Case
Number: TUR1/372/(2004)
5 July 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:
ISTC
and
Yamada Europe Co Limited
Introduction
1. ISTC
(the Union) submitted an application to the CAC dated 21 May 2004 that it
should be recognised for collective bargaining by Yamada Europe Company Limited
(the Employer) for ‘shopfloor manual employees up to and including team leaders
and excluding supervisors, administrative and managerial grades’ at the Ebbw
Vale site. The CAC gave both Parties
notice of receipt of the application on 25 May 2004.
The Employer submitted a response to the CAC on 2 June 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 Frank Burchill, Panel Chair, and as Members, Mrs Jackie Patel and Mr
Bob Purkiss. The Case Manager appointed
to support the Panel was Sarah Kendall.
3. The CAC Panel has extended the acceptance
period in this case on three occasions. The initial period expired on 8 June 2004. The period was extended until 18
June 2004 in order
to allow time for the Case Manager to conduct a membership and support check
and for the Parties to comment on the subsequent report and the Panel to
consider said comments before arriving at a decision. The period was extended a second time until 24
June 2004, and
later to 7 July 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, contrary to the Union’s
assertion that the membership check conducted by Acas demonstrated overwhelming
support for collective bargaining purposes, the Employer stated that the result
was four weeks old. The Employer contended
that during that period, owing to expansion and growth, the Union’s proposed
bargaining unit had increased from 35 to 43 workers and also that a number of
workers within that unit have now left the Employer’s employment. The
Employer stated that the union could not rely only on the membership check
conducted by Acas as it did not scrutinise the status of the union membership
and whether all claimed members were fully paid up to date with membership
subscriptions. The Employer added that,
due to the recent increase in the size of the proposed bargaining unit, it was
possible that the union membership levels may have increased or decreased.
6. Furthermore,
the Employer did not consider that a majority of the workers of the proposed
bargaining unit were likely to support recognition for a number of reasons:
i)
In
view of the change in size and structure of the proposed bargaining unit there was
no evidence that a majority of the workers within the proposed bargaining unit were
either union members or that a majority of the workers would be likely to
support recognition;
ii)
The
Employer believed that considerable pressure has been placed on the workers by
ISTC members resulting in a significant proportion of workers having joined the
Union on the basis that they felt obliged to be
members;
iii)
The
burden of proof was with the Union to demonstrate that a majority of the workers within
the proposed bargaining unit would be likely to support recognition.
iv)
The
Employer stated that the Union was
reliant on union membership levels as evidence that a majority of the workers
would be likely to support recognition for collective bargaining; this
evidence, the Employer argued, was out of date.
The Employer went on to say that the Union had not produced such evidence with its application
form.
v)
The
Employer contended that it was evident from discussions held with the workers
in the proposed bargaining unit that the distinction between union membership
and the union being recognised for bargaining purposes had not been
explained. This was a significant factor
as the ISTC members in the proposed bargaining unit were only required to pay a
fraction of the full membership subscription.
The Employer suggested that the reduced subscription could have
encouraged workers within the proposed bargaining unit to join the Union and that the workers may not necessarily have
understood that fees would increase if the Union were to secure recognition in the unit.
vi)
The
Employer did not consider that individuals paying a reduced membership fee
should be counted as either bona fide members of the Union or supportive of collective bargaining. The Employer asserted that the Union should provide full details of the reduced membership
rate that workers were paying together with confirmation that such reductions
had been properly authorised.
The Employer did not contend that that Union’s application failed to meet any of the other tests
listed in paragraph 3 above.
Case Manager’s membership and support check
7. To
assist the determination of two of the admissibility criteria, the Panel
proposed that the Case Manager should undertake checks of the level of union
membership within the Union’s proposed bargaining unit and the number
of workers within that unit who had signed the Union’s petition.
The criteria are, firstly, under paragraph 36(1)(a) of the Schedule,
whether 10% of the workers in the proposed bargaining unit are members of the
union and, secondly, under paragraph 36(1)(b), whether a majority of workers
within that unit would be likely to favour recognition of the union.
8. The Parties
agreed that the Employer would supply, to the Case Manager, a list of the names
of the workers within the proposed 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. It was explicitly agreed with the Parties
that, to preserve confidentiality, neither list would be copied to the other Party. Additionally, the Parties agreed that the Union would provide confidentially a copy of the petition
to test support for collective bargaining they had conducted in the proposed
bargaining unit so that a check could be undertaken by the Case Manager of the
number of workers within that unit who had signed the petition. The agreed arrangements were confirmed in a
letter dated 10 June 2004 to both Parties.
The Parties were asked to contact the Case Manager if anything in the
letter confirming confidentiality did not accord with their understanding. None of the Parties did so and subsequently
the information was received on the basis of confidentiality. The information was received from both
Parties on 11 June 2004.
9. The
Employer provided a list containing the names, addresses and job titles of 44
workers. The Union provided a copy of its branch index report containing
the names and addresses of 26 members stating that they were full paying
members in accordance with the Union’s rules.
10. In its
covering letter to the Case Manager, the Employer made the following points:
i) the Union’s
petition should be made available to the Employer as it was a ‘supporting document’
within the meaning of paragraph 34 of the Schedule;
ii) the decision of an individual to become a union member did
not mean that they favoured collective bargaining;
iii) the CAC should provide the Employer with documentation that
confirmed that individuals paying reduced membership subscriptions were full
members of the Union in accordance with the Union’s rules;
iv) the CAC should verify that all members were up to date with
their subscriptions.
