Case Number:TUR1/359/(2004)

18 May 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:

 

 

GMB

 

 

and

 

 

Whitby Seafoods Limited

 


Introduction

1.        GMB (the Union) submitted an application to the CAC dated 29 March 2004 that  it should be recognised for collective bargaining purposes by Whitby Seafoods Limited  (the Employer) in respect of a bargaining unit comprising 'All employees who are employed as process workers/skilled/semi skilled and labourers. This claim does not include managerial, supervisory or office based staff'. The current location of the bargaining unit was described as the factory at Fairfield Way Business Park, Whitby, YO22 4PU. The Union stated there were 124 workers employed in the proposed bargaining unit, 28 of whom were members of the Union. The Union also stated that it had a petition signed by 86 employees requesting that the GMB be recognized by the Employer. The CAC gave both parties notice of receipt of the application on 29 March 2004.  On 02 April 2004 the employer submitted a response to the CAC, which was copied to the Union.

 

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 consider the case.  The Panel consisted of Mr Chris Chapman (Panel Chairman) and Mr David Crowe and Mr Michael Leahy (Members).  The Case Manager appointed to support the Panel was Matt Penfold.

 

3.         The Panel is required, by paragraph 15 of Schedule A1 to the Act, to decide whether the Union's application to the CAC is valid within the terms of paragraph 5 to 9; is made in accordance with paragraph 11 or 12 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act and is therefore to be accepted.

 

4.         The Employer, in the response received at the CAC on 02 April 2004, stated that the number of workers in the Union's proposed bargaining unit was in fact below 100 and that it considered that an appropriate bargaining unit would be all employees. The Employer stated that it did not know whether a majority of the workers in the bargaining unit would be likely to support recognition of the Union and that this was a matter of conjecture. The Employer also made reference to there having been an earlier application by the Union that had been made on 19 March 2004 and subsequently withdrawn by the Union.

 

5.         The Union, commenting on the responses made by the Employer, stated that the number of workers quoted by the Employer was correct and that this had been confirmed following consultation with its membership.

 

Membership and Petition check

 

6.         To assist the Panel's consideration of two of the requirements for admissibility specified in the Schedule, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit are likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed that the Case Manager undertake a confidential check of the level of Union membership within the proposed bargaining unit. Following telephone enquiries with both the Employer and the Union, the Case Manager, in letters to both parties dated 13 April 2004, requested that the Employer provide a list of the names of the workers in the Union's proposed bargaining unit and that the Union provide a list of its members within the proposed bargaining unit and a copy of the petition referred to in its application.  The Case Manager's letter confirmed that neither the list nor the petition would be copied to the other party or to the Panel.  The information from the Union was received by the CAC on 23 April 2004 and from the Employer on 27 April 2004. The proposed bargaining unit, as described in the Union's application to the CAC and against which the checks were undertaken, was "All employees who are employed as process workers/skilled/semi skilled and labourers. This claim does not include managerial, supervisory or office based staff". The list of workers provided by the Employer, which identified the name of the Department in which the employees were employed, gave the details of 126 individuals. The first 24 individuals on the list were shown as employed in the Department shown as Administration, a group of workers expressly excluded by the rider to the union's proposed bargaining unit, which was stated to exclude office based staff, in addition to managerial and supervisory staff. The first 24 names of individuals listed as within the Administration Department were therefore excluded for the purposes of the report on the confidential checks. The Union provided a membership list giving the details of 28 individuals. The Union's petition was on 3 typed sheets and on one continuation sheet. At the top of each of the 3 typed sheets was the statement: "We the undersigned wish the GMB Union to be granted Recognition at Whitby Seafoods for the purposes of negotiating pay and conditions of employment".

 

7.         The Case Manager's check established that there were 27 members of the Union within the proposed bargaining unit: a membership level of 26.47%. The Case Manager's check of the petition established that the proportion of signatories from within the proposed bargaining unit was 74.5% (this being 76 workers, 25 of whom were Union members). A report of the result of the check was circulated to both parties on 29 April 2004, and comments were invited.

