Case
Number: TUR1/362/(2004)
14 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
Walkers Snacks (Distribution)
Limited
Introduction
1. GMB
(the Union) submitted an application to the CAC dated 2 April 2004 that it
should be recognised for collective bargaining by Walkers Snacks (Distribution)
Limited (the Employer) for ‘All Warehouse employees below the level of Shift
Manager and excluding Road Transport Drivers’ at the single ‘Distribution Centre
at Birchwood, Warrington’. The CAC gave
both Parties notice of receipt of the application on 5 April 2004. The
Employer submitted a response to the CAC on 14 April 2004 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
deal with the case. The Panel consisted
of Professor John Goodman CBE, Panel Chair, and as Members, Ms Virginia Branney
and Mr Neil Wallace. The Case Manager
appointed to support the Panel was Sarah Kendall.
3. The Panel agreed to extend the statutory
deadline for it to decide if the Union’s application could be accepted by the
CAC until 11 May 2004 in order to allow more time for the Parties to comment on
the membership and support check carried out by the Case Manager and for the
Panel to consider all the available evidence and reach a decision. This
deadline was subsequently extended to 17 May 2004 to enable the Panel to prepare its written
decision.
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;
and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the
Act, and is therefore to be accepted.
5. In its
response, the Employer stated it was not aware of how many members the GMB had
in its proposed bargaining unit and considered that this should be
independently verified by the CAC through a membership check. It also drew
attention to a voluntary ballot run with the assistance of Acas and ERS in
respect of the same employees 12 months ago following an approach for
recognition by a different trade union. This ballot showed a majority voting
against recognition of that Union. As that Union at that time had ‘considerable’ ‘membership,
it was argued that this demonstrated both that the majority of warehouse
employees were unlikely to support recognition of the GMB, and that in this
case it was not possible to equate Union membership with a desire for
collective bargaining. The Employer argued that this ballot constituted recent
evidence that the majority of workers in the proposed bargaining unit were not
in favour of collective bargaining.
Case Manager’s membership and support check
6. To assist the determination of the two
admissibility tests under paragraphs 36 (1) (a) and 36 (1) (b) of Schedule A1,
whether 10% of the workers in the proposed bargaining unit are members of the
Union and whether a majority of the workers in the proposed bargaining unit are
likely to support recognition of the trade union, the Panel proposed a check to
be undertaken by the Case Manager of the level of Union membership and support
within the proposed unit. The Panel instructed the Case Manager to ask the
Employer to provide a list of the names of the workers in the bargaining unit
proposed by the Union and to ask the Union to provide a list of the names of its members within
the unit. The Employer provided the list of names on the basis that both lists
would be treated in confidence and not passed to the other Party. The Union also provided its list on the same basis.
7. Additionally, the Case Manager asked the Union to provide, on a confidential basis, a copy of the
petition it had conducted to test support for collective bargaining in the
proposed bargaining unit so that a check could be undertaken of the number of
workers within the Union’s proposed bargaining unit who had signed
the petition. The agreed arrangements and the confidentiality of all the names
to be given to the Case Manager were confirmed in a letter dated 22
April 2004 from
the Case Manager to both Parties. The information from both Parties was
received by the CAC on 26 April 2004. The Union provided a list of 48 members; the Employer’s list
consisted of 105 workers in the Union’s proposed bargaining unit.
8. The Case Manager’s report showed that 47
workers in the proposed bargaining unit were members of the GMB; a membership
level of 44.76%. The Union’s petition was headed ‘We
the undersigned wish the GMB Trade Union to be recognised for representation
and be involved in negotiating our terms and conditions at Walkers at its site
in Warrington, Cheshire’. The Case Manager’s report of the check
of the petition showed that of 65 signatories, 63 are from workers in the
proposed bargaining unit, a signature level of 60%. 47 of these workers were
Union members (44.76%), and 16 of these workers (15.24%) were not Union
members. The Case Manager’s report of
the results of the membership and support check was circulated both to the
Panel and the Parties on 30 April 2004 and the Parties were invited to comment on
the report.
Submissions
9. In its
response the Employer stated that the petition which the Union had indicated in
its application that it had was clearly a supporting document and should be
disregarded in light of the recent decision of the High Court of Justice in
Northern Ireland in the matter of an application by James E McCabe Limited for
Judicial Review. The Employer also requested that an oral hearing be held to
determine whether the application meets the requirements of paragraphs 34 &
36 (1)(b) of Schedule A1.
