Case Number: TUR1/570/(2007)

04 April 2008

(Reissued on 21 July 2008)

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON WHETHER TO ARRANGE FOR THE HOLDING OF A

 

SECRET BALLOT

 

 

The Parties:

 

Communication Workers Union (CWU)

 

and

 

Cable & Wireless

 

Introduction

 

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 judgement dated 4 February 2008 the court decided that there was no error of law on the CAC decision.   Between the date of the application to the court and the issuing of the court 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 following paragraphs.

 

Issues

 

5.         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:

 

    1. the CAC is satisfied there should be a ballot in the interests of good industrial relations;

 

    1. that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

 

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

 

6.         The Parties were asked for their views on whether the Union should be recognised without a ballot or whether the CAC should arrange for the holding of a secret ballot. 

 

7.         The Union in its letter dated 11 September 2007 stated that a majority of the workers in the bargaining unit were members of the CWU and therefore the CAC should award the Union recognition without a ballot.  The Union also explained why it believed the holding of a ballot would not be in the interests of good industrial relations.  It stated that the Employer had engaged the services of The Burke Group (TBG) to advise on how to prevent union recognition.  The Union outlined the sequence of events that had taken place since the appointment of TBG and explained that the spread of mis information was a tactic used by the Employer even before the TBG were appointed.  The Union noted how the Panel’s decision on the appropriate bargaining unit had led to a flurry of activity by the Employer, that was designed to pressure individual team members into putting their names to inspired letters.      It believed that a ballot would prove detrimental to the creation of a positive working relationship between the Union and Cable & Wireless. Good industrial relations would be best served by a speedy declaration of recognition. It stated that it would then aim to live up to its commitment to its members and the Employer by seeking to build a mutually beneficial partnership.  It therefore submitted that the Union should be granted recognition without a ballot.

 

8.         On 27 September 2007 the Employer stated that, notwithstanding any finding that a majority of the workers in the bargaining unit were members of the Union, the Union should not be awarded recognition without a ballot.    For each of the qualifying condition conditions under paragraph 22(4) of the Schedule the Employer set out why it believed all of the qualifying conditions were met.

 

The Membership Check / check of the communications from workers within the bargaining unit

 

9.         The Panel decided to use the powers under section 170A of the Schedule to require the Parties to provide information to enable the Case Manager to check the level of Union membership within the bargaining unit and to undertake a check of the letters received from workers within the bargaining unit.  This request was communicated to the Parties on 22 October 2007.   The Case Manager’s report was provided to the Parties on 20 December 2007 and was modified on two further occasions following additional information received from the Parties and employees.

 

The Hearing

 

10.        In light of the Parties’ submissions 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 in London and the names of those attending are annexed to this decision.

 

 

 

Summary of the Union’s Submissions

 

11.        The Union claimed that it had majority membership within the bargaining unit and that this was not contested by the Employer.  It stated that the Panel should therefore award recognition without a ballot.

 

12.        The Union believed that the Employer had deliberately delayed the process through continually pressurising the workforce, at the instigation of TBG, in an attempt to demoralise Union members.  The Union explained that during the delay the Employer had, on the advice of TBG, attempted to restructure Field Services so as to dilute the Union influence. It referred  to the Panel’s decision on the appropriate bargaining unit, dated 7 September 2007.

 

13.        The Union believed it was no coincidence that since that decision, there has been a flurry of announcements of additions to Field Services in what was until now one of the more stable areas of Cable & Wireless.  The Union considered this to be a deliberate ploy to try to push the Union membership below 50% of the bargaining unit.       The Union cast doubt on the necessity for the transferring of staff into Field Services.  It believed there was a clear policy to increase numbers to influence the CAC on majority membership and order a ballot to be held, and at the same time to increase the threshold that would be required in that ballot. 

