Case Number:
TUR1/634/2008
CENTRAL ARBITRATION COMMITTEE
TRADE
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DECISION ON WHETHER TO ACCEPT THE APPLICATION
The Parties:
Unite
the
and
Stephens and George Limited
Introduction
1. Unite the
Union (the Union) submitted an application dated 15 May 2008 to the CAC that it
should be recognised for collective bargaining by Stephens and George Limited
(the Employer) for a bargaining unit described as “all production workers in Dowlais, Merthyr Tydfil.” The CAC gave both parties notice
of receipt of the application on
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
Paul Davies (Panel Chairman), Mrs Diana Palmer and Mr Keith Sonnet. The Case Manager appointed to support the
Panel was Sharmin Khan. For the purpose of this decision the Case
Manager was Maverlie Tavares.
3. The CAC Panel
has extended the acceptance period in this case. The initial period expired on
Issues
4. The Panel is
required by the Act to decide whether the
The
5. The Union
stated the Employer employed approximately 235 workers. In its proposed
bargaining unit the Union estimated that there were approximately 168 workers
and that 68 were members of the Union.
The Union explained that it had a petition of the workers in the
bargaining unit and a list of its membership that was available if the CAC
required them. The Union also stated that the bargaining unit reflected the
range of the union membership.
The Employer’s response
6. In
its response dated 2 June 2008 the Employer did not agree the proposed
bargaining unit. The Employer stated
that it had not received the written request from the Union for recognition
under Schedule A1 until 7 April 2008, as the main contact was out of the
country on business. It also stated that there were 180 workers in the Union’s
proposed bargaining unit, and argued that it was from the CAC that it received
a copy of the Union’s application on 20 May. The Employer continued that
following receipt of this, the Union did not respond to its offer for voluntary
negotiations. It thought that Acas was still involved
and was not aware that the Union had suspended Acas’
involvement. The Employer believed that the Union’s application was premature
and should be rejected by the Panel as the Union did not attempt to negotiate
with it after being invited to. The Employer also argued that it had a Works
Council which dealt with negotiations on pay and terms for all employees. It
also stated that it believed that the union membership in the proposed
bargaining unit was 63 people.
Further clarification
sought from the Parties
7. In letters
dated 9 June 2008, the CAC asked the Parties to clarify the following
information: the Union was asked respond to the Employer’s statement that it
had not received a copy of the Union’s application from the Union; the Employer
was asked to state whether it considered that a majority of workers in the
proposed bargaining unit would support union recognition.
8. In a letter
dated 11 June 2008 the Union responded by stating that the application sent to
the CAC on 15 May 2008 was copied to the Employer on the same date. The Union
also faxed a copy of the Royal Mail receipt book page which showed that mail
had been sent by special delivery to the CAC and the Employer. The Employer
also responded to the CAC in a letter dated 11 June 2008. It stated that it did
not agree with the bargaining unit the Union was stating and explained that it
had always used all of its employees as the bargaining unit. It argued that
there were 62 staff who were union members and it did not feel it was fair that
less than 25% of its employees would be represented. The Employer also
reiterated that it had a Works Council which undertook negotiations including
pay and hours and that it had checked its records and it had not received the
application from the Union. The Employer believed that paragraph 34 of the
Schedule had not been complied with and therefore the application was
inadmissible. It also believed that paragraph 36 of the Schedule would not be
fulfilled as the majority of the workers in the bargaining unit would not
favour union recognition.
9. In a letter
dated 17 June 2008, the Employer was informed by the CAC that the in light of
the posting confirmation produced by the Union, the Panel Chairman was
provisionally of the view that the Union had met its obligations under
paragraph 34 of the Schedule, and if the Employer was still of a contrary view
it could submit its arguments. In a letter dated 20 June 2008 the Employer gave
various dates it had not been available due to holiday and work commitments.
The Employer further explained the relationship it had with previous unions
which it had de-recognised and the strained relationship it had with the
current local representative. The Employer believed that paragraph 34 of
Schedule A1 had not been fulfilled as the request for recognition was submitted
by the Union when it was still willing to negotiate with the Union but with an
officer at national level, and an application was submitted to the CAC
prematurely. It also stated that certain members of staff, both union members
and non-union members were raising their own petition against recognition of
the Union. The Employer also argued that its Partnership Forum had been ignored
in previous communications. In a further letter dated 23 June 2008, the
Employer concluded that his receptionist signed for the Union’s application but
its contents were not given to him.
