 189 signatories, 74 were members of the Union (16.52% of the bargaining unit) and 115 were non-members (25.67% of the bargaining unit).

17. The report of the result of the check of the level of Union membership and of support for recognition was circulated to the Panel and the parties on 9 March 2007 and the parties were duly invited to comment on the results of the check.

Union’s comments on the Case Manager’s report

18. In a letter dated 14 March 2007 the Union commented that the finding as to the proportion of Union members in the bargaining unit was not contested and that this satisfied the test under paragraph 36(1)(a). In addition, the report also demonstrated that the number of workers that had signed the petition took the level of support to 42.19%. The Union submitted that, in light of previous CAC decisions and good industrial relations, this was sufficient to satisfy the test under paragraph 36(1)(b).

19. The Union noted that the Employer had made reference to the application made in 2003 in respect of the same bargaining unit and the outcome thereof. However, the Union observed, the appropriate test under consideration at this stage was whether a majority of the workers in the bargaining unit would be likely to favour recognition. The Union did not, at this stage, have to demonstrate that it had majority support, merely that if the application was to proceed to a ballot, the majority would be likely to support recognition.

20. The Union submitted that in any CAC recognition application, workers in the bargaining unit, for various reasons, may be hesitant or reluctant about declaring their support for the trade union at this stage in the procedure. The Union therefore invited the CAC to exercise its industrial judgement and experience in these particular circumstances.

21. The circumstances of the case were not predisposed to encouraging workers to express support in view of the history within the company, but, nonetheless, 42.19% had already done so in signing the petition in support of recognition.

22. The Union submitted that the CAC should exercise its judgement and determine that the level of support was sufficient to satisfy the appropriate test. The test to be applied was not whether the Union already had majority support in the bargaining unit but rather whether it was likely to following any recognition ballot.

23. The Union invited the Panel to take account of the underlying purpose of the recognition legislation which was to provide those workers concerned with the opportunity to decide whether they wished the Union to be recognised for the purpose of conducting collective bargaining.

Employer’s comments on the Case Manager’s report

24. In a letter to the Case Manager dated 12 March 2007 the Employer, having carefully considered the points raised in the report, wanted to draw the Panel’s attention to its previous correspondence with regard to the 43% reduction in Union membership since the ballot of December 2003 and that the Employer had no reason to believe that opinion amongst its hourly-paid workers had changed significantly since that date.

Considerations

25. 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 carefully considered all the evidence and argument submitted by the Employer and the Union in reaching its decision.

26. 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, paragraphs 37 to 39 and paragraphs 41 to 42 of the Schedule.

Paragraph 36

27. The Panel has to decide whether, under paragraph 36(1)(a) of the Schedule, members of the Union constitute at least 10% of the workers in the proposed bargaining unit and also, whether, under paragraph 36(1)(b), a 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 bargaining unit.

28. The Panel is satisfied that the Case Manager’s check of Union membership, which showed that 24.55% of the workers in the bargaining unit were members of the Union, was properly conducted. The Panel concludes that the level of membership in the bargaining unit constitutes at least 10% of the workers in the bargaining unit as required by paragraph 36(1)(a).

29. The test in paragraph 36(1)(b) 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 not only on its density of membership in the bargaining unit, which stands at 24.55%, but also on its petition in support of recognition. The Case Manager’s check indicated that 42.19% of the workers in the bargaining unit had, through signing the petition, indicated support for recognition of the Union and that 25.67% of these signatories were non-members.

30. The Employer, in its letter of 12 March 2007, by way of comment on the findings set out in the Case Manager’s report, did not challenge the validity of the petition but referred the Panel to a point it had made previously in that Union membership had fallen by 43% since the Union had lost the ballot in December 2003 and that it had no reason to believe that the opinion of the workers had changed significantly since then.

31. The Panel has considered the points made by the Employer. Firstly as to the fall in Union membership since the Union was unsuccessful in the 2003 ballot the Panel observes that the Union has managed to sustain membership levels at a quarter of the bargaining unit despite the fact that this was at a time that the Union was prevented from seeking statutory recognition in light of the outcome of the previous ballot and, in the absence of a voluntary agreement, the Union was not in a position to collectively bargaining on their behalf. Further, the Panel accepts the point made by the Union in that the Panel’s decision is based on current circumstances rather than the position during the course of the previous application. In the Panel’s opinion, a worker that has joined a trade union would be more likely than not to be in favour of that union negotiating with the employer on matters related to pay, hours and holidays. On this basis the Panel considers that the level of Union membership provides, in the absence of evidence to the contrary, an indication of the views of the workers on the subject of collective bargaining. The Panel is also conscious that a quarter of the workers in the bargaining unit that are not members of the Union have, through signing the petition, indicated their support for recognition of the Union and that, although the Employer was given the opportunity, it has not put forward any evidence, such as witness statements or a counter petition, that persuades the Panel that it should question the currency of the petition. Aggregating the number of Union members and the number of non-members that have signed the petition in support of the Union would account for more than half of the number of workers in the agreed bargaining unit.

32. The Panel is of the view that, in the absence of any convincing evidence to the contrary, the level of union membership and the evidence presented in the form of the petition provides sufficient indication that the 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. Accordingly, the test set out in paragraph 36(1)(b) is satisfied.

Paragraph 40

33. Paragraph 40 places a restriction on how soon a union can reapply for recognition following the issue of a declaration that a union is not entitled to be recognised after failing to secure the necessary votes during the course of a ballot conducted in accordance with paragraph 24.

34. Both parties drew the Panel’s attention to a previous application brought by the Union in respect of the same Employer which resulted in a declaration that the Union was not entitled to be recognised following the Union’s failure to secure the necessary votes during the course of the CAC conducted ballot. The declaration that the Union was not entitled to be recognised was promulgated on 9 December 2003. This application was dated 19 February 2007 and received by the CAC on 26 February 2007 and therefore was not made within a period of three years starting with the day after that on which the declaration was made. Accordingly, the application is not rendered inadmissible by the provisions of paragraph 40.

Decision

35. For the reasons given above, the Union’s application is accepted by the CAC.

Panel

Professor John Purcell, Chairman

Mr John Rugman

Mr Bob Purkiss

19 March 2007