Case Number: TUR1/618/(2008)

25 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:

 

Unite the Union

 

and

 

GSI Group Limited

 

Introduction

 

1.         Unite the Union (the Union) submitted an application to the CAC dated 14 February 2008 that it should be recognised for collective bargaining by GSI Group Limited (the Employer).  The Union’s proposed bargaining unit was described as “Production employees”.  The CAC gave both Parties notice of receipt of the application on 14 February 2008.  On 21 February 2008 the Employer submitted a response to the CAC, which was then copied to the Union.

 

2.         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to consider the case.  The Panel consisted of Professor Paul Davies (Panel Chairman), Simon Faiers and Ms Bronwyn McKenna (Members).  The Case Manager appointed to support the Panel was Kate Norgate.

 

3.         By a decision dated 13 March 2008, the CAC accepted the application. 

 

4.         The Parties subsequently agreed that the appropriate bargaining unit should be “all employees at the Taunton site of GSI with the exception of management from the level of supervisor upwards”.  As the agreed bargaining unit was different from that proposed by the Union in its application, the Panel was required to determine whether the Union’s application was valid.  By a decision dated 3 June 2008, the Panel determined that the application was valid and gave notice to the Parties, in accordance with paragraph 20(5) of Schedule A1 to the Act (the Schedule), that it would proceed with the application.

 

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 5 June 2008 stated that a majority of the workers in the bargaining unit were members of the Union and therefore the CAC should award the Union recognition without a ballot.  The Union also stated that it was made aware by its activists that there was a strong desire amongst the workers within the bargaining unit for the Union to be recognised.  The Union did not believe it would be in the interests of good industrial relations for a ballot to be held as it suspected that the workforce had been pressured to sign letters of objection. In the Union’s view, a ballot would be likely to polarise positions and could in fact exacerbate industrial relations.  The Union asked that the Panel discount any letters that were produced as a result of pressure and were without a guarantee of confidentiality and did not therefore represent the genuine views of the Union members in the bargaining unit. 

 

8.         On 11 June 2008 the Employer stated that it was strongly of the view the majority of the workers did not support the Union’s application for recognition and a ballot should therefore be held.   Historically there was a high level of union membership and this was due to a previous recognition agreement that had been  in place.  However, since GSI had acquired the business those recognition arrangements had come to an end.  The Employer asserted that the level of union membership did not therefore indicate the level of support for union recognition.  In its response to the qualifying conditions under paragraph 22(4) of the Schedule the Employer set out why it believed it would be in the interests of good industrial relations for a ballot to take place. 

 

9.         It re-iterated the point it had made in its response to the CAC dated 21 February 2008 in relation to a poll of its employees in which  they were asked whether or not they were in favour of trade union recognition that would lead to collective bargaining arrangements.  This point is reported in full in the acceptance decision dated 13 March 2008.  In the Employer’s view, in light of those views expressed to management it was difficult to see how a recognition agreement could be imposed without a ballot and in the interests of good industrial relations a ballot should be held to determine whether the Union should be granted recognition.

 

10.        The Employer’s submission was copied to the Union and its comments invited.

 

11.        In a letter dated 19 June 2008 the Union stated that the poll was conducted following a meeting at which the Employer placed immense pressure on the workforce to sign the document.   At the meeting it was made clear by the Employer that that it did not welcome recognition and that the parent company would not have unions anywhere within their company.    The Union explained that the meeting was held by the Company’s manager, Mr John Vickery, who informed that the CEO was angry with the Union’s stance on collective bargaining.  The Union stated that it was hard to see how the Employer could have placed more pressure on the workforce to sign the poll.  It was not conducted confidentially and given the pressure placed upon the workforce their signature could not be taken as opposition to recognition.  The Union further stated that it retained a high level of membership, despite the hostility towards the Union and de-recognition. The Union believed this strongly indicated the wishes of the Union members to be recognised.

 

12.        In response to questions from the Panel, by a letter dated 2 July 2008 the Employer provided further information to the Panel in relation to the employee poll it had carried out.   

 

13.        The Employer explained that all of the workers were invited to attend a meeting on 20 February 2008.  The meeting was addressed by Mr John Vickery.  The Employer denied that the Union representative was not given the opportunity to address the meeting.  After the workers had heard the Employer’s case against collective bargaining they were invited to participate in the poll.  The poll was held in the in the office of the Office Administrator and the poll was open to workers for 48 hours.  Workers attended the office one at a time to complete the poll and it was conducted so that the views of those workers who had already attended were not shown to those workers who subsequently completed the poll.  With its letter of 2 July 2008 the Employer attached a blank copy of the poll.  Workers were encouraged to sign a sheet, which was divided into two columns, one indicating support for collective bargaining and one indicating opposition.  The Employer stated that the workers also confirmed that that they were prepared to put their views in writing to the Employer.