Membership and Support
check
10. To assist the
determination of whether a majority of the workers in the proposed bargaining
unit were likely to favour recognition of the trade union as entitled to
conduct collective bargaining on behalf of the bargaining unit (paragraph
36(1)(b)), the Panel proposed a confidential check to be undertaken by the Case
Manager.
11. In letters to
both Parties dated 17 June 2008, the Case Manager requested that the Employer
provide a list of the full names, addresses and if possible the date of births
of the workers within the proposed bargaining unit. The Union was requested to
provide a list of its members including their full names, addresses and date of
birth within the proposed bargaining unit and a copy of the petition. The Case
Manager’s letter confirmed that neither the lists nor the petition would be
copied to the other party or the Panel. On 24 June 2008 the Employer submitted
a petition from workers and stated that there might be a crossover of names
signing both petitions. The Case Manager sent a letter to the Parties dated 24
June 2008 that this additional check would be included in the membership and
support check report.
12. The Employer
provided a list of 187 workers it stated were within the Union’s proposed
bargaining unit and the Union provided a list of 69 union members it stated
were within its proposed bargaining unit, along with a copy of its petition. The petition contained 141 signatures. It was 11 A4 sheets in length
and the signatures were put to the following statement at the head of the page:
“PETITION FOR
TRADE UNION RECOGNITION
We the undersigned workers who are
employed by
Stephens & George Print Group
Stephens & George Limited
ask that the Graphical, Paper & Media Sector of
UNITE be recognised as being entitled to conduct collective bargaining on our
behalf
Please note this petition is confidential and will
only be made available to the Central Arbitration Committee (CAC) or ACAS”
The
petition was dated between 8 April 2008 and 17 April 2008.
The Employer’s petition was
three A4 sheets in length consisting of nine signatures. The first sheet was
headed as follows:
“I currently work at Stephens & George Ltd. I am
signing the below petition to confirm that I am happy to continue dealing
directly with Managing Director Andrew Jones, I am happy to carry on doing this
and do not agree with the application of Unite to have recognition in Stephens
& George.”
The second and third sheets
had identical statements with one person on each sheet. The statement was as
follows:
“I currently work at Stephens & George Ltd. I am
signing the below petition to confirm that I am happy to continue dealing
directly with my Commercial Production Manager Paul Enoch and Group Managing
Director Andrew Jones, I recently signed a union petition for the sole purpose
of acknowledgement of my own union membership and not a personal requisition
for union representation, therefore I am happy to carry on dealing with Andrew
Jones on matters of conditions of contract and conditions of employment and do
not agree with the application of Unite to have union recognition at Stephens
& George.”
The two statements were dated
the 24 June 2008.
13. The
membership check showed that there were 59 members of the Union within the
proposed bargaining unit; a membership level of 31.55%. The check of the
Union’s petition evidence established that there were 127 workers from within
the proposed bargaining unit who had signed the Union’s petition, representing
67.91% of the workers in the proposed bargaining unit. 46 of the signatories were
members of the Union, 81 were non union members. The check of the Employer’s
petition against the Union’s petition resulted in 5 union members (2.67%) of
the proposed bargaining unit who had signed both petitions. A report of the
result of the check of the membership level and the check of the petition was
circulated to the parties on 25 June 2008.
Views of
the Employer
14. Following receipt of the membership
and petition check report, the Employer by an email received on 30 June 2008 at
the CAC, was of the opinion that the workers who had signed the Union’s
petition had not been told what it contained. It argued that staff had been
asked if they were union members and to sign, not for recognition. No-one had
understood that the Union had gone for collective bargaining. The Employer continued that many workers had
signed its petition and were continuing to do so because they were represented
at the Works Council. The Employer believed that the Union’s application should
not be accepted as it would be under false pretences and it should be rejected
as it only had 59 members in the workforce. The Employer believed that if its
proposed bargaining unit was to be balloted the Union’s application would be
rejected.
15. A
letter was also received at the CAC on 30 June 2008 from the Employer; (it was
dated 27 June 2008). The Employer explained that it had not received a copy of
the application from the Union that was sent to the CAC; it continued to argue
that the application was premature and that it did not accept the bargaining
unit proposed by the Union.
