Case Number:
TUR1/621/[2008]
18 March 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:
Unite the Union
and
Simplex Knitting Co.
Ltd.
Introduction
1. Unite the Union (the Union) submitted
an application to the CAC on 22 February 2008 that it should be recognised for
collective bargaining by Simplex Knitting Co. Ltd. (the Employer) for a bargaining
unit comprising “All hourly paid workers” employed at the Employer’s premises in
Bye Pass Road, Chilwell, Nottingham. The
CAC gave the parties notice of receipt of the application on 26 February 2008. The Employer submitted a response to the
application on 28 February 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 Professor Roy Lewis,
Chairman of the Panel, and, as Members, Dr Sue Corby and Mr Bryan Taker. 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 had made a formal request for recognition on 9 January 2008.
This followed on the heels of two informal requests. However, no response to the formal request was
received from the Employer. The Union
attached a copy of its formal request to the application.
5. According to the Union
there were 36 workers and four temporary workers employed by the Employer with
24 workers and four temporary workers in the proposed bargaining unit. The Union did not know
whether the Employer agreed with the Union’s estimate as
to the number of workers in the proposed bargaining unit. There were, so the Union
claimed, 11 members in the proposed bargaining unit and, as evidence that a
majority of the workers were likely to support recognition for collective
bargaining, the Union was in possession of a petition
that had been signed by the majority of the workers in the proposed bargaining
unit. This petition called for the
Employer to recognise the Union for the purposes of
collective bargaining. The Union
offered to supply both its petition and its membership records to the CAC on
request. 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 an
identifiable unit for bargaining purposes comprising workers commonly referred
to as "shop floor workers".
7. Finally, the Union
confirmed that it had not made a previous application for recognition in
respect of the 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 the 15
June 2007 and that it responded in writing on 19 July 2007.
The Employer enclosed a copy of this letter with the response. In the letter the Employer informed the Union
that it had considered the request but did not feel, due to the structure and
nature of its business, that union recognition would be of any benefit to either
the company or its employees. The
Employer made no reference to having received the Union's
letter of 9 January 2008
which formed the basis of its formal request for recognition.
9. The Employer confirmed that it received
a copy of the application form on 25
February 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 felt that it had been artificially created for the purposes of the
application. It argued that the proposed
bargaining unit comprised, in the main, three distinct and diverse departments
within the factory with completely different objectives and skill sets whilst
ignoring other workers within these departments because they were salaried
rather than hourly paid. The Employer’s
philosophy, it explained, was to treat its workers the same regardless of their
position within the structure of the company and, as such, it had always
awarded the same percentage pay increases across the board irrespective of whether
the workers were hourly paid or salaried.
The concept of creating a separate bargaining unit within the company
was, so the Employer felt, divisive and did not fit with the company's one team
ethos. The Employer confirmed that it
had not proposed that Acas be requested to assist the parties following receipt
of the Union’s formal request for recognition.
10. The Employer confirmed that it employed
35 full-time workers, one part-time worker and three temporary workers and that
there were 24 permanent workers in the Union’s proposed
bargaining unit as well as three temporary workers. The Employer did not know how many of the
workers in the proposed bargaining unit were members of the Union
as the workers had not divulged their membership status. The Employer did not respond to the question
as to whether a majority of the workers in the proposed bargaining unit would
be likely to support recognition of the Union.
11. The Employer indicated 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. Finally, the Employer indicated that it had
not received any other applications for statutory recognition in respect of
workers in the proposed bargaining unit.
The
membership 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 and support for recognition 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 and a
copy of its petition to enable comparisons to be undertaken. It was explicitly agreed with the parties
that, to preserve confidentiality, neither the respective lists nor the
petition would be copied to the other party. These arrangements were confirmed
in a letter dated 3 March 2008
from the Case Manager to both parties. The
information from both parties was received by the CAC on 3 March 2008.
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 that a spreadsheet
with the names and job titles of 28 workers. The job titles provided for the
workers were: Temporary Finisher, Sampler – Part Time, Knitter, Finisher, Dyer,
Engineer, Temporary Dyer, Finisher – Part Time, Fabric Tester and Warehouse
Man/Van Driver.
