Case Number: TUR1/639/2008
25 July
2008
CENTRAL
ARBITRATION COMMITTEE
TRADE
UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE
A1 - COLLECTIVE BARGAINING: RECOGNITION
DECISION
ON WHETHER TO ACCEPT THE APPLICATION
The
Parties:
GMB
and
Capital Aluminium Extrusions Limited (Capalex)
Introduction
1. GMB
(the Union) submitted an application to the CAC dated 30 June 2008 that it
should be recognised for collective bargaining by Capital Aluminium Extrusions
Limited (Capalex) (the Employer) in respect of a bargaining unit comprising “All
non-hourly roll staff employed at Capalex’s Cleator Moor site, excluding the Finance
Director and Managing Director”. The
Employer submitted a response to the CAC on 8 July 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 John Goodman CBE, Chairman, and, as members, Mr David Bower and Ms
Virginia Branney. The Case Manager
appointed to support the Panel was Nigel Cookson.
Issues which the Panel has to determine
3. The Panel is required by paragraph 15 of Schedule A1 to the
Act (the Schedule) to decide whether the Union’s application to the CAC is
valid within the terms of paragraphs 5 to 9; is made in accordance with
paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42 of
the Schedule; and therefore should be accepted.
The Union’s
application
4. In its application
the Union explained that it submitted its formal request for recognition to
the Employer on 12 March 2008 and on 26 March 2008 the Employer wrote back rejecting the request but indicated a
willingness to negotiate. The Union attached copies of both
of these letters to its application.
5. The Union stated that it had made
two previous applications for statutory recognition for workers in this or a
similar bargaining unit. The first was
in May 2007 which was subsequently withdrawn by the Union and the second in June
2007 which was rejected by the CAC.
6. According to the Union there were approximately
100 workers employed by the Employer with 25 workers in the proposed bargaining
unit. The Union did not know whether or
not the Employer agreed with these figures.
There were 13 Union members in the proposed bargaining unit and the Union would submit petitions
upon request as well as membership evidence in order to demonstrate that the
majority of the workers in the bargaining unit were likely to support
recognition for collective bargaining.
7. Finally, the Union confirmed that the
bargaining unit had not been agreed by the Employer and that there was no
existing agreement that it was aware of that covered any of the workers in the
proposed bargaining unit.
The
Employer’s response to the Union’s
application
8. In its detailed
response to the application dated 8 July 2008 the Employer
confirmed that it received the Union’s written request under the Schedule on 12 March 2008 and replied in writing on 26 March 2008.
9. The
Employer did not agree the composition of the proposed bargaining unit and gave
a full explanation as to why it believed such a bargaining unit was
inappropriate. The Employer confirmed
that it employed a total of 83 workers: 28 monthly paid (including directors) and
55 hourly paid. As for the Union's
estimate as to the number of workers in the proposed bargaining unit the Employer
explained that there were 26 monthly paid staff rather than the figure of 25 as
stated in the Union's application.
10. When
asked if it disagreed with the Union’s
estimate of membership in the proposed bargaining unit the Employer explained
at length how collective bargaining would compromise the effective management
of the business but did not challenge the figure given by the Union.
11. When
asked to indicate why it considered that a majority of the workers in the
bargaining unit were not likely to support recognition the Employer said that
it did not believe that the Union had
majority support for its application.
The Employer believed that out of the 26 workers in the proposed
bargaining unit a significant number had declined to join the Union when invited to do so. A number of these individuals had expressed
concern about the proposal for collective bargaining and union involvement in
what they considered to be a personal relationship between themselves and the
directors of the company. It had not
been confirmed that the Union members fully understood the concept and consequences
of collective bargaining and its implications.
Workers had informed the directors that they had joined the Union to enjoy the benefits of the support network
that membership could bring rather than any desire for collective
bargaining. The Employer would provide
the evidence of the views of the workforce in due course.
The
check of membership and support
12. To
assist the determination of two of the admissibility criteria specified in the
Schedule, namely, whether 10% of the workers in the proposed bargaining unit
are members of the Union (paragraph 36(1)(a)) and whether a majority of the
workers in the proposed bargaining unit are likely to support recognition of
the Union as entitled to conduct collective bargaining on behalf of the bargaining
unit (paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the
Case Manager of the level of Union membership and support for recognition
within the proposed bargaining unit. It
was agreed with the parties that the Employer would supply to the Case Manager
a list of the names of workers within the proposed bargaining unit and evidence
that it claimed showed that workers were not likely to support recognition of
the Union, and that the Union would supply to the Case Manager a list of Union
members within that unit to enable comparisons to be undertaken. Whilst the Union had referred to a petition in its application
form it had not as yet conducted one but, in a telephone conversation with the
Case Manager, indicated that it would do so if instructed by the CAC. It was explicitly agreed with the parties
that, to preserve confidentiality, the respective lists would not be copied to
the other party. These arrangements were
confirmed in a letter dated 10 July 2008 from the Case Manager to both parties. The information from both the Union and the Employer was received by the CAC on 11 July
2008.
