Case Number: TUR1/576/(2007)

26 September 2007

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

GMB

and

Windowstyle (UK) Ltd

Introduction

1. The GMB (the Union) submitted an application dated 31 May 2007 to the CAC that it should be recognised for collective bargaining by Windowstyle (UK) Ltd (the Employer) for a bargaining unit comprising “Foremen, General Cleaners, Production Operatives, Logistics & Ancillary Production Operatives and Remake staff shop floor workers” based at the Employer’s premises in Valley Road, Station Road Industrial Estate, Wombwell, Barnsley. The CAC gave both parties notice of receipt of the application on 4 June 2007. The Employer submitted a response on 7 June 2007 which was duly 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 Lynette Harris, Chairman of the Panel, and, as Members, Mr Eamonn Barry and Mr Roger Lyons. The Case Manager appointed to support the Panel was Nigel Cookson.

3. By a decision dated 5 July 2007 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. However, no agreement was reached by the end of the relevant period and so the parties were notified that a hearing would take place at which the bargaining unit would be determined. The parties were duly invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit and the hearing took place in Sheffield on 22 August 2007.

4. In a decision promulgated on 29 August 2007, the Panel decided that the appropriate bargaining unit should be one that comprised the following workers:

Foremen (including Team Leaders and Leading Hands)

General Cleaners

Production Operatives (including Conservatory Roofs, Quality Control and Waste Recycle)

Logistics and Ancillary Production Operatives

Remake Shop Floor Workers

Maintenance

This bargaining unit differed from that originally proposed by the Union by the inclusion of those workers in the categories Conservatory Roofs, Quality Control, Waste Recycle and Maintenance.

Issues

5. As the determined bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of the Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50. To this end both parties were invited, by way of letter dated 29 August 2007, to supply the Panel with written submissions relating to the validity tests.

Union’s submissions

6. In a letter dated 4 September 2007 the Union stated that there was no existing recognition agreement covering any of the workers within the determined bargaining unit. There was no competing application to the CAC from any other union, where the proposed bargaining unit covered any workers within the determined bargaining unit, nor had there been a previous application in respect of the determined bargaining unit.

7. As to whether 10% of the determined bargaining unit were in membership the Union submitted that its records, which it was prepared to supply to the CAC on a confidential basis, indicated that there were 134 members in the determined bargaining unit and so exceeded the number required.

8. The Union considered that a majority of the workers in the determined bargaining unit would be likely to favour recognition as, in addition to the names already in the Case Manager’s possession, the Union had a further petition of 137 names of workers that supported recognition of the Union. The Union was also prepared to supply this information to the CAC on a confidential basis.

Employer’s submissions

9. In a letter dated 4 September 2007 the Employer confirmed that there was no existing recognition agreement covering any of the workers in the determined bargaining unit and that it was not aware of any competing application from any other union. In addition, it was not aware of any previous application in respect of the determined bargaining unit.

10. As to whether there was 10% Union membership in the determined bargaining unit the Employer said that it did not have the information necessary to confirm one way or the other whether this was the case. Finally, the Employer said that it could not agree that the workers in the new bargaining unit would be likely to favour recognition of the Union.

Membership and support check

11. Having considered the submissions received from the parties, and to assist the determination of the two admissibility tests under paragraph 45(a) and 45(b) of the Schedule, namely whether 10% of the workers in the determined bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed the Case Manager to carry out checks as to the level of union membership and support for recognition within the determined bargaining unit.

12. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names of workers within the determined bargaining unit, and that the Union would supply to the Case Manager a list its members within that unit and a copy of its petition in support of recognition to enable comparisons to be undertaken. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party. These arrangements were confirmed in a letter dated 6 September 2007 from the Case Manager to both parties. The information from the Employer was received on 6 September 2007 and the information from the Union was received on 7 September 2007. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

13. The Employer provided a spreadsheet containing the names and addresses of 502 individuals. The Union provided a list of 137 members and a petition containing 519 names/signatures. There were three different parts to the petition. Firstly, there were 4 sheets of Union headed paper carrying the following proposition:

“PETITION IN SUPPORT OF GMB UNION RECOGNITION AT: Windowstyle (UK) Limited Valley Road Station Road Industrial Estate Wombwell Barnsley, S73 0BS

GMB trade union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers in the “bargaining unit” support our application. If you do support us, (irrespective of union membership), please sign this petition.

