Case Number: TUR1/615/2008

Case Number: TUR1/615/[2008]

3 April 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

Kamns Paper Mill Ltd

Introduction

1. Unite the Union (the Union) submitted an application dated 9 January 2008 to the CAC that it should be recognised for collective bargaining by Kamns Paper Mill Ltd (the Employer) for a bargaining unit comprising “All Permanent Production Workers up to including Team Leaders” based at the Employer’s premises in Waterside Road, Hamilton Park Industrial Estate, Leicester. The CAC gave both parties notice of receipt of the application on 15 January 2008. The Employer submitted a response on 24 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 Professor Frank Burchill, Chairman of the Panel, and, as Members, Mr Paul Gates and Mrs Jackie Patel. 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 explained that it had written informally to the Employer on 30 October 2007 seeking discussions and followed this with a formal request for recognition on 9 November 2007. The Union received a response from the HR Manager of the Employer’s parent company by way of letter dated 26 November 2007. This letter contained an offer to meet with the Union but no dates were put forward nor did the Employer respond to further requests from the Union for a meeting. The Union attached copies of the correspondence to its application.

5. The Union stated that there were approximately 104 workers employed by the Employer and estimated that 70 of these were in the proposed bargaining unit, although the Union was unsure if the Employer agreed with this figure. The Union stated that 40 of the workers in the proposed bargaining unit were in membership. As for evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition of the Union for collective bargaining the Union said that its membership list and petition were available should the CAC require their production.

6. The Union had chosen the proposed bargaining unit on the grounds that it reflected the range of union membership. 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

7. In its response to the Union’s application the Employer said that it had received the Union’s formal written request for recognition on 9 November 2007 and responded initially on 16 November 2007 and again on 26 November 2007. The Employer attached copies of these letters to its response. It explained that these letters were to firstly, acknowledge receipt of the request and secondly, to indicate that the Employer was agreeable to a meeting to discuss the request. The Employer explained that it had not received a copy of the application direct from the Union and that the first sight it had of the application was the version faxed to it by the CAC on 15 January 2008 which was not received by the addressee until 22 January 2008. The Employer added that neither had it received a hard copy of the application from the CAC.

8. The Employer explained that no agreement had been reached on the bargaining unit, either prior to receiving a copy of the application or subsequently, as the Employer did not believe that it was reflective of the workforce. It provided a table showing the breakdown of the total number of workers it employed explaining that it did not agree with the Union’s estimate of the number of workers in the proposed bargaining unit as it was unsure as to how the Union had calculated the numbers it had stipulated.

LPC UK LTD 529

KAMNS PAPERMILL: TOTAL 83

KAMNS PAPERMILL: PRODUCTION 49

KAMNS PAPERMILL: SUPERVISORS 05

KAMNS PAPERMILL: ENGINEERING STAFF 10

KAMNS PAPERMILL: OTHER 19

9. When asked if it considered that a majority of workers in the bargaining unit were likely to support recognition the Employer found it difficult to comment given it had not been involved in a proposal for a bargaining unit before the application was made and it was unsure as to how the Union had calculated the numbers.

10. 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.

Union’s comments on the Employer’s response

11. The Panel, having considered the Employer’s response to the application, directed that the Union be invited to comment thereon and specifically as to whether the Union served a copy of the application directly on the Employer and, using the information provided by the Employer, confirmation of the categories of workers that fell within its proposed bargaining unit.

12. In a letter dated 29 January 2008 the Union confirmed that its bargaining unit covered the following groups of workers as defined by the Employer.

KAMNS PAPERMILL: PRODUCTION 49

KAMNS PAPERMILL: SUPERVISORS 05

KAMNS PAPERMILL: ENGINEERING STAFF 10

As to evidence that the Union had served a copy of the application directly on the Employer the Union enclosed an entry from its recorded posting receipt book for 9 January 2008 that showed the Employer as the addressee with a corresponding item reference number. At the foot of the page were boxes for the sender’s signature and the accepting officer’s signature and both had been duly completed.

The membership and support check

13. 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 31 January 2008 from the Case Manager to both parties. The Union’s list of its members in the proposed bargaining unit and petition was received on 31 January 2008 and the Employer’s list of workers in the proposed bargaining unit was received on 4 February 2008. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

14. The Employer provided a list of the 55 names. The Union provided a list of 52 members. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 28, a membership level of 50.91%.