 

14.        The Union questioned the validity of the information provided by the Employer for the Case Manager’s check.  It stated that there were two occurrences that cast doubt as to whether the list of 362 employees submitted by the Employer was accurate.          It submitted that there was evidence, from the Case Manager’s report, that a person submitted by the Employer as an employee within the bargaining unit had previously contacted the Employer to state that they were no longer employed in Field Services.  The Union stated that it was subsequently informed by the employee that they had left the company before the Union had made its application to the CAC.

 

15.        The Union further stated that in its view the CAC’s figures for the purpose of checking the level of Union membership should be taken from the date that the application was accepted.  It stated that the Union could not withdraw from the process after this point without incurring the 3 year bar and so by not taking the figures at this date to test whether the Union had majority membership, it believed that it made a mockery of the CAC process.  

 

16.        The Union then focussed on the three qualifying conditions set out in paragraph 22(4) of the schedule.   In respect of the condition under paragraph 22(4)(a) the Union believed it would not be in the interests of good industrial relations to hold a ballot.  The Union explained that following its first written communication to the Employer on 8 March 2007 the Employer had engaged the services of TBG.    The Union described the role of TGB and stated that it believed it was not there to foster good industrial relations and would in fact worsen the situation.  There had been a 5 month delay in the process caused by the Employer invoking a Judicial Review of the bargaining unit decision and during that time the bargaining unit had endured a continual anti union campaign directed by TBG. The Union referred to the TBG’s website which it stated opened under the title “Union Avoidance – Industrial Labor Relations Consultants”.

 

17.        The Union stated that it made no apology for mentioning TBG and contended that TBG claimed a 96% success rate of keeping unions out of the workplace.  The Union stated that TBG were not merely advisors as claimed by the Employer.  For example, it referred to the T Mobile recognition case of 2003. It explained that record membership growth had persuaded Connect and the CWU to submit an application for recognition to the CAC. The application was withdrawn following consultation with the company and a framework agreement was drawn up and a voluntary ballot held.   In the event the unions lost the ballot due to the involvement of TBG. The Union believed this had striking similarities to the offer by Cable & Wireless of a voluntary ballot.

 

18.        To demonstrate the work of the TBG further, the Union offered examples of its anti union behaviour by way of documents provided to the CAC with its written submission.  These included, for example, a Press Release issued by the Trades Union Congress (TUC) on 12th February 2008 on the activities of Union Avoidance specialists such as TBG, together with a TUC publication of the same date which provided more detail. 

 

19.        Furthermore, the Union continued. it did not accept the Employer’s claim that it did not have experience in collective bargaining.  It stated that there were already other areas within the Company throughout the world where collective bargaining was in practice and clearly worked.

 

20.        The Union re-iterated that the presence of TBG made it difficult to establish an honest, high-trust relationship with the employer, which was a pre-requisite for the successful conduct of a ballot.  Indeed, because of TBG’s involvement, the union took the view that a voluntary ballot was no longer possible either. Goodwill on both sides was essential, but the presence of union avoidance specialists supported the conclusion that the employer was motivated by other considerations.  

 

21.        Despite the long running campaign by the Employer to obtain a ballot, the Union believed that there was no real desire for this by the workforce. This was demonstrated by the fact that less than half of employees had indicated in management inspired e-mails that they wanted a ballot.  These letters were written to alleviate the pressure they felt they were under from Senior Management.

 

22.        In response to a point raised by the Employer that Mr Duffy was not re-elected as a representative for the Employee Consultation Forum because of his previous involvement in championing collective bargaining, the Union contended that the fact Mr Duffy lost the election was not a test of collective bargaining.  The Union asserted that at least one other representative who was standing in the election was in favour of collective bargaining and if their votes were combined they obtained  more votes than Mr Date who won the election and whom the Employer argued was not in favour of collective bargaining. 

