Case Number: TUR1/570/(2007)
19 June 2008
CENTRAL ARBITRATION
COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 -
COLLECTIVE BARGAINING: RECOGNITION
DECISION ON COMPLAINTS
UNDER PARAGRAPH 27A
The Parties:
CWU
and
Cable
& Wireless Services UK Ltd
1.
The CWU (the Union) submitted an
application to the CAC dated 30 April
2007 that it should be recognised for collective bargaining by
Cable and Wireless Plc (the Employer) in respect of a bargaining unit
comprising “employees in UK Field Services (except Managers)”.
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 Purcell, Panel Chair, and as
Members, Mrs Diana Palmer and Mr David Coats.
The Case Manager appointed to support the Panel was Kate Norgate.
3. By a decision dated 11 June 2007, the Panel accepted the Union’s
application and, as no agreement was reached on the bargaining unit,
subsequently invited both Parties to supply the Panel with, and to exchange,
written submissions relating to the question of the determination of the
appropriate bargaining unit. A hearing
was held on 22 August 2007. Having carefully considered the Parties
written and oral submissions the Panel decided that the appropriate bargaining
unit was that specified by the Union in its application.
4. On 17 September 2007 the Employer made an application for
judicial review. In a judgment dated 4 February 2008 the court decided that
there was no error of law in the CAC
decision. Between the date of the
application to the court and the issuing of the judgement it was agreed that
the CAC would not hold a hearing or make a
decision but would continue with the preparatory steps as described in the
Panel’s letter of 15 November 2007.
5. The Panel invited submissions from
the parties concerning whether, in the light of the union’s majority
membership, recognition should be awarded.
Having considered these, and the considerable volume of communications
from employees in the bargaining unit, the Panel called a hearing to determine
whether there should be a secret ballot or whether the Union
should be recognised without a ballot.
Both Parties were invited to supply the Panel with written submissions
prior to the hearing. The hearing was
held on 10 March 2008. Having
carefully considered the Parties’ written and oral submissions, the Panel
decided that that a ballot should be held.
6. The Case Manager wrote to the
parties on 12 May 2008, in
accordance with paragraph 25(9) of the Schedule, to specify the arrangements
for the postal ballot. The last date for
the return of postal votes was 9 June
2008. The CAC
appointed Electoral Reform Services (ERS) as
the Qualified Independent Person (QIP) to conduct the ballot, and with the assistance
of the Panel Chairman, the Parties finalised the access arrangements at the
commencement of the balloting period.
7. On 4 June 2008 the Union submitted a
complaint to the CAC that the Employer had
failed to comply with its duty under paragraph 27A. The Union’s complaints
were forwarded to the Employer and it submitted a response dated 5 June 2008. The complaints and the response are
summarised in the ensuing paragraphs of this decision.
Summary of the Union’s complaints
8. The Union
contended that the Employer had breached the unfair practice provisions by continued
campaigning after the campaign period had ended. The Union referred to
an e-mail circulated by an employee which, it stated, the Employer had
knowingly allowed to be distributed internally using Cable and Wireless
equipment. The e-mail contained a link to the PTI Labor Research web site
which gave access to a video that was produced and intended for DVD distribution. This video clearly outlined
the company line on union recognition and encouraged employees to vote “no” in
the ballot. The e-mail was distributed
on 27 May 2008
and gave clear direction on how to access the site using a web link. The Union contended that the video could only be
accessed by using the web link. However,
the employee who circulated the e-mail claimed to have found it on the
intranet. The Union stated that it believed the Employer had a
duty to ensure that employees followed the access and balloting arrangements
and that the Employer had failed in this duty, as campaigning ended on the 22 May
2008. This allowed
the Employer to keep the campaign running for an extra week, and put the Union’s campaign for recognition at a distinct
disadvantage.