 

Views of the Employer

 

8.         The Employer, in comments made in its letter dated 04 May 2004, restated its belief that there was currently insufficient support for recognition of the Union within the company. The Employer stated that the Union's [present] application stated, incorrectly, that the total number of employees was 124; the Employer reiterated that the number within the proposed bargaining unit was below 100. The Employer stated that it was unaware how the CAC could determine, from the list of workers provided for the confidential check, the validity of the Union's definition of the proposed bargaining unit, as the list provided by the Employer drew no distinction between supervisory and other staff.

 

9.                  The Employer stated that it had come to its attention that the Union's petition was carried out in such a manner that, as many employees had indicated to it, they had been unaware of what they were signing and, furthermore, the Employer stated that in some instances there had been undue duress used to obtain signatures to the petition. The Employer stated that there were also rumours of falsification of signatures to the petition, which are unproven, as 'few have seen the completed petition'. The Employer reiterated that the proposed bargaining unit was contrary to the culture of the company as all employees receive a standard company increase with any further increases being due to changes in duties and/or responsibilities which, in the current year, applies primarily to production department process workers. The Employer viewed the Union's proposed bargaining unit as contrary to the team approach it has spent many years developing. At the request of the Panel, the Case Manager wrote to the Employer asking that it submit any evidence that would substantiate the assertions it reported had been made by employees regarding the Union's petition. The Employer was originally given until 12 May to submit that evidence, a deadline subsequently extended to Friday 14 May 2004. On Monday 17 May 2004 the employer sent an e-mail to the Case Manager, in which he suggested that two employees had signed the petition because they had been told to do so, and in one instance an employee had signed because he had been told to do so, though he did not want to join a union.  In the same e-mail the employer again challenged the validity of the signatures on the petition, notwithstanding the case manager's report which indicated that 76 of the signatories were from the proposed bargaining unit, representing 74.5% of the relevant workforce.

 

Views of the Union

 

10.              The Union confirmed, in a telephone conversation with the CAC Secretariat on 06 May 2004, that it believed there was no need for it to submit any comments on the report of the confidential checks.

 

Considerations

 

11.       In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the Employer and the Union in reaching its decision.

 

12.       The Union provided a copy of the request made to the Employer to recognise it for collective bargaining in respect of the bargaining unit described in paragraph 1 of this decision, that request being dated 03 December 2003.  The Union's request was in writing, it identified the Union and the bargaining unit and stated that it was made under the Schedule.  The Employer, in its response, confirmed that it received the request and did not propose that Acas be requested to assist in negotiations. The Union's application to the CAC was dated, and received on, 29 March 2004. 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 and that its application was made in accordance with paragraph 11. Furthermore, on the evidence made available by both parties, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The Employer has alluded in correspondence to the existence of an earlier, subsequently withdrawn application by the same Union. The Panel is clear that for the purposes of paragraph 39 of the Schedule, the earlier application, not having reached the stage of being accepted, presents no bar to the admissibility of the present application.

 

13.       The remaining questions before the Panel are whether 10% of the workers in the Union's proposed bargaining unit are members of the Union, and whether the majority of the workers in the Union's proposed bargaining unit would be likely to favour recognition of the Union for collective bargaining. The question of whether the bargaining unit is the appropriate bargaining unit is not at issue at this stage of the statutory procedure where, as stated in paragraph 3 above, the Panel is concerned only with the validity and admissibility of the application and whether it is made in accordance with paragraph 11 or 12 of Schedule A1.

