Case Number: TUR1/372(2004)
29 October 2004
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT
1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING
AGREEMENT OF THE BARGAINING UNIT
The Parties:
Community (formerly ISTC)
and
Yamada Europe Co. Ltd.
Introduction
1. Community (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) in
respect of a bargaining unit comprising ‘shop floor manual workers up to and
including team leaders and excluding supervisors, administrative and managerial
grades’ at the Ebbw Vale site. The
Employer refers to its staff as associates, for the purposes of this decision
they will be referred to as workers.
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. By a decision dated 5 July 2004, the Panel accepted the Union’s
application. Following this decision the
Parties agreed that the bargaining unit should consist of ‘all shop floor
manual workers, QA inspection, production control and administration up to and
including team leaders and excluding supervisors and managerial grades’. The Employer and the Union
each in a letter to the CAC dated 17
August 2004 and 18 August
2004 respectfully confirmed this agreement.
4. Because the agreed bargaining unit
differed from that proposed by the Union the Panel is
required by paragraph 20 of the Schedule to determine whether the Union’s
application is valid or invalid within the terms of paragraphs 43 to 50. The Panel decided to hold a hearing to
determine the issue under 45(b) of the Schedule on 18 October 2004 and the names of those who attended are
appended to this decision.
The Case Manager’s membership and support
check
5. To assist the determination of two of
the validity criteria, whether 10% of the workers in the agreed bargaining unit
were members of the union and whether a majority of the workers in the agreed
bargaining unit were 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 within the agreed bargaining unit.
Both Parties agreed that the Employer would supply to the Case Manager a
list of the names of workers within the agreed 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 and a copy of a petition signed by the
workers in the agreed bargaining unit in favour of recognition. It was explicitly agreed with both Parties
that, to preserve confidentiality, the respective lists and petition would not
be copied to the other Party and that agreement was confirmed in a letter from
the Case Manager to both Parties dated 23
August 2004. The information
from both the Union and the Employer was received by the
CAC on 24 August 2004.
6. According to the Case Manager’s report,
the number of Union members in the bargaining unit was 18. Based on a total figure of 54 workers in the
bargaining unit, this constituted a membership level of 33.33%. The number of signatories in the bargaining
unit was 24 (44.44%) of which 9 were non-union members (16.67%). The report of the result of the check of the
membership level was circulated to the Panel and the Parties on 25 August 2004. Both Parties were then invited to supply
comments relating to the validity tests and the membership and support report.
7. The Union in its
written response dated 2 September 2004
stated that it believed that the agreed bargaining unit met the statutory tests
in relation to validity. The Union
reaffirmed that the test under paragraph 45(a) of the Schedule had been exceeded
as the check demonstrated that Union membership within the agreed bargaining
unit was 33.33%. With regard to the test
at paragraph 45(b) the Case Manager’s check illustrated that 44.44% of the
workers within the agreed bargaining unit had signed the petition demonstrating
their support for collective bargaining.
Furthermore, the Union contended that if the
level of support of the non members who had signed the petition (16.67%) was
added to the percentage of the percentage of the Union members within the
bargaining unit (33.33%) the overall support for collective bargaining would
stand at 50%. The Union
indicated that the bargaining unit had been widened and the Union
had not had the opportunity to canvass those who had not originally been
included in the Union’s proposed bargaining unit as set
down in its application. The Union
surmised that it was likely that these individuals would support recognition
and therefore would have increased the overall percentage of workers supporting
recognition.
8. In the Employer’s letter dated 2 September 2004 it was observed that
the membership level had decreased since the membership and support check
conducted at the acceptance stage and that membership was now standing at
33.33%. The Employer stated that the Union
had relied on the petition collected for the purposes of the acceptance stage
which was over six months old, and therefore out of date and unreliable. It added that the petition was no longer
representative of the current opinion of those working in the agreed bargaining
unit and should be disregarded. The
Employer asserted that an overwhelming majority of the workers was not in
favour of the Union conducting collective bargaining on their behalf and that
some workers had approached the Union suggesting it
withdraw its application. These points
were reinforced by the Employer in a further letter to the CAC dated 7 September 2004.
