Case Number:
TUR1/552/[2007]
19 June 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:
Unite the Union
(formerly known as Amicus)
and
Sutton Bridge Power Station GEII
Introduction
1. Unite
the Union (formerly known as Amicus) (the Union) submitted an application to
the CAC dated 23 February 2007 that it should be recognised for collective
bargaining purposes by Sutton Bridge Power Station GEII (the Employer) for a
bargaining unit comprising “All employees with the exception of Station
Manager, Operations Manager, Engineering Manager and Finance Manager”. The CAC gave both Parties notice of receipt
of the application on 23 February 2007. The Employer submitted a response to the CAC
dated 5 March 2007 which was
duly copied to the Union. Following the merger of Amicus with the TGWU
on 1 May 2007 the
application will proceed in the name of “Unite 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 Mr Chris Chapman,
Deputy Chairman, and, as Members, Mr Paul Gates and Mr Roger
Roberts. The Case Manager appointed to
support the Panel was Sarah Kendall and for the purposes of this decision,
Nigel Cookson.
3. By
a decision dated 22 March 2007
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. Both parties
in letters dated 13 April 2007
informed the CAC that the bargaining unit had been agreed. The bargaining unit agreed by the Parties was
one comprising “Operations Technicians, Maintenance Technicians, Shift
Supervisors, Maintenance Supervisors and Purchasing and Warehousing Specialist”. The location of the agreed bargaining unit was
Sutton Bridge Power Station, Centenary Way, Sutton Bridge, Lincolnshire PE12
9TF. This bargaining unit differed from
that originally proposed by the Union by the exclusion
of the Environmental Health and Safety Specialist.
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 20 of Schedule A1 to the
Act (the Schedule) to determine whether the Union’s
application was valid or invalid within the terms of paragraphs 43 to 50. Both parties were accordingly invited to
supply the Panel with written submissions relating to the tests set out in the
paragraphs referred to above. The Panel,
having considered all the evidence lodged by the parties, was duly satisfied
that the tests had been met. By a
decision dated 4 May 2007
the Panel determined that the application was valid and gave notice to the parties,
in accordance with paragraph 20(5) of the Schedule, that it would proceed with
the application.
5. On 19 April 2007 the Case Manager
received the first of three emails that were to be received from workers
purporting to be in the agreed bargaining unit.
In the first of the emails the Case manager was informed:
“As a non-union member of GE at Sutton Bridge Power
Station, I am surprised, if not a little distressed, at the thought that I
could be forced once again against my desire to accept recognition of the union
and bargaining unit. As with 3 years
ago, I will have to accept the final decision, but I feel that there are only 2
fair ways to judge the opinions of those employed here: -
1) To have a
secret ballot allowing all those on site who wish to vote to do so.
2) To allow
those who wish to be part of a union to join / carry on and let them speak on
their behalf, but leave the remainder to discuss their own individual matters
directly with the management themselves.
Surely in a democratic, free-speaking country in which
we all live, we should all be entitled are express our opinions.”
Then, in a
separate email also of 19 April 2007
the Case Manager was informed:
“…I am still part of the
work force until the 01-05-07. I do not agree with holding another ballot
there were sixteen signatures on the original ballot out of a possible 27/28
which in my mind makes a majority. You
were offered a site wide ballot on more than one occasion and you declined what
has changed.”
The final email
was received on 23 April 2007. The author wrote:
“I would like to take this opportunity to ask you to
please grant automatic recognition to the Union Amicus. We need to keep Amicus
on site to represent the memberships view to a very dictatorial management who
tend to take very little notice of the individuals views.”
Issues
6. Paragraph 22 of the Schedule provides
that where the CAC is satisfied that a majority of the workers constituting the
bargaining unit are members of the union, it must issue a declaration of
recognition under paragraph 22(2) unless any of three qualifying conditions in
paragraph 22(4) applies. Paragraph 22(3)
requires the CAC to hold a ballot even where it has found that a majority of
workers constituting the bargaining unit are members of the union if any of
these conditions is fulfilled. The
qualifying conditions are set out in paragraph 22(4), which reads:
“(4) These are the three qualifying conditions -
a) the CAC is satisfied that a ballot should be held in the
interests of good industrial relations;
b) 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 the union
members within the bargaining unit want the union (or unions) to conduct
collective bargaining on their behalf.”