10. Further,
the Employer argued that the petition referred to by the Union ‘allegedly
signed by 22 workers, in their proposed bargaining unit’ who it said were not
members of the GMB but had indicated support for recognition, should be ignored
by the CAC when considering the admissibility of the application as it had not
been provided to the Employer. It considered that disclosure to the Employer
was required by paragraph 34 of Schedule A1 as it was a ‘supporting document’.
If the Employer was to receive a copy of the petition it would be in a position
to challenge and review the Union’s claimed support. It was the Employer’s case that
the petition should be disregarded by the CAC in the light of the decision in
the McCabe case. However, the Employer had seen the question posed on the
petition by the GMB. It argued that it was worded in a way that suggested the
GMB was seeking negotiating rights in respect of all the employees’ terms and
conditions. This was misleading as collective bargaining under Schedule A1
relates to ‘pay, hours and holidays’ only. Thus the petition may well have been
signed by employees failing to appreciate exactly what they were signing, and
what the Union could negotiate over if its application
through the statutory process was successful. It was also suggested that the Union had made promises about the removal of an unpopular
shift, as an incentive to sign the GMB petition.
11. The Employer stated in its response to the CAC
that the issue of the appropriate bargaining unit did not arise until the
application had been determined to be valid and admissible, and stated that if
this did happen they would reserve their position as to what they believe to be
the appropriate bargaining unit at that time.
12. The Union in its application stated that there were 100 workers
within the proposed bargaining unit. The Employer stated in its response that
this figure was in fact 103.
13. A copy
of the Employer’s response was sent to the Union, which responded in a letter dated 19
April 2004. This
also included a blanked out copy of the GMB petition. In this reply, which was
copied to the Employer, the Union commented on several matters raised in the Employer’s
response. Its case was that the petition was not a document which, under Schedule
A1 paragraph 34, the GMB was required to copy to the Employer. Nor did paragraph
34 preclude the CAC from taking the petition into account in making a decision on
acceptance of the application, and it cited two previous decisions by the CAC
in support of this position. The GMB believed there was a need to preserve the
identities of individual Union members and those likely to favour recognition,
as they ran the risk, if identified, of being subjected to intimidation or
victimisation. It argued that disclosure of names would threaten the working of
the statutory procedure. The confidential report of the Case Manager provided
numerical details but not names. In relation to the decision in the McCabe case
the GMB’s understanding was that this Northern Ireland decision was not binding on the CAC, nor did
that case accord with the approach routinely taken by the CAC. Moreover, in the
McCabe case itself, the Court exercised its discretion not to interfere with
the decision of the Industrial Court. The GMB indicated its willingness to
supply a list of its 42 members to the CAC on a confidential basis and
submitted that 43% membership was sufficient to satisfy the test in paragraph
36(1)(b) in Schedule A1.
14. The GMB
indicated that if the CAC wished to go beyond its membership level it had a
petition in support of recognition, signed by 65 workers in the proposed bargaining
unit, including 23 non-members. It had undertaken to these individuals not to
disclose the names of signatories to the Employer, but was willing to disclose
the petition to the CAC if confidentiality was agreed. The GMB’s view was that
a majority of workers in the proposed bargaining unit would be likely to favour
recognition. It did not feel that an oral hearing was required.
15. The Employer
argued that the petition referred to by the GMB was a ‘supporting document’
within the meaning of paragraph 34 of Schedule A1 and that the Judicial Review
Application of James E McCabe should be regarded by the CAC as highly
persuasive. It argued that the petition should be disregarded by the Panel as a
copy was not provided to the Employer. The Employer stated that this failure to
provide a copy of the petition rendered the application inadmissible under
paragraph 34 of the Schedule, a conclusion it stated was supported by the High
Court in Northern Ireland decision in the McCabe case. In a second
letter, dated 4 May 2004, submitted by the Employer following the issue of an
arithmetically amended Case Manager’s report, the Employer argued that the
workers were misled as they did not fully appreciate what they were signing as
the petition heading suggested Union involvement beyond the issues under
Schedule A1 of pay, hours and holidays. The Employer requested that the matter
would be best settled in an oral hearing.
