Case Number: TUR1/616/(2008)

20 May 2008

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT ON THE BARGAINING UNIT

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.

3. 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 were members of the Union and whether a majority of the workers in the proposed bargaining unit were likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, the Panel proposed a check to be undertaken by the Case Manager of the level of union membership within the proposed bargaining unit. The comparison of the parties’ lists, which were lodged on a confidential basis, showed that there were 107 workers in the Union’s proposed bargaining unit and that the number of Union members in the proposed bargaining unit was 54, a membership level of 50.47%.

4. By its written decision dated 25 February 2008 the Panel accepted the Union’s application and the parties entered a period of 20 working days, the ‘appropriate period’ in accordance with paragraph 18(2)(a) of Schedule A1 to the Act (the Schedule), within which to negotiate and try to reach agreement as to the appropriate bargaining unit.

5. In a letter dated 14 April 2008 endorsed by both parties the terms of the agreed bargaining unit were set out. This bargaining unit, which comprised 116 workers, was defined as:

“all permanent operatives in the following departments :-Sewing department, Printing Department, Warehouse, New Factory, Old Factory, Transport division, Engineering/Maintenance department and computer department including Supervisors, Managers and Team Leaders (whether salaried or hourly paid)".

6. In an email to the parties dated 21 April 2008 the Case Manager sought clarification as to whether the agreed bargaining unit differed to that originally proposed by the Union in its formal request for recognition and subsequently in its application to the CAC. In an email to the CAC dated 24 April 2008 the Union stated that the agreed bargaining unit was substantially the same as that originally proposed except for the inclusion of salaried managers ands supervisors and a reference to the computer department. However, it added, a number of these posts were actually included in the Employer’s list provided for the check of membership and support during the acceptance stage.

Issues

7. Paragraph 20 of the Schedule states that where an application has, as in the present case, been accepted under paragraph 12 and the parties agree an appropriate bargaining unit that differs from the proposed bargaining unit then the CAC must, within the decision period, decide whether the application is invalid within the terms of paragraphs 43 to 50 of the Schedule. Whilst the Union argued that the bargaining units were substantially the same the Panel is required to apply the validity tests to a new or re-defined unit whether the difference be one worker or a hundred. These tests ask:-

· is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

· is there 10% union membership within the new bargaining unit? (paragraph 45(a))

· are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

· is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

· has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

In letters dated 25 April 2008 both parties were asked for their views as to whether the application remained valid following the agreement of the bargaining unit.

Views of the Union

8. In a brief email dated 1 May 2008 the Union answered ‘No’ to the first, fourth and fifth tests and ‘Yes’ to the second and third.

Views of the Employer

9. In a letter also dated 1 May 2008 the Employer, by way of further clarification, said that the definition of the agreed bargaining unit should be amended by the addition of “the Recovered Paper Department” after the words “Transport division”.

10. In relation to the specific items that the CAC had to assess the Employer submitted that there was no existing recognition agreement covering any of the workers in the agreed bargaining unit, there was no competing application from any other trade union nor had there been a previous application in relation to the new bargaining unit. However, whilst it was considered likely that there was 10% membership within the new bargaining unit the Employer did not believe that the majority of workers in the new bargaining unit were likely to favour recognition. It explained that the Case Manager had confirmed on the 12 February 2008 that 54 workers were members of the Union whereas the agreed bargaining unit comprised 116 workers in total. The Employer added that a significant number of workers had expressed their opposition to the Union representing them and the Employer considered that, in the interest of good industrial relations, a ballot should take place ‘as this would make the process transparent’.

11. The Union, when asked to comment on the Employer’s point that the ‘Recovered Paper Department’ should be added to the definition of the agreed bargaining unit, confirmed by way of an email dated 14 May 2008 that this department did indeed fall within the agreed bargaining unit. The correct definition of the agreed bargaining unit being:

“all permanent operatives in the following departments :-Sewing department, Printing Department, Warehouse, New Factory, Old Factory, Transport division, the Recovered Paper Department, Engineering/Maintenance department and computer department including Supervisors, Managers and Team Leaders (whether salaried or hourly paid)".

Considerations

12. The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and whether a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

Paragraph 45(a)

13. The membership check conducted by the Case Manager on 12 February 2008 in respect of the original bargaining unit found that there were 54 members in a bargaining unit of 107 workers, i.e. a density of 50.47%. The bargaining unit agreed by the parties now comprises 116 workers. This number includes those workers in the Recovered Paper Department, mention of which was left out of the letter of 14 April 2008 endorsed by both parties. Assuming that none of the additional workers that now fall within the terms of the agreed bargaining unit were members of the Union, and the Panel has no information to indicate otherwise, then there would be 54 members out of a bargaining unit of 116 workers, a membership level of 46.55%. It should be noted that the Employer accepts that the level of membership is sufficient to satisfy the test under this paragraph. The Panel is satisfied therefore that at least 10% of the workers in the bargaining unit are members of the Union.

Paragraph 45(b)

14. In support of its assertion that this test was not satisfied the Employer made two points. Firstly, that Union members accounted for less than half of the total number of workers in the bargaining unit and secondly, that a significant number of workers had expressed opposition to being represented by the Union. The Employer therefore called for a ballot to be held in order to test the strength of support for recognition.

15. The Panel, having considered the Employer’s submissions, finds that they are without merit. We acknowledge that, if it is assumed that none of the additional workers are in membership, the level of Union membership in the agreed bargaining unit is less than a majority, however, that is not the test that is being applied under this paragraph. The test under consideration calls upon the Panel to make an assessment, based on the evidence presented, as to whether a majority of the workers would be likely to favour recognition of the Union (emphasis added). In this instance the Union has relied on its membership as an indication that it meets the criteria and, in the absence of any evidence to the contrary, the Panel accepts that union membership can be a legitimate indicator of the views of the workers, perhaps more so in workplaces where a union has yet to secure a recognition agreement with an employer. The Panel is also aware that there may be non-members within a bargaining unit that would favour recognition of a union but, for whatever reason, have not taken out union membership. Whilst the Panel would emphasise that this is not a strict mathematical test nonetheless, in this particular case it would only take 5 non-members out of a possible 62 to align themselves to the Union’s cause for the Union to be able to claim majority support. The Panel believes that it is quite likely that the Union would be able to rely on the support of such a small number of non-members. In its comments the Employer referred to a significant number of workers having expressed opposition to being represented by the Union but it must be said that no evidence in support of this assertion has been placed before us. Accordingly, on the papers received, the Panel is satisfied that the majority of workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and the test in paragraph 45(b) is met.

Decision

16. The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mr Chris Chapman

Ms Virginia Branney

Mr John Rugman

20 May 2008