Views of the
16. The Union, in its letter dated 27
June 2008, stated that it had passed the 10% requirement for the Schedule and
the petition provided indicated that the majority of workers were likely to
favour recognition of the union. It argued that the Employer had included
departments that were not included in its proposed bargaining unit i.e. Admin,
Drivers, salaries, Warehouse and Waste. It explained that it only passed its
petition to the departments in its proposed bargaining unit and provided a copy
of letter it attached to its clipboard for holding the petition. It read as
follows:
10 April 2008
Dear Colleagues and Friends
This Petition is for presentation to the Central Arbitration Committee
(CAC) to show that there is support among the workforce for the union to be
recognized.
Everyone can sign, irrespective of whether or not they are in the
union. It is an expression of opinion only, not of membership of the union, and
will not be shown or copied to the company.
Ann Field David
Lewis
National Officer Branch
Secretary
The Union also argued that six of the ten union members that
were not found to be on the Employer’s list of workers should have been and
requested that the membership check be re-run.
Further responses received from the Parties
17. The
Union was asked to provide a copy of the signature from Royal Mail to confirm
who had signed for the application it sent to the Employer. It submitted this
on 3 July 2008. In a letter dated 2 July 2008, the Employer responded to the
Union’s objections to the inclusion of departments it believed was not in its
proposed bargaining unit. The Employer was adamant that it had interpreted the
definition on the proposed bargaining unit correctly and stated
it had its own petition from workers who wanted to continue to negotiate with
it directly.
2nd Membership and Support
check
18. A
second membership and support check was conducted by the Case Manager on 4 July
2008. This was done using the data supplied by the Parties for the initial
check but on the proposed bargaining unit as defined by the Union in its letter
of 27 June 2008 i.e. less workers in the departments for Admin; Drivers;
Salaries; Warehouse and Waste. The membership check established there were 167 workers in the proposed
bargaining unit; there were 58 members of the Union within the proposed
bargaining unit; a membership level of 34.73%. The check of the Union’s
petition evidence established that there were 117 workers from within the
proposed bargaining unit who had signed the Union’s petition, representing
70.06% of the workers in the proposed bargaining unit. 46 of the signatories
were members of the Union, 71 were non union members. The report of the result
of the check of the membership level and the check of the petition was
circulated to the Parties on 4 July 2008.
Views from the parties on 2nd Membership and
Support check
19. The
Employer responded to the second membership check report by a letter dated 4 July
2008. It asked that the Union’s petition be disregarded as it was misleading
and that its own petition (which it submitted with the response) should be the
one taken into account. The Union in its response dated 7 July 2008 stated that
it appeared that it was covering the same discussion points that it had
previously explained. However it added that the Employer was asking staff to
sign a petition to state they did not want to be represented by the Union, and
that the CAC should take this into consideration when it’s received.
3rd Membership and Support check
20. A
third membership and support check was conducted by the Case Manager on 16 July
2008. This was done using data received from the Union on 17 June 2008 for the
initial check; a list of workers received by the Employer on 4 July, and the
Employer’s petition received on 8 July 2008.
The Employer submitted a list of 251 workers but the number
of workers in its interpretation of the Union’s proposed bargaining unit
totalled 216 workers. The workers in its
interpretation were as follows:
Admin, Binding,
Casuals, Despatch, Drivers, Folding, Finishin (sic), Group Engineer, Guillotine, Mailing, Pre-Pressroom, Pressroom, Repro,
Reprographics, Salaries, Salaries Production, Stitching, Warehouse, and Waste.
The petition
contained 133 signatures. It was 42 A4 sheets in length and 40 of the 42 pages
were headed with the following statement:
“I currently work at Stephens &
George Ltd. I am signing the below
petition to confirm that I am happy to continue dealing directly with the
Managing Director Andrew Jones, I am happy to carry on doing this and do not
agree with the application of Unite to have recognition in Stephens &
George.”
The remaining two pages of
the petition were headed with the following statement:
“I currently
work at Stephens & George Ltd. I am
signing this petition to confirm that I am happy to continue dealing directly
with my Commercial Production Manager Paul Enoch and Group Managing Director
Andrew Jones, I recently signed a union petition for the sole purpose of
acknowledgement of my own union membership and not a personal requisition for
union representation, therefore I am happy to carry on dealing with Andrew
Jones on matters of conditions of contract and conditions of employment and do
not agree with the application of Unite to have union recognition at Stephens
& George.”
