Case Number: TUR1/587/2007

17 August 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:

 

Unite the Union

and

Robert Cain and Company Limited

Introduction

 

1.         Unite the Union (the Union) submitted an application dated 19 July 2007 to the CAC that it should be recognised for collective bargaining by Robert Cain and Company Limited (the Employer) for a bargaining unit described as “Hourly paid Robert Cain and Company Limited employees, who work in the brewhouse, filter, fermentation, laboratory, can hall, engineering, warehouse and dray departments, up to but not including management at your brewery in Liverpool”.  The CAC gave both parties notice of receipt of the application on 20 July 2007.  The Employer did not submit a response.

 

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 (Panel Chairman), Mrs Maureen Shaw and Mr Paul Gates.  The Case Manager appointed to support the Panel was Sarah Kendall.  For the purpose of this decision the Case Manager was Kate Norgate. 

 

3.         The CAC Panel has extended the acceptance period in this case. The initial period expired on 3 August 2007. The period was extended until 17 August 2007 in order to allow time for a membership and support check to be carried out by the Case Manager, for the Parties to comment on the subsequent report, and for the Panel to consider the evidence and reach a decision.

 

Issues

 

4.         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 8; 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.      

 

The Union’s application

 

5.         The Union stated the Employer employed approximately 50 workers. In its proposed bargaining unit the Union estimated that there were 29 workers and that 22 were members of the Union.   The Union explained that it started its campaign for recognition after it was approached by employees at the brewery.  In the beginning there were four members but following a number of meetings with the workers in the proposed bargaining unit  membership increased by 22 workers, and it was those workers who, following the Company’s refusal to acknowledge receipt of the Union’s correspondence, requested that the Union make an application for recognition to the CAC.  The Union also submitted with its application to the CAC a copy of a petition demonstrating support for union recognition that was signed by 25 workers. 

 

The Employer’s response

 

6.         The Employer failed to reply to the CAC’s request to respond to the Union’s application by the deadline notified in the CAC’s letter dated 20 July 2007.  The Case Manager telephoned the Employer on 25 and 31 July 2007 and left messages with the receptionist.  On 1 August 2007 the Employer contacted the Case Manager by telephone.  The Case Manager explained the statutory process to the Employer and stressed the importance for their completion of the response form. The Case Manager also, as requested by the Employer, sent an electronic version of the response form.  The Employer failed to respond.  On 3 August 2007 a colleague left two further messages with the Employer’s receptionist, on behalf of the Case Manager. There was no further contact and no correspondence received from the Employer.

 

Membership and Support check

 

7.         To assist the determination of 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 to be undertaken by the Case Manager. 

 

8.         In a letter to the Union dated 7 August 2007, the Case Manager requested that the Union provide a list of its members stating their full name, address, date of birth, confirmation of membership status, date of joining and paid up to date, within the proposed bargaining unit.   It also confirmed that the petition the Union had submitted with its application would also be subject to the check.   

 

9.         In a letter also dated 7 August 2007 the Case Manager sent a letter to the Employer (by fax and e-mail) requesting that it completed the response form and informed that, in accordance with paragraph 170A of the Schedule, it was required to provide a list of the workers within the proposed bargaining unit.  The Union provided a list of 25 Union members in the proposed bargaining unit.  The information was provided on a confidential basis.  The Employer failed to respond to the Case Manager’s letter of 7 August 2007. 

 

10.       In the absence of information provided by Employer, the Case Manager extracted information from the information that was available.  According to the Case Manager’s report, the number of Union members in the proposed bargaining unit (as estimated by the Union in its application) was 24, a membership level of 82.76%.  The petition supplied by the Union contained 25 signatures, a figure that represented 86.21% of the proposed bargaining unit. Of those 25 signatories, 24 were members of the Union (82.75% of the proposed bargaining unit) and there was 1 non-member (3.44% of the proposed bargaining unit). The Case Manager’s report of the results of the membership and support check was circulated to the Panel and to the Union for its comments on 10 August 2007.  It was also copied to the Employer for information on 10 August 2007.

 

 

 

View’s of the Union

 

11.       By e-mail dated 14 August 2007 the Union stated it was happy with the result of the membership and support check.

 

Considerations

 

12.       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.  In the absence of any information or arguments from the Employer, the Panel had to apply the tests on the basis of the information and evidence from the Union.

 

13.       The Panel is satisfied that, in absence of any evidence to the contrary, 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. 

 

14.       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)

 

15        In its application to the CAC, the Union stated that there were 24 Union members in its proposed bargaining unit of 29 workers. The Panel was satisfied that, on the basis of the evidence available, the Union had 24 members out of 29 workers in the proposed bargaining unit.  This gives Union membership at 86.21% of the proposed bargaining unit.  The Panel is therefore satisfied that the level of Union membership in the bargaining unit does constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule. 

 

Paragraph 36(1)(b)

 

16.       The Panel considers that, in the absence of evidence to the contrary, the level of union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit.   The Panel notes that the support check conducted by the Case Manager showed that 86.21% of the workers in the bargaining unit had signed a petition in support of recognition of the Union.  The Employer did not contest the reliability of the petition as an indicator of the views of the workers who had signed it. On the basis of the evidence before it the Panel is satisfied, on the balance of probabilities, that a majority of workers in 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.

 

Decision

 

16.       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

 

Panel

Mr Chris Chapman

Mrs Maureen Shaw

Mr Paul Gates

 

17 August 2007