7. In a
letter dated 4 May 2007 the Union
was asked by the CAC if it wished to claim majority membership within the
bargaining unit, and if so, whether it wished to submit to the Panel that it
should be recognised without a ballot in accordance with paragraph 22(2) of the
Schedule. In a letter dated 10 May 2007 the Union
stated that according to the membership check previously carried out by the CAC
the Union had 19 members within an agreed bargaining
unit of 29 workers. This gave a
membership level of 67.85%. Further, the
Union had a petition showing 16 of these members
favoured recognition which indicated 57.14% support. It was clear from the membership check that
the Union had a majority of the workers constituting the
bargaining unit in membership and therefore, in accordance with paragraph 22 of
the Schedule, the CAC must issue a declaration that the Union
was to be recognised unless any of the qualifying conditions in paragraph 22(4)
was fulfilled.
8. The Union
then went on to address each of the qualifying conditions in turn. Firstly, as to whether the CAC was satisfied
that a ballot should be held in the interest of good industrial relations the
Union explained that its view, having regard to the high level of membership
and the supportive petition, was that it would not be in the interests of good
industrial relations to hold a ballot.
According to the Union, to do so would be likely
to be divisive and polarise opinions.
Secondly, as to whether the CAC had evidence which it considered to be
credible from a significant number of Union members that they did not want the
Union to conduct collective bargaining on their behalf the Union explained that
it was aware that the Employer was conducting its own survey, presumably with a
view to persuading the Panel that this condition was fulfilled. However, the Union did
not know what the outcome of this survey would be but nevertheless, it did not
believe that much weight should be placed on the results thereof. Although the survey was being conducted by an
independent balloting organisation there was concern amongst the workforce that
any results would not be confidential and that the Employer would know how each
individual voted. This, the Union
argued, would be likely to adversely affect the reliability of the survey. The Union added that
apparently the envelopes enclosing the ballot papers had been colour coded to
indicate the category of worker and further, the ballot papers had individual
numbers from which the workers could be identified. These matters had increased the anxiety
amongst the workforce that their views would not be secret from the Employer. In addition, the survey was being carried out
against a background whereby the Union did not have
access to the workforce whereas the Employer had been able to express its views
regarding recognition freely. Thirdly,
the Union was not aware that any membership evidence had
been produced which would lead the CAC to conclude that the condition under
paragraph 22(4)(c) was fulfilled.
9. The Union
concluded its letter by requesting that the CAC decide in its favour and issue
a declaration of recognition without the necessity of the additional delay and
expense that would result from the holding of a ballot.
10. The Union’s
letter was forwarded to the Employer and the Employer’s comments on the letter
and qualifying conditions were duly invited. In a letter dated 24 May 2007 the Employer argued that a ballot should be
held in the interests of good industrial relations. It reiterated its earlier point set out in
its letter of 27 April 2007
calling into question the validity of the Union’s
petition. This petition had not been
validated against current membership records and was believed to be subject to
a degree of peer level influence. The
Employer stated that, based on the feedback given by members and non-members
alike, to not allow a ballot would irreversibly damage staff relationships at
the site. It argued that the workers’
opinions could only be truly demonstrated through the holding of a secret
ballot.
11. The
Employer explained that it had independently commissioned its own staff survey
which was carried out by the Association of Electoral Administrators. This survey demonstrated that 58% of those
that voted were not in favour of recognition.
The Employer refuted the Union’s allegations
relating to the marking of envelopes and categories of worker saying that they
were completely unfounded. Details of
the organisation conducting the survey were fully available to all of the
members of the bargaining unit including the Union’s
site representatives. In addition the Union
had had free and open access to its members and workers and its comments
regarding its lack of access to the workforce were incorrect. As to the second qualifying condition the
Employer was of the view that a significant number of Union members would not
favour the Union conducting collective bargaining on
their behalf if they were given the opportunity to express their view by a
secret ballot. The survey indicated that
a majority of those that voted did not favour recognition. Finally, as the Employer did not have access
to membership evidence it was unable to comment further regarding the third
qualifying condition.
12. The
Employer concluded its letter by explaining that promoting an open and
effective communication and considering the views of all of its workers was a
crucial part of its success as a business.
A key part of this was allowing all members of the bargaining unit to
express their viewpoint independently.
Having regard to these and previous points the Employer requested that
the CAC allowed a ballot to be held in the interests of good industrial
relations being maintained at the site.
13. In a letter
dated 7 June 2007 the Union
responded to the Employer’s points. It
submitted that none of the arguments put forward in the Employer’s letter
established that any of the three qualifying conditions set out in paragraph
22(4) were made out.
14. The
Employer relied upon the survey that it had conducted as evidence that the CAC
should be satisfied that a ballot should be held in the interests of good
industrial relations. The Union
did not agree. Despite the Employer’s
protestations the envelopes were marked as the Union had described and the
Union believed that this would have led workers either not to vote or to
believe that the manner or fact of voting would become know to the Employer. Further, the Union noted
that the Employer did not state how many members of the bargaining unit had
actually voted save that 58% of those that did vote were not in favour of
recognition.
