Case Number: TUR1/557/(2007)

13 April 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:

 

T&GWU

 

and

 

Kettle Foods Ltd

 

 

 

Introduction

 

1.         T&GWU (the Union) submitted an application, dated 5 March 2007, to the CAC that it should be recognised for collective bargaining by Kettle Foods Ltd (the Employer) for a bargaining unit consisting of “Persons employed by Kettle Foods Ltd Barnard Road site, Barnard Road, Bowthorpe, Norwich, excluding leading hands, Team Leaders, QAs, Hygiene and Warehouse”. The CAC gave both parties notice of receipt of the application on 6 March 2007.  The Employer submitted a response to the CAC dated 13 March 2007 which was copied to the Union.  To allow time for the conduct of the membership check and consideration of the Parties responses to it the Panel extended the time for this stage first to 3 April and then to 13 April 2007.

 

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 Ms Mary Stacey, Chairman of the Panel, and, as Members, Mr Bryan Taker and Dr Susan Corby.  The Case Manager appointed to support the Panel was Miss Tola Babatunde.

 

Issues

 

3.         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; is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act, and therefore should be accepted.

 

4.         In its application the Union indicated that the number of workers in its proposed bargaining unit was 173 and that 35 of these workers were its members.

 

5.         In its response to the Union’s application, the Employer disagreed with the proposed bargaining unit given by the Union in its application to the CAC. It stated that there were 174 workers instead of the Union’s number of 173 but that it was unable to confirm the level of union membership as it did not formally track this and did not have the means to validate the numbers put forward by the Union.  It also stated that there had been anecdotal reports that some workers had recently ceased to be members of the Union.  The Employer requested that the CAC conduct a membership check. 

 

6.         The Employer pointed out that the Union’s description of its proposed bargaining unit in its application to the CAC as stated in paragraph 1 above, was different from that given by the Union in its request letter to the Employer dated 15 described as “Persons employed as Production Operatives at the Kettle Foods, Barnard Road site Bowthorpe, Norwich, excluding Leading Hands, Team Leaders, QAs, Hygiene and Warehouse”. The Union responded to this point to explain that the omission of the words “as production operatives” in the description of the bargaining unit on the application form to the CAC was simply a typographical error. The Employer also set out a number of comments relevant to the appropriateness of the Union’s proposed bargaining unit. On the issue of whether the majority of the workers in the bargaining unit were likely to support recognition, the Employer did not believe that the Union had the support of the majority of the workers as evidenced by copies of letters it had received from three employees who wished to remove their names from the Union’s petition.  The Employer offered to supply the CAC with such letters but asked that they should not be disclosed to the Union.  It also expressed concern that employees not covered by the proposed bargaining unit and temporary agency workers had signed the petition.

 

Membership check

 

7.         To assist with the determination of two of the admissibility criteria specified in the Schedule - whether 10% of the workers in the proposed bargaining unit were members of the Union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit were likely to favour recognition of the trade union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)) - the Panel proposed a confidential check be undertaken by the Case Manager. In letters to both parties dated 20 March 2007, the Case Manager confirmed with each their co-operation with the check: that the Employer would provide to her a list of the workers within the proposed bargaining unit and that the Union would provide to her a list of its members within the proposed bargaining unit. The Case Manager’s letter confirmed that neither lists would be copied to the other party or the Panel. The Employer provided a list of 172 workers it stated were within the Union’s proposed bargaining unit and the Union provided a list of 44 union members and a petition containing names and signatures of 125 workers it stated were within its proposed bargaining unit.  The information from both was received on 21 March 2007.

 

8.         Two workers had written directly to the Case Manager asking for their signatures to be discounted from the petition.  These two workers were confirmed as having been both on the Union’s petition and the Employer’s list of names and therefore were part of the Union’s proposed bargaining unit.  There were also two other workers who appeared on the Employer’s list whom the Employer stated had left the bargaining unit since its original figures were submitted in its response to the Union’s application.  These two workers’ names were not found on either the Union’s list of members or its petition.  The Union submitted a sheet of petition with names and signatures of three workers who were not in its proposed bargaining unit and therefore were disregarded during the check.

 

9.         The membership check showed that there were 36 members of the Union within the proposed bargaining unit; a membership level of 20.93%. The petition check showed that there were 95 names common to both lists forming 55.23% support level. A report of the result of the check of the membership level was circulated to the parties on 28 March 2007.