11. The
result of the membership check was that there were 44 workers in the Union’s proposed
bargaining unit of whom 20 were members of the ISTC; a membership level of 45.45%. The check of the petition showed that it had
been signed by 26 of the 44 workers (59.09%).
Of those 26 signatories, 18 (40.91%) were union members and 8 (18.18%)
were non-members.
12. The petition was headed with
the Union’s logo and stated ‘We the undersigned, being employees of Yamada
Europe Co, would like to see the ISTC trade union recognized for collective
bargaining purposes at Yamada Europe Co, Ebbw Vale.’ The signatory was asked to print their name,
sign and state the department in which they worked. At the foot of the petition sheets the Union informed the individual ‘Please note: this petition
is confidential and will only be
made available to the Government body the CAC or Acas’. None of the signatures on the petition were
dated.
13. The
Case Manager’s report of the result of the checks was circulated to the Panel
and the Parties on 14 June 2004. The
Union’s response was that the level of union
membership clearly exceeded the statutory minimum and that, by conflating the
level of membership and the level of support indicated by non-members, there
was strong evidence that a majority of workers would be likely to favour
recognition. The Employer’s response
repeated some of the issues described in paragraph 10 above, that the Employer
was entitled to see the petition, that confirmation was required that members
were up to date with subscription payments and that the CAC should provide the
documentation referred to in paragraph 10 iii) above. In addition, the Employer commented that it
had received no information on the circumstances in which the petition was
circulated and signed, that workers had not been advised of the difference
between union membership and collective bargaining and that many workers did
not understand that the union subscription would increase in the ISTC achieved
recognition.
14. At the
Case Manager’s request, the Union supplied, on 24 June 2004, the relevant
documentation to confirm that the Union did not offer a ‘discounted’
subscription rate but operated two subscription rates, one that applied to
members in workplaces in which the Union was recognised and a second, lower,
rate where the Union was not recognised.
The documentation included extracts from the Union’s Rules and Executive Council Minutes and an extract
from a previous CAC decision in which the issue had been raised. The information was sent to the Employer and
the Panel on 2 July 2004.
Considerations
15. 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.
16. The
Panel is satisfied that the Case Manager’s check of the level of membership,
which showed that 45.45% of the workers in the proposed bargaining unit were
subscribing union members, was properly conducted. The Panel has considered the Employer’s
comments that proof was needed that the union members were up to date with
their subscription payments and that those paying the lower of the two
subscription rates were members in accordance with the union’s rules. The Panel accepts that the Union supplied in
good faith the information requested by the Case Manager and that that included
a statement from the Union that its members were up to date with their
subscription payments. The Panel has no
doubt that that Case Manager would have recorded in her report any information
that indicated members were in arrears with their subscription payments. Furthermore, the Union provided specific information to show that the Union was authorised to operate two membership subscription
rates and that in both cases workers were regarded without distinction as union
members. The issue has been addressed by
a Panel in a previous CAC decision [TUR1/256/(2003)
ISTC and Mission
Foods 6 May 2003]. The
Panel is therefore satisfied 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.
17. 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. To support its position, the Union relied on the level of union membership and the
additional evidence provided by the petition.
For the reasons given in the previous paragraph, the Panel accepts that
the level of union membership is 45.45%.
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 that it is reasonable for the Panel to take into account any
supplementary evidence provided by a petition.
The Panel is satisfied that in this case the wording of the petition was
unambiguous and that the signatories would have been in no doubt that they were
indicating support for recognition of the Union. Although the
number of non-members signing the petition was relatively low, the Panel is of
the view that it does act as an additional positive indicator to the level of
support shown by the proportion of union members. The Panel has also noted that the Company submitted
an assertion that workers may have been pressurised into signing the petition
but provided no evidence to support its observations. The Company also stated that union membership
should not automatically be associated with a desire for collective
bargaining. In the light of its
experience, the Panel’s view, as stated above, is that a decision to become a
member of a trade union does indicate a desire for collective representation
and bargaining. Additionally, the Panel
understands from another previous CAC decision [TUR1/295/(2003) ISTC and Corus Living Solutions 12 September 2003] that the ISTC’s application form, although
not submitted as evidence in this case, does include the statement “I would
like to join the ISTC for collective bargaining purposes”. The Panel is accordingly 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.
18. The
Employer also submitted that the Union’s petition should be disregarded as it was a
‘supporting document’ within the meaning of paragraph 34 of the Schedule which
had not been provided to the Employer.
The circumstances of this case are very similar to those described in a
recent CAC decision [TUR1/362/(2004) GMB
and Walkers Snacks (Distribution) Ltd 14 May 2004] in which the employer submitted the same argument
about the meaning of paragraph 34. The
Panel has noted that in the Walkers
case the parties agreed that the Case Manager should conduct a confidential
check of the union’s level of membership and the union’s petition and that, as
part of that exercise, the union provided its petition to the Case
Manager. The agreement was that the
petition would not be provided to the Panel or to the employer. The situation in this case is identical. The Panel in the Walkers case decided that there had been no breach of paragraph 34
and the Panel endorses that decision.
The Panel feels it is unnecessary duplication to repeat the same words
in this decision.
19. In
addition, the Panel is satisfied, after considering the documentation submitted
by the parties, that the Union’s
application meets the remaining statutory tests.
Decision
20. For the
reasons given above, the Panel’s decision is that the application is accepted
by the CAC.
Frank Burchill
Jackie Patel
Bob Purkiss
5 July 2004