15. The Union’s petition took the form of five A4 sheets with each carrying the proposition:

PETITION FOR TRADE UNION RECOGNITION

We the undersigned workers are employed by Kamns Paper Mill Ltd ask that the Graphical, Paper & Media Sector of UNITE be recognised as being entitled to conduct collective bargaining on our behalf.

Please note this petition is confidential and will only be made available to the Central Arbitration Committee (CAC) or ACAS.

There were 53 signatures on the petition with the signatures dated between 4 November and 13 November 2007. Of this number 35 were found to be workers within the proposed bargaining unit. 24 of the signatories were members of the Union, that is 43.64% of the total number of workers in the bargaining unit, and 11 of the signatories were non-members, that is 20% 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 63.64%.

16. 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 4 February 2008. The parties were duly invited to comment on the results of the checks. The Employer was also asked for its comments as to why it had provided a list of 55 names although it had earlier stated that the number of workers in the proposed bargaining unit, as subsequently clarified by the Union, was 64.

Parties’ comments on the results of the membership and support check

17. In a letter dated 6 February 2008 the Employer said that, as it had not been supplied with any names, it was unable to carry out its own checks and therefore could not reconcile the difference between the figures. It confirmed that the list it had provided was accurate and in line with its definition of the proposed bargaining unit. It explained that the discrepancy could be the difference between the number budgeted and the number employed and that headcount within sections could change weekly. The Employer explained that it had not included day workers as they did not fall within ‘Production’ and it proposed that a meeting be held to establish which workers were within the proposed bargaining unit.

18. In a letter dated 7 February 2008 the Union detailed its concerns with the Case Manager’s report. In summary, in its response to the application the Employer had stated that the total number of workers was 83 and the Union had then confirmed that the proposed bargaining unit comprised 64 workers based on the Employer’s figures - 49 Production workers, 5 Supervisors and 10 Engineering workers. However, for the purpose of the membership and support check the Employer had produced a list to the CAC of just 55 names.

19. Whilst it acknowledged that there were often minor discrepancies in the lists provided by the parties, the Union was at a loss to understand why 24 members within the proposed bargaining unit were not on the Employer’s list. It questioned why 10 Forklift Truck Drivers had been excluded and sought clarification as to the inclusion of 4 Stock Prep Operators. It noted that Supervisors and Shift Supervisors appeared on the Employer’s list but these posts were not part of the proposed bargaining unit which the Union had identified as ‘All Permanent Production Workers up to and including Team Leaders’.

20. The Union requested that the Panel investigated the discrepancies in the information supplied by the Employer before making a final decision on the admissibility of the claim.

21. The Employer was invited to comment on the points made by the Union. In a letter dated 15 February 2008 the Employer explained that there were 64 budgeted positions but only 55 workers currently employed. It had not included Fork Lift Truck drivers in its numbers as they were not considered to be ‘Production’ workers. The Employer confirmed that 4 Stock Prep Operators had been included and queried whether or not the Union sought to include supervisors in the bargaining unit.

Clarification of the Union’s proposed bargaining unit and further check of membership and support

22. In order to clarify the definition of the proposed bargaining unit the Panel called the parties to an informal meeting with the Chairman of the Panel, Professor Frank Burchill, and the Case Manager attending on behalf of the CAC. The meeting was held in Leicester on 13 March 2008. It was agreed at the meeting that the proposed bargaining unit would be defined in the following terms:

“All Permanent Production Workers up to and including Supervisors”. For the avoidance of doubt this bargaining unit comprises the following job titles - Day FLT Driver, FLT Driver, Grinder, Supervisor, Machine Operator PM1, Machine Operator PM2, Stock Prep Operator, Machine Operator (celli), Machine Assistant (celli), Electrician, Fitter, Dyer Operator PM1 and Dryer Operator PM2.

23. It was agreed with the parties that the Case Manager would, using the above definition, establish the number of union members in the proposed bargaining unit and the number of workers in the proposed bargaining unit that had signed the Union’s petition in support of recognition. It was agreed that the Case Manager would use the list of workers as provided by the Union at the start of the meeting on 13 March 2008 and base the check on those 60 workers that were agreed by the Employer as falling within the terms of the proposed bargaining unit as defined above. The Union agreed that it would provide to the Case Manager a copy of its membership list and a copy of its petition to enable comparisons to be made. The Union’s membership list and its petition were received by the CAC on 14 March 2008. It was explicitly agreed with both parties that, to preserve confidentiality, the Union’s list and petition would not be copied to the Employer and that agreement was confirmed during the course of the meeting on 13 March 2008.

