Case Number: TUR1/623(2008)

03 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:

GMB

and

Travis Perkins

Introduction

1. The GMB (the Union) submitted an application dated 28 February 2008 to the CAC that it should be recognised for collective bargaining purposes by Travis Perkins (the Employer) for a bargaining unit comprising “The hourly paid employees employed to carry out manual duties or part manual duties, not including employees employed solely for clerical or managerial duties employed at Travis Perkins Trading Co Ltd, Forstal Road, Aylesford, Kent, ME20 7AG.” The application was received by the CAC on 29 February 2008. The CAC gave both Parties notice of receipt of the application on 3 March 2008.  On 7 March 2008 the Employer submitted a response to the CAC, which was 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 Peter Martin and Ms Lesley Mercer. The Case Manager appointed to support the Panel was Kate Norgate.

3. The CAC Panel has extended the acceptance period in this case. The initial period expired on 14 March 2008. The period was extended until 27 March 2008 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 until 4 April 2008 for the Panel to consider the evidence and reach a decision.

Issues

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

Views of the Union

5. The Union had formally requested recognition in its letter to the Employer dated 15 January 2008. The Employer responded in a letter dated 22 January 2008 by not accepting the Union’s request, but was willing to negotiate and proposed that Acas be requested to assist. In its application the Union stated that there were 58 workers in its proposed bargaining unit, of whom 28 were Union members. The Union also submitted with its application the results of a “membership & petition check” conducted by Acas and dated 11 February 2008. It stated that it had sent a petition to Acas for the purpose of the check. However, following the Acas check, the Parties were unable to agree the definition of an appropriate bargaining unit.

Views of the Employer

6. The Employer did not agree with the Union’s estimate that there were 58 workers in the proposed bargaining unit and stated that it believed there were 61 workers in the proposed bargaining unit. It further stated that due to the fact that the Union had insisted

on distinguishing between “manual” and “part-manual” roles, there remained some ambiguity as to whether or not some roles should have been included in the Union’s proposed bargaining unit. The Employer also disagreed with the Union’s estimate of membership in the proposed bargaining unit. It stated that although Acas had conducted a membership check, the information provided by the Union was sent directly to Acas. The Employer stated that it could not verify the accuracy of the information provided and therefore it could not agree the estimate of membership provided by the Union.

7. The Employer further stated that it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition despite the petition referred to by the Union. The Employer explained that the Company was undergoing changes at its Ayleford Branch and Mill. In February 2007 all employees were informed of the proposed closure of The Mill in July 2008. The Employer stated that it had been in consultation with elected representatives of the workforce over the past year in relation to this proposal. The Employer was of the view that some employees may have believed that union recognition would help them during the consultation process of the proposed closure but when such employees understood that statutory recognition facilitated bargaining on pay, hours and holidays only, this would substantially reduce the number of employees who supported recognition.

Membership and Support check

8. 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.

9. In letters to both Parties dated 12 March 2008, the Case Manager requested that the Employer provide a list of the workers within the proposed bargaining unit giving their full name, date of birth and job titles, and that the Union provide a list of its members stating their full name, date of birth, date of joining, paid up to date and confirmation of membership status within the proposed bargaining unit, and a copy of the petition. The Employer provided a list of 58 workers it stated were within the Union’s

proposed bargaining unit and the Union provided a list of 28 Union members it stated were within its proposed bargaining unit, and a copy of its petition. Both Parties provided the information on a confidential basis.

10. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 21, a membership level of 36.21%. The petition supplied by the Union contained 48 signatures, of which 39 were in the proposed bargaining unit, a figure that represented 67.24% of the proposed bargaining unit. Of those 39 signatories, 17 were members of the Union (29.31% of the proposed bargaining unit) and 22 were non-members (37.93% of the proposed bargaining unit).

11. The Case Manager’s report of the results of the membership and support check was circulated to the Panel and to the Parties for their comments on 19 March 2008.

Summary of the Parties’ comments

12. By an e-mail dated 20 March 2008 the Union stated that the report showed that it had met both tests under paragraph 36 of the Schedule.

13. By an e-mail dated 20 March 2008 the Employer stated that whilst it appeared that the Union had met the first test, it did not agree that a majority of the workers within the bargaining unit would be likely to favour recognition, even though the report appeared to show that a majority would be likely to support recognition of the Union. The Employer re-iterated a point made in its response to the Union’s application concerning changes at the Aylesford Branch and Mill, and on the proposed closure of The Mill in July 2008. In its view, when employees understood that recognition would facilitate bargaining on pay, hours and holidays only and not discussions regarding the proposed closure of The Mill, this would substantially reduce the number of employees who support recognition.

Considerations

14. In relation to membership and support, the Panel is required to decide, firstly, whether under paragraph 36(1)(a) of the Schedule, members of the union constitute at

least 10% of the workers in the proposed bargaining unit and, secondly, whether under paragraph 36(1)(b) 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. The Panel has considered carefully the submissions of both parties and the supporting documentation.

Paragraph 36(1)(a)

15. The Case Manager’s check of the Union’s level of membership established that 21 of the 58 workers in the proposed bargaining unit were members of the Union (36.21%). The Employer has not disputed that the members of the Union constitute at least 10% of the proposed bargaining unit. The Panel is satisfied that the 10% test is met in accordance with paragraph 36(1)(a).

Paragraph 36(1)(b)

16. The Case Manager’s check of the Union’s petition against the list of 58 workers provided by the Employer indicated that 39 of the petition signatories were workers from within the proposed bargaining unit, a support level of 67.24%. The Panel is satisfied that the Case Manager’s check was undertaken fairly and appropriately and in conformity with the approach taken by the CAC. The Panel notes the Employer’s view that some employees may believe that union recognition would help them during the consultation process of the proposed closure of The Mill and that the level of support would reduce significantly once those employees were aware that collective bargaining (under the statutory recognition process) was in respect of pay hours and holidays, and not that of the proposed closure. The Panel considers that the law relating to statutory requirements over proposed redundancies above a certain size appears to have been misunderstood by the Employer. However the Panel does not have exact figures of the number of workers to be made redundant by the closure of the Mill, nor does it have firm information about its timing. The Panel considers that the wording of the petition is clear and unambiguous about seeking recognition to conduct collective bargaining on pay, hours and holidays and it has received no evidence to suggest that signatories to the petition have changed their minds about union recognition since signing the petition. Therefore, given the level of union membership and support demonstrated by the petition, and in full consideration of the evidence made available, the Panel finds that the majority of the workers would be

likely to favour recognition of the Union for the purposes of collective bargaining. The Panel is therefore satisfied that the test required by paragraph 36(1)(b) of the Schedule has been met.

17. The Panel is satisfied also, after full consideration of all the documentation submitted by the parties, that the Union’s application meets the remaining statutory tests.

Decision

18. The application is valid within the terms of paragraphs 5 to 9, was made in accordance with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1. The application is therefore accepted by the CAC.

Panel

Professor John Goodman (Chairman)

Mr Peter Martin

Ms Lesley Mercer

03 March 2008