Beneath all of the statements
on the petition were one or more signatures. Two signatures were dated 24 June
2008.
The Employer also submitted
one A4 sheet of paper headed with the following statement:
“We the undersigned put forward Simon
Williams as our house representative to attend and make decisions on our behalf
in the S&G forum meetings.”
Below the statement were the names of 15 individuals. This sheet was not included as part of the
checks as it was not relevant to the purpose of the report.
21. The
membership check established there were 95 workers (and one duplicate) in the
Employer’s definition of the Union’s proposed bargaining unit who had signed
its petition; a level of 43.98% in the bargaining unit. 15 of these were
members of the Union; 80 were non-union members. The check on the number of
workers who had signed both the Union’s and the Employer’s petitions
established that there were 37 workers (27.82% of the Employer’s petition). 11
of these signatories were Union members; 26 were non union members.
22. A check was
also done on the Employer’s petition against the Union’s interpretation of its
proposed bargaining unit. For clarification, the Union’s interpretation of its
proposed bargaining unit consisted of the following departments:
Binding, Casuals, Despatch, Folding, Finishin (sic), Group Engineer, Guillotine, Mailing,
Pre-Pressroom, Pressroom, Repro, Reprographics, Salaries Production and
Stitching.
There were 164 workers in the bargaining unit. Of these 57
had signed the Employer’s petition of the proposed bargaining unit (34.76%). 15
of these were members of the Union; 42 were non-union members. The report of all of the results was
circulated to the Parties on 16 July 2008.
Views from the Parties on the 3rd Membership and support
check
23. The
Employer in a letter dated 17 July 2008 did not understand why the number of
workers in the Union’s interpretation of its proposed bargaining unit had
decreased from 167 to 164. It also argued that its proposed bargaining unit
should be 257 workers (had recently increased from 251), not 216. The Employer
believed that the majority of workers would not favour recognition of the Union
and that the application should be refused.
24. The
Union responded in a letter dated 17 July 2008 that it had met the requirements
in paragraph 36 of Schedule A1. It also put forward the argument that many of
its members and supporters had not signed the Employer’s petition and those who
had were being intimidated by the Employer.
Considerations
25. In deciding
whether to accept the application the Panel must decide whether the
admissibility and validity provisions referred to in paragraph 4 of this decision
are satisfied.
26. This
application has taken a long time to reach the point at which a decision on
whether to accept the application could be made, the application having been
received by the CAC as long ago as May 18. Both Union and Employer have
submitted petition evidence which has had to be analysed (resulting in three
support checks), and there has been dispute about the scope of the bargaining
unit proposed by the Union. This last issue seems to us the crucial one at this
stage and we address it below. However, we turn first to three other issues
which have been raised by the Employer in relation to the application.
27. First, the
Employer maintained for some time that it had not received a copy of the
application to the CAC and the documents supporting it, as paragraph 34(b)
requires. After, however, the Union had produced both proof of posting and
proof of receipt of the application by the Employer, the Employer accepted in a
letter of 23 June that a copy had been received, though later lost within the
company’s internal postal system. We need say no more about this issue. Second,
the Employer maintained that the application was inappropriate because there
was a works council in existence in the company. However, there is nothing in
the legislation which, on this ground, precludes a union from claiming
recognition for the purposes of collective bargaining.
28. Third, , the Employer has submitted that the Union’s request for
recognition is premature. The Schedule lays down a procedure and a time-table a
union must follow in making an application to the CAC for recognition. Before
submitting an application to the CAC the union must make a request for
recognition to the employer (para 4); that request
must be received by the employer (para 5); and the
request must be in writing, identify the union and the bargaining unit and
state that is made under the Schedule. It is clear to the Panel that the
Union’s letter to the Employer, dated 31 March 2008
and received by the Employer on 1 April, fulfils these requirements. This
letter was attached to both the Union’s application and the Employer’s
response. The Employer’s Group Managing Director, Mr Andrew Jones, who has had
conduct of this matter on behalf of the Employer, has made the point that pressure
of business meant that he did not see the letter until April 7. However, since
the employing entity is Stephens & George Ltd, not Mr Andrew Jones
personally, we think the relevant date is the date of receipt of the letter by
the company, not by him personally.