 

14.              The confidential check conducted by the Case Manager, with the agreement of both parties sought, and in this case given, in advance, is one part of the evidence considered by the Panel in reaching its decision on admissibility of an application. In the present case, the comments made by the Employer in its letter of 04 May 2004 clearly confirm that the list of workers provided for the checks was not what the Case Manager in his letter of 13 April 2004 had expressly and clearly requested. The Panel is satisfied, having reviewed the Case manager's request in that letter, that it was quite explicit in specifying the information requested of the Employer. The Case Manager's letter explained in careful terms that the checks were being conducted against the Union's proposed bargaining unit as is required by the Schedule at this stage and repeated the Union's description from the application form verbatim explicitly outlining the exclusions from that bargaining unit (namely managerial, supervisory and office based staff). If it is the case that the Employer has provided an inaccurate list for the checks then the Panel is satisfied that, notwithstanding the likelihood that this was a simple misunderstanding on the part of the Employer, the list would have had to have included a highly unlikely number of supervisors, managers and office staff for the resulting figures in the report to have been inaccurate. The Panel is fortified in this view by the knowledge that 24 names were removed from the Employer's list for the purposes of the checks as those 24 individuals were identified as working in the Administration Department and as such were therefore clearly out with the proposed bargaining unit. Their removal produced a list of some 102 workers, which, as the Employer itself had stated, was more consistent with the size of the bargaining unit proposed by the Union. The Panel is satisfied that this is sufficiently representative of the proposed bargaining unit to lend credence to the results of the confidential checks. Furthermore, it is the Panel's view that it is required to maintain some degree of reasonable momentum in its consideration of an application, a conclusion borne out by the existence of time limits in Schedule A1, such as the 10 day period within which the Panel ought to decide whether an application can be accepted. In the present case the Panel has already extended the acceptance time limit to Monday 10 May 2004 and has thereafter allowed a further four days for the Employer to put forward any evidence of duress or falsification regarding the Union's petition. The Panel is not satisfied that there is sufficient cause for any further delay, which would inevitably be caused by some further refinement of the confidential checks already made by the Case Manager. The Panel is satisfied that further delay which was premised on that question is unwarranted and that by reaching its decision on the available evidence there is no prejudice to the case of either the Employer or the Union who have both been afforded reasonable opportunity to evidence their respective positions.

 

Paragraph 36(1)(a)

 

15.              The Employer has not disputed that members of the Union constitute at least 10% of the proposed bargaining unit.  The membership report dated 28 April 2004 indicated that Union members constitute 26.47% of the proposed bargaining unit.  The Panel is satisfied that the membership check, having been undertaken using information on current workers and Union members as requested of and provided by the Employer and the Union, is an accurate reflection of the level of union membership within the proposed bargaining unit.  The Panel is therefore satisfied that the 10% threshold is met.

 

 

 

 

Paragraph 36(1)(b)

 

16.              The Employer has disputed the veracity of the Union's petition but, despite being given the opportunity, has not put forward further evidence on that point. He has merely identified three employees who in his words signed because they "were told to do so". This is not evidence of either duress or intimidation. Even if there were some undue influence on these three individuals it would not have had a significant bearing on the overall level of signatories. At this stage in the statutory procedure the Panel must assess whether a majority of the workers in the Union's proposed bargaining unit would be likely to favour recognition of the Union. The Case Manager's check of the level of petition signatories from with the Union's proposed bargaining unit established that 74.5% of the workers within the Union's proposed bargaining unit supported the proposal put by the petition. The Panel is satisfied that the petition heading was clear, and that workers were free to sign or not sign it. In the absence of any evidence to the contrary the Panel accept that the petition is a reliable indicator that signatories are likely to support recognition of the applicant Union for the purposes of collective bargaining albeit couched in terms of 'pay and conditions of employment' on the petition. The Panel concludes that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union.

 

Decision

 

17.              The application is valid within the terms of paragraph 5-9, is made in accordance with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1. The application is therefore accepted by the CAC.

 

Panel

 

Mr Chris Chapman

Mr David Crowe

Mr Michael Leahy

 

18 May 2004