 

23.        The Union concluded that a ballot would do nothing to improve industrial relations. They further argued that good industrial relations would be best served by a speedy resolution of the matter, which was best achieved by an award of automatic recognition. The employer had failed in their argument that the qualifying condition in paragraph 22(4)(a) had been met

 

24.        In respect of the qualifying condition under 22(4)(b) the Union referred the Panel to the Case Manager’s report of 10 March 2008.  It showed that there were 27 Union members who had written to the CAC opposing collective bargaining. Three emails were sent by colleagues/managers to the CAC after individuals who were absent from work had been telephoned at home.  The union questioned the reliability of these emails, suggesting that a communication from the employer could not be seen as a genuine expression of the employees’ views. Moreover, the Union stated that a further 3 Union members sent emails to the Employer, but did not send them to the CAC.   The Union again questioned their validity since it was clearly the case that the Employer was encouraging everyone to make clear their opposition to collective bargaining.  The Union believed that many staff, Union members amongst them expressed a view simply to end this management pressure.

 

25.        The Union stated that even though 27 Union members were, according to the Case Manager’s report, opposed to collective bargaining, this could not be interpreted as a significant figure for the purposes of paragraph 22(4)(b).  Excluding the 6 Union members whose views were in some doubt (those who had not communicated directly to the CAC or had only expressed their views to the employer) meant that only 21 Union members had stated clearly that they were opposed to collective bargaining - a percentage of 10.66%. The Union did not consider this was a significant proportion of Union members.

 

26.        The Union referred to the views of the non members on the issue of collective bargaining even although not pertinent to the qualifying condition.  The Union believed it had not been afforded the opportunity to put its case to the employees on equal terms to the Employer, who, by their own admission, had organised “roadshows”, factsheets, management briefings and emails. It referred to its letter of 18 September 2007 sent to the Panel as further evidence of the employer’s attempts to influence the Panel and to persuade employees to resign from their union membership to reduce the likelihood of the Union retaining majority membership. The Union asserted that it had only had limited access via contact through the SIP, and it was therefore not surprising that a number of non members had expressed a view against collective bargaining.  On the other hand, it was surprising that so few non-members, a total of only 52 out of a non member population of 156 (33%), were apparently opposed to collective bargaining.  Of the entire workforce – members and non members - only a maximum of 76 people had expressed a view against collective bargaining, less than 22% of the workforce. On that basis the Union submitted that the qualifying condition in paragraph 22(4)(b) had not been met and accordingly should be disregarded. 

 

27.        Finally, in respect of the condition under paragraph 22(4)(c) the Union did not believe there was any membership evidence from which the CAC could conclude that Union members did not want the Union to conduct collective bargaining on their behalf.  The Union noted that despite the Employer’s long-running campaign only 3 resignations had been received by the CWU and two of these members resigned when they left C&W’s employment.

 

28.        Furthermore, the Union referred to the Employer’s submission of 27 September 2007 in which there were 2 anonymous unverified quotes from Union members expressing their opposition to collective bargaining.  However, only one of these members had resigned from the Union. The Union submitted that this was only one piece of evidence which could not be relied upon, and subsequently, did not equate to the significant number of Union members envisaged by paragraph 22(4)(c).

 

29.        The Union further stated that every person applying to join the CWU was required to sign the following declaration on the application form. “I agree to abide by the rules of the Union and I understand this will include collective bargaining.” The Signature Box was immediately below this.  The Union submitted that prospective members could not avoid this statement, and if they did not understand its meaning they would have queried it at the time.

 

30.        In its closing statement the Union stated that it did not believe any of the three qualifying conditions had been met, and it therefore urged the Panel to issue a declaration that the Union be recognised for the purposes of collective bargaining. 

 

 

 

Summary of the Employer’s submission

 

31.        The Employer stated that it was clear that all of the qualifying conditions in paragraph 22(4) were met.  The Case Manager’s report showed that there were 362 workers in the bargaining unit and this was not disputed by the Union.  The bargaining unit had grown by 10% and this was forecasted and mentioned in its submission to the Panel on the appropriateness of the bargaining unit.  In that submission the Employer explained that there had been, and would continue to be, many organisational changes affecting the Field Services directorate.  In a letter to the CAC dated 27 February 2008 it had specified the changes that had taken place and were about to occur, and the reasons for them.  Taking full account of these changes to the numbers in the bargaining unit the Employer accepted that there remained a majority Union membership within the bargaining unit, albeit a thin one.