9. The
Union explained further that attached to the
e-mail was a letter in PDF format from Jim Marsh (Chief Executive
Officer at Cable &Wireless Europe, Asia & US, and a member of the UK
Operating Board). The Union submitted a copy with its complaint. In that letter Mr Marsh addressed employees
and promoted the company attitude to union recognition. He also advised employees to vote “no” in the
ballot. The Union stated that there was no date on the letter,
and that that may have been deliberate to disguise the actual day it was issued. This letter was left in circulation along
with the video link and was accessible on the Company intranet.
10. The
Union further stated that on 27 May
2008 Mr Russ Hewitt
(Head of Field Services) also sent an e‑mail to the workers in the bargaining
unit. In this e-mail he advised workers that,
due to Royal Mail delivery problems, they could collect the DVD from their
local sorting office and the Employer would pick up the cost of travel and any
outstanding balance on postage. The Union
believed this allowed the Employer to keep its campaign running beyond the 22
May 2008, the
cut off date.
11. Finally,
the Union also provided with its complaint a copy of
a further note sent out, purported to be from Jim Marsh, which an employee had forwarded
to the Union for information. The Union
stated that this e‑mail was originally sent on 22 May 2008, the final day of access and campaigning. This letter announced bonus payments
following the publication of the annual results and said that employees would
receive maximum payment. The Union was sure this was good news for employees,
who quite rightly should share in success. It was, however, concerned that in
the same e-mail, reference was made to the Union, and employees were asked to vote “no” in
the ballot. The Union believed that fell under the scope of
unfair practices as it could be considered an inducement in an attempt to
influence the vote. Although the Union was not clear whether the e-mail source was
Jim Marsh, it believed it would be easy to establish by asking the Employer to
account for the mail and its timing.
12. On
5 June 2008, after the submission of its complaint, the Union sent to the CAC
an e-mail , dated 5 June 2008, from a worker, Mr Tilt, which had been
circulated to all those in the bargaining unit.
The Union contended that the contents of the e-mail
were prejudicial to it because Mr Tilt had encouraged the recipients to vote
against recognition. The Union’s argument was that the Employer had taken
no action to prevent individual workers circulating such material and that it
was additional evidence that the Employer had sought to prolong its campaign
beyond the agreed access period.
13. The
Union believed the actions of the employer
had the effect of exerting undue influence on employees to vote against
collective bargaining. It also considered that those acts amounted to a serious
breach of the access and balloting arrangements agreed with the Panel Chairman.
Summary of the Employer’s response to the Union’s complaints
14. The Employer disputed that in any of
the four instances put forward by the Union had it used
an unfair practice or breached the access agreement.
15. Firstly, the Employer asserted that
it was very surprised the Union was making a complaint against the Company that
it had breached the terms of the agreement when, on Friday 23 May 2008, the
Union had placed a statement on its website to which both Parties had directed
colleagues during the balloting campaign.
In its response the Employer had reproduced the wording from the
statement on the website. The Employer
submitted that that was new material that had not previously been circulated
and was clearly timed to coincide with the anticipated date of receipt of the
ballot papers. In its view, the Union
had clearly continued campaigning. The
Employer explained that it took a pragmatic step by simply asking that the
statement be removed from the website.
It also decided to disable its own link about which the Union
had complained, in order to assist in resolving the dispute.
16. In response to the points made by the
Union in its complaint to the CAC,
the Employer explained that on 21 May
2008 the Company issued to the workers within the bargaining unit a
letter from Mr Marsh, and enclosed a DVD as
part of its campaign material. Both the DVD
and the letter complied with the campaigning requirements of the legislation
and the Code of Practice, and no complaint was made about the contents of
either. These were sent out in the post
by Royal Mail to employees' home addresses within the campaigning period and in
accordance with the terms of the access agreement. The actual mailing was carried out by an
agency company called RTFacts.