24. The Union provided a membership list with 49 names and resubmitted its petition referred to in paragraph 15 above. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 40, a membership level of 66.66%. Of the 53 signatures on the petition 42 were found to be workers within the proposed bargaining unit. 32 of the signatories were members of the Union, that is 53.33% of the total number of workers in the bargaining unit, and 10 of the signatories were non-members, that is 16.66% 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 70%.

25. 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 17 March 2008 and the parties’ comments duly invited.

Parties’ comments on the results of the revised membership and support check

26. In an email to the Case Manager on 17 March 2008 the Union indicated that it was satisfied with the report’s conclusions and was ready to move on to the next stage of the procedure.

27. In a letter dated 26 March 2008 the Employer said that, having checked its records, it had identified an additional 12 electricians and fitters that fell within the terms of the bargaining unit as clarified. It argued that, on this basis, the figures in the Case Manager’s report were no longer accurate and would need revising accordingly.

Considerations

28. 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 and 35 and 37 to 42 and that the application was made in accordance with paragraph 11 in that the Employer did not address the substantive matter of the request for recognition in its letter of 16 November 2007 but simply acknowledged its receipt.

29. The remaining issues for the Panel to address are whether the admissibility criterion set out in paragraph 34 and paragraph 36 of the Schedule are met.

Paragraph 34

30. Paragraph 34 of the Schedule states that an application under paragraph 11 or 12 is not admissible unless the union gives to the employer:

a) notice of the application, and

b) a copy of the application and any documents supporting it.

In its application the Union stated that it had served the Employer with a copy of the application (and any supporting documents) on 9 January 2008. However, according to the Employer no such documentation was received. Indeed, the Employer added, the only version of the application it did receive was that which was faxed to it by the CAC with a covering letter dated 15 January 2008. Even then, whilst the CAC’s covering letter was dated 15 January 2008 it was not received by the addressee until 22 January 2008.

31. The Union, when asked for its comments on the Employer’s claim, submitted as evidence of service a copy of the relevant entry in its posting receipt book. It would seem that this book is initialled by the Royal Mail employee responsible for the collection of recorded delivery items from the Union’s office in Derby. Against the entry next to the Employer’s address there is the reference number of the particular item and the boxes for “sender’s signature” and “Accepting officer’s signature” were duly completed. The Panel is satisfied that this evidence supports the Union’s claim that the Employer was served a copy of the application on 9 January 2008 by recorded delivery and that the application is not therefore rendered inadmissible under paragraph 34.

Paragraph 36

32. 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 17 March 2008 following the informal meeting to clarify the composition of the proposed bargaining unit showed that Union membership stood at 66.66% which clearly satisfies the requirements of this test. The Employer has belatedly argued that there were a further 12 workers that fell within the proposed bargaining unit, having failed to mention these particular workers during the course of the informal meeting. Assuming that these workers were within the bargaining unit and that none were members of the Union, Union membership would stand at 55.55% rather than 66.66% but nevertheless the 10% test would still be satisfied.

33. 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 revised Case Manager’s report placed at 66.66%, but also on a petition in support of recognition which had been signed by 70% of the workers in the proposed bargaining unit. This figure included a total of 10 workers that were not members of the Union. The Employer argued that the figures were not accurate given the 12 workers that it believed should be included in the proposed bargaining unit. However, if it were assumed that none of the 12 workers had signed the petition then the Union would still be able to point to a level of support of 58.33% of the larger bargaining unit of 72 workers. Either way, the Union would still be able to claim majority support within the proposed bargaining unit.

34. 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, provides 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. The Panel finds that this conclusion holds true whether the test is applied to the bargaining unit of 60 as clarified following the informal meeting or the one of 72 as recently espoused by the Employer. Accordingly, the test set out in paragraph 36(1)(b) is satisfied.

Decision

35. 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 Frank Burchillhairman)

Mr Paul Gates

Mrs Jackie Patel

3 April 2008