Case Number: TUR1/615[2008]

14 July 2008

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECLARATION OF RECOGNITION WITHOUT A BALLOT

 

 

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 and 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.

 

3.         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. 

 

4.         By a decision dated 3 April 2008 the Panel accepted the Union’s application.  The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.  Because no agreement was reached by the end of the period, the parties were invited 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 12 May 2008 and the Panel determined the appropriate bargaining unit was that as proposed by the Union and as clarified in paragraph 3 above. 

 

Issues

 

5.         Schedule A1 to the Act (the Schedule) provides that where the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2), unless any of three qualifying conditions in paragraph 22(4) applies.  Paragraph 22(3) requires the CAC to hold a ballot even where it has found there is a majority of union members in the bargaining unit if any of these conditions is fulfilled. The qualifying conditions are set out in paragraph 22(4).  They are:

 

ia) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

iib) a significant number of the union members within the bargaining unit inform the CAC that they do not want the union to conduct collective bargaining on their behalf;

iiic) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf.

 

6.         The Union was asked whether it claimed that it had majority membership within the bargaining unit and was therefore submitting that it should be granted recognition without a ballot.

 

 

The Union’s submissions

 

7.         The Case Manager’s membership check determined that the level of Union membership in the determined bargaining unit, even with the extra 12 workers that the Employer added after the hearing on 13 March 2008 hearing, stood at 55.55%.  Union membership was therefore well above the 50%+1 required.

 

8.         The Employer had been aware for some time that the Union had been seeking recognition and had ample opportunity to take the initiative in the interests of good industrial relations and discuss trade union recognition with a view to reaching a voluntary agreement.  The Union believed that the holding of a ballot would not further the relationship between the parties at this stage, but that good industrial relations would develop as a result of Union officers negotiating with the Employer in the longer term.

 

9.         The Union considered it highly unlikely that any of its members would inform the CAC that they did not want the Union to conduct collective bargaining on their behalf.  The right to be represented by the Union, for the purpose of collective bargaining, was the reason they had become members.  Many of the workers had been members for a number of years and had remained in membership although the Union had not been able to undertake collective bargaining on their behalf.

 

10.       As to whether membership evidence has been produced which could lead the CAC to conclude that there were doubts whether a significant number of the Union members wanted the Union to conduct collective bargaining on their behalf the Union argued that its members had made their wishes clear by not only joining the Union but also by signing the petition in support of recognition. 

 

11.       The Union believed that its members and other colleagues working at Kamns had expressed their wishes by joining the Union and signing the petition and had done so in significant numbers over and above the 50%+1 requirement for recognition without a ballot.  The Panel should therefore declare the Union recognised without the need for a ballot and the detrimental effect that such a ballot would have on industrial relations within the company.

 

The Employer’s submissions

 

12.       On 10 June 2008 the Employer submitted that the Panel did not have the evidence to be satisfied that the majority of the workers in the bargaining unit were members of the Union.  First, the count and membership check relied upon by the Union was made in March 2008, some three months ago. Second, since that time, there had been a number of changes within the bargaining unit, with a number of new workers starting employment since then and one additional worker being transferred into the bargaining unit from another company within the LPC Group. Third, the total number of workers within the bargaining unit now numbered 84.

 

13.       The fact that 55.55% of the 72 workers who were members of the bargaining unit in March 2008 were in membership did not mean that a majority of the workers in the bargaining unit as currently constituted were members.

 

14.       If the Panel did conclude that a majority of the workers in the bargaining unit were members of the Union, the Employer would submit that a ballot should nevertheless be held in the interests of good industrial relations.  Although the Union suggested that “the right to be represented by the union to conduct collective bargaining, was the reason they have joined the union”, it was submitted that it was equally likely that members joined the Union to take advantage of the benefits offered, rather than for any reason connected with collective bargaining.  Union recognition without the support of a democratic ballot would be inappropriate in the circumstances outlined.

 

The Union’s further submissions

 

15.       On 13 June 2008 the Union informed the Panel that it was concerned with the way in which the Employer had increased the number of workers within the bargaining unit by 42% during the life of the application.  However, it submitted, even on the latest figure of 84 workers the Union still enjoyed majority membership in the bargaining unit and therefore requested the Panel to make a declaration of recognition.  

