Case Number: TUR1/571/(2007)

20 June 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

Dunhouse Quarry Ltd

Introduction

1. GMB (the Union) submitted an application, dated 30 April 2007, to the CAC that it should be recognised for collective bargaining by Dunhouse Quarry Ltd, Staindrop, Darlington, Co. Durham (the Employer) for a bargaining unit consisting of “All the following employees working in the following sections: Maintenance, production, masonry, saws, and block dressers. Excluding management, supervisors, team leaders and office staff.” The Employer was given notice of the application on 1 May 2007. The Employer submitted a response to the CAC dated 1 May 2007 which was copied to the Union. To allow time for the Union to respond to the Panel’s request for clarification of its proposed bargaining unit the acceptance stage was first extended to 30 May 2007. The stage was further extended to 15 June 2007, to allow time for the conduct of the membership and support check and consideration of the Parties responses to it.

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 of the Panel, and, as Members, Mr Dennis Cameron and Ms Jean Johnson. 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 35 and that 9 of these workers were its members.

5. In its response to the Union’s application, the Employer disagreed with the number of workers in the proposed bargaining unit given by the Union by indicating that there were 26 workers in that unit instead of the Union’s stated number of 35. The Employer confirmed that it had received the Union’s written request for recognition on 17 or 18 April 2007 but that it had not yet had the time to respond to that request as at the time of responding to the Union’s application to the CAC. It stated that the proposed bargaining unit had not been agreed between the Parties and expressed its disapproval of unionisation in its business, preferring to close the factory instead. The Employer also stated that it had not looked into the possibility of Acas’ involvement at the time of responding to the CAC. There was no existing recognition agreement in force covering workers in the proposed bargaining unit and the Employer was not aware of the level of support for the Union within the Company.

Matters clarified

6. In its application the Union stated that there were 35 workers in its proposed bargaining unit whilst the Employer suggested that there were 26 workers. The Union gave the location of those workers as “All the following employees working in the following sections: Maintenance, production, masonry, saws, and block dressers. Excluding management, supervisors, team leaders and office staff.” It then described its proposed bargaining unit as “As above.” (ie. the statement given for the location of the workers). “We request that the following groups of workers working in the following departments be part of the application. – Fitters, Sawman, Masons, Electricians, Fork Lift Drivers, Dressers.”. In order to establish the reason for the difference between the number of workers each side stated was in the Union’s proposed bargaining unit the Panel instructed the Case Manager to ask the Union for clarification of the numbers and composition of its proposed bargaining unit; and to be satisfied that the Union fully understood questions 13 (location) and 14 (description of the bargaining unit) on the CAC’s application form. In a letter dated 14 May 2007, the Case Manager asked the Union to comment on the apparent disparity in the number of workers in the proposed bargaining unit, to indicate whether any workers in other jobs worked in the five sections the Union listed as the location of the bargaining unit and to state if that location was the same as the Employer’s address.

7. In a letter dated 25 May 2007, the Union gave a cautious response to the CAC’s request. It stated that the information for its response had been gathered from contacts at the quarry and that its answers might not therefore be completely accurate.

8. In response to the question of the number of workers in its proposed bargaining unit, the Union accepted that some individuals might have left the Company but that it still believed that the number of workers remaining in the bargaining unit was greater than 26. The Union confirmed that its description of the proposed bargaining unit was a way of breaking down the categories workers in the groups by job titles and that fork lift drivers were employed in all five sections. Finally, the Union confirmed that all the workers in its proposed bargaining unit were based at the Staindrop site.

Membership check

9. 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 union membership and support check be undertaken by the Case Manager. In letters to both parties dated 5 June 2007, the Case Manager confirmed with each their co-operation with the check, that the Employer provide a list of the workers within the proposed bargaining unit and that the Union provide a list of its members within the proposed bargaining unit and a copy of two petitions signed by workers in the proposed bargaining unit. The Case Manager’s letter confirmed that none of the lists would be copied to the other party or the Panel. The Employer provided a list of 39 workers of which 33 belonged to the bargaining unit. The Union provided a list of 12 union members it stated were within its proposed bargaining unit and two petitions compiled in November 2006 and January 2007 as an indication of support from workers in the unit. The information from the Employer was received on 6 June and Union’s list was received on 7 June 2007.

10. The membership check showed that there were 9 members of the Union within the proposed bargaining unit constituting a membership level of 27.27%. The first petition contained 25 signatures of which 16 names were common to both the Employer’s and the Union’s lists, constituting a support level of 48.48%. The second petition contained 28 names of which 25 were common to both the Employer’s and the Union’s lists and showed a support level of 75.76%. A report of the result of the check of the membership and support level was circulated to the parties on 8 June 2007.

The Parties’ response to the membership and support check

11. The CAC gave notice of the result of the membership and support check by e-mail and by post on 8 June 2007, and asked that the Parties’ comments reach the Case Manager no later than by 2.00 pm on 12 June 2007. The Union, in a letter dated 13 June 2007, expressed its disappointment at the shortness of the time it was given to comment on the result of the check on the basis that the Union Organiser was not office based and therefore was not aware of the CAC’s letter until the date of the deadline, due to carrying out other duties. The Union Organiser therefore asked the CAC to give at least three days’ notice from the date of receipt in future.

12. However, the Union subsequently submitted further comments in a letter dated 11 June 2007 which was received by the CAC on 15 June 2007, that given that it was unable to verify the names and job titles that were submitted to the Case Manager by the Employer for the check as being genuine it nevertheless believed that the result had clearly demonstrated the Union’s success in addressing the tests set out in paragraph 36 (1)(a) and (b) of the schedule. The Union therefore asked that the Panel accept its application based on the result of the membership and support level check.

13. Following receipt of the membership check report, in a telephone call to the CAC the Employer expressed its doubt over the genuineness of the names on the Union’s petition and stated in an e-mail dated 13 June 2007, that it could not accept that the number of employees willing to accept the Union was as high as stated in the Case Manager’s report. The Employer therefore asked the CAC to conduct a secret ballot as that would be the only way to decide fairly.

Considerations

14. 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.

15. The Panel notes that no challenge has been made under the following provisions and is satisfied on the evidence made available to it 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. 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 (paragraph 36 (1)(a)), 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)(b)). In considering these questions the Panel is satisfied that the principal evidence available to it, namely the Case Manager’s report on the Union’s membership and the petitions supporting the Union’s recognition for collective bargaining, was properly conducted.

Paragraph 36(1)(a)

16. The Case Manager’s check of the Union’s membership indicated that 27.27% of the workers in the proposed bargaining unit were members of the Union. The Employer did not present evidence to challenge the 10% membership test. The Panel is satisfied that the 10% test set in paragraph 36(1)(a), is met with regard to the application.

Paragraph 36(1)(b)

17. Paragraph 36(1)(b) requires the Panel to decide whether a majority of workers would be likely to favour recognition. In considering this matter the Panel has taken account of both the level of union membership and the number of workers in the proposed bargaining unit who have signed petitions in support of the Union’s recognition for collective bargaining. The Employer has expressed strong doubt concerning the levels of support indicated in the Union’s petitions, but has not submitted evidence to substantiate these doubts. The more recent of the two petitions, dated January 2007, has been signed by 75% of the workers in the proposed bargaining unit, including 17 who were not union members. Whilst the Panel accepts that the circumstances in which petition signatures are collected will vary, and not the same as for a secret ballot, the level of support demonstrated in this case is persuasive. Having given full consideration to the evidence made available to it, the Panel is satisfied 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.

Professor John Goodman CBE

Mr Dennis Cameron

Mrs Jean Johnson

20 June 2007