Case Number: TUR1/348/(2004)

5 April 2004

 

 

 

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:

 

TSSA

and

Wessex Trains

 

Introduction

 

1.         TSSA (the Union) submitted an application to the CAC dated 5 March 2004 that it should be recognised for collective bargaining by Wessex Trains (the Company) for a bargaining unit consisting of all Wessex Trains Managers (excluding executives) regardless of location.  The CAC gave both parties notice of receipt of the application on 8 March 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, Deputy Chairman, and, as Members, Ms L Mercer and Mr J Rugman.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

3.         In accordance with the CAC’s standard practice, the Company was informed, by a letter dated 8 March 2004, that there was a statutory 10 day period, ending on 22 March 2004,  in which the CAC had to decide whether to accept the Union’s application and invited the Company to submit by 15 March 2004 a response to the application by way of completing a CAC questionnaire.  As no response was received by the given date, the Case Manager attempted to contact the Company’s Human Resources Manager by telephone on 17 and 19 March 2004 but received no reply to the messages she left for him.

 

4.         The Panel then directed that the Case Manager should write formally to the Company to explain that, if the Company did not respond, the Panel would make its decision on the basis of the evidence submitted by the Union.  On 19 March 2004, a letter was sent to the Company, by both fax and post, to that effect, explaining also that the period within which the Panel would decide whether the application should be accepted was extended to 29 March 2004.  That letter was copied to the Union.

 

5.         On 19 March 2004, the CAC received a telephone message from the Company’s representative apologising for the delay and saying that a response would be submitted early in the following week.  On 23 March 2004, as again no response had been received, the Case Manager left a further message for the Company’s Human Resources Manager to contact her.  He replied on 24 March 2004 and a response to the Union’s application was sent to the CAC by e-mail together with formal notification of the name of the Company’s representative.  The Company later explained that the reason for the delay was the absence of the Human Resources Manager and an internal delay within the Company in directing correspondence to his department.

 

6.         In view of certain comments made in the Company’s response to the application, the Panel asked the Case Manager to write to the Union to clarify the following issues:

 

a)         Whether the proposed bargaining unit in the application was the same as the unit described in the Union’s initial letter to the Company requesting recognition.

 

b)         The workers specifically included in or excluded from the proposed bargaining unit.

 

c)         Whether or not the union members were fully paid-up in accordance with the Union’s rules.

 

d)         The circumstances in which the Union’s petition was circulated and signed.

 

e)         The proportion of the workers within the proposed bargaining unit who had signed the Union’s petition.

 

The Case Manager’s letter was dated 26 March 2004 and, in the same letter, the parties were notified that the Panel had decided to extend to 5 April 2004 the period within which it had to decide whether the application should be accepted.

 

7.         The Union responded on 29 March 2004 in the following terms:

 

a)         Its proposed bargaining unit was unchanged.  It had listed excluded workers for the purposes of clarification only.

 

b)         It had used the word ‘executives’ as that was a generic and well-understood term within the industry.

 

c)         All union members were fully paid-up.

 

d)         The petition was posted to all workers at their work addresses and the majority of forms were returned by post.  Union officers followed that up with workplace visits but were denied access to some of the Company’s sites.

 

e)         63% of the workers in the proposed bargaining unit had signed the petition supporting recognition.

 

8.         The Union’s response was copied to the Company which in turn responded on 30 March 2004 by suggesting that a check of the level of union membership should be conducted and resisting the assertion that it had denied access to Union officers.  However, the Company did not propose that a check should be conducted of the Union’s petition or raise any further questions about the way the petition had been circulated among the workers in the proposed bargaining unit.

 

Considerations

 

9.         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.

 

10.       In its response to the CAC, the Company stated that it did not understand the Union’s description of the proposed bargaining unit as ‘executive’ was not a job title the Company used.  It did however state that the number of ‘management grade staff’ was 112 including five positions currently being filled.  The Panel sought clarification of the apparent discrepancy that the parties did not share a common understanding of the ‘executives’ the Union wished to exclude from the proposed bargaining unit; the result of that exercise is described in paragraphs 7. and 8. above.  The Union’s response was not further challenged by the Company and the Company’s use of the expression ‘management grade staff’ was not challenged by the Union.  The Panel’s conclusion is that both parties fully understood the workers the Union wished to include in its proposed bargaining unit and that the unit was the same in the application as it was in the Union’s initial letter to the Company.

 

11.       Two further issues the Panel has to consider are, firstly, whether, under paragraph 36(1)(a) of the Schedule, members of the union constitute at least 10% of the workers in the proposed bargaining unit and, secondly, 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.

 

12.       The Union stated on its application form that there were 54 members in a bargaining unit of 92 workers.  The Company, in its response, stated that there were 107 current workers within the proposed bargaining unit.  It and further stated that the Union had not supplied any information relating to the level of membership and that a significant number of managers were members of other unions.  The Company did not, however, directly challenge the level of membership or offer any evidence that the claimed level of membership was less than the Union had stated.  The Panel’s view is that, given the relatively minor difference between the parties’ estimate of the numbers in the proposed bargaining unit, the level of union membership is around 50%.  The Company provided no evidence to counter that figure and the Union has confirmed that all its members are fully paid-up.  The Panel has therefore decided 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. 

 

13.       On the question of whether the majority of workers within the proposed bargaining unit would be likely to favour recognition, the Union relied on a petition that it stated had been signed by 63% of the workers and the wording of the petition was reproduced in its application form.  The Company made a number of observations in relation to the petition including that some managers had indicated they would not want the Union recognised, that the petition may not have been conducted in secret and that some members retained union membership simply because they had been promoted from lower grades.  Furthermore, having received a copy of the Union’s response to the Case Manager’s letter of 26 March 2004 asking for information about the way the petition had been circulated, the Company raised no further objections.  The Panel’s view is that the Company has offered no evidence to challenge the Union’s assertion that the petition provides evidence for the level of support for collective bargaining.  In addition, the Union contends that the petition evidence should be considered along with the level of union membership when assessing support for collective bargaining.  The Panel considers that the level of union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit and, when considered with the additional evidence from the petition, is 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.

 

14.       In addition, the Company did not challenge the remaining statutory tests.  The Panel has nevertheless considered all the documentation submitted by the parties and is satisfied that the Union’s application meets those tests.

 

Decision

           

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

 

 

Paul Davies

Lesley Mercer

John Rugman

 

5 April 2004