15. The Union
did not believe that the Employer’s survey was a reliable indicator of the
views of the bargaining unit or that a statutory ballot should be held in the
interests of good industrial relations.
The Union asked the Panel to note that there had
been good industrial relations between the parties in the past three year
period of voluntary recognition when pay awards were always agreed without the
need to use the disputes procedure. The
Union was concerned that a statutory ballot might serve
to polarise positions and jeopardise a return to such good industrial
relations. With regards to the other two
conditions referred to in paragraph 22(4) the Union did
not consider that anything in the Employer’s letter of 24 may 2007 went towards
establishing that either condition was fulfilled.
Considerations
16. The Act requires the Panel to consider
whether it is satisfied that the majority of the workers constituting the
bargaining unit are members of the Union. If the Panel is satisfied that the majority
of the bargaining unit are members of the Union, 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.
17. During the acceptance period the level of
Union membership in the proposed bargaining unit was tested. In the Case Manager’s report dated 15 March 2007 the level of Union
membership was established as being 67.86%.
The difference between the proposed and agreed bargaining units was
relatively minor. Using the data set out
in its decision at the acceptance stage together with subsequent information
provided by both parties, the Panel notes that both the size of the agreed
bargaining unit and the density of the Union’s
membership therein remained unchanged. Accordingly
the Panel is satisfied that a majority of the workers constituting the
bargaining unit are members of the Union.
18. The Panel has given thorough
consideration to each of the qualifying conditions laid down in paragraph
22(4).
19. The first condition is that the Panel is
satisfied that a ballot should be held in the interests of good industrial
relations. The Union
submitted that good industrial relations would not be best served by the
holding of a ballot. It argued that to do
so would polarise positions and jeopardise a return to such good industrial
relations that were enjoyed by the parties during the period of the previous
voluntary arrangements. The Union
urged the Panel to disregard the results of the Employer’s survey arguing that
not only were the results misinterpreted but that it had fundamental concerns
as to how the survey was conducted. On
the other hand the Employer submitted that the results of its survey were a
clear demonstration of the need for a ballot to be held. The Panel
noted however that although it was informed of the overall percentage of the
majority in the ballot it was not told the question posed, the number of
workers that voted or the overall figures for those voting in favour and those
voting against. Further the Employer
argued that the validity of the Union’s petition, which
showed a slight majority in favour of recognition, as the names on the petition
had not been checked was open to question and it also believed that peer
pressure was a factor in the way it was gathered. The Employer also referred to how it sought
to promote open and effective communication and that considering the views of
all of its workers was an important part of this process and crucial to its
success. However, the Employer has
failed to adequately explain exactly how industrial relations would suffer if
no ballot was held. Having considered
all the evidence in this case, the Panel is persuaded that there is no reason
to suppose that the interests of good industrial relations require that a
ballot be held in this instance. The
Panel is not persuaded by the results of the Employer’s survey as indicative of
the need for a ballot. It is misleading
to claim that the result of the survey showed a majority of those that voted
were not in favour of recognition without saying how many workers actually
voted. It seems to the Panel that good
industrial relations with the Employer would be best served by securing the
re-establishment of a bargaining relationship between the parties as soon as
possible and that there would be no benefit in prolonging the present situation
by the holding of a secret ballot.
Therefore the Panel is satisfied that this condition does not apply.
20. The second
condition is 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. The only communications received
from workers in the bargaining unit are those rehearsed in paragraph 5
above. However, it is abundantly clear
that these emails can be disregarded for the purpose of this qualifying
condition given that one is from a non-member, one is from a worker that ceased
to be in the bargaining unit on 1 May
2007 and the third is an email urging the Panel to grant
recognition without a ballot. The
Employer submitted that it was of the view that a significant number of Union
members would not favour recognition if they were given the opportunity to
express this view in a secret ballot.
However, this is not the point.
This test here is whether the CAC is currently in possession of
evidence, which it finds credible, from a significant number of Union members
that they do not want the Union to conduct collective
bargaining on their behalf. There is no
such evidence before it and accordingly the Panel finds this condition not fulfilled.
21. The third condition is that 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. No such evidence has been produced, and this
condition does not apply.
Declaration
22. Following
careful consideration of all aspects of the case and all the relevant evidence
before it, the Panel declares that the Union is
recognised by the Employer as entitled to conduct collective bargaining on
behalf of the bargaining unit particularised in paragraph 3 of this
declaration.
Panel
Mr Chris Chapman
Mr Paul Gates
Mr Roger Roberts
19 June 2007