13. The
Union provided a spreadsheet with 50 names. There were columns for title, forename and
surname, whether hourly paid or not and membership number. Four of the names had been annotated as ‘left
the company’.
14. The
Employer provided a list of 26 names giving job title, name and location for
each worker. In a covering letter the
Employer explained that as well as the list of the names it had included a copy
of a letter that had been issued to the workers on 10 July 2008 inviting views on union recognition and
provided samples of responses it had received from workers. Workers were asked to indicate whether or not
they wished the Union to be "recognized for the purpose of the
collective negotiation of my pay, hours and holidays". In the covering letter the Employer
emphasised that in order to allow the workers to express their views
"freely and confidentially" they did not need to provide their name
or any other personal information. The
letter and a copy of a blank response form were annexed to the Case Manager’s
report. The Employer added that it had
offered anonymity at this stage due to concerns about coercion but it was
prepared to re-issue the letter and request workers to print their name and
date the letter. The Employer gave the
breakdown of replies as follows: 14 sheets had been returned (12 originals and
two electronic) indicating that the worker did not support the application; six
sheets had been returned stating that the worker needed more time to consult
the Union and one letter had been received indicating that the worker needed
more time in which to consult the Union.
No replies had been received indicating support for the
application. The reply envelopes were
collected from the workers by a member of the Union and opened in the presence of this individual
and the Managing Director. In an email
to the Case Manager on 14 July 2008 the Employer explained that a further response
had been received which had been opened by a member of the Union in the
presence of the Managing Director in which the worker had indicated that they
did not support the application for recognition.
15. The
check that was undertaken was a comparison of the names on the Union’s membership list with the list of workers in
the proposed bargaining unit supplied by the Employer.
Given that the response forms referred to above were anonymous it was
not possible to confirm whether or not the individual concerned was in the
proposed bargaining unit nor was it possible to confirm their membership
status.
16. According
to the Case Manager’s report, the number of Union members in the proposed
bargaining unit was 12, a membership level of 46.15 %. A report of the result of the check of the
level of Union membership was sent to the Panel and the parties on 14 July
2008 and the parties’
comments duly invited.
Union’s
comments on the membership check
17. In an e-mail dated 15
July 2008 the Union said that it had no comment to make on the membership check
save that it thought the Employer was premature in seeking a consensus at this
stage of proceedings and that the reason that there was no support for the Union’s
application via the Employer's petition was that the Union had advised its
members not to participate in the exercise.
Employer’s
comments on the membership check
18. In
a letter dated 17 July 2008 the Employer stated that the Union did not, on the figures set out in the Case Manager's
report, have a majority of members in the proposed bargaining unit. That being the case, and in light of the
evidence produced by the Employer to show that 16 workers in the proposed
bargaining unit did not support recognition, the Union could not satisfy the test
at paragraph 36 (1) (b) namely that a majority of the workers in the proposed
bargaining unit would be likely to support recognition. Accordingly, the Employer took the view that
the application was inadmissible. It
added that it was prepared to reissue its letter to the workers and to ask the
workers to sign and print their names and date the reply slips if that was
required by the CAC. However, the Employer
was genuinely concerned about coercion within the proposed bargaining unit and
believed that the high level of responses from workers stating that they did
not want recognition was as the result of the guarantee of anonymity and should
the letter be reissued the Employer suggested that a guarantee of
confidentiality be provided to the workers concerned. Alternatively the Employer suggested that to
reassure the workers that they could give their views freely the parties could
agree that the responses would be kept confidential and perhaps be sent to an
independent third party. Finally, the Employer
stated that it had received two further responses from workers in the proposed
bargaining unit indicating that they did not support the application making a
total of 16.
Considerations
19. In deciding whether
to accept the application the Panel must decide whether the admissibility and
validity provisions referred to in paragraph 3 of this decision are
satisfied. The Panel has considered all
the evidence submitted by the parties in reaching its decision. The Panel is satisfied that the Union made a valid
request to the Employer within the terms specified in paragraphs 5 to 9 of the
Schedule to recognise it for collective bargaining in respect of the proposed
bargaining unit as described in paragraph 1 of this decision. The request was made in writing and
identified the Union, the proposed bargaining unit and that the
request was made under the Schedule. The
Panel is also satisfied that the application is not rendered inadmissible by
any of the provisions in paragraphs 33 to 35 and 37 to 42 and that the
application was made in accordance with paragraph 12 in that the before the end
of the first period the Employer informed the Union that it did not accept the
request but was willing to negotiate but no agreement was reached before the
end of the second period.