 

32.        The Employer believed that it would be in the interests of good industrial relations for a ballot to be held as provided for in paragraph 22(4)(a) of the Schedule.  It referred to the Case Manager’s report which showed that 53 ‘colleagues’ within the bargaining unit had requested for a ballot to be held. It stated that well over half of the bargaining unit had also expressed their opposition to collective bargaining.

 

33.        The Employer submitted that it was a significant change that Mr Duffy had not been re-elected as a representative for the ECF.  The Employer provided the results of the last elections to Cable & Wireless' ECF on 15 October 2007.  The Employer explained that the winning candidate, Mr Steve Date, obtained 38 % of votes cast, and in the Employer’s view he was a Union member who was well known within Field Services for not supporting collective bargaining.  Mr John Duffy, the existing representative, only obtained 21% of the votes cast.  The Employer asserted that the question of Union recognition was one of the central issues in relation to the ECF elections. The Employer maintained that the election of Mr Date and the rejection of the current candidate, Mr Duffy, was further credible evidence that a majority of those workers within the bargaining unit may be opposed to union recognition. This in turn was evidence that industrial relations would be damaged if recognition was granted without ‘colleagues’ being given the opportunity to express their views.

 

34.        The Employer referred to the Union’s letter of 16 November 2007 sent to its members which stated "the CWU is not in principle opposed to a ballot to determine the question of collective bargaining in (Field Services]" but that both Parties must take a "neutral stance".  In the Employer’s view the Union had now categorically stated its support for the principle of a ballot to decide this key question.  The Union’s condition for doing so was that the Employer disassociate themselves from TBG, which the Employer had appointed for advice. The Employer believed this opinion was both unfair and illogical. Firstly, the Union had experience of many recognition campaigns to draw upon (e.g. Vodaphone, Orange and Colt).  Secondly, it also employed its own organisers (at least 12) whose primary role was to increase membership and achieve recognition. The Employer asserted that campaigning was the Union’s forte. By contrast, this was the first time Cable & Wireless had been faced with a statutory recognition claim made to the CAC and did not, therefore, retain dedicated in-house resources with the necessary experience to manage such a situation. The Employer explained that TBG’s role was to advise on the complexities of the CAC process, provide guidance on manager-led, factual communications as well as to promote best practices to reinforce the ECF and colleague engagement. The Panel would be aware that the use of consultants by either party was specifically authorised in a ballot campaign.  The Employer referred to paragraph 58 of the “Code of Practice – Access and unfair practices during recognition and derecognition ballots” and stated that this demonstrated that it was therefore lawfully entitled to retain TBG and there was no good reason why the Union should disapprove.  Furthermore, it had assured its employees that it would fully comply with the Code of Practice.

 

35.        The Employer maintained that holding a ballot  would ‘clear the air and be in the interests of good industrial relations’. The Employer referred the Panel to the decision of GPMU & Red Letter Bradford Limited (TUR1/012/00) where the CAC had held that a ballot was in the interests of good industrial relations where there was a question over the precise level of support for the Union, notwithstanding that a majority of the workers were likely to support collective bargaining. The Employer believed that the argument for a ballot was far stronger in this case, where there was no evidence to show that a majority of workers were in favour of collective bargaining.

 

36.        The Employer submitted that both it and the CWU had in effect been campaigning for several months and, far from having a negative effect on industrial relations, as is sometimes contended in relation to ballot campaigns, this had actually been of assistance to employees because they now had more information as to the pros and cons of collective bargaining. For example, the Union had sent a number of communications via the Suitable Independent Person (SIP) to employees within the bargaining unit inviting them to contact the Union if they had questions.  The Employer referred specifically to one communication from the Union in which it had informed employees to contact the Case Manager if they believed they were coming under pressure from the Employer to oppose recognition or request a ballot.  There was scant evidence that ‘colleagues’ had complained to the CAC or the Union. The Employer believed the process was incomplete, and a properly conducted ballot campaign would be the logical end of this process as well as providing closure for employees.  Furthermore, the Employer stated that it had given an unequivocal assurance to the Panel that both it and its advisers would comply with the terms of the Code of Practice.