 

14.        In its response to the Employer’s letter of 2 July 2008 the Union stated that the Employer’s version of events was incorrect.  The information provided in the Union’s letter of 19 June 2008 was information that was reported to the Union by its members, who were present at the meeting held by Mr John Vickery.  The Union further stated that the Employer did not deny that Mr Vickery became very angry during the meeting. 

 

Communications from workers within the bargaining unit

 

15.        Under cover of  a letter dated 10 July 2008 the Employer supplied to the CAC letters from workers in the bargaining unit. The Employer stated  that employees had been  asked to put their personal views in writing to the CAC, and seal them in an envelope to ensure confidentiality.  The Employer confirmed that the letters had not been seen by the Employer.  With its letter the Employer enclosed 20 individual letters, contained in sealed envelopes, which the Employer stated evidenced the wishes of the employees within the bargaining unit in relation to collective bargaining.  

 

16.        Following instruction from the Panel the Case Manager carried out a check of the letters received from the workers using the information provided by the Parties for the membership check dated 22 May 2008.  The Case Manager’s check showed that all the letters came from workers appearing on the list supplied by the Employer.  The check also showed that 12 workers appeared on the list of Union members supplied by the Union.  By a letter dated 14 July 2008 this information was circulated to the Parties for their comments along with a copy of the letters from workers, which were anonymised to ensure those workers could not be identified. The parties were also later supplied with some information, which the had been compiled by the Case Manager, about what had been written on the envelopes containing the letters.

 

Parties views on the report of the communications from workers

 

17.        In a letter dated 16 July 2008 the Employer stated that it was clear that that there was credible evidence from a significant number of Union members within the bargaining unit that they do not support collective bargaining.

 

18         By a letter dated 16 July 2008 the Union stated that it in its view the letters from workers within the bargaining unit were not written spontaneously by those workers.  The Union explained that the Employer called a further meeting at which workers were told to write to the CAC.  The Union also believed the Employer had offered to write the letters for the workers.

 

19.        In the Union’s view the result of the check did not constitute credible evidence from a significant number of Union members that they did not want the Union to conduct collective bargaining on their behalf.  It believed the Employer’s conduct was further evidence that if the matter proceeded to a ballot, undue pressure would be placed upon the workers in the bargaining unit. 

 

Considerations

 

 

20.        Where the CAC is satisfied that a majority of the workers in the bargaining unit are members of the Union, paragraph 22(1) and (2) require it to declare the Union entitled to conduct collective bargaining on behalf of the workers in that unit, unless one or more of three ‘qualifying conditions’ is fulfilled. In this case the validity check carried out by the case manager on the 22nd May revealed that 18 of the 26 workers in the bargaining unit were union members; and neither party has sought to argue that these figures are not still current.

 

21.        Attention thus shifts to the three qualifying conditions, two of which the Company has argued are relevant in this case. The first is the CAC is satisfied that a ballot should be held in the interests of good industrial relations (para 22(4)(a)); the second is that the CAC has received evidence which it regards as credible, from a ‘significant’ number of members of the union in the bargaining unit that they do not want the Union to conduct collective bargaining on their behalf (para 22(4)(b)). If either of these conditions is fulfilled the CAC must order a ballot (para 22(3)).

 

22.        The Company relied on two sets of events as relevant to these conditions. The first was what was described as a ‘poll’ held on 20 February 2008, ie before the acceptance of the Union’s application in this case. In this poll some 23 workers had declared themselves as not in favour of collective bargaining and 2 had declared themselves in favour. At the acceptance stage, the Company had stated that, despite these poll results, it did not oppose acceptance of the Union’s application. See paragraph 17 of our decision of 13 March 2008 in this case. However, the Company did now seek to rely on them in connection with the issue of whether there should be a ballot. As recounted above, the Panel asked the Company to respond to a list of questions about this poll in an effort to determine its relevance to the ballot decision.