16.
The Union responded to these comments in a letter dated 6 May
2004 and
reiterated many points made in its letter dated 19 April 2004. It stated that the Northern Ireland High
Court appeared to accept that there was no breach of paragraph 34 (b) and
referred to paragraph 32 of this decision. The Union gave examples of previous CAC applications and of the
normal approach to membership and petition checks adopted by the CAC. It argued
that this Northern Ireland decision was not binding on the CAC, and was not in
accord with previous approaches taken by the CAC in cases such as AEEU and
Control Technique Drives (TUR1/109(2001) and AEEU and GE Caledonian (TUR1/120(2001).
The Union argued that the factual situation in the McCabe
case was very different from that in the GMB’s present application, including
the fact that in this case a membership check had been carried out by the CAC.
Further, a number of aspects which had been criticised in the McCabe case did
not arise in this case. With regard to the Employer’s point on the Union’s petition, the Union referred to its letter dated 19
April 2004, in
which it stated that there was no reason for the Employer to see the names. The
Union felt that the confidential report of the Case Manager provided numerical
details and did not include names as they would be of no value to the CAC Panel.
As the GMB understood it, the McCabe decision appeared to support non
disclosure of the names on the petition to the Employer, e.g. paragraph 27 of
the McCabe decision. The Union also added that the membership and support check
showed that 44.76% of GMB members were in the proposed bargaining unit, which
satisfied the 10% Union membership test in Schedule A1 paragraph 36(1)(a). The Union submitted that in the light of previous decisions and
good industrial relations that 44.76% was sufficient to satisfy the test in
paragraph 36(1)(b). If the CAC wished to go beyond the
level of membership the GMB had supplied the petition to the Case Manager on a
confidential basis. (This was reported in the Case Manager’s revised membership
and support check report to the Parties and the Panel, dated 5 May
2004).
Considerations
17. The Panel has to decide, 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.
18. The Employer offered no evidence to counter
the Union’s position on the remaining tests referred
to at paragraph 4 above. The Panel has considered all the documentation
relating to the remaining tests and is satisfied, that the Union’s application meets all the other statutory criteria.
Paragraph 36 (1) (a)
19. The Case
Manager’s check dated 5 May 2004 established that 44.76% of the workers in
the proposed bargaining unit were members of the Union. The evidence available before the Panel, therefore,
established that at least 10% of the workers in the bargaining unit were
members of the Union, and that the Union had met the admissibility test
stipulated in paragraph 36 (1) (a) of Schedule A1.
Paragraph 36 (1) (b)
20. The
second 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. In reaching its decision the Panel has considered
the evidence provided by the Case Manager’s report dated 5 May
2004, on both the
level of Union membership and the petition, including the number of non Union
members who have signed the petition. It has not of course seen the names etc.,
i.e. it has seen nothing more than has been seen by both Parties. The Panel has
considered all the evidence put forward by the Parties, in what has been a lengthy
presentation of their cases and arguments. It considers that both Parties have
been able to present their cases sufficiently and the Panel has decided that an
oral hearing was unnecessary. It would also add to the delay in this case which
is already significantly beyond the statutory guideline.
21. In
relation to the test in paragraph 36 (1)(b) the Panel has
not equated trade union membership with support for collective bargaining in
this case. However, it does regard the GMB membership level of 44.76% at this
stage in the statutory process as indicative of substantial support for its
recognition by the Employer. It has received no evidence that any Union members
do not support recognition, and notes that all 47 Union members have signed the
petition. In addition, a further 16 non-members signed the petition taking the
total to 60% of the workers in the proposed bargaining unit. The membership
level alone is strong evidence of the likelihood of majority support for
recognition of the GMB. A demonstrated arithmetical majority is not required in
order to satisfy the test at this stage of the procedure. The Panel has also
considered the evidence submitted by the Employer relating to the ballot
conducted over the earlier recognition request by a different trade union. The
Panel is unable to comment on that result but notes that it is over a year
since it was conducted.
22. The
Panel is entirely satisfied that the position here is materially different from
that addressed by the High Court in Northern Ireland:
(i)
The CAC, unlike the practice adopted by
the Industrial Court in Northern Ireland in relation to the case there
considered, has only ever acted, so far as concerns membership checks and the
verification of petitions, by obtaining the advance agreement of both Parties, prior
to the supply of any documents, to a confidential inspection by the Case Manager.