 

37.        Turning to paragraph 22(4)(b), the Employer stated that it believed the CAC received credible evidence from a significant number of Union members within the bargaining unit that they did not want the Union to conduct collective bargaining on their behalf.  The Employer stated that it was apparent from the Case Manager’s report that of the 197 Union members, 27, amounting to just under 14% of the membership, did not support collective bargaining.  The effect was that the remaining 170 Union members made up just over 47% of the bargaining unit and significantly did not comprise a majority.  Of the 170 Union members referred to above, an additional 53 members (i.e.over 30% of them) had stated that they wanted a ballot to take place. Thus of the 48% minority referred to above, a substantial proportion in fact wished for a ballot to take place. The Employer believed its interpretation mirrored the recent case of CWU & Colt Telecom Group plc (TUR1/592/2007) whereby a smaller percentage was held to be significant.  In this case the Panel had decided that 3 out of 30 Union members was a significant number.

 

38.       The Employer believed that there was no doubt of the credibility or authenticity of the Case Manager’s report.  In response to the Union’s argument that 3 individuals were telephoned at home, followed by e-mails, as a means to encourage workers to send in a view to the CAC and copy this into Russ Hewitt, Director of Field Services, the Employer stated that this did not suggest that the evidence was not credible.  The Employer also stated that in 2 cases the letters sent in under cover of their Managers’ e-mail were in fact copied to the relevant employees and one which was not copied to the individual.  One employee had subsequently written to confirm their position. 

 

39.        Finally, the Employer stated that it had membership evidence, consistent with the

provisions of paragraph 22(4)(c), from which the CAC could conclude that Union members

did not want the Union to conduct collective bargaining on their behalf.  It referred to 2

anonymous quotes from Union members, in its submission of  27 September 2007, in which

they stated that they did not support collective bargaining and one of these informed the

Employer that they had in fact resigned from the Union.

 

Considerations

 

 

40.        Thus far this has been an unusually drawn out case and it is necessary to note some of the significant events.  The Union application was made on 30 April 2007 and was accepted as valid in a decision on 11 June once employer concerns that the company name was incorrectly stated in the application had been disposed of.  The decision on the bargaining unit was made on 7 September. Prior to that in May 2007, according to the Union and not disputed by the employer, The Burke Group (TBG), described in their web site as ‘Union avoidance – Industrial Labor Relations Consultants’ had been appointed to advise the company on the question of union recognition. Around that time the Director of Field Services wrote to all employees setting out his concerns on the implication of union recognition. The Union alleges that misleading and factually wrong statements were made in this letter. At the end of June the Union asked for a SIP to be appointed so that it could communicate by post with employees in the bargaining unit. It has subsequently used this facility on numerous occasions. Soon after the decision on the bargaining unit, which accepted the Union definition, employees were again written to by the Director of Field Services inviting them to write either to him or to the CAC expressing their view that a ballot should be held and/or that they did not want collective bargaining on their behalf. Special emphasis was given to the need for Union members to indicate that they did not want collective bargaining. Advice was included on how to resign from the Union. This letter and others on subsequent days were followed up by conference calls to all employees and ‘round table’ meetings in six locations over three days in mid September. The Union alleges that one to one meetings between employees and their managers to discuss the recognition claim were also held.

 

41.        On 21 September the employer applied to the Administrative Court for the CAC decision on the bargaining unit to be set aside. This claim was dismissed in a decision dated 4 February 2008. While the CAC was unable to progress its work on the case during this period a stream of letters, mainly be e-mail, was received by the Case Manager during the period but especially in September and again in February and March 2008. Careful analysis of these letters and others forwarded by the employer and, to much lesser extent, by the Union were analysed by two case managers with reports provided to the Parties. The last report was delivered at 10am on the day of the hearing. This included the latest information on numbers in the bargaining unit and union membership. In all 253 items of correspondence were received from employees in the bargaining unit, with a further 18 from other workers. Some wrote two or three times necessitating care to be taken to avoid double counting. While the Union expressed doubts about the data in respect of two people who may have been outside the bargaining unit, the report was not challenged.