 

23.        Following consideration of the Company’s response to those questions (and the Union’s comments on that response) the facts seem to the Panel to be as follows. The workers were summoned by the Employer to a meeting, which was addressed by Mr John Vickery, the site manager; the union representative either was not given the opportunity to, or in any event did not, address the meeting (the Employer’s and the Union’s accounts differed on this point); the workers, having heard the Company’s case against collective bargaining, were encouraged to sign a sheet, which was divided into two columns, one indicating support for collective bargaining and one indicating opposition;  the affair was managed so that each worker could not see the other workers’ signatures, though the Company’s account suggests that it was clear to each voter how previous workers had voted as between support for or opposition to collective bargaining; and, finally, the choices of each individual were clear to the Company (not just the totals for and against), ie as against the Company, the poll was not anonymous.

 

24.        Having considered these particular circumstances, we have reached the conclusion that it would not be in accordance with good industrial relations to order a ballot on the basis of a non-confidential petition organised by an employer and that non-confidential declarations of opinion do not, of themselves, constitute credible evidence of the union members’ views. It might be objected that Panels often take into account union petitions at the acceptance stage, but it seems to us that unions are rarely in the same position to influence workers’ decisions through explicit or implicit inducements or threats, if views are expressed or not expressed in a particular way. If a union were in such a position in relation to a group of workers, it would be wise to treat non-confidential expressions of opinion obtained by that union with similar scepticism.

 

25.        However, in this case the Company has a second basis for seeking an order that a ballot be held. This consisted of some twenty letters delivered in sealed envelops by the Company to the CAC. These letters were anonymised by the Case Manager and provided to the Union and the Panel. Of these 20 letters, 1 expressed an opinion in favour of the Union’s claim and 19 either opposed the claim or sought a ballot on the issue (or expressed both opinions). Of the 19 letters not in favour of the Union’s claim, 11 were from members of the Union. Of those, 7 opposed collective bargaining (and mostly also asked for a ballot).

 

26.        In terms of the applicability of paragraph 22(4)(b) we have formed the view that opposition to collective bargaining expressed by 7 out of 18 union members amounts to evidence from a ‘significant’ number of union members that they oppose the Union’s claim. Equally, with regard to paragraph 22(4)(a) there is clearly a strong prima facie argument that, with such a high proportion of the bargaining unit (19 out of 26 or nearly three quarters) either asking for a ballot or opposing the Union’s claim, it would not be conducive to good industrial relations simply to order recognition.

 

27.        The crucial question, it seems to us, is whether this evidence is ‘credible’. We are specifically required by paragraph 22(4)(b) to assess whether the evidence we have received is credible for the purposes of that sub-paragraph, but it also seems to us that the determination of whether good industrial relations requires a ballot in this case also turns on the credibility of the evidence we have received.

 

28.        The facts once again appear to be that the Employer summoned a meeting of the workforce; encouraged the workers to submit their views to the CAC; and facilitated that process by arranging for the letters to be collected and forwarded to the CAC by the Employer. (We note that 3 of the envelopes were addressed to ‘Caroline’ or ‘C Greenslade’, who is presumably the person in whose office the poll, discussed above, was conducted.) However, in this case the expression of views seems to have been kept confidential from the Company. The covering letter from the Employer accompanying the envelopes submitted to the CAC stated: ‘The employees were asked to put their personal views in writing to the CAC, and seal them in an envelope to ensure confidentiality. I can confirm that the letters have not been seen by any individual on behalf of the employer.’ We have no evidence which leads us to doubt that statement.

 

29.        In addition, it is striking that the letters are not in a standard form. They vary in length from a single sentence to four paragraphs. The views expressed are not uniform (some only asking for a ballot; others also expressing opposition to collective bargaining). Most important, they vary very significantly in the way those views are formulated. (Only two of the letters use identical language, these being two of the single sentence letters.) The envelopes, as well, were dealt with non-uniformly: 8 carried no address; 9 were addressed to the CAC or to the Case Manager; and 3, as noted, to an employee of the Company. Taking all these facts together, we have concluded that the views expressed in the letters are  genuine expressions of the workers’ opinions.

 

30.        Clearly, any Panel considering such letters has to be alert to the possibility that they have been produced under inducement or threat from the Employer. We have no evidence tending in that direction in this case and the fact that one letter supported the Union’s claim is perhaps some slight evidence against that proposition.

 

Decision

 

31.        For the above reasons we have concluded that the conditions laid down in paragraphs 22(4)(a) and (b) are fulfilled in this case and so we are required to order that a ballot be held.

 

 

Panel

 

Professor Paul Davies

Mr Simon Faiers

Mr Bronwyn McKenna

 

25 July 2008