Case Number: TUR1/555/2007

14 August 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

and

Texol Technical Solutions

Introduction

1. Unite – the Union (the Union) submitted an application to the CAC on 28 February 2007 that it should be recognised for collective bargaining by Texol Technical Solutions (the Employer) in respect of a bargaining unit comprising “All shop floor workers at the Myrekirk Road and Manhatton Works sites” in Dundee, Scotland. The CAC gave both Parties notice of receipt of the application on 1 March 2007. The Employer submitted a response to the CAC on 6 March 2007 that 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 established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller, Chairman, and, as Members, Mrs Maureen Shaw and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3. The Panel agreed to extend the statutory deadline for it to decide if the Union’s application could be accepted by the CAC to 13 April 2007 in order to allow more time for a membership and support check to be conducted and for the Parties to comment thereon. The membership level established was 79.52% and, by a decision dated 12 April 2007, the Panel accepted the Union’s application.

4. Following this decision the Parties were unable to reach agreement as to the appropriate bargaining unit. Both Parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit for a hearing held on 17 February 2005. In a decision dated 2 July 2007 the Panel decided that the appropriate bargaining unit was that proposed by the Union in its application.

Statutory provisions relating to declarations of union recognition

5. The Schedule provides that if the CAC is satisfied that a majority of workers constituting the bargaining unit are members of the Union, as required by paragraph 22(1)(b) of the Schedule, it must issue a declaration of recognition under paragraph 22(2), unless any of the three qualifying conditions in paragraph 22(4) apply. The three conditions are:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) a significant number of the union members within the bargaining unit inform the CAC 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.

6. Paragraph 22(5)(a) and (b) of the Schedule specify, for the purpose of the qualifying condition contained in paragraph 22(4)(c), that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

7. Where the CAC finds that any of the above conditions apply, in accordance with paragraph 22(3), it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

The Union’s claim of majority membership

8. In a letter dated 2 July 2007 the Union was asked by the CAC if it claimed majority membership within the bargaining unit, and if so, whether it requested that it should be recognised without a ballot in accordance with paragraph 22(2) of the Schedule. The Union, in a letter dated 5 July 2007, stated that the Union should be granted recognition without the need for a ballot. It stated that its members accounted for 87% of the bargaining unit. The Union further stated that the CAC had not received any information that might lead it to conclude that any of the qualifying conditions in paragraph 22(4) applied.

9. On 6 July 2007 the CAC copied the Union’s letter to the Employer, invited it to comment in respect of the Union’s claim that it had majority membership within the bargaining unit and asked if it wished to submit any comments in respect of the three qualifying conditions contained in paragraph 22(4) of the Schedule. The Employer responded by e-mail on 23 July 2007. It stated that it did not accept the Union’s claim that it had majority membership within the bargaining unit and requested that a ballot be held in the interest of good industrial relations.

10. The Employer explained that there had been a majority of union members in the bargaining unit for almost 9 years but argued that in the past employees had not wanted active union negotiation rights. The Employer believed the statutory process had been instigated by a few rather than many employees, and that the issue of Union membership automatically indicating a desire for union recognition had been used to further this desire. The Employer believed the matter could be clarified by a ballot, the result of which it would be happy to accept.

11. The Employer believed that direct movement to union recognition would undoubtedly lead to a relationship between the Parties whereby the Company would believe it had been "railroaded" into recognition of the union, in particular through what the Employer regarded as the unfair use of a legal technicality. The Employer stated that this would obviously not be the best start to a good ongoing relationship between the Parties. The holding of a ballot would provide a clear indication of what employees truly wanted, and the relationship would then stand a better chance of working successfully.

12. Finally, the Employer stated that internal feedback received within the Company, both verbally and through a recent straw poll was that a significant number of employees within the Company, who had virtually no knowledge of what was going on regarding union recognition, wished to have a say in the matter. The Employer stated that it would submit this information if required. The Employer stated that whilst this information may carry no legal weight based on the provisions of the Act, it strongly desired that the employees of the Company be given some opportunity to voice their opinion in what many regard as a very important issue for them. It stated that a ballot would provide employees with this opportunity.

13. In a further e-mail (with attached spreadsheet) dated 25 July 2007 received from the Employer it stated that, with reference to its e-mail of 6 March 2007, it had provided the results of a straw poll of the employees’ responses to questions regarding representation of the Union. The Employer stated that using the Union check-off system administered by the Company it had also indicated, which employees were members of the Union. The poll was carried out for the CAC hearing to determine the appropriate bargaining unit, and covered the groups who were in dispute. The Employer stated that it would not normally present this information, as it was aware that the opinions sought could be regarded as “obtained under duress” but for this reason it requested a clear, unbiased ballot of all employees. The Employer requested that all names on the straw poll should be removed before it was copied to the Union.

14. In response, the Union in a letter dated 2 August 2007, stated that it did not consider that the reasons set out by the Employer were sufficient grounds to hold that a ballot was required in the interests of good industrial relations, nor had the Employer provided any evidence to support the fact that a ballot would be in the interests of good industrial relations.

15. The Union further stated that given the high level of membership and its supporting petition it considered quite the reverse to that asserted by the Employer. In its view, a ballot would serve only to sour industrial relations. The Union argued that there was extremely high membership density, yet throughout the process the Employer had refused to accept that members wanted the Union to collectively bargain on their behalf. The Employer had challenged every stage of the process and this continual obstruction was frustrating to both the Union and its members. The Employer had refused to accept the obvious, that the majority of the workers wanted collective bargaining. Further delays and the campaigning which would take place in the run up to any ballot would only serve to frustrate members of the Union, and would cause a breakdown in industrial relations.