 

42.        It is evident that a prolonged period of often bitter campaigning has been carried out by both Parties for 10 months and it is this which sets the context for the consideration of whether the Union should be awarded automatic recognition. Prior to the hearing the employer confirmed that it did not contest that the Union had a majority membership in the bargaining unit with 197 members constituting 54.42% of the employees. In these circumstances paragraph 22(2) of the Schedule applies. ‘The CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining…’ This is then qualified in 22(3) ‘but if any of the three qualifying conditions is fulfilled…the CAC must give notice…that it intends to arrange for the holding of a secret ballot’. It is to these qualifying conditions set out in 22(4) that we turn once we have considered the question of changes to the number of employees in the bargaining unit.

 

43.        The Union complained that the bargaining unit had been extended in a deliberate ploy to reduce the Union’s majority position. It asked the Panel to order that the bargaining unit specified in the Acceptance decision be used as the base line for any calculations of employee views and union membership. Over the period the bargaining unit has increased by 30 and will grow again by 8 on 26 March. The employer explained that, in the main, the movement of staff into the bargaining unit was a consequence of the decision in the summer not to outsource field services but instead to grow it in-house. As a result a number of previously outsourced contracts were ‘insourced’ by TUPE transfer. Other movements in staff numbers were explained by the growth in the business and the replacement of staff. In any case, the employer argued, the growth in the bargaining unit was only 10%.  Whatever the merits of the case the CAC is simply unable to accede to the Union request since it must take the number of named people in employment at the time of a ballot or a membership check. It would, in any case, be extraordinarily difficult to construct an accurate list six months after the first check and would presumably disenfranchise some employees and Union members in the process.

 

44.        We take the three qualifying conditions in reverse order corresponding to the degree of difficulty in coming to a decision. 22(4)(c) concerns where ‘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’.  The employer was only able to point to two instances where doubts had been expressed by Union members which in one case led the person to resign from the Union. These were not verified. None of the usual information expected under this qualifying condition concerning free membership obtained, other inducements proffered, or membership for personal professional reasons was provided. The Panel does not accept that this sub clause applies.

 

45.        22(4)(b) applies where ‘the CAC has evidence, which it considers to be credible, from a significant number of the Union members within the bargaining unit that they do not want the Union to conduct collective bargaining on their behalf’. In support of this the employer drew attention to the 27 letters that had been received by the CAC from Union members indicating that they did not want collective bargaining.  It was claimed that this number was clearly ‘significant’ in particular since it the moved the Union from a majority to a minority position. Assuming that all the 170 Union members who had not written to deny they wanted collective bargaining supported the determination of their pay, hours of work and holidays by union-employer negotiations these constituted only 46.96% of the bargaining unit employees.  In support of this interpretation of ‘significant’ attention was drawn to the CWU and Colt Telecom Group plc (TUR1/592/2007) where the 3 out of 30 Union members had written in similar terms and which had been deemed to be a significant number.

46.        The Union questioned the credibility of six email letters. In three cases the employees had been holiday at the time of the letter writing campaign in September and their manager had written to the CAC on their behalf having apparently spoken to them on the ‘phone. In a further three cases the letters had been sent to the Director of Field Services who had forwarded them to the CAC. The employer noted, however, that the three absent employees had been copied into the list sent to the CAC and had not subsequently disputed being included. The Panel takes the view that the difference between 21 and 27 Union members is not material in the circumstances. In both cases, following the line of argument from the employer, the Union drops from a majority to a minority position albeit marginal in either direction.  The substance of the Union’s case was that only 10.66% of the Union’s membership (or 13.7% if the six disputed letters were included) had written to the CAC despite a barrage of communication and pressure from the employer to do so. It pointed out that in this period only three members of the Union had resigned but that membership had grown by 12 since the audited numbers at the time of the Acceptance decision. Union members had been resolute and this small number who had written could not be considered ‘significant’.

