Case Number: TUR1/343(2004)

07 June 2004

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECLARATION OF RECOGNITION WITHOUT A BALLOT

 

 

 

The Parties:

 

Amicus

 

and

 

Premdor Crosby Ltd.

 

 

Introduction

 

1.         Amicus (the Union) submitted an application to the CAC dated 20 February 2004 that it should be recognised for collective bargaining by Premdor Crosby Ltd (the Employer) in respect of a bargaining unit comprising ‘Production Supervisors employed at (the) Darton Site’.  The CAC gave both Parties notice of receipt of the application on 20 February 2004. The Employer submitted its formal response to the CAC on 27 February 2004.

 

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, Chairman, and, as Members, Mrs Maureen Chambers and Mr Paul Gates.  The Case Manager appointed to support the Panel was Nigel Cookson.

 

3.         By a decision dated 12 March 2004, 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 26 April 2004.  Having carefully considered the Parties written and oral submissions the Panel decided that the appropriate bargaining unit was ‘Production and Warehouse Supervisors based at the Darton site’.

 

4.         The bargaining unit determined by the Panel differed from that which the Union proposed in its application, and therefore the Panel was required by paragraph 20 of the Schedule to decide whether the Union’s application was valid in accordance with the tests set out in paragraphs 43 to 50:  that there was no existing recognition agreement in force, that there was no competing application and that there had been no previous CAC application in respect of the new bargaining unit.  However, in addition to those tests the Panel has to be satisfied, in accordance with paragraphs 45(a) and (b) of the Schedule, that 10% of the workers constituting the new bargaining unit are members of the Union and that a majority of the workers in the new bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of that bargaining unit.  

 

 

Membership Check

 

5.         To assist the determination of two of the validity criteria, namely whether 10% of the workers in the determined bargaining unit were members of the Union and whether a majority of the workers in the determined bargaining unit were likely to support recognition of the Union, the Panel proposed that the Case Manager conducted a check of the level of Union membership within the new unit.  Both Parties agreed that the Employer would supply, to the Case Manager, a list of the names of workers within the determined bargaining unit and that the Union would supply, to the Case Manager, a list of Union members within that unit to enable a comparison to be undertaken.  The information from the Employer was received by the CAC on 10 May 2004 and that from the Union on 11 May 2004.  It was explicitly agreed with both Parties that, to preserve confidentiality, the respective lists would not be copied to the other Party and that agreement was confirmed in a letter from the Case Manager to both Parties dated 7 May 2004.  A report of the result of the check of the membership level was circulated to the Panel and the Parties on 12 May 2004.

 

6.         The list supplied by the Employer indicated that there were 15 workers in the new bargaining unit.  The list supplied by the Union contained 15 names.  According to the Case Manager’s report, the number of names common to both lists was 12.  Based on a total figure of 15 workers in the bargaining unit, this constituted a membership level of 80%.  Both Parties were then invited to supply the Panel with written submissions relating to the validity tests.

 

7.         The Union, in a letter dated 12 May 2004, referred the Panel to its letter of 30 April 2004 (which was actually dated 5 May 2004) in which the Union stated that there was no existing recognition agreement covering any of the workers in the new bargaining unit, there was no competing application and there had been no previous application in respect of the new bargaining unit.  The Union submitted that the 10% test was duly satisfied and that, given the high level of Union membership in the new bargaining unit, a majority of the workers would be likely to favour recognition. 

 

8.         The Employer, in an e-mail dated 14 May 2004, stated that it had no comment to make on the validity tests and requested that the matter of Union recognition be put to a ballot.

 

9.         By a decision dated 18 May 2004 the Panel determined that the application was valid and gave the Parties notice under paragraph 20(5)(b) of the Schedule that the CAC would proceed with the application

 

10.       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:

 

                i)             the CAC is satisfied that a ballot should be held in the interests of good industrial relations;   

                ii)            a significant number of the union members within the bargaining unit inform the CAC  that they do not want the union to conduct collective bargaining on their behalf;

                iii)           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.

 

11.       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.

 

Union’s submissions

 

12.       In its letter of 12 May 2004 the Union had submitted that if the Panel determined that the application was valid, then recognition should be afforded without the need for a ballot.  The membership check of 12 May 2004 had indicated that 80% of the workers in the bargaining unit were in membership and this, the Union considered, was a strong indicator that the vast majority of the workers in the bargaining unit wanted the Union to be recognised.  The Union was not aware of any matters within paragraph 22(4) that would require the holding of a ballot.  It was not aware that any members had informed the CAC that they did not wish the Union to conduct collective bargaining on their behalf.  The members were all fully paid up members of the Union and the Union was aware, through its activists, that they wished the Union to be recognised.  The Union did not believe that the interests of good industrial relations required that a ballot be held.  On the contrary, it was concerned that the balloting process, no matter how positive the Parties approach, may lead to a polarising of positions which could damage future industrial relations.

