Case Number: TUR1/616/2008

Case Number: TUR1/616/[2008]

25 February 2008

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

East Riding Sacks Ltd

Introduction

1. GMB (the Union) submitted an application to the CAC on 15 January 2008 that it should be recognised for collective bargaining by East Riding Sacks Ltd (the Employer) for a bargaining unit comprising “Permanent Operatives in the following departments:- Sewing Department, Printing Department, Warehouse Department, New Factory, Old Factory, Transport Department, Maintenance Department, including Supervisors and Team Leaders all of whom work at the Full Sutton Industrial Estate site” which referred to the Employer’s premises in Stamford Bridge, York. The CAC gave the parties notice of receipt of the application on 21 January 2008. The Employer submitted a response to the application on 29 January 2008 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 Mr Chris Chapman, Chairman of the Panel, and, as Members, Ms Virginia Branney and Mr John Rugman. The Case Manager appointed to support the Panel was Nigel Cookson.

Issues which the Panel has to determine

3. 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

4. In its application the Union stated that it made its formal request for recognition to the Employer on 21 August 2007 but did not indicate as to how the Employer responded to the request save that the Employer proposed that Acas be requested to assist and that the Union agreed to this proposal. A copy of the formal request for recognition was enclosed with the completed application form.

5. According to the Union there were 87 workers employed by the Employer with the same number within the proposed bargaining unit. The Employer did not agree with the Union’s estimate as to the number of workers in the proposed bargaining unit. According to the Union, 58 of the workers in the proposed bargaining unit were in membership and, as evidence that a majority of the workers were likely to support recognition for collective bargaining, the Union explained that membership had grown from five members to 58 members within the last six months since the Union had been actively dealing with member issues within the workplace and whilst the Union had been striving for recognition. The Union was willing to supply its membership list to the CAC on a confidential basis in accordance with the usual procedure followed by the CAC. The Union confirmed that the Employer did not agree the composition of the bargaining unit itself.

6. The Union explained that it had selected the proposed bargaining unit on the basis that it was a traditional bargaining unit comprising workers employed at the Employer’s single site on the Full Sutton Industrial Estate. The Union believed that such a bargaining unit made industrial commonsense and was fully compatible with effective management.

7. Finally, the Union confirmed that it had not made a previous application for workers in the proposed bargaining unit or a similar unit nor was there an 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 received the Union’s written request for recognition on 23 August 2007 and that it responded in writing on 30 August 2007. The Employer enclosed a copy of its letter with the response. In its letter the Employer informed the Union that it did not accept the request for recognition but that it was prepared to negotiate. The Employer then asked the Union to clarify whether its intention was for one bargaining unit or for each department to have its own and for the Union to provide details of which workers within each department were in membership. On receipt of this information the Employer would then arrange a meeting and the Union was asked for details of its availability. The Employer suggested to the Union that it may be of assistance to have had an Acas representative in attendance at any subsequent meeting. The Employer concluded its letter by indicating its willingness to agree to extend the second period of 20 working days should the Union consider it appropriate.

9. The Employer confirmed that it received a copy of the application form on 18 January 2008. It also confirmed that the parties had not agreed a bargaining unit before it had received a copy of the application form from the Union and that no agreement had been reached subsequently. It objected to the proposed bargaining unit because it did not consider the individual bargaining units to be adequately defined in particular by reference to the inclusion of the salaried staff. The Employer stated that following receipt of the Union’s formal request for recognition it had proposed that Acas be requested to assist and that a meeting had taken place on 28 September 2007.

10. The Employer confirmed that it employed 128 permanent staff with a further 20 agency staff on average. It did not agree with the Union’s estimate as to the number of workers in the proposed bargaining unit explaining that it believed the number of workers in the bargaining unit to be 109 as it considered it necessary to include managers and supervisors engaged in production and transport including maintenance. When asked if it disagreed with the Union’s estimate of its membership in the proposed bargaining unit the Employer answered “not known”. As to whether a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union the Employer stated that it was not satisfied that all those counted in membership had understood that they were becoming members of an independent trade union and it was further concerned that some may have joined as a result of coercion.

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. It had not received any other applications for statutory recognition in respect of workers in the proposed bargaining unit.

Further and better particulars of the Employer’s response

12. Having considered the Employer’s response the Panel directed that the Employer clarified the following:

a) Whether or not the Union replied to the Employer’s letter of 30 August 2007 and, if so, to furnish the Panel with a copy.

b) Whether or not the Employer was proposing that salaried staff be included or excluded from the bargaining unit.

c) Whether the figure given by the Employer of 109 workers represented the number of workers in the Union’s proposed bargaining unit or whether it represented the number in an alternative bargaining unit favoured by the Employer.

d) To explain the discrepancy in the figures given by the parties.

13. The Employer addressed the above points in a letter dated 4 February 2008.

a) The Employer enclosed the Union’s reply to its letter of 30 August 2007 in which the Union responded to the Employer’s queries which included agreement to the involvement of Acas.

b) It was proposed that workers engaged in the production process and transport as supervisors or managers be included in the bargaining unit whether hourly paid or salaried

c) The figure of 109 workers represented the number of workers in the bargaining unit as defined in the Union’s application. The Employer made the point that the Union excluded those salaried managers and supervisors from the proposed bargaining unit but included managers and supervisors that were hourly paid even though they performed essentially the same work.

d) The Employer referred to c) above adding that agency workers had not been included in the figure of 109.