 

Union and Employer responses

 

10.       The Union, in its e-mail to the Case Manager dated 29 March 2007, acknowledged receipt of the membership and support check report and expressed its satisfaction with the result.  The Union believed that the result supported its view that the majority of workers in the bargaining unit would support its recognition. 

 

11.       Following receipt of the membership check report, the Employer asked the Case Manager to clarify whether the 125 names and signatures reported in the result of the membership and support check included the three names the Union had submitted of those workers who were not part of the proposed bargaining unit.  The Employer was concerned that if those three workers had been included then the result of the check was not a true reflection of the composition of the bargaining unit.  The Case Manager confirmed in a letter dated 4 April to the Employer that the three workers in question had been excluded from the check.  The Employer also reiterated its view that there were some employees who had signed the petition without understanding its significance or had felt under pressure to do so.  Therefore, the Employer believed that the employees in support of union recognition were in a minority.

 

12.       In an e-mail dated 5 April replying to the Employer’s allegation that some workers had signed the petition without understanding the significance or that they felt under pressure to do so, the Union stated that the Regional Industrial Organiser along with the organising committee believed that everyone who signed the petition knew precisely what they were signing.  The Union further stated that its activists ensured that the significance of the petition was explained to the people who had signed it.  It argued that the wording of the petition was very clear and left no room for misinterpretation and that the Panel would be aware that this wording had been used by the T&GWU for a number of years.

 

Considerations

 

13.       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.

 

14.       The Employer has confirmed, in its response to the CAC dated 13 March 2007, that it received the Union’s initial request for recognition on 1 February 2007, and responded to the request on 20 February 2007. On 12 February, the Parties held a meeting and the Employer met with a representative from Acas at the Union’s suggestion. The Employer also stated that it received a second letter dated 15 February 2006 from the Union clarifying its proposed bargaining unit. However, the Employer did not enter into negotiations with the Union in the belief that its ‘open, flexible and collaborative culture would not be enhanced by union recognition’.  Whilst the Panel accepted that the proposed bargaining unit was not described identically in the formal requests and the application, in that the words “as production operatives” were absent in section 14 of the application form (description of the bargaining unit), but the words “production operatives” are in section 15 of the application form (reasons for selecting the bargaining unit), so the Panel concludes that this is self-evidently a typographical mistake and an inadvertent oversight. Moreover, it led to no misunderstanding on the part of the Employer and does not constitute a change to the proposed bargaining unit.  The Panel is therefore, satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12.

 

15.       Furthermore, on the evidence before it, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining questions before the Panel are whether 10% of the workers in the Union’s proposed bargaining unit are members of the Union, and whether the majority of the workers in the Union’s proposed bargaining unit would be likely to favour recognition of the Union for collective bargaining. 

 

Paragraph 36(1)(a)

 

16.       The Case Manager’s check of the Union’s membership indicated that 20.93% of the workers in the proposed bargaining unit were members of the Union, which the Panel accepts demonstrates that the Union meets the 10% membership test. The Panel is satisfied that the 10% test is met, in accordance with paragraph 36(1)(a).

 

 

 

 

Paragraph 36(1)(b)

 

17.       The Panel considers that the membership and support check undertaken with conspicuous diligence by the Case Manager has established apparent support for collective bargaining by the Union amongst a majority of workers in the proposed bargaining unit, as 55.23% appeared to support recognition through trade Union membership or by having signed the petition. Whilst the Employer doubts the extent of support even amongst the signatories to the petition and Union members, they did not submit evidence to support that view. Obviously the workers who had changed their minds about supporting the Union and written to the CAC accordingly were not included in assessing support for recognition in the Union membership and support check, but the Panel did not consider it appropriate to go behind the signatures of the other signatories to the petition and Union members. We remind ourselves that at this stage of the proceedings our task is to assess the likelihood of majority support and we conclude that the evidence provided by dint of Union membership and signatures to a petition is, in this case, sufficient for us to conclude that, in accordance with paragraph 36(1)(b) of the Schedule, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union.

 

Decision

 

18.       The application is valid within the terms of paragraphs 5 to 9, was made in accordance with paragraph 11 or 12 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1. The application is therefore accepted by the CAC.

 

Ms Mary Stacey

Mr Bryan Taker

Dr Susan Corby

 

13 April 2007