16. The Union explained that the Employer also appeared to set out a second reason on why it considered that a ballot should be held, namely that under para. 22(4)(b) there was credible evidence from a significant number of the Union members within the bargaining unit that did not wish the Union to conduct collective bargaining on their behalf. The Union stated that any evidence put before the CAC in relation to this point must be credible and must come from a significant number of Union members within the bargaining unit. The Employer had carried out a straw poll of 20 employees of a total of 104 employees within the bargaining unit. The Employer had submitted it was no more than a straw poll, and it did not wish to submit it as evidence but would if desired. The Union contended that if the Employer did not wish to submit the straw poll as evidence the CAC had no evidence to support the Employer’s argument that there were a significant number of Union members that did not wish the Union to conduct collective bargaining on their behalf. The Union stated that in the event that the Employer was seeking to rely on the straw poll, it had concerns about the credibility of such evidence. The Union stated its understanding of the straw poll was that it consisted of management asking employees verbally whether or not they required representation. The Union further stated that it was clear that when being posed with such a question directly from management there was a real risk of undue influence, as most employees would be reluctant to oppose their employer. It stated that for the reasons it had given it did not consider that the evidence was credible, and should be disregarded by the CAC.

17. The Union argued further that in the event that the CAC considered that the evidence was credible, it wished to point out that 7 of the 20 employees polled were not Union members. Objections were only relevant if they were from Union members, and not from other employees within the bargaining unit. If those employees were removed, the straw poll was only in respect of 13 members (from a total of 89 members), and only 5 of those members stated that they did not wish to have representation. The Union reasserted its opinion that there had been undue influence and argued that the poll was not credible, nor did it support an argument that a significant number of members did not require representation.

18. The Employer made a further submission on 6 August 2007. It reiterated its point that it believed the recognition process was being driven by a small number of activists within the Company, who were using the historical high membership for their own means, and that the Company was being “railroaded” into recognition.

19. In response to the Union’s comments that the holding of a ballot would only sour industrial relations, the Employer was unclear on the reasons behind the Union’s assertion. The Employer explained that any refusal to accept recognition to date had been within the scope of the CAC process for the valid reasons it had submitted. The Employer contended that given the high membership rate within the bargaining unit, it did not understand the Union’s reluctance to conduct a ballot, unless it was because the Union recognised the point the employer was making but was not prepared to concede this publicly.

20. The Employer finally submitted that it believed the results of its straw poll, albeit conducted for a slightly different reason, provided evidence of doubt regarding a significant number of Union members requiring recognition. Despite the Union’s assertion of the validity of the poll, it provided evidence that, of the 13 Union members who were polled regarding representation, 4 said yes (they required representation), 5 said no (no representation required), and 4 were unsure or were not available. The Employer disputed any accusation of undue influence in the poll, and stated that it was carried out for the purposes of an earlier stage in the process. The Employer stated that whilst the poll was not conclusive in any particular area, it believed it provided evidence of doubt regarding the desire for recognition.

Considerations

21. The membership check reported on 9 March 2007 indicated that the level of Union membership within the bargaining unit was over 50%, and that it in fact stood at 79.52%. The result is not disputed by the Employer and, in the absence of evidence to the contrary, pursuant to paragraph 22(1)(b) of the Schedule, the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union.

22. The Panel must therefore consider if any of the three qualifying conditions in paragraph 22(4) of the Schedule apply to this application.

23. According to paragraph 22(4)(a), a ballot should be held if the CAC is satisfied that it would be in the interests of good industrial relations. In this respect, the Panel is not persuaded by Employer’s submissions. In the view of the Panel, neither the employer’s belief that should the Union be awarded recognition without a ballot, it will have been “railroaded” into union recognition by a small number of union activists within the Company nor the assertion that such a state of affairs is not a good start to an ongoing relationship between the Parties, do not constitute persuasive reasons for holding a ballot in the interests of good industrial relations.

24. Paragraph 22(4)(b) sets out the second qualifying condition and requires that the CAC order a ballot if it is informed by a significant number of union members that they do not want the Union to conduct collective bargaining on their behalf. The Employer submitted what it referred to as a “straw poll” in which 20 employees were questioned on whether they wanted to be represented by the Union. Of the 20 employees who were polled 13 were Union members, 5 of whom did not want to be represented by the Union. It is the Panel’s view that the straw poll of 20 workers, is a relatively small sample within a large unit, and 13 members out of a total of 83 does not amount to a significant number. The Panel regards the “straw poll” as inconclusive and does not consider such evidence as “credible evidence”. The Panel, having considered in detail the Parties’ submissions is of the view that the qualifying condition under paragraph 22(4)(b) has not been met.

25. Paragraph 22(4)(c) sets out the third qualifying condition: if 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, a ballot should be held. No membership evidence within the meaning of paragraph 22(5) has been produced to show that there are doubts as to whether any of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. In the absence of any such evidence, the Panel is satisfied that the condition specified by paragraph 22(4)(c) does not apply.

Declaration

26. The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union. Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All shop floor workers at the Myrekirk Road and Manhatton Works sites”.

Panel

Professor Kenneth Miller - Panel Chairman

Mrs Maureen Shaw

Mr Gerry Veart

14 August 2007