17. Employees were constantly discussing
the issues surrounding recognition throughout the campaign and as a result of
those discussions it emerged that some of the workers in the bargaining
unit had received this letter and attachment and others had not. The Employer explained the sequence of
events that followed in an attempt to rectify what it referred to as “an
embarrassing situation” after it had soon become apparent that a number of
employees, who had not received the letter and DVD, wished to see the same material as their colleagues. This material had, of course, already been
dispatched to workers within the permitted period.
18. The Employer stated that the purpose
of its email of 27 May 2008 (timed at 11.47 and sent to the CAC by the Union with an earlier letter) was to explain what had
happened and offer to pay any costs incurred in collecting a copy of the
letter/enclosure or to take delivery of it.
It did not consider that this breached either the Access Agreement or
the unfair practice legislation and was very surprised that such a complaint
had been made. It asserted that given
that the purpose of its email was to restore goodwill in the light of its
embarrassment and it was not therefore sent "with a view to influencing the result of the ballot."
19. The Employer explained that later
that day a member of the bargaining unit, Mr Tim Buckland (a Network
Specialist), requested that the DVD was
played from a link on the Intranet so that workers who had not seen it, but
wished to do so, could duly view it. The
Employer had informed Mr Buckland that this was not appropriate as it would
breach the campaign embargo in the access agreement. Mr Buckland then asked if
he could have a copy of the link. It was thought that he was requesting a copy purely
for his personal use so the Company took the view that this was
permissible and sent it to him. He then asked if he could send it out to
the bargaining unit as a whole. Mr
Buckland then took it upon himself to send the link to the whole workforce late
on 27 May 2008 before he
had received a response from the Employer. Mr Buckland had incorrectly
interpreted the lack of a response as approval and it was assumed that he
claimed, misguidedly, that he had found the link on the intranet in order to
seek to deflect any criticism of the Company.
The Employer attached to its response copies of the emails between Mr
Buckland and Mr Hewitt, relating to this matter in support of the Employer’s
account of what happened.
20. The Employer explained that at no
stage was the link put on the intranet, nor had Mr Buckland ever
received approval from the Employer to circulate the link. The Employer stated that had it had an
opportunity to respond to Mr Buckland’s request before he had acted as he did,
it would have refused permission. Mr
Buckland did however only circulate material, which had previously been in wide
circulation, had been sent out during the permitted period, and was received by
workers in the bargaining unit. The
reality was that any member of the bargaining unit who received a copy of the
letter and DVD could have supplied their copy to another worker
quite legitimately. The Employer also wished to highlight that it was not only its
campaign material that was in circulation as the union's "In Touch"
newsletters were also in circulation. The
Employer stated that once it became aware on 30 May 2008 that the Union
had taken objection to the continued presence of the link it promptly disabled
the link.
21. In response to the Union’s
assertion that the letter from Jim Marsh may deliberately have been left
undated, the Employer stated that the version of the letter the Union
had furnished was simply the template version which was supplied to managers
for their information. The letter was
naturally "in circulation" as
it had been sent to a significant number of the bargaining unit before ballot
papers were sent out by the QIP. The
Employer stated that contrary to the Union’s other
allegation, it was not accessible on the intranet. It submitted that whilst it would agree that it
should be responsible for the actions of members of the Company's campaign
team who were privy to the terms of the Access Agreement, it did not consider
that it could be held responsible for the actions of members of the bargaining
unit operating off their own back.
22. In response to the Union’s
point that a further e-mail sent by Mr Marsh on 22 May 2008 to workers within the bargaining unit "could
be considered an inducement in an attempt to influence the vote", the
Employer asserted that this was patently not the case. The Employer explained
that the note was issued the day the company's recent results were
released, i.e. 22 May 2008,
and that day was the first opportunity for workers to be told the
good news in relation to their bonuses, this timing being in line with previous
Company practice in notifying colleagues about their bonuses. For example, workers were informed about
their bonus at a similar time of year in 2007 (on 24 May 2007). In
fact all workers were notified on this day about the position regarding
bonuses. The fact that this note
happened to go out the same day as the last day of campaigning stemmed from the
fact that 22 May 2008 was
chosen as the last campaigning day by the CAC.