14. The Union provided
a list setting out the membership number, name, address and “DOE” (which the
Panel assumes to stand for date of entry) for each individual named therein.
There were 12 names on the Union’s list. It also provided a petition which consisted
of two A4 sheets. Both were headed:
SIMPLEX KNITTING CO LTD
We the undersigned, confirm that we
support the application by Unite the Union - T & G
Section for recognition for collective bargaining purposes.
We, the undersigned, authorise Unite the
Union – T & G Section to disclose our
names and to copy this petition to the CAC, ACAS and Simplex Knitting Co Ltd in
connection with the Union’s claim for recognition
There were 22
signatures on the pages of the petition.
The signatures were dated either 18
February 2008 or 19
February 2008.
15. The check established that 10 workers in
the proposed bargaining unit were members of the Union,
a membership level of 35.71%. The
petition supplied by the Union contained 22 names and
signatures, of which 22 were in the proposed bargaining unit, a figure that
represented 78.57% of the proposed bargaining unit. Of those 22 signatories, 10 were members of
the Union (35.71% of the proposed bargaining unit) and
12 were non-members (42.86% of the proposed bargaining unit).
16. A report of the result of the check of
the level of Union membership was circulated to the Panel and the parties on 4 March 2008 and the parties were duly
invited to comment on the results thereof.
Employer’s comments on the result of the
membership check
17. In
an email received on 4 March 2008 the Employer commented that there
appeared to be two union members who were not within the hourly paid
group. It reiterated its earlier point
that it believed that the bargaining unit had been artificially created by the Union for the purposes of this
application. This, so the Employer
contented, appeared to be confirmed by the findings in the Case Manager’s
report. The Employer surmised that the
two members not on the hourly paid list were salaried employees and as such,
did not fall into the parameters of the bargaining unit as set by the Union.
Other salaried employees had not been canvassed and so it would appear
to the Employer that only those employees who had indicated support for a union
had been canvassed. Either the
bargaining unit included all employees, or, as dictated by the Union, only hourly paid employees.
18. The
Employer believed that those employees who had voted for recognition of the Union, but who had not elected to become
members, were not fully aware of the implications of union recognition. It was also concerned that peer pressure may
have played a part in obtaining signatures on the petition.
19. The
Employer explained that the company was a family owned and run business which
had always awarded pay rises for all employees based on the performance of the
company as a whole and what the company could afford. Profitability had been the only restricting
factor when considering pay rises and in general employees had enjoyed higher
basic hourly rates than the norm within the industry.
Union’s comments on the result of the membership check
20. In a letter dated 7 March 2008 the Union
started by questioning the accuracy of the Case Manager’s report. The report stated that the names of two Union
members did not appear on the Employer’s list of workers. The Union acknowledged
that one member had left the company but submitted that the names of all 11
remaining members appeared on the Union’s petition and
that the report found that all of the names on the petition appeared on the
Employer’s list. The Union
did not understand this contradiction.
Nevertheless, despite this minor discrepancy, the Union
was confident that the stability of membership levels and the signatures it had
managed to obtain indicated that the test in paragraph 36 of the Schedule was
satisfied.
21. The test under paragraph 36(1)(b) did not require the Union to show that a majority would be likely to
support recognition in the sense
that they would be likely to vote for recognition in a ballot (the Union’s emphasis). Such a test would require a higher standard
at this eligibility stage (a majority of the workers in the proposed bargaining
unit) than would be required in a ballot (a majority of those voting but only
40% of those in the bargaining unit).
The test was whether a majority would be likely to “favour”
recognition. This, so the Union contended, was a less demanding test.
22. The
difference was, by analogy, that between the voting intentions of citizens
prior to a General Election, and the preferences of all citizens, including
those who did not intend to cast a vote.
The Panel did not have to form a view at this stage that the Union would be likely to win a ballot.
23. The
Union urged the Panel to contrast the wording in
paragraph 36(1)(b) with that in paragraph 29(3), which referred to the Union being supported
by a majority of those voting and at least 40% of those in the bargaining
unit. It would, it argued, be
perverse for a mechanism, designed to sift out applications having no
reasonable prospect of success, to set a higher standard than would be required
at the substantive point i.e. the ballot.