 

16.       The Union observed that it seemed the Employer was able to increase the size of the bargaining unit at will.  The Employer also was able to employ vulnerable workers on a short term basis so as to increase the numbers in the bargaining unit and that these workers could be used by the Employer until it had achieved its aim of thwarting the Union’s attempt to achieve recognition.

 

17.       Union membership had increased since the last membership check revealed that there was 66.66% of the bargaining unit in membership.  By increasing the workers in the bargaining unit from 60 to 84 the Employer had eroded the density of Union members.  Whilst accepting that the numbers had changed in the time the claim had been with the CAC it was nonetheless concerned with the Employer’s latest figure as members had informed the Union that no additional workers had been employed.

 

18.       If the Employer’s latest figure was accepted then the Union would request that the Panel sought verification that all of the 84 workers were currently employed and were working within the bargaining unit.  Further, confirmation should be sought that the additional workers were not LPC workers who had had their contracts changed to Kamn’s contracts in order to increase the size of the bargaining unit in the short term.  The Employer should also be required to verify that the workers being employed were permanent workers rather than temporary migrant workers on work permits or workers on probation. 

 

19.       Addressing the three qualifying conditions in paragraph 22(5) the Union submitted that the Employer had known for some time that the Union was seeking recognition and so there had been ample opportunity for it to take the initiative in the interests of good industrial relations and discuss trade union recognition with a view to agreeing a voluntary agreement.  It repeated its earlier submission that the holding of a ballot would not further the relationship at this stage but that good industrial relations would come as a result of Union officers negotiating with the Employer in the longer term.

 

20.       No Union members within the bargaining unit had informed the CAC that they did not want the Union to conduct collective bargaining on their behalf.  The right to be represented by the Union, for the purpose of collective bargaining, was the reason they had joined the Union.  Many of the workers had been members for a number of years and had remained members despite the Union not being able to collectively bargain on their behalf.

 

21.       No membership evidence had been produced that could lead the CAC to conclude that there were doubts whether a significant number of the Union members within the bargaining unit wanted the Union to conduct collective bargaining on their behalf.  The workers had made their wishes clear by not only joining the Union but also by signing the petition in support of recognition.  

 

22.       The Union still had 55.55% of the workers in membership based on a 72 worker bargaining unit.  Using this test the Panel should declare the Union recognised without the need for a ballot and the detrimental effect that such a ballot would have on industrial relations within the company.  However, if the Panel were to decide that a ballot was required the Union would formally request that the Panel took into account its concerns and verify that the Employer’s figures were correct.  

 

 

The Employer’s further submissions

 

23.       In a letter dated 27 June 2008 the Employer submitted that the LPC Group had been involved in a restructuring for some months and that this process had begun in the summer of 2007, which was some time before the Employer became aware of the Union’s intention to seek recognition within Kamns Paper Mill Ltd.  The increase in numbers within the bargaining unit since the last count in March 2008 could be explained both by new recruits into the Group and by transfers into Kamns Paper Mill Ltd from LPC (UK) Ltd as part of this restructuring process.  The Employer estimated that the additional numbers were approximately 50% new recruits and 50% transfers.   The numbers within the bargaining unit were likely to change further in the coming weeks as there was a number of vacancies including vacancies for three fitters and four machine operators that the Employer was actively seeking to fill.  An offer had been made to a fitter on 25 June 2008 which, if accepted, or if any of the other vacancies were filled, then numbers within the bargaining unit would increase further.

 

24.       The Employer categorically denied “employing vulnerable workers on a short-term basis in order to increase the numbers covered by the bargaining unit”.  The additional numbers were explained by the restructuring process referred to above and were in accordance with the Employer’s budgeted numbers for the year.  All of the changes to the bargaining unit since March were business related.  The Employer also confirmed that the workers within the bargaining unit were not temporary migrant workers, on work permits.  Inevitably, there would be some new recruits still within their probationary period, but this would have been the case when the last count was made in March 2008.

 

25.       In the light of the above, the Employer submitted that at this present point in time, the Panel could not be satisfied that there was a majority of Union members in the bargaining unit.  In these circumstances, the legislation provided that a ballot should be ordered.  In the alternative, and with particular reference to the uncertainty about the numbers, the Employer submitted that to order recognition without the support of a democratic ballot would be entirely inappropriate and a ballot should be ordered as it was necessary for good industrial relations.

 

Membership Report

 

26.       To assist in deciding whether to arrange for a secret ballot under Schedule A1 to the 1992 Act, the Panel proposed an independent check of the level of union membership in the bargaining unit.  The information from the Union was received by the CAC on 1 July 2008 and from the Employer on 2 July 2008.  It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 30 June 2008.