Whilst the letter recorded Mr Marsh's wish that workers voted against
recognition, there was of course no suggestion (explicit or inferred) that the
size or payment of the bonus would be affected by the way they voted.
23. The Employer also responded to the Union’s
additional complaint dated 5 June 2008. The Employer’s position was that it did not
consider it proper to try to prevent a dialogue between individual workers and
that it could be considered as a restriction on freedom of speech were it to do
so. It would obviously take steps in the
event of inappropriate action which resulted in workplace tension,
discrimination or harassment – none of which it had observed or had been
reported.
24. The Employer also referred to the
Union’s request that communications from workers and members of the Union
within the bargaining unit about continued campaigning should be kept anonymous
from the Employer yet treated as evidence in support of the union's complaint of
campaigning after the ballot papers had been issued. The Employer stated that it was not clear
what evidence the Union was referring to. It referred to the CAC’s
letter of 29 May 2008 in
which it informed both Parties that the Panel would not be able to consider
evidence that had not been copied to the other Party for comment.
25. Notwithstanding the content of the
union’s complaint, the Employer held the view that the compliant was out of
time since under paragraph 27(1) any failure by an employer to fulfil the
duties imposed upon him in paragraph 26 must have occurred before the ballot
had been held. It referred the Panel to
the decision in TGWU & Comet Group (TUR1/501/(2006)) where a similar union
complaint had been rejected by that Panel as the postal ballot had begun and
was thus being held.
Considerations
26. The Panel considered the complaint and
the written submissions carefully. It did not consider that the Union’s
unfair practice complaint was out of time since it was made under paragraph
27A, and not 27. Paragraph 27B(2)(b) specifies that a complaint must be made,
where votes may be cast on more than one day, on or before the last of those
days. The complaint was received before the closing date of the postal ballot.
The Panel also notes that it cannot take account of anonymous letters from
employees forwarded by the Union. It had made this clear
to the parties.
27. The Panel has recognised all along
that this has been a difficult and tense period for both the Union
and the Employer and that accusations of misconduct were likely in the
balloting period. It notes the accusations from the Employer concerning a
possible breach of the access agreement by the union in posting out material on
the day after the close of the campaign period. Since, however, the Employer
did not formally lodge a complaint under the Unfair Practice provisions it can
do little beyond considering it as a background to the Union’s
complaint.
28. Two parts of the Union’s
accusations concern the actions of employees in the period after the posting on
the ballot papers and thus beyond the closure of the campaign period. In one
case, that concerning Mr Buckland; the Employer had tried to stop him
circulating the material and had sought to limit any damage by ensuring that
the web link was removed. In another case, it appears that the employee was
acting alone. To be a valid complaint the Panel would have to conclude that
these two employees were agents of the Employer carrying out instructions to
distribute the material. The Panel has no evidence to support this conclusion
and notes, in one case, action taken to repudiate an employee’s actions.
29. The more serious allegation concerned
the letter of the CEO which mentioned, in the first paragraph, the successful
trading year and the size of the consequent bonus payments and then, in the
second paragraph drew attention to the union recognition ballot and urged
colleagues to vote ‘No’. This, potentially, could be construed as an attempt
‘to use undue influence on a worker entitled to vote in the ballot’ (27A(2)(g).
The Panel can understand how the Union comes to this
view but it cannot agree. For there to be undue influence there would need to
be evidence that the employer was threatening or inducing employees by linking
the bonus payment to the outcome of the ballot. Apart from being in the same
letter the two statements on the bonus and the ballot were not connected. The
Panel concludes that the complaint is not well-founded.
Decision
30. The Panel’s decision is that
complaints submitted under paragraph 27B(1) of the Schedule are not
well-founded.
Panel
Professor John
Purcell
Mr David Coats
Ms Diana Palmer
19 June 2008