 

47.        The panel does not accept that this qualifying condition applies in this case. It prefers the Union’s meaning of the word ‘significant’ for two reasons. First, while mathematically the employer is correct to note that the Union majority position is now a minority one if these letters are to be counted on a par with membership, it is a very close thing. It is more credible to see the number of Union members writing as being a very small proportion of the total union membership. This is where significance is to be found, in the sense of a very small number Union members who wrote saying that they did not want collective bargaining. Reference to the Colt case was not in this regard found helpful. The size of the bargaining unit there was less than 10% the size of the unit in this case and it would appear that the workers are much less dispersed across the country. Unions find it much more difficult to service members in numerous locations, as is the case here.  The Panel is particularly influenced by the fact that only three Union members had resigned their membership. The Union drew attention to its membership application form which required applicants to sign that ‘I agree to abide by the rules of the Union and I understand this will include collective bargaining’. Members, it argued, could not be in any doubt about the function of the Union.  The Union alleged that members had felt the need to write to the CAC to ‘alleviate the pressure they were under’ from the employer. The panel cannot, and should not try to, get into the minds of employees to determine why they wrote a letter unless there is good evidence provided perhaps by witnesses, but none was available.  However, maintaining membership and paying union dues is a verifiable action of stronger validity than an expression of views. The vast majority of Union members who wrote expressing a view against collective bargaining did not resign their membership. As noted above, the employer actively encouraged Union members to write to the CAC and drafted a model letter for their use. Thus, both the low number of Union members who wrote, and the large number who maintained their membership even while writing, is indicative that there is not a significant number to activate this qualifying condition.

 

48.        The final qualifying condition, 22(4)(a), is where ‘the CAC is satisfied that a ballot should be held in the interests of good industrial relations’. It is not surprising, given the history of the last 10 months, that the views of the Parties are diametrically opposed.  The employer argued that over half of the members of the bargaining unit had written to the CAC to say that they were opposed to automatic recognition with a large number of these explicitly asking for a ballot to be held. There had evidently been a change of view among employees since they had recently elected a new representative for the ECF who, while a Union member, was known for his views opposing recognition and in the process deposing the previous representative who was a lay official of the Union. In the light of these developments a ballot would ‘clear the air’, provide a sense of closure to ‘colleagues’ (the preferred term for employees) and allow both Parties to move on. Far from the campaign which would precede a ballot having a negative effect, the employer argued that the campaigning which had been going on for some time had served to increase the level of understanding of the issues. The workforce is well educated, wishes to be informed and is quite capable of making up their own minds. The Union had been urged to withdraw its application to the CAC and agree to a voluntary ballot in line with its own written statements saying that it was not opposed to a test of support, but had declined to do so.

 

49.        The Union was of the view that good industrial relations were typified by an open and effective exchange of views and by mutual respect, trust and honesty. These conditions, it argued, were manifestly not present in the current soured relationship in Cable and Wireless. It confirmed that it had stated that it was not opposed to a ballot and this remained the case, but when it had set its condition for this as the withdrawal of TBG, the employer had declined.  Given the type of campaigning encouraged by TBG and its long history of divisive involvement in union recognition campaigns especially at the balloting stages it would, the Union argued, patently not be in the interests of good industrial relations to hold a ballot. The Union drew attention to its own experience in a company in the same sector, T Mobile, where in 2003 TBG had mounted a prolonged and effective campaign against it. TBG had consistently misrepresented the Union in much the same way as the first letter from the Director of Field Services had done in May, which coincided with TBG’s appointment as consultants to C&W.  The Union submitted papers from the TUC and others which analysed the anti-union work of TBG. These noted how TBG works covertly, rarely meeting employees themselves but briefing managers on what to say in meetings called to discuss union recognition. Good industrial relations, the Union argued, would only be served in this case by speedy recognition to enable the Parties to concentrate on building effective working relations.  The Union provided evidence that the successful candidate in the recent elections to the ECF had not in fact campaigned on a no-recognition platform. In any case the Panel’s view is that this election is irrelevant to the question before it.