 

27.       The Union provided its membership records for its members employed at Kamns plus its membership records for its members employed by LPC explaining that it was unsure if any had been transferred into the Kamns bargaining unit.  It also submitted the membership details of members belonging to the T&G Section of Unite.  The Employer provided a spreadsheet giving the name, clock number and position of 84 workers adding that there were seven unfilled vacancies within the bargaining unit.  The result of the check was that 45 names on the Union’s list appeared on the Employer’s list; a membership level of 53.57 %.  The result of the membership check was served on the parties on 4 July 2008. 

 

Considerations

 

28.       As stated in paragraph 4 of this decision, the Schedule requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are members of the Union.  If the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union, it must declare the Union recognised by the Employer unless it decides that any of the three conditions in paragraph 22(4) are fulfilled.  If the Panel considers any of the conditions are fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot. 

 

29.       The Panel, under paragraph 22(1)(b) of the Schedule, has to be satisfied that a majority of workers constituting the bargaining unit are members of the Union.  The Panel is satisfied that the Case Manager's membership check conducted on 4 July 2008 and based on the very latest figures, which showed that 53.57% of the workers in the bargaining unit were members of the Union, was properly conducted and in accordance with the agreement reached with the parties.    

 

30.       The Panel therefore accepts that the majority of workers in the bargaining unit are members of the Union.  Having found that this is the case, the Panel must now consider whether any of the three qualifying conditions in paragraph 22(4) applies given the circumstances of this particular case.

 

Condition 22(4)(b)

 

31.       The Panel is satisfied that this condition has not been met on the grounds that a significant number of union members had not informed the CAC that they did not want the union to conduct collective bargaining on their behalf.  No members had done so.

 

Condition 22(4)(c)

 

32.       Whilst the Employer has referred to members joining to take advantages of the benefits offered by the Union rather than a desire for collective bargaining it has not put forward any evidence to substantiate this claim.  No membership evidence as defined in paragraph 22(5) has therefore been produced that could lead the Panel to conclude there were doubts whether a significant number of the union members within the bargaining unit wanted the Union to conduct collective bargaining on their behalf.  Accordingly, the Panel is satisfied that this condition was not met.

 

Condition 22(4)(a)

 

33.       The Employer has argued that that if the Panel concluded that a majority of the workers in the bargaining unit were members of the Union it would submit that a ballot should nevertheless be held in the interests of good industrial relations.  In support of its submission it advanced two general grounds.  First it questioned the motive for workers joining the Union and second that recognition without the support of a democratic ballot would be inappropriate in the circumstances. 

34.       The Panel cannot identify any circumstances in this case that would require the holding of a ballot.  There has been no evidence adduced by the Employer that would convince the Panel that Union members did not want the Union to be recognised.  We make the point that the Union has retained majority membership throughout the life of the application during which the bargaining unit has increased in size significantly and in the face of an Employer that has made its position on recognition clear.  As for the claim that recognition without the support of a democratic ballot would be inappropriate the Panel would say that it was Parliament that determined that recognition must be awarded where a majority of workers constituting the bargaining unit are members of the Union unless one or more of the qualifying conditions apply.  It is not sufficient simply to take issue with the statutory provision for recognition without the need for a ballot.  Rather, the Panel must examine carefully the specific arguments if it is to be persuaded that this qualifying condition applies. 

 

35.       The question the Panel must therefore address is whether the Employer has put forward any persuasive argument that a ballot should be held in the interest of good industrial relations.  Having considered the Employer’s submissions the Panel has formed the view that there is no evidence that this is the case.  Rather, the Panel is convinced that a ballot would have an adverse effect on industrial relations given the length of time since the Union made its formal request for recognition and the likelihood of any ballot being combative rather than conciliatory.  The Panel has concluded therefore that the development of good industrial relations would be best served by the parties meeting around the negotiating table as soon as possible.  

 

36.       Having carefully considered the evidence, and for the reasons indicated, the Panel is not satisfied that a ballot should be held in the interests of good industrial relations.

 

Decision

 

37.       The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union.  Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met.  The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit, namely ‘All Permanent Production Workers up to including Supervisors” and comprising 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. 

 

Panel

 

Professor Frank Burchill, Chairman

Mr Paul Gates

Mrs Jackie Patel

 

14 July 2008