I support recognition of GMB trade union as entitled to conduct collective bargaining on pay, hours and holidays on behalf of foremen, general cleaners, production operatives, logistics & ancillary production operatives and remake staff shop floor workers.”

Individuals were then invited to give their names in block capitals and to sign their names under this proposal. There was no evidence as to suggest the date of these signatures. The second part of the petition took the form of 8 A4 sheets with two columns – one headed “Name in Block Capitals” and the other “Signature”. Again there was no evidence as to when these signatures were obtained. There were 331 names/signatures on the sheets that formed the first two parts of the petition. The final form of the petition provided by the Union was 188 A4 sheets with one sheet per signatory (188 signatures in total). Each sheet was on GMB notepaper and was headed with a proposition identical to that of the first form set out above. Individuals were then invited to sign and print their names under this proposal and also to add their job title. Under this, the signatory was informed:

“Please note that you do not have to be a union member to support this application and your details will not be supplied to the employer. Please return this completed letter in the pre-paid envelope provided.”

Whilst there was no place for the signatory to add the date, nonetheless each of these sheets bore date stamps with dates ranging between 4 June 2007 and 16 July 2007.

14. No additional checks were carried out by the Case Manager to verify the information supplied by the Parties.

15. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 128, a membership level of 25.50%. The petition supplied by the Union contained 519 names and signatures, of which 331 were in the determined bargaining unit, a figure that represented 65.93% of the determined bargaining unit. Of those 331 signatories, 122 were members of the Union (24.30% of the determined bargaining unit) and 209 were non-members (41.63% of the determined bargaining unit).

16. A report of the result of the check of the level of Union membership and support for recognition was circulated to the Panel and the parties on 13 September 2007.

Views of the Union

17. No comments were received by or on behalf of the Union by the set deadline.

Views of the Employer

18. In a letter dated 14 September 2007 the Employer stated that it did not dispute that the Union had 128 members in the determined bargaining unit and that the test under paragraph 45 (b) was satisfied. It noted that, based on the numbers supplied by the Union in its letter of 4 September 2007, membership had fallen from 136 to 134 which was contrary to the Union’s assertion that membership had increased significantly from the date of the previous validity test.

19. The Employer did not agree that a majority of the workers in the determined bargaining unit would be likely to favour recognition of the Union. It did not accept the validity of the petition presented by the Union. Firstly, in its view, the petition was not accurate. There were 519 alleged signatures on the petition from a bargaining unit of 502 workers and a high number of signatures were unreadable or duplicates. A petition that exceeded the determined bargaining unit and contained as many as 32 names not on the Employer’s list had insufficient credibility to discharge the Union’s burden of showing the required level of worker support within the bargaining unit. Secondly, the petition was not current. The Employer had previously objected to the various petition papers on the grounds that there was insufficient evidence as to when the workers signed the petition. The Union would appear to have re-submitted the petition obtained earlier in the year and had failed to get each signatory to date their signature, despite the previous objections.

20. The petition papers that the Union sought to rely upon as evidence of support of the majority were now up to seven months out of date on the Union’s own admission. The Employer observed that the Union had also resubmitted the same petition that it provided to the CAC for the check of membership and support for recognition at the acceptance stage and pointed out that the Union’s “new” evidence since that time amounted to merely an extra 137 names/sheets.

21. The Union was aware of the Employer’s criticisms in relation to evidence of current support at the time that CAC originally considered this issue in June 2007, nearly three months ago. At that time the Employer understood that the CAC did not agree with the Employer’s assertion that the names, at the time, were so out of date as to justify refusal of acceptance. This was, however, some three months ago.

