CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS
(CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE BARGAINING:
RECOGNITION
DECISION ON WHETHER
THE APPLICATION IS VALID FOLLOWING
DETERMINATION OF THE BARGAINING UNIT
The Parties:
CATU
and
Industrial
Agricultural Engineers
Introduction
1. CATU (the Union)
submitted an application to the CAC dated 25 March 2004 that it should be
recognised for collective bargaining by Industrial Agricultural Engineers (the
Employer) for ‘(a)ll shop floor workers at the Riverside Works, Macclesfield
Road, Leek, Staffordshire, ST13 8LB, not including any office staff, works
managers or foremen’. 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 Frank
Burchill, Panel Chairman, and, as Members, Mr David Bower and Ms Bronwyn
McKenna. The Case Manager appointed to
support the Panel was Nigel Cookson.
3. By
a decision dated
4. As the determined
bargaining unit differed from that proposed by the Union the Panel is required
by paragraph 20 of Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is valid or invalid within
the terms of paragraphs 43 to 50, namely that there is no existing recognition
agreement in force, that there is no competing application and that there has
been no previous CAC application in respect of the new bargaining unit. In addition, 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 those workers would be likely to favour recognition of the union
as entitled to conduct collective bargaining on behalf of the bargaining unit.
5. The Parties were invited
to supply the Panel with written submissions relating to the aforesaid validity tests.
Submissions made by the Trade
Union
6. In a letter dated
Submissions made by the
Employer
7. The Employer, in a
letter of
Membership and Support check
8. To assist the
determination of two of the validity criteria, whether 10% of the workers in
the determined bargaining unit are members of the union and whether a majority
of the workers in the bargaining unit are likely to support recognition of the Union,
the Panel proposed a check to be undertaken by the Case Manager of the level of
Union membership and support for recognition within the determined bargaining
unit. Both Parties agreed that the Employer
would supply, to the Case Manager, a list of the names of workers within the
bargaining unit and that the Union would supply, to the Case Manager, a list of
union members within that unit and a copy of a petition signed by workers in
support of recognition, to enable a comparison to be undertaken. It was explicitly agreed with the Parties
that, to preserve confidentiality, neither the relevant lists nor the petition
would be copied to the other Party. These arrangements were confirmed in a
letter dated
9. The list supplied by the
Employer indicated that there was a total of 122 workers in the determined bargaining
unit: 96 workers at the
10. The Parties were offered
the opportunity to comment on the report on the membership and support check.
Employer’s comments on the
Membership and Support check
11. The Employer, in a
letter dated
Union’s comments on the
Membership and Support check
12. The Union, in a letter of
13. The Union further argued
that the Employer had drawn out the statutory proceedings by continually
applying for, and being granted, extensions of time and that if these
extensions had not been granted it was entirely possible that the majority of
the 15 ex-members would have been in compliance at the time of the membership
check.
14. Since the membership and
support check was conducted the Union had conducted a further petition. This petition carried the proposal “We the
undersigned fully support CATU’s application to be recognised over pay and
conditions at IAE’s sites in Leek” and was signed by nine non-members. The Union asked that the Panel took this
further petition into account in arriving at its decision adding that the petition
could be made available to the Case Manager on the understanding that it was
not copied to the Employer.
15. The Union explained that
it had not targeted the site on the Barnfields Industrial Estate as part of its
campaign for recognition as it was not a site that fell within its proposed
bargaining unit. Whilst it had a degree
of support at this site, nevertheless, a number of workers there had not been
canvassed as to their view on union recognition. The Union expressed its surprise that there
were now 18 workers at this site as opposed to the 13 at the beginning of
August 2004.
16. The Union was in receipt
of a letter dated
17. There was, the
18. The Union believed that
these points: the anti-union campaign conducted by the Employer, the six
members confirming by letter the Employer’s behaviour towards Union members,
the further petition signed by nine non-members, the various delays that had
resulted in 15 members falling out of compliance in mid July and the movement
of staff between sites which made it more difficult for the Union to organise
in recent months, when taken together, demonstrated that there was a high
degree of hidden support for the Union across the bargaining unit as a whole.
19. The Union concluded by
submitting that, in spite of the above, almost 40% of the workers in the
bargaining unit were already recorded as being in support of recognition.
Considerations
20. The Panel has to be
satisfied that the application is valid in terms of the tests laid down in
paragraphs 43 to 50 of the Schedule as described in paragraph 4 above.
21. The
Panel, having considered the Parties submissions, is satisfied that the
application is not invalid in terms of the tests laid down in paragraphs 44 and
46 to 49 of the Schedule. In addition,
the Panel is satisfied that the Case Manager's report, which showed that 34.43%
of the workers in the determined bargaining unit were members of the Union, was
properly conducted. The Panel has, therefore, decided that the level of Union
membership in the determined bargaining unit constitutes 10% of the workers as
required by paragraph 45(a) of the Schedule.
22. The remaining test for
the Panel to decide is that set out in paragraph 45(b), namely whether or not 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 the bargaining unit. The Panel has
carefully considered the submissions lodged by both Parties on this issue. On the one hand the Employer has asked that
the Panel looks to the reduction in Union membership since the acceptance
stage, and the fact that, with membership now standing at 34.43%, there are
more non-members than members in the new bargaining unit. Alternatively, the Union set out a number of
reasons as to why the Panel should consider the test satisfied regardless of
the fact that the result of the membership and support check was not
necessarily convincing. The Union
pointed to a campaign waged by the Employer to persuade Union members not to
support its claim for recognition and to tactics which, it alleged, had been
adopted by the Employer with the sole intention of frustrating the statutory
process. The Union has also informed the
Panel that it is in possession of a letter confirming the actions of the
Employer as well as a further petition signed by nine non-members supporting
its claim for recognition although neither document has been seen by the Panel
or the Employer nor have the names of the signatories been verified by the Case
Manager.
23. It is the view of the
Panel that behind those individuals that have joined a trade union will be
workers, whilst supporting recognition, who prefer not to commit themselves to
union membership and others who support recognition but whose membership is
conditional upon recognition being granted.
The Panel considers that this would particularly apply to a workplace where
an employer had mounted a specific campaign against trade union
recognition. In this instance, as well
as leafleting the workers, the Employer provided workers in the bargaining unit
with a form for them to complete in order to cancel their membership of the
Union. It went one stage further and
provided a pre-paid envelope for the return of the completed form. The question arises as to whether the 15
members who resigned from the Union genuinely wished to terminate their
membership or, rightly or wrongly, felt that there was some expectation on the
part of the Employer that they should take the action that had been suggested
to them. The Panel takes the view that,
under such circumstances, the resignations cannot be relied upon as evidence
that they did not support recognition of the Union. The Panel regards the fact that there were no
resignations prior to the Employer distributing its memorandum as significant
in arriving at its decision. In spite of
the actions of the Employer, Union membership stands at roughly one-third of
the determined bargaining unit. For the
reasons given above the Panel is of the view that there will be additional support
for recognition from both ex and non-members and accordingly the Panel is
satisfied that, on the balance of probabilities, the majority of the workers
constituting the bargaining unit would be likely to favour recognition and the
test in paragraph 45(b) is therefore satisfied.
Decision
24. The decision of the Panel
is that the application is valid for the purposes of paragraph 20 of the
Schedule and the CAC will therefore proceed with the application.
Panel
Professor Frank Burchill
Mr David Bower
Ms Bronwyn McKenna