Case Number: TUR1/600/[2007]

26 October 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

BHK (UK) Ltd

Introduction

1. The GMB (the Union) submitted an application dated 2 October 2007 to the CAC that it should be recognised for collective bargaining by BHK (UK) Ltd (the Employer) for a bargaining unit comprising “Machine Operators, Production Operators and Non Salaried Staff”. The Union added that its bargaining unit specifically excluded “Management and Salaried Staff”. The location of the bargaining unit was given as Factory 1, Factory 2 and the Shop on the Employer’s site in Peterlee, Co Durham. The CAC gave both parties notice of receipt of the application on 2 October 2007. The Employer submitted a response on 5 October 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 John Goodman, Chairman of the Panel, and, as Members, Mr Ken Anthony and Sir Ken Jackson. The Case Manager appointed to support the Panel was Nigel Cookson.

3. The Panel extended the statutory deadline to decide whether to accept the Union’s application to 26 October 2007 to allow for a membership check to be conducted and for the parties to comment on the results thereof.

Issues which the Panel has to determine

4. The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) 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 the Schedule; and therefore should be accepted.

The Union’s application

5. In its application the Union told how it had submitted its formal request for recognition to the Managing Director of the company on 16 July 2007. On the following day, 17 July 2007, it submitted a further request to the Works Director. After receiving no response to these letters a further copy of the request was served on the Works Director by recorded delivery on 24 July 2007. The letters were all in the same terms with the Union concluding each letter by inviting the Employer to accommodate an informal meeting to discuss the possibility of reaching a voluntary agreement. The Works Director, on behalf of the Employer, responded to the request received on 17 July 2007 by way of a letter dated 26 July 2007. In its letter the Employer explained that its policy was not to engage in discussions with a third party where company matters were concerned. However, having said that, the Employer then indicated that it was prepared to accept the Union’s proposal for informal talks so as to determine what the Union had in mind regarding the future.

6. The Union stated that there were approximately 120 workers employed by the Employer and estimated that there were 100 workers in the proposed bargaining unit, although the Union did not know if the Employer agreed with this figure. The Union stated that 29 (to date) of the workers in the proposed bargaining unit were in membership. The Union was also in possession of a petition which had been signed by more than half of the workers and it was prepared to submit this evidence to the CAC for examination should it be necessary on the proviso that the names of the individuals would not be revealed to the Employer.

7. The Union explained that the proposed bargaining unit had been selected on the grounds that these sections of the workforce had shown a desire to be members of the Union. Finally, the Union confirmed that the bargaining unit had not been agreed with the Employer and that there was no existing agreement that covered any of the workers in the proposed bargaining unit.

The Employer’s response to the Union’s application

8. In its response to the Union’s application the Employer stated that it had originally received the Union’s written request for recognition on 24 July 2007 and responded on 26 July 2007 refusing the request but accepting the Union’s proposal that the parties meet on an informal basis to discuss the matter further. The Employer confirmed that it had received a copy of the application form from the Union on 3 October 2007.

9. The Employer explained that it did not agree the proposed bargaining unit on the basis that there was in place a Works Council which had been established when the company was set up in 1988 and so the Employer saw no requirement for Union representation.

10. The Employer stated that it employed 128 workers overall with 32 salaried staff and 96 workers that were hourly paid. The Employer did not agree with a number of workers in the bargaining unit is defined in the Union's application explaining that the actual number was 96 as opposed to the Union’s 100. When asked if it considered that a majority of workers in the bargaining unit were likely to support recognition the Employer stated that there were only 29 Union members out of the total of 96 hourly paid workers.

11. Finally, the Employer confirmed that there was no existing agreement covering any of the workers in the proposed bargaining unit nor was it aware of any previous application by the Union in respect of this or a similar bargaining unit nor had it received any other applications for statutory recognition in respect of workers in the proposed bargaining unit.

The membership and support check

12. To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the Case Manager of the level of union membership within the proposed bargaining unit and the degree of support for recognition as demonstrated by the petition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of Union members within that unit and a copy of its petition 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 10 October 2007 from the Case Manager to both parties. The Employer’s list of workers in the proposed bargaining unit was received on 10 October 2007 and the Union’s list of its members in the proposed bargaining unit and petition was received on 11 of October 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 list of the 89 names. The Union provided a list of 29 members. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 22, a membership level of the 24.72%.

14. The Union’s petition took the form of 9 A4 sheets of Union headed paper with each carrying the proposition:

BHK – (Peterlee Site)

Yes, I support the GMB claim through recognition to conduct collective bargaining on my behalf and would welcome the opportunity to register my opinion in a secret ballot

The petition provided for the signatory to provide their name, signature, section and job title with space for 9 signatories per sheet. The signatures in themselves were undated although each page of the petition had been date stamped “09 JUL 2007” at some stage. There were 71 signatures on the Union's petition of which 55 were found to be workers within the proposed bargaining unit. Six of the names did not appear on the Employer's list and 10 were duplicates. 21 of the signatories were members of the Union, that is 23.6% of the total number of workers in the bargaining unit, and 34 of the signatories were non-members, that is 38.2% of the total number of workers in the proposed bargaining unit. The proportion of petition signatories in the proposed bargaining unit as a whole was 61.8%.