24. So the Panel should not ask itself “has the Union shown support/membership of at
least 40% so that we can deduce that once they have access and their campaign
gets going, they would win a ballot by an absolute majority of workers in the bargaining
unit or recruit over 50% of those workers into membership?” Rather, the Panel should ask itself whether
the Union, once it gets access etc, was likely to
convince at least 50% of the bargaining unit that, whether or not they would
actually vote for recognition, they should adopt a favourable, not hostile
stance.
25. Thus, the relevant factors at this initial
stage were firstly, whether the Union had such a membership level (e.g. 25%+)
that it was reasonable to deduce that there was a significant level of actual
support, which might be expected to produce an atmosphere favourable to its
request for recognition, so that non-members might be expected to look
favourably on the application and secondly, whether the Employer had produced
any evidence of hostility to
recognition on the part of members of the bargaining unit, that might suggest
that non-members did not look favourably on the application.
Considerations
26. 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. In reaching its decision the Panel has carefully
considered all the evidence submitted by the parties. 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 11 of the Schedule, in that whilst the Employer
responded to the Union’s earlier informal request, it did not respond to the
later formal request for recognition made under the Schedule.
27. The remaining issue for the Panel to
address is whether the admissibility criteria set out in paragraph 36(1) of the
Schedule are met.
28. 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 4 March 2008
showed that Union membership stood at 35.71%.
The Employer, when invited to comment on this test instead addressed its
arguments to the composition of the proposed bargaining unit rather than
whether the Union had the requisite percentage of
membership. The Panel would point out to
the Employer that any argument as to the appropriateness of the bargaining unit
is reserved for the next stage of the statutory process should the application
reach that point. On the other hand, the
Union, in its submissions, questioned the accuracy of
the check conducted by the Case Manager in that it claimed that there were 11
members out of the proposed bargaining unit of 28 which would give a slightly
higher membership density of 39.28% as opposed to the 35.71% as established by
the Case Manager. However, for the
purposes of this test this argument is moot given that both figures are in
excess of the statutory hurdle which is set at 10%. Accordingly, the Panel, having considered the
papers received, is satisfied that Union membership exceeds the 10% threshold
and this test is satisfied.
29. 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, according to the Case Manager’s report
stands at 35.717% and a petition which was signed by 78.57% of the workers in
the proposed bargaining unit. The
Employer argued that it believed that those non-members that had signed the petition
were not necessarily fully aware of the implications of union recognition and
it was further concerned that peer pressure may have played a part in
persuading workers to sign the Union’s petition. Conversely, the Union
has set out why the Panel should find in its favour on this point and has set
out, in detail, its own interpretation as to how the test should be
applied. However, it must be said that
this interpretation, in the Panel’s view, goes beyond the statutory language of
paragraph 36(1)(b). In its view, the
test that the Panel has to apply is the hypothetical one enshrined in the
statute namely whether the majority would be likely to favour recognition. The Panel reaches its conclusion in relation
to that test only after careful consideration of all the evidence rather than
mechanically applying an arithmetical formula.
30. The Panel has considered the arguments
put forward by the Employer but finds that they are without merit. Firstly, the Panel is not persuaded by the
Employer’s submission that those non-members that signed the petition did not
understand what it was that they were being asked to support. The proposition on the petition was
sufficiently clear and concise as not to be misleading or, in the Panel’s view,
easily misunderstood. Secondly, the
Panel has not been furnished with any evidence to support the Employer’s
contention that workers had signed the petition because of any apparent peer
pressure.
31. Having considered the submissions put
forward by the parties, and in the absence of any evidence to the contrary, the
Panel is of the view that the density of Union membership within the proposed
bargaining unit when taken together with the number of workers, both members
and non-members, that have signed the petition in support of the Union gives a
legitimate indication of the overall strength of support for the Union’s claim
for recognition. The Panel has therefore
reached the conclusion 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 and accordingly, the test set out in
paragraph 36(1)(b) is satisfied
Decision
32. 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 Roy
Lewis, Chairman of the Panel
Dr Sue Corby
Mr Bryan Taker
18 March 2008