29. The Schedule
then provides that during a period of time (the ‘first period’) after the
employer has received the union’s request the employer may indicate to the
union that it is willing to negotiate over the union’s request. This period is the
period of 10 working days beginning on the day after the employer received the
union’s request (para 10(2) and (6)). In this case
the Employer indicated such willingness in a letter of 11 April, received by
the Union on 14 April, thus within the 10-day period.
30. The effect of
the Employer’s letter of 11 April was to trigger a ‘second period’ of 20
working days, beginning on the day after that on which the first period ended (para 10(3) and (7)). Only if the second period ends without
an agreement being reached may the union apply to the CAC (para
12(1)). In this case the Union made its application to the CAC on 15 May. No
agreement between the Union and the Employer had been reached by that time.
31. Applying
those rules to this case and taking 1 April as the day of receipt by the
Employer, the ‘first period’ began on 2 April and expired on 15 April. The
‘second period’ began on 16 April and expired on 14 May (taking account of the
fact that 5 May was a bank holiday). Consequently, we find that the Union’s
application was timeous as far as the statute is
concerned.
32. The
correspondence in this case reveals that Mr Jones feels a sense of grievance
that the Union made an application to the CAC whilst he was still prepared to
negotiate over the issue, though commitments on both sides had made it
impossible even to arrange a meeting within the periods described above. We
note that para 10(7)(b)
permits the parties, by agreement, to extend the second period for as long as
they jointly wish. However, the statute gives the CAC no authority to reject an
application by a union which meets the minimum time-table set out above, on the
grounds that the union and employer could have agreed an extension of the
second period. We do not think it is appropriate for us to comment on the
Union’s decision in this case to make an application rather than pursue
voluntary negotiations, except to say that it is clear that the issue of
recognition at the company had been a live one at least since the summer of
2007 and that a statutory application does not preclude voluntary negotiations.
Paragraph 36
33. We now turn
to the central issue of whether a majority of the proposed bargaining unit
would be likely to support the Union’s application for recognition for the
purposes of collective bargaining (para 36(1)(b)).
Before we do that, however, we need to address the issue which emerged in the
parties’ comments on the first membership and support check carried out by the
Case Manager on 25 June. This revealed that the parties interpreted differently
the
34. In our
industrial relations experience it is usual to exclude administrative and
salaries workers from the group of ‘production workers’ nor is it unusual to
exclude those who jobs relate to warehousing of what is produced and delivering
it to customers. Of course, the term ‘production workers’ is not a term of art
and no doubt different people use the term in different ways in different
contexts. Moreover, we think our approach to this issue should be governed by
the general structure of the Schedule. At the stage when the CAC is considering
whether to accept a union’s claim for recognition, it is the bargaining unit
proposed by the union to which the statutory tests have to be applied. See paras 2(3) and 36. By the same token, the acceptance of an
application carries with it no determination on the part of the CAC that the
union’s proposed bargaining unit is an appropriate one. In default of agreement
between the parties on that issue, the CAC has to decide the matter at the
second stage of the procedure (see para 19).
35. Thus, at the
initial stage of the procedure the
Paragraph 36(1)(a)
36. Basing
ourselves on this approach we turn first to the Case Manager’s check of 4 July.
This was in fact the second check carried out by the Case Manager, but the
first which corresponded to the
Paragraph 36(1)(b)
37. As indicated,
the support check carried out by the Case Manager on 4 July revealed a 70%
level of support for the
38. Largely
subsequent to the
39. It is
difficult to know how to assess the views of those workers who signed both
petitions. One approach would be to treat them as expressing a view in favour
of individual bargaining on the grounds that this view was the later in time.
This would involve deducting all of them from the tally of workers supporting
the
40. However, we think
this is too robust an approach to take. In our experience, the Employer is in a
stronger position than the
41. Doing the
best we can with the evidence before us, we conclude that on the balance of
probabilities a majority of the workers would be likely to favour recognition
of the union for the purposes of collective bargaining.
42. The Panel is therefore satisfied that the Union made a valid
request to the Employer within the terms of paragraph 5 to 9 of the Schedule;
the application was made in accordance with paragraph 12; the application is
not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and
37 to 42 and therefore should be accepted.
Decision
43. For the
reasons given above, the Panel’s decision is that the application is accepted
by the CAC.
Panel
Professor Paul Davies
Mrs Diana Palmer
Mr Keith Sonnet