Case Number: TUR1/625/ (2008)

30 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:

 

 

National Union of Rail, Maritime & Transport Workers

(RMT)

 

 

and

 

 

Carlisle Security

 

Introduction

 

1.         The National Union of Rail, Maritime & Transport Workers - RMT (the Union) submitted an application to the CAC, dated 7 March 2008, that it should be recognised for collective bargaining purposes by Carlisle Security (the Employer).  In its application the Union described the proposed bargaining unit as “All Carlisle Security Staff Employed on the Mersey Rail Contract including Response Officers and Byelaw Enforcement Officers” located at “Signing on Points: Liverpool Central and Gilmoss.  Staff are then utilised at locations throughout the Mersey Rail Network with dedicated staff at Liverpool South Parkway, Birkenhead North and Gilmoss.”  The CAC gave both parties notice of receipt of the application on 11 March 2008.  On the 27 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 consider the case.  The Panel consisted of Professor Paul Davies as Chairman of the Panel and Mr Bob Hill and Lord David Lea OBE as Members of the Panel.  The Case Manager appointed to support the Panel was Miss Sharmin Khan.

 

3.         The initial statutory period for the Panel to decide on the admissibility of the application expired on 25 March 2008.  The period was extended until 17 April 2008 in order to allow time for a membership check to be carried out by the Case Manager.  The period was further extended to the 30 April 2008 for the parties to comment on the subsequent report, and 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 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

 

 

The Union’s application

 

5.         In its application the Union stated that there were 44 workers in its proposed bargaining unit.  The Union counted 23 members of the Union in its proposed bargaining unit.  As evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that its membership at the time of the application stood at 52.27%.  The Union also provided with its application a copy of a petition in support of RMT representation which was signed by 7 non-members.  Finally the Union stated that the reason for selecting the proposed bargaining unit was because these staff could be identified as being employed on a dedicated railway contract with its own direct supervision and the rail, maritime, transport union represented the staff they were working alongside, and therefore the Union was of the opinion that it could best represent their interests.

 

 

The Employer’s response

 

6.         In its response to the application, the Employer stated that the parties had not agreed on the bargaining unit.   The Employer stated that it employed 51 workers in the proposed bargaining unit broken down as follows: 

  • Rail Response Officers – 30
  • Enforcement Officers – 6
  • Control Room – 7
  • Birkenhead TMD – 4
  • Liverpool South Parkway – 4

 

7.         In a letter to the CAC dated 31 March 2008 in response to the CAC’s request the Union clarified the bargaining unit by checking with the Security Manager of Mersey Rail who provided the following break down:

·        Rail Response Officers – 30

·        Gilmoss Control Room – 7

·        Birkenhead Traction Maintenance Department – 4

·        Liverpool South Parkway – 4

 

8.         It appeared that Enforcement Officers were included within the 30 Rail Response Officers and were therefore counted twice by the Employer.  For further information the Union stated that the 30 Rail Response Officers consisted of Senior Response Officers, Senior Rail Officers and Rail Response Officers.

 

9.         In response to the Union’s estimate of the level of membership within the proposed bargaining unit and likely support for recognition in that unit, the Employer stated that the Union’s estimate was wrong as 2 of the 16 signatories on the Union’s petition had now left employment with Carlisle Security.  The Employer did not consider that a majority of the workers in the bargaining unit were likely to support recognition for the following reasons:

 

10.       The Operations Director in the North West Region had open and responsive communications with the aim of fostering good employee relations.  Communication flow was cascaded down through the organisation with supervisors and guards.  Although there was nothing formal in place employees were able to raise issues on working conditions with their line managers.  The Employer had recently issued an Employee Attitude Survey (a copy of which was attached) recording feedback and insight from its workforce.

 

11.       Pay, hours and other issues like this were controlled by clients, so some of the issues that union members may want to negotiate on would be frustrated by controls of a third party.  The Employer followed more than the statutory minimum in terms of the 2004 statutory disciplinary and grievance procedures and had zero grievances reported in the North West region in 2008.        

 

12.       The Employer questioned the suitability of the Union to be involved in collective bargaining and referred the Panel to negative reports about the Regional Organiser published on BBC websites.  Finally the Employer had reason to believe that the Union was using under hand methods to gain signatures on its petition and attached a statement from a worker who stated that he/she did not feel he/she was made aware of the reason for the petition and was duped into signing it. The Employer’s response to the application was copied to the Union and the Panel.

 

 

Membership and support Check

 

13.       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. 

 

14.       In letters to both parties dated 2 April 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 48 workers it stated were within the Union’s proposed bargaining unit and the Union provided a list of 21 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.  

 

15.       According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 11, a membership level of 23%.  The petition supplied by the Union contained 16 signatures, of which 12 were in the proposed bargaining unit, a figure that represented 25% of the proposed bargaining unit. Of those 12 signatories, 6 were members of the Union (12.5% of the proposed bargaining unit) and 6 were non-members (12.5% of the proposed bargaining unit).