15. A report of the results of the check of the level of Union membership and support for recognition was circulated to the Panel and the parties on 12 October 2007. The parties were duly invited to comment on the results of the checks conducted by the Case Manager by no later than the close of business on 17 October 2007.

Parties’ comments on the result of the membership check

16. In a letter dated 17 October 2007 the Union submitted that the it was clear that it had over 10% of the workforce in membership and that over 50% of the workforce wished the Union to be recognised for collective bargaining and the Union was therefore satisfied that it had passed the tests set out in paragraph 36 of the Schedule.

17. The Employer, in a letter dated 16 October the 2007, agreed with the Case Manager's calculations but pointed out that the information was constantly changing as was shown when comparing the Union's figures as to the number of workers in the proposed bargaining unit against the actual. The Employer was not convinced however that the majority of its hourly paid workers actually wished to either join or be represented by the Union otherwise, it argued, the Union would have garnered more members than it had during the 19 years that the company had been located in Peterlee.

18. The Panel, prior to its arriving at a decision, wanted to establish over what period the Union’s petition was gathered. Accordingly, in an e-mail to the Union dated 18 October 2007, the Case Manager asked for confirmation as to the dates that the signatures were collected.

19. In an email to the Case Manager on 24 October 2007 the Union confirmed that the petition signatures were collected over a period of 3 months between April and June 2007 and the completed petition was received at the Union’s office on 9 July 2007 hence the date stamp referred to in the Case Manager’s report.

20. In a further letter dated 24 October 2007 the Employer drew the Panel’s attention to correspondence arising from a previous request by the Union for recognition in 2001. The Employer indicated that the Union had more members at that time than it did at the present time but did not pursue its request for recognition.

Considerations

21. 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 considered all the evidence submitted by the parties in reaching its decision. 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 to recognise it for collective bargaining in respect of the proposed bargaining unit as described in paragraph 1 of this decision. The request was made in writing and identified the Union, the proposed bargaining unit and that the request was made under the Schedule. The Panel 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 that it was made in accordance with paragraph 12 of the Schedule, in that before the end of the first period the Employer notified the Union that it did not accept the request but nevertheless indicated a willingness to negotiate.

22. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

23. In accordance with paragraph 36(1)(a) 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. The check of Union membership in the proposed bargaining unit as conducted by the Case Manager on 12 October 2007 showed that Union membership stood at 24.72%. The Panel therefore considers that this test is satisfied.

24. 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 not only on its level of membership, which the Case Manager’s report placed at 24.72%, but also on a petition in support of recognition which had been signed by 61.8% of the workers in the proposed bargaining unit. This figure included a total of 34 workers that were not members of the Union. The Employer however, was not convinced that the majority of the workers would favour recognition of the Union arguing that the number of workers in the bargaining unit was constantly changing. It referred to the different set of figures given by the Union and itself as evidence of this. The Panel assumes this to be a reference to the variability of and some difference as to the number of workers in the proposed bargaining unit. The Employer also submitted that if the workers really wanted the Union to be recognised then the percentage of Union members in the proposed bargaining unit would have been higher given that the company had been based in Peterlee for nearly 20 years. Earlier, in its response to the application, the Employer had also argued that the existence of the Works Council negated the need for Union recognition.

25. The Panel has considered the Employer's submissions but does not find them persuasive. It is not unusual for there to be a discrepancy between the figures given by a union of the number or approximate number of workers in the proposed bargaining unit and the correct total as given by an employer. In this case the difference was relatively small and the Panel sets no store by this. Neither is the Panel convinced by the Employer’s argument that the level of Union membership is indicative that the workers are not likely to favour recognition of the Union. There may be a number of reasons why the non-members within the proposed bargaining unit have chosen not to join the Union. For example, there may perhaps be individuals that are unwilling to pay trade union subscriptions in a workplace where the union is unrecognised but may well join the Union once recognition has been secured. Another factor could be that there may be individuals that have not joined the Union because they are under the misapprehension that the Employer would be informed of that fact and, for whatever reason they do not want this brought to the Employer’s attention. The Panel has noted the Employer’s observation about the differing levels of Union membership as between 2001 and at present. However, the tests that the Panel must apply are against today’s level of membership and the Union exceeds the 10% requirement as shown above in paragraph 13.

26. Therefore, on the balance of probabilities the Panel takes the view that, in the absence of evidence to the contrary, the level of Union membership, taken in combination with the evidence suggested by the petition conducted earlier this year, does provide sufficient indication as to the views of the workers and the evidence put before the Panel in this particular case would suggest that the majority of 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. Accordingly, the test set out in paragraph 36(1)(b) is satisfied.

Decision

27. The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance to with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of the Schedule. The application is therefore accepted by the CAC.

Panel

Professor John Goodman (Chairman)

Mr Ken Anthony

Sir Ken Jackson

26 October 2007