20. The
remaining issues for the Panel to address are whether the admissibility
criterion set out in paragraph 36 of the Schedule are met.
Paragraph 36(1)(a)
21. In
accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether
members of the Union constitute at least 10% of the workers in
the Union’s proposed bargaining unit. The check of Union membership in the proposed
bargaining unit as conducted by the Case Manager on 14 July 2008 showed that Union membership stood at 46.15% which
clearly satisfies the requirements of this test. Further, the Employer did not challenge the
findings of the Case Manager’s report in this regard.
Paragraph 36(1)(b)
22. The test in paragraph 36(1)(b) is whether a
majority of the workers constituting the proposed bargaining unit would be
likely to favour recognition of the Union as entitled to
conduct collective bargaining on behalf of the bargaining unit. To support its position the Union relied on its level
of membership, which, as stated above, stood at 46.15%. The Panel notes that in its application the
Union also made reference to a petition but when the Case Manager put in place
the arrangements for the check of membership and support it became clear that
no petition had actually been conducted by the Union and what it had intended
to say when it completed its application was that a petition would be conducted
if the CAC deemed it necessary. However,
it is not for the CAC to instruct parties as to what evidence should be
provided. Rather it is for the parties,
with the relevant test in mind, to decide how best to support their case and to
act accordingly.
23. Whilst
the Union has relied solely on its membership in pursuance of this test the
Employer has surveyed the workers in the bargaining unit over a relatively
short period of time and has put forward the results of this snap survey in
support of its argument that this test is not satisfied and therefore the
application is inadmissible. According
to the Employer’s survey 14 workers had initially indicated that they did not
support recognition of the Union. On 14
July 2008 the Employer informed the Case Manager that a further response had been
received to the same effect. Finally, in
its letter of 17 July 2008 the Employer stated
that a further two responses had been received also to the effect that the
individuals concerned did not support recognition of the Union. The Employer said that this made a total of
16 responses against recognition but it is not clear whether the Employer is
double counting the single response received on 14 July 2008. Assuming
that the number of workers that had indicated through the snap survey that they
did not support recognition of the Union was 16, this would
represent 61.54% of the proposed bargaining unit.
24. The
question that the Panel must carefully consider is, in the absence of any
evidence from the Union as to the views of the workers save for its
membership list, how much weight should be placed on the results of the
Employer's survey.
25. Having
considered the Employer's submissions as to how the survey was conducted the
Panel finds the following facts persuasive.
First, the letter issued to the workers by the Employer on 10 July 2008
explaining the purpose of the survey although setting out the Employer's
position opposing recognition did explain to the workers that there was no
compulsion to provide a reply and that the workers were free to express their
personal opinions if they did choose to respond. This is supported by the Union’s claim that the
reason it fared so badly in the survey was because it had advised its members
not to participate in the exercise. Workers were clearly free to decide for
themselves whether or not they did take part and there is no suggestion by the Union that workers were
coerced into responding.
26. Second,
the Employer gave the workers the chance to complete the replies anonymously
and to then place the replies in a sealed envelope before handing it to an
individual, who, it indicated, was a member of the Union. The envelopes were then opened in the
presence of the Union member and the Managing Director of Capalex. Whilst on such basis it is impossible to
check whether the responses were indeed from workers in the proposed bargaining
unit and also impossible to ascertain whether or not the individuals were Union
members, the Union has not raised this as an issue. In the round the Panel finds that the manner
in which the survey was conducted was open and there is no evidence of any
undue influence being brought to bear by the Employer in its conduct of the
survey. Indeed, in allowing the workers
to remain anonymous rather than giving their names adds to the Employer’s
argument as to the openness of the exercise and the Employer may well be correct
in its claim that the high level of responses was as a result of the anonymity it
had afforded.
27. Third,
the Panel has to arrive at a decision based on the evidence put before it by
the parties and the strength of evidence in this case is that from the
Employer. The Union had the opportunity
to put forward counter evidence of its own such as a petition in support of
recognition but elected not to do so and although it was given suitable
opportunity to comment on the information provided by the Employer, there was a
distinct lack of challenge from the Union not only about the manner in which
the Employer's survey was conducted, but also about its results.
28. On
balance, the Panel is persuaded that based on the evidence before it and
notwithstanding the level of Union membership, a majority of the workers
constituting the bargaining unit would not be likely to favour recognition of
the Union as entitled to conduct collective bargaining on behalf of the
bargaining unit and this test is therefore not satisfied.
Decision
29. For
the reasons given above, the Panel's decision is that the application cannot be
accepted by the CAC.
Panel
Professor John Goodman CBE, Chairman
Mr David Bower
Ms Virginia Branney
25 July 2008