 

16.       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 9 April 2008.

 

 

Union’s Comments

17.       The Union submitted its comments in respect of the results of the membership check in an e-mail and a fax dated 14 April 2008.  The Union reiterated that Mersey Rail, the client company, had confirmed that the number of staff on contract from Carlisle Security was 45.  The Union was concerned that perhaps managers were included in the figures provided by the Employer.  The Union also attached a roster chart for the Mersey Rail Contract and submitted to the Panel that by its calculations the combined percentage of members and petitioners was 35.55% and if the full 45 workers were taken into account the average rose to 43.24%.   

 

 

Employer’s Comments

 

18.       By its letter dated 14 April 2008 the Employer noted that 10 members did not appear on its list of employees and there was therefore clear incongruence between the Union’s information and the Employer’s information.  The Employer referred the Panel back to the comments it had made in its response to the Union’s application in respect of its view that the majority of the proposed bargaining unit were not likely to favour recognition of the Union.

 

19.       Finally, the Employer stated that it was “more than happy” to let its employees decide whether they would like recognition of the Union by way of a ballot and that it would co-operate fully with the CAC, Acas and the Union in every respect of the process.  It believed that its employment relations record would speak for itself.    

 

20.       To this end following a conversation with the Case Manager who explained all the stages in the statutory process, by its letter dated 17 April 2008, the Employer confirmed that it would not oppose the application for recognition and agreed to progress to the next stage.  The Employer also confirmed that it would enter with direct negotiations with the Union to resolve the issue over the actual numbers in the proposed bargaining unit.

 

 

Considerations

 

21.       The membership check carried out for the purposes of the current application assisted the Panel in its decision as to, 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. 

 

22.       Since that check, both parties supplied the Panel with additional evidence to support its position regarding the size of the proposed bargaining unit and the level of membership and support within that unit.  The Panel notes that in a working environment the size of the workforce can be a moving target and that this may lead to problems between the parties in reaching agreement on the issue of who is and who is not to be counted.  The Panel has based its decision on the figures declared at the time of the membership check but also takes into account the subsequent declaration of the Employer not to oppose the application.   The Panel has considered carefully the submissions of both parties and the supporting documentation.

 

Paragraph 36(1)(a)

 

23.       The Case Manager’s check of the Union’s level of membership dated 9 April 2008 established that 11 of the 48 workers in the proposed bargaining unit were members of the Union which, expressed as a percentage was 23% .  The Panel is satisfied that the checks carried out and reported on by the Case Manager on 9 April 2008 (described in paragraphs 13 to 11 above) were conducted properly and impartially and were in accordance with the arrangements agreed with the parties.  The Employer has not disputed that the members of the Union constitute at least 10% of the proposed bargaining unit. The Panel is therefore satisfied that the 10% test in accordance with paragraph 36(1)(a) of the Schedule has been met.

 

Paragraph 36(1)(b)

 

24.       As noted above, the membership and support check carried out by the Case Manager revealed that 23% of the workers whose names were provided by the Employer were members of the Union and a further 12.5%, being non-members of the Union, had signed a petition in favour of the recognition claim.  There was a dispute between the parties about the number of workers in the Union’s proposed bargaining unit, and the Employer raised a question about whether one petitioner had been misinformed about the nature of the petition he was being asked to sign.  These numbers put the application on the margin of meeting the tests for acceptance of the application. 

 

25.       Assuming in the Union’s favour that its estimate of the number of workers in the bargaining unit is correct (i.e. 45 rather than 48) and that there is no doubt about the genuineness of the petition signatories, then the above percentages would increase to 24.5% and 13% respectively.  This is still on the margin.  The Panel reminds itself that the statutory test is not whether the majority of the bargaining unit currently favours the recognition claim but whether they would be likely to favour it, presumably when asked in a ballot. 

 

26.       This is not an easy test to apply, but in this case the Panel has been influenced by the fact that the Employer’s response to the membership and support check was not to resist the CAC’s acceptance of the application.  This was confirmed in a letter dated 17 April 2008 from the Employer to the Case Manager, which stated: “We will not be opposing the application for union recognition and agree to progress to the next stage.” In the light of the parties’ agreement that the application should be accepted, the Panel believes that it is in the interests of good industrial relations for the application to proceed and that the data referred to above constitutes a sufficient basis for the Panel to be able to conclude that the statutory test has been met.  The Panel is therefore satisfied that the test required by paragraph 36(1)(b) of the Schedule has been met.

 

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

 

 

Decision

 

28.       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

 

 

 

Panel

Professor Paul Davies – Chairman of the Panel

Mr Bob Hill

Lord David Lea OBE

 

30 April 2008