22. The Employer respectfully submitted that it was incumbent on the Union to demonstrate current support for recognition. The Union was aware that the identity of the bargaining unit was in dispute and of the criticisms relating to the timing of the collection of the signatures it claimed were in support of recognition. The Union had not addressed the issue up to date support in the revised bargaining unit and the petitions supplied ought to be disregarded on the grounds that they did not evidence current support for the Union.

23. On the basis of the above, the Employer maintained that there was insufficient evidence of support amongst the workers in the determined bargaining unit for the CAC to accept that the Union had satisfied the validity tests.

Considerations

24. The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force covering any of the workers in the determined bargaining unit, that there is no competing application and that there has been no previous application to the CAC in respect of the determined bargaining unit. The remaining tests to be considered by the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the determined bargaining unit are members of the union and that a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

25. In respect of the first test of whether Union members constitute at least 10% of the workers in the determined bargaining unit, the Case Manager’s check conducted on 12 September 2007 established that 25.50% of the workers in the determined bargaining unit were members of the Union, a figure which the Employer did not challenge. The Panel is therefore satisfied that Union membership in the determined bargaining unit is greater than 10% and the test in paragraph 45(a) is met.

26. The second issue for the Panel to consider is whether, pursuant to paragraph 45(b), a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

27. The Panel is conscious that the test under paragraph 45(b) is whether a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining (emphasis added) and that the test is not a purely arithmetical one. It is a question of likelihood in the light of all the circumstances rather than a dead certainty.

28. To support its position that the majority of workers would be likely to favour recognition the Union relied on both its density of membership in the determined bargaining unit, which, as stated above, the Panel accepts as standing at 25.50%, and a petition that came in various formats but, when aggregated, was found to have been signed by 65.93% of the workers in the determined bargaining unit.

29. The Employer, in its letter of 14 September 2007 put forward a number of reasons as to why the Panel should disregard the evidence of the petition in arriving at a decision. It argued that the petition was not accurate given the high number of duplicates and illegible signatures and that the Union had claimed to have had more signatures than there were workers in the bargaining unit. The Employer also urged the Panel to disregard the petition on the basis that the signatures lacked recency in that they were collected between three and seven months ago.

30. In respect of the Employer’s argument as to the accuracy of the petition, the Panel is of the view that it is the number of signatures in common that forms the most important statistic from amongst those given in the Case Manager’s report. There is no breakdown in the report as to the actual number of duplicates as opposed to those names that were simply illegible but, in any event, the Panel believes that nothing turns on this point. In the Panel’s experience it is a very rare occurrence for a petition to be gathered without duplicated or unreadable signatures being found and it says more about human nature than about the authenticity of the petition itself. The fact of the matter is that the petition, in all formats, was signed by a total of 65.93% of the workers in the determined bargaining unit with 41.63% of the signatories being non-members.

31. The Employer’s argument that the petition should not be taken into account as evidence of majority support on the grounds that the signatures were collected some seven months ago and that the most recent signatures were now some three months old was considered by the Panel. Having given the matter some thought, the Panel has decided not to disregard the petition for this reason. The statutory process can be a lengthy one especially where the parties are involved in voluntary negotiations concerning recognition before an application is submitted. It follows that any petition gathered before these take place is going to be of some age by the time it is presented. What is important in the Panel’s opinion is the absence of evidence to suggest that any of the signatories have changed their minds and that the petition no longer represents the views of the individuals concerned.

32. Accordingly, the Panel finds that, with 25.50% of the workers in the determined bargaining unit in membership and with 65.93% of the workers in the determined bargaining unit having shown support for recognition through the various formats of the petition, the majority of workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and therefore the test set out in paragraph 45(b) is satisfied.

Decision

33. The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Professor Lynette Harris, Chairman

Mr Eamonn Barry

Mr Roger Lyons

26 September 2007