Apart from the supply of a blanked out copy of a petition so that its wording
can be understood and seen by the Panel and by both Parties, an advance
confidentiality agreement is always entered into by both Parties on the basis
of which whatever either Party supplies to the Case Manager, or allows the Case
Manager to inspect, is only so proffered on the basis that it will not be shown
to the other party and that the opposing party will act similarly: this applies
of course to petitions supplied by an employer as much as a petition supplied
by a trade union. That occurred in this case. Given the importance of
confidentiality in this area, and the fact that there has been mutuality in
relation to it, we have no doubt at all that it is not appropriate for the
matter to be revisited.
(ii) As is well understood, just as each Party does not see such
confidential information supplied by the other Party, nor does the Panel. The
contents of documents inspected on a membership check and the contents of
petitions are not consequently supplied to the Panel, and plainly could not be
said to be “documents supporting” the
application. So far as it is necessary to consider the terms of the judgment of
the Northern Ireland High Court, it is plain that such matters, which are
reserved to the Case Manager and not seen by the Panel, fall within the
distinction made in paragraph 19 of that judgment. The Case Manager’s report is
always, and was in this case, supplied to both Parties and to the Panel.
23. Turning
therefore to the petition, the Panel has taken this into account in reaching
its decision and has not disregarded it, as was advocated by the Employer. The Panel
is aware that the Judicial Review decision in the McCabe case was not to
overturn the Industrial Court’s decision. We have already referred, in paragraph 22
above, to the significant difference between the facts of that case and this
and in particular the practice there described of the Industrial Court and that of the CAC. In any event, the case arose in another
jurisdiction and is not binding on the CAC. We have further referred to the
fact that the Case Manager in this case has conducted a membership and support
check, and has done so on a confidential basis with the prior agreement of both
Parties. Both Parties have had the opportunity to comment, and have commented
on the Case Manager’s report of it. This is normal CAC practice. Weatherup J in the McCabe case was not persuaded by
reference to the CAC’s interpretation of documents supporting the application. However, as pointed out in paragraph 23
above, he also drew a clear distinction between what he described as a
verification process, conducted by a third party, and adjudication. The Panel,
in adjudicating, (like the Parties) has seen only the Case Manager’s report.
For these reasons the Panel considers that reference to the McCabe judicial
review by the Employer is not of assistance.. Following
established CAC practice which is referred to at length in the earlier CAC
cases referred to in paragraph 16 above, the Panel’s view is that the contents
of the Union’s petition (as opposed to its wording, which has been disclosed)
do not fall within paragraph 34. In any event, the basis of the disclosure of
the names in the petition to the Case Manager for verification purposes was
known to and agreed by the Parties in advance. The Panel considers
confidentiality to be crucial to this exercise, and this was accepted by the
Parties and the Panel.
24. The Panel
however has taken account of the criticisms of the petition made by the Employer
including that of its wording. It notes that the wording does not refer to
collective bargaining over ‘pay, hours and holidays’ only. On the other hand, neither does it specify, ‘all’ terms and conditions (as
suggested by the Employer). The Panel’s view is that the wording could have
been more accurately phrased, but that it is unlikely to have caused widespread
misunderstanding of the petition’s purpose. The Panel also felt there was a
further weakness in the petition, namely the failure to include dates alongside
the signatures. However, the results of
the Case Manager’s check, showing that with only two exceptions all the
signatories names were on the Employer’s list of workers dated 26
April 2004,
suggested that the signatures have been gathered within a recent period. We have already concluded above that the
substantial membership level (44.76%) is self-standing evidence of support for
recognition, but we have no doubt that the further evidence to be derived from
the petition further strengthens that case.
25. Having considered all the evidence and the
many points made by the Parties the Panel considers that a majority of workers
in the Union’s proposed bargaining unit would be likely
to favour recognition of the Union to conduct collective bargaining on their behalf.
Decision
26. For the
reasons given above, the Panel’s decision is that the application is accepted
by the CAC.
Panel
Professor John
Goodman CBE
Ms Virginia
Branney
Mr Neil Wallace
14 May 2004