Case Number: TUR1/581(2007)

17 July 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:

 

National Union of Journalists (NUJ)

and

Champion Newspapers

 

Introduction

 

      1.           The NUJ (the Union) submitted an application dated 28 June 2007, received by the CAC on 2 July 2007 that it should be recognised for collective bargaining purposes by Champion Newspapers, Lord Street, Southport (the Employer) for a bargaining unit comprising “Reporters, Edition Editors and Sub-Editor employed on newspapers and associated products at the offices in Southport”.  The CAC gave both parties notice of receipt of the application on 2 July 2007.  The Employer submitted a response to the CAC dated 10 July 2007, which was 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 appointed a Panel to deal with the case.  The Panel consisted of Professor John Goodman CBE, Chairman of the Panel, and, as Members, Mr George Getlevog and Ms Lesley Mercer.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

      3.           The CAC Panel has extended the acceptance period in this case.  The initial period expired on 16 July 2007.  The period was extended to 20 July 2007 in order to allow time for the membership and support check to take place, for the parties to comment on the subsequent report and for the Panel to consider said comments before arriving at a decision.

 

Issues

 

      4.           The Panel is required by paragraph 15 of Schedule A1 to 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 to be accepted.

 

The Union’s application

 

      5.           In its application the Union stated that it had sent a letter to the Employer informally requesting recognition on 18 May 2007 to which the Employer responded in a letter dated 23 May 2007 rejecting the Union’s request.  The Union, in accordance with paragraph 8 of the Schedule, sent a formal request letter dated 5 June 2007 to the Employer to which no response was received.  Copies of these letters were attached to the application.  The Union stated that the Employer employed 21+ workers and that there were 7 workers in the Union’s proposed bargaining unit, of whom 3 were Union members.  The Union suggested that membership evidence would be made available on a confidential basis to the CAC on request.  The Union stated that the Employer had not agreed with its proposed bargaining unit.  It provided a detailed account of why it had selected the proposed unit; if necessary, this will be examined further at a later stage in the process.  The Union confirmed that it held a certificate of independence and that it had not made a previous application for statutory recognition for workers in this or a similar bargaining unit nor was it aware of an existing agreement which covered any workers in the proposed bargaining unit.

 

The Employer’s response

 

      6.           The Employer’s response stated that it employed 55 workers and that there were 9 workers in the proposed bargaining unit (8 workers were currently in post; one worker although recently recruited had not yet taken up the post).  It further stated although it had not sent a written response to the Union’s formal request letter it had arranged a meeting with the Union members in question and explained its reasons for not entering into an agreement with the Union.  The Employer confirmed that there was not an existing agreement in force covering workers in the proposed bargaining unit.  The Employer submitted its argument on why it believed that the Union’s proposed bargaining unit was unsuitable, which will if necessary be considered at a later stage of the process.

 

Membership and support check

 

      7.           To assist in the determination of the admissibility criteria specified by paragraph 36(1) of the Schedule, the Panel requested that an independent check of union membership and support for collective bargaining in the proposed bargaining unit be conducted by the Case Manager.  The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties. 

 

      8.           The Employer contact advised the Case Manager that she was due to go on annual leave and that she was unable to delegate responsibility due to the nature of this matter.  However, the Employer and the Union agreed to provide information and further comment as soon as it was requested by the Case Manager to ensure that the acceptance stage was concluded expeditiously.

 

      9.           A list of the workers in the proposed bargaining unit was provided by the Employer.  The Union provided a list of Union members in the proposed bargaining unit.  The information from the Union and the Employer was received on 12 July 2007.  It was agreed that to preserve confidentiality the information provided by the parties would not be copied to either party.  The arrangements for the membership and support check were confirmed in a letter sent to both parties on 12 July 2007. 

 

   10.           The Employer provided a list of 8 names and job titles namely: Group Editor, Editor and Reporter.  The Union provided a list of 4 names of members.  The Case Manager carried out a comparison of the lists.  The check of union membership established that 4 workers in the proposed bargaining unit were Union members, that is, a membership level of 50%.

 

   11.           The results were produced as a report which was circulated to the parties for their comments on 12 July 2007.

 

Summary of the parties’ comments and arguments

 

   12.           By an email dated 12 July 2007 the Employer stated that it was content with the contents of the report and did not wish to comment further.

 

   13.           By an email dated 12 July 2007 the Union stated that it was confident that it had total support of its existing members for its application for recognition and had tacit support from most of the remaining relevant staff some of whom were currently considering union membership.   It accepted that the newly recruited person had not yet commenced employment and that the inclusion of an Editor from another Department, and made a number of points regarding the detailed composition of its proposed bargaining unit.  These referred to the inclusion of the title Sub-Editor and the non-inclusion of the role of Group Editor - a role that had been listed by the Employer for the purposes of the membership check.  Also the title Sub-Editor had not been included in the Employer’s list.

 

Considerations

 

   14.           In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has taken into account all the evidence and argument submitted by the Employer and the Union in reaching its decision. 

 

   15.           The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule.   It is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 and was made in accordance with paragraph 11 of the Schedule. 

 

   16.           The remaining issue is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.  In accordance with paragraph 36(1)(a) and (b) of the Schedule, the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit, and whether a majority of the workers constituting the Union’s proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

 

Paragraph 36(1)(a)

 

   17.           The Case Manager’s report dated 12 July 2007 indicated that Union members constituted 50% of the proposed bargaining unit.  The Panel is therefore satisfied that at least 10% of the workers in the proposed bargaining unit are members of the Union and that the Union’s application is admissible within the terms of paragraph 36(1)(a).

 

Paragraph 36(1)(b)

 

   18.           The test in paragraph 36(1)(b) is whether a majority of the 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.  To support its position the Union relied on the density of membership in the proposed bargaining unit which stands at 50%. 

 

   19.           The Union comments on the list of posts the Employer included in its submission of workers for the membership check raise some issues.  The Panel’s view is that clarification of the composition of the Union’s proposed bargaining unit is, in this case, best left to the next stage of the statutory procedure i.e. the appropriateness of the proposed bargaining unit.  To do otherwise in this case, given the small numbers involved in the proposed bargaining unit (8) and of Union members (4) would risk undermining the confidential basis of the Case Manager’s membership check.  For example if the post of Group Editor was excluded from the 8 posts would the number of Union members also fall?  Hypothetically if the figures were to change for example to 3 Union members out of 7 in the proposed bargaining unit this would constitute 42.8%.  If this were to be the case, given the other evidence before it the Panel would conclude on the balance of probabilities that the test in paragraph 36(1)(b) was met.  Alternatively, if the number of Union members were to remain unchanged the proportion of members would rise to over 50%.

 

   20.           Further, it is the Panel’s view that, in the absence of any persuasive evidence to the contrary, membership of a union can be accepted as indicative of that person’s likely support for collective bargaining by the union with the employer on matters related to terms and conditions of employment.  The Panel is therefore satisfied that, based on the level of existing membership in the proposed bargaining unit, the majority of workers would be likely to support recognition of the Union and therefore the test under paragraph 36 (1)(b) is met.

 

Decision

 

   21.           The Union’s application is valid within the terms of paragraphs 5 to 9, is made in accordance with paragraph 11, and is admissible within the terms of paragraphs 33 to 42 of Schedule A1.  The application is therefore accepted.       

 

Panel

Professor John Goodman CBE, Chairman

Mr George Getlevog

Ms Lesley Mercer

 

17 July 2007