 

50.        The activities of TBG have received media attention in recent months with numerous allegations made about its conduct and the importation of American ‘union-busting’ tactics. The question for the panel must be focussed on the effect or relevance, if any, on the statutory recognition procedures. The employer drew attention to paragraph 58 of the Code of Practice on Access and unfair practices during recognition and derecognition ballots.  This refers to the employment or hiring of a paid consultant to assist in campaigning work and sets rules for the control and conduct of these agents. The implication is that there is no prohibition on the employment of outside consultants, and this right applies to both Parties. The employer went further and said, more than once, that it was committed to follow the Code of Practice and the unfair practice sections of the Schedule. Whatever the alleged misconduct of TBG elsewhere, it argued, was not relevant to this case. There was a commitment to a fair campaign. This does not, however, obviate the Union’s substantive point that good industrial relations would be better served by not having a ballot at all and moving straight to recognition thereby removing the employer’s need to hire TBG.  The panel cannot predict how the employer will conduct a campaign prior to a ballot, in the same way as it cannot foresee the Union’s conduct. TBG is alleged by the Union to have an unfortunate track record. There are, however, clear guidelines in the Code of Practice on the conduct of ballots and the use of consultants and Parliament has only recently strengthened the legislation on unfair practice in this area, for example after the T Mobile experience. The way is open for the Union or any individual to complain to the CAC if there is any breach of these provisions in statute or the Code. The fact of employing TBG is not sufficient to negate the qualifying condition.

 

51.        By the time of the final count of the letters sent to the CAC just before the hearing began 167 employees had explicitly stated that they wished to have a ballot, including 63 Union members. These constitute just under half of the employees and one third of the Union members. If all the letters are counted, including those which only said that they did not want collective bargaining on their behalf, then exactly three fifths of employees in the bargaining unit said that they did not want automatic union recognition. While there have been some allegations of pressure on employees to write letters no substantive evidence has been provided to show that employees were compelled to write in this way against their true beliefs. Even if this were true in some cases the sheer numbers writing cannot be ignored. It may well be that the campaign from now until the ballot will be not be in the best interests of good industrial relations. We rely on the Parties to ensure that relationships do not worsen and hopefully might improve in the need to agree, and make workable, access arrangements. In our experience the quality of industrial relations should not, or not only, be judged at times of conflict and tension. There is a good case for arguing that the interests of good industrial relations are best served in this case by holding a ballot for what it will do for the longer-term relationships, after the dust has settled. What a ballot does, if the Union is successful, is to give it legitimacy. Without a ballot, in circumstances where a majority of employees had indicated that they did not want automatic recognition, there would always be arguments that the Union gained recognition without a popular mandate. With such a mandate it can be an effective bargaining body able, with authority, to represent everyone in the bargaining unit.

 

52.        The Panel decides that in the interests of good industrial relations a ballot should be held and this should happen as soon as possible in order to prevent any further deterioration in relationships.

 

Panel

Professor John Purcell

Mrs Diana Palmer

Mr David Coats

 

04 April 2008

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix

 

Names of those who attended the hearing:

 

For the Trade Union

 

Mr John East                -           National Organising Secretary

Ms Chi Metu                -           Employment Rights Advisor

Mr George Rankin        -           Senior Organiser

                                                           

 

For the Employer

 

Mr Simon Broome                    -           HR Manager 

Mr James Barber                      -           DOA to Russ Hewitt - head of Field Services

Mr Ray Rogers                         -           Regional manager Field Services - North 

Mr Matt Short                          -           Regional manager Field Services - South 

Mr Kevin Praed                       -           Manager of Field Services Operations Trading 

Mr Peter Frost                         -           Herbert Smith - Partner 

Mr Daniel Oudkerk                  -           Barrister 

 

For the CAC

 

Kate Norgate               -           Case Manager

Sarah Kendall               -           Case Manager