 

13.       For the reasons given above, the Union argued, recognition should be accorded without the additional expense, delay and potential damage to industrial relations which a ballot may cause.

 

 

 

 

Employer’s submissions

 

14.       The Employer, in a letter dated 21 May 2004, stated that some Union members in the bargaining unit were considering resigning their membership as they no longer favoured recognition of the Union.  Further, the two main workplace instigators of membership of the Union were no longer employed by the company.  It was the Employer’s belief that at a recent meeting when a replacement "contact" was sought, no volunteers were forthcoming and the Union had to appoint a member to this position.

 

15.       Whilst the Employer recognised that a significant number of Union members within the bargaining unit had not informed the CAC that they did not want the Union to conduct collective bargaining on their behalf, it was, nonetheless, the Employer’s view that there was disquiet amongst members of the bargaining unit.  Given the circumstances, the Employer submitted, the interest of good industrial relations would best be served by the holding of a ballot.  

 

Union’s final submissions

 

16.       The Union, in a letter dated 25 May 2004, responded to the Employer’s letter of 21 May 2004.  The Union stated that, to the best of its knowledge, no member had indicated any lack of confidence in the Union, nor, since the hearing on 26th April, had any member expressed the view that they did not want to be collectively represented by the Union.  Further, since this date no member had sought to discontinue payment of contributions or resign membership of the Union.

 

17.       The Union explained that some members of the Union had recently been interviewed for more senior posts within the company.  These members had been closely questioned as to their attitude to the Union’s claim for recognition during the interviewing process.  It could, the Union suggested, be that the Employer was seeking to misuse responses that these members had felt obliged to make so as not to jeopardise their prospects.

 

18.       The Union did confirmed that two of its active members had left the company's employment, but added that this was prior to the Panel’s decision as to the appropriate bargaining unit.  It was the case, the Union stated, that their departure was taken into account for the purposes of the membership check that followed the determination of the bargaining unit.  Nonetheless, there had been no change in the determination of the remaining members to achieve recognition.

 

19.       The Union went on to state that, at a meeting prior to the CAC hearing on 26 April 2004, a new contact/coordinator of Union members was chosen, rather than appointed, with unanimous support from colleagues.

 

20.       The Union closed by reiterating its request that recognition should be afforded without a ballot.

 

Considerations

 

21.       The Act requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are Union members.  If the Panel is satisfied it must then decide if any of the three conditions in paragraph 22(4) are fulfilled.  If the Panel considers that any of the conditions are fulfilled it must give notice to the Parties that it intends to arrange for the holding of a secret ballot.

 

22.       In this case the membership check undertaken by the Case Manager indicated that the level of Union membership was over 50% of the bargaining unit, and the Employer did not dispute this finding.         Accordingly, the Panel is satisfied that the majority of the workers in the bargaining unit are Union members.

 

23.       The Panel must now consider the qualifying conditions in paragraph 22(4):

 

24.       Condition 22(4)(a) - this condition applies if the Panel is satisfied that good industrial relations require a ballot to be held.  The Union has argued that the cause of good industrial relations would best be served by the Panel awarding recognition without a ballot.  Conversely, the Employer has submitted that a ballot should be held in the interest of good industrial relations as it was of the view that there was disquiet amongst Union members within the bargaining unit.  However, there is nothing within the Employer’s submissions to support this claim.  Neither has the Employer demonstrated how industrial relations would be affected if the Panel was minded to award recognition without calling for a ballot.  The Panel’s view is that, in this instance, good industrial relations between the Parties would be best served by establishing a bargaining relationship between the Parties as soon as possible.  It is for these reasons that the Panel is satisfied that this condition does not apply.

 

25.       Condition 22(4)(b) - the Panel noted that no Union members within the bargaining unit had informed the CAC that they did not want the Union to conduct collective bargaining on their behalf: this fact being acknowledged by the Employer in its letter of 21 May 2004.  Therefore the Panel is satisfied that this condition does not apply.

 

26.       Condition 22(4)(c) – whilst the Employer has stated that some Union members in the bargaining unit were considering resigning their membership as they no longer favoured recognition of the Union this is not evidence, within the meaning of either paragraph 22(5)(a) or (b), that can be taken into account for the purposes of this qualifying condition.  It is not evidence about the circumstances in which Union members became members, nor is it evidence about the length of time for which Union members have been members.  For this reason, the Employer has not convinced the Panel that there is any membership evidence which could lead 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 and accordingly, the Panel is satisfied that this condition does not apply.

 

Declaration

 

27.       Following careful consideration of all aspects of the case and all relevant evidence before it, the Panel declares that Amicus is recognised by Premdor Crosby Ltd as entitled to conduct collective bargaining on behalf of Production and Warehouse Supervisors based at the Darton site.

 

 

 

 

 

Panel

 

Professor Paul Davies, Chairman

Mrs Maureen Chambers

Mr Paul Gates

 

 

07 June 2004