Case Number: TUR1/252/(2003)

9th April 2003

 

 

 

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

Eddie Stobart Limited

 

Introduction

 

1.         GMB (the Union) submitted an application to the CAC dated 4 March 2003 that it should be recognised for collective bargaining by Eddie Stobart Limited (the Company) for a bargaining unit consisting of all employees employed by the Company in warehouse and despatch at Carnaud Metal Box Bevcan plc, Borland Avenue, Botcherby, Carlisle.  The CAC gave both parties notice of receipt of the application on 6 March 2003.  Following its normal practice, the CAC sent a copy of the Union’s application to the Company together with a copy of the Guidance for Parties booklet.  The covering letter requested the Company to complete a simple questionnaire and stated that if the Company wished to challenge any information given in the union’s application it provide any available evidence to support its position.  The position in respect of statutory deadlines was explained and the Company was informed that the deadline for submitting a response to the union’s application was 13 March 2003.

 

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 Linda Dickens, Deputy Chairman, and, as Members, Dennis Cameron and Maureen Shaw.  The Case Manager appointed to support the Panel was Roshan Kamall.

 

3.         The Company failed to submit a response by the deadline.  The case manager telephoned the company but was unable to speak personally with the contact point (the Human Resources Manager) named in the union’s application.  The case manager followed up with several further telephone calls and left messages, none of which was replied to.  The Panel instructed the case manager to extend the deadline for acceptance to Monday 24 March to allow time to ensure that the company had ample opportunity to submit the completed questionnaire, or otherwise respond.  The case manager tried once again unsuccessfully to contact the company’s Human Resources manager by telephone.  On 19th March the case manager sent an e-mail to the HR Manager explaining the deadline had been extended and stating ‘should you fail to return the completed questionnaire by this time the Panel will make its decision on the basis of the evidence before it’. Attached to the email was a copy of the earlier letter from the CAC and the questionnaire.  A further copy of the letter, together with all attachments, was sent by recorded delivery the same day.  Royal Mail has confirmed that this was received by the company on Thursday 20 March 2003.  The company failed to acknowledge or reply to any of the case managers further communications. 

 

Issues

 

4.         The Panel is required by the Act to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

 

5.         In the absence of any information or arguments from the company the Panel had to apply the tests on the basis of the information and evidence supplied by the union. The Union stated that it had twenty two (22) members in a bargaining unit of thirty two (32) employees and submitted a copy of a petition signed by all twenty two members stating their wish for the union to be recognised by the company for collective bargaining purpose. The petition was attached to the application and therefore copied to the Company. 

 

6.         The Panel requested the Case Manager to ask the union to supply the original of the petition. This was done on 31 March, together with evidence that these employees were paid up members in accordance with the union’s rule book.  The statutory deadline was extended in order that this request could be met.

 

Considerations

 

7.         The Panel has to decide, firstly, whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8 and is made in accordance with paragraphs 11 or 12.  Of  relevance here is a letter dated 12th February from the Union to the HR Manager of the Company which Royal Mail confirmed to the union was delivered on 13th February. This letter was part of the union’s application documents, as was an email from the Company’s HR Manager dated 4th February saying that an earlier letter from the union, dated 4th December, concerning its request for recognition had not been received.  The Panel is satisfied that the validity tests are met.

 

8.         Paragraph 36(1)(a) of the Schedule, requires that members of the union should constitute at least 10% of the workers in the proposed bargaining unit and paragraph 36(1)(b), requires the Panel to determine whether a majority of 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.

 

9.         In its application to the CAC, the Union stated that there were 22 union members in its proposed bargaining unit of 32 workers. The Panel was satisfied that on the basis of the evidence available that the Union had 22 members out of 32 workers in the proposed bargaining unit.  This gives union membership at 68.75% of the proposed bargaining unit.  The Panel is therefore satisfied that the level of union membership in the bargaining unit does constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule. 

 

10.       The next issue for the Panel to consider is whether, under paragraph 36(1)(b), a majority of 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 the number of individuals who signed the petition. The wording of the petition was as follows: ‘We, the undersigned, are all employees of Eddie Stobart Ltd based at the premises of Carnaud Metal Box, Botcherby, Carlisle, and are members of the GMB union and wish to apply for full Trade Union Recognition as our lawful right.’  For the reasons given in the previous paragraph, the Panel accepts that the union has around two thirds of the bargaining unit in membership. In some cases the response from the employer can provide a figure for the number of employees in the union proposed bargaining unit higher than that given by the union. In this case we have no information from the employer but the Union would have to have seriously underestimated the size of its proposed bargaining unit for its 22 members not to constitute a majority, and there are no grounds for supposing it has done so.    The Panel is accordingly satisfied that the majority of workers in 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 in accordance with the requirements of paragraph 36(1)(b) of the Schedule.

 

11.       It is very unusual for an employer to choose not to respond to the CAC’s request for information in response to an application from a trade union.  However, the employer is not under a statutory duty to co-operate at this stage, and there is no bar to the CAC acting without such co-operation. The Panel is satisfied that the case manager afforded the Company every opportunity to respond. After considering all the evidence available to it, the Panel is satisfied that the Union’s application meets the statutory tests.

 

Decision

 

12.       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

 

 

 

 

Professor Linda Dickens

Dennis Cameron

Maureen Shaw

 

9th April 2003