The membership check

14. 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. 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 to enable comparisons to be undertaken. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 7 February 2008 from the Case Manager to both parties. The Union’s list of members and the Employer’s list of workers in the proposed bargaining unit were both received on 8 February 2008. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

15. The Union provided a list containing 56 names giving the membership number, name and address including postcode individual. The Employer provided a list of 107 workers. It also provided the following key: “H: Hourly paid”, “S: Salaried”, “M: Manager”, “Sp: Supervisor”, “GFW: General Factory Worker” and “TL: Team Leader.” The names were listed, with the appropriate abbreviation (e.g. “H Sp”) next to each, under the following headings: “New Factory”, “Quality”, “Old Factory”, “Print Dept”, “Sewing Dept”, “Warehouses”, “Despatch”, “Transport”, “Engineering”, “Computers”, “Recovered Paper”, and “Recently left our employment”. The two names listed under the final category were excluded from the check as they were no longer workers in the proposed bargaining unit. There were a total of 11 supervisors listed, 10 of whom were annotated as hourly paid and one annotated as salaried.

16. The check established that 54 workers in the proposed bargaining unit were members of the Union that is a membership level of 50.47%.

17. A report of the result of the check of the level of Union membership was circulated to the Panel and the parties on 12 February 2008 and the parties were duly invited to comment on the results thereof.

Union’s comments on the result of the membership check

18. In a letter dated 14 February 2008 the Union submitted that the Case Manager’s report demonstrated that the 10% union membership test under paragraph 36(1)(a) was satisfied. It further submitted that the membership level of 50.47% was also sufficient to satisfy the test under paragraph 36(1)(b) in that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union.

Employer’s comments on the result of the membership check

19. In an email received from the Employer on 18 February 2008 the Employer set out its reasons as to why it believed that the Union would not achieve majority support in a ballot. It explained that in the initial application the Union claimed 58 members out of a proposed bargaining unit of 87 and that this was subsequently reduced, following the Case Manager’s check, to 54 members out of a bargaining unit of 107. However, the Employer believed that current Union membership was no more than 53 out of a total bargaining unit of 117 explaining that the increase in the bargaining unit was due to a further 11 workers having recently been taken onto the permanent payroll.

20. In addition, the Employer claimed that workers were disillusioned with the Union. In disputes over health and safety issues the Union had endorsed the policies and practices of the Employer against the workers and in recent disciplinary matters the Union had agreed with the Employer on the outcomes which had been no different to disciplinary hearings in pre-union times.

21. As mentioned earlier the Employer was of the belief that there may have been some coercion in gaining membership and some members may not wish the Union to have collective bargaining rights. Finally the Employer pointed out that two workers had recently left the company and it may be that one or both were Union members thereby reducing the level of membership further.

Considerations

22. In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 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 the Employer refused the request for recognition but indicated a willingness to negotiate but no agreement was reached before the end of the second period.

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

24. 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 February 2008 showed that Union membership stood at 50.47%. The Panel therefore considers that this test is satisfied.

25. 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 its level of membership which, as stated above, stands at 50.47%. The Union submitted that, in light of its membership density, as established in the Case Manager’s confidential check, on the balance of probabilities the majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union and it urged the Panel to accept that this test was likewise satisfied.

26. The Employer argued that in its opinion the Union would not get a majority of the bargaining unit voting in favour if a ballot was to be held. It set out a number of reasons for reaching this conclusion including that it was of the view that workers had become dissatisfied with the Union following its involvement in health and safety disputes and disciplinary hearings. The Employer also argued that there had been changes in the proposed bargaining unit which would affect the membership density. Eleven workers had been made permanent and two workers had left the bargaining unit. The effect of the changes, so the Employer argued, was that the proposed bargaining unit now stood at 117 workers and that 53 of these workers were members of the Union although it is not clear how the Employer arrived at this figure given that the Case Manager found that there was 54 members in the proposed bargaining unit when the check was conducted on 12 February 2008. If we were to assume that the Employer’s figures are accurate then there would be 45.3% membership in the proposed bargaining unit. The Employer also argued that some workers were coerced into becoming members and that some members may not wish the Union to have collective bargaining rights. Further, in its response to the application the Employer also questioned whether the workers fully understood what they had committed themselves to by becoming members of the Union.

27. The Panel has considered the Employer’s views but has not found them persuasive. No evidence has been provided to support the claim that workers are dissatisfied with the Union. Neither has the Panel any evidence to support the allegation that workers were coerced into becoming members of the Union nor has it had sight of evidence that would suggest that any members did not support the Union’s claim for recognition. Turning to the Employer’s point that recent changes had affected the density of members in the proposed bargaining unit the Panel would remind the parties that the test under consideration here is a hypothetical one in which the Panel has to assess whether a majority of workers would be likely to support recognition of the Union. It is not a test based on an arithmetical certainty but rather a considered view based on the evidence provided.

28 The Panel accepts that, in the absence of evidence to the contrary, the level of Union membership can be accepted as indicative of an individual’s likely support for collective bargaining on his or her behalf by the union in relation to the employer and that it is more likely than not that a worker who has joined a union would be in favour of that union negotiating with the Employer on matters related to terms and conditions of employment. The Panel also considers that, on the balance of probabilities, there is a significant chance that there are workers within the proposed bargaining unit who, for whatever reason, are reluctant to join the Union at this stage but would favour recognition of the Union and may well be willing to join the Union if recognition by the Employer is secured. For these reasons, whether membership stands at 45% as argued by the Employer or at 50% as evidenced by the Case Manager’s report, the Panel remain of the view that a majority of workers would be likely to favour recognition of the Union and accordingly, the test set out in paragraph 36(1)(b) is satisfied.

Decision

29. The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance to with paragraph 12 and is admissible within the terms of paragraphs 33 to 42 of the Schedule. The application is therefore accepted by the CAC.

Panel

Mr Chris Chapman, Chairman of the Panel

Ms Virginia Branney

Mr John Rugman

25 February 2008