The Case Manager’s petition check
9. The CAC, on 9 September 2004, received from the Employer a petition
made up of 41 signatures and a list of 54 workers in the agreed bargaining unit
dated 8 September 2004
demonstrating that a majority of the workers did not support recognition of the
Union. The Panel
proposed that the Case Manager conduct an independent check of the number of
workers within the bargaining unit who had signed the petition not supporting
recognition of the Union. The petition had been openly copied to the Union
and the CAC. The Employer subsequently
sent a list containing printed names verifying the signatures contained in the
petition on the 14 September 2004,
which did not form part of the Case Manager’s check because it had been
compiled by a worker who worked within the unit. This was copied to the Union
on the 14 September 2004. It was explicitly agreed that, to preserve
confidentiality, the list of 54 workers provided by the Employer would not be
copied to the Union and that agreement was confirmed to
both Parties in the Case Manager’s letter dated 15 September 2004.
The petition was headed with the statement ‘Those not in favour of the
ISTC [sic] Trade union recognition within Y.E.C. at this present time please
sign below.’ The Case Manager’s check
found that 1 of the signatories did not appear on the Employer’s list and 10
names were unreadable and therefore were not included in the Case Manager’s
analysis. Thirty signatures were common
to both lists indicating that 55.55% of the agreed bargaining unit did not appear
to support the Union in gaining recognition for the
purposes of collective bargaining.
Employer’s oral submissions
10. The Employer introduced its case by
giving background on the Employer.
Yamada Europe Co. Ltd. was a wholly owned subsidiary of Yamada
Manufacturing Co Ltd. It had sites in Japan,
Thailand, China
and the USA. Yamada Europe Co. Ltd. was established in
November 1996 and in January 1999 full mass production began. The Employer manufactures water and oil parts
for petrol and diesel engines for Honda and Isuzu.
11. The Employer stated that Ebbw Vale was an
area where unemployment was high because of the demise of the steel and coal
mining industries. It further explained
that this area had a long history of deep involvement with trade unions and
therefore the workers concerned were perfectly capable and confident of reaching
independent decisions on union recognition.
The Employer recognised that all workers had the right to be union
members.
12. The Employer stated that a Staff Forum
had been in existence prior to the Union sending the
initial request letter to the Employer but acknowledged that it had been
ineffective. The Employer revived the
Staff Forum where it listened and responded to issues raised by its
workers. The Employer reported that Mr.
Yamada chaired the Staff Forum and was very much liked and respected within the
company. The Employer also accepted that
some individuals wanted the Union to be recognised but a
majority of the workers wanted to deal with the Employer directly.
13. The Employer argued that when the Parties
had agreed an appropriate bargaining unit during the appropriate period in
accordance with Paragraph 20(2) of the Schedule the CAC must decide whether the
application is valid within the terms of Paragraph 43 - 50. Furthermore Paragraph 20(3) of the Schedule
states that in deciding whether the application is valid, the CAC must consider
all evidence submitted by both the Union and the
Employer.
14. The Employer did not wish to make any
representations in respect of Paragraph 45(a) because it accepted the Union
had demonstrated that it had in excess of the required 10% Union membership in
the agreed bargaining unit. However, the
Employer submitted that the Union’s application did not
meet the legal validity test set out in Paragraph 45(b). Namely there was no basis for the CAC to conclude
that a majority of the workers in the agreed bargaining unit would be likely to
favour recognition of the Union.
15. The Employer referred to the membership
and support check conducted during the acceptance stage stating that in a
proposed bargaining unit of 44 workers the Union had 20
Union members which equated to 45.45%.
The Union had relied upon a petition which showed
that additional support from non-Union members indicated that in total, 63.63% of
the proposed bargaining unit supported Union recognition. The Employer went on to say that the Union,
in providing information to the Case Manager for the membership and support
check, had used the very same petition to demonstrate support for the agreed
bargaining unit under paragraph 45(b) of the Schedule at the validity
stage. The Employer stated that the Union’s
membership had dropped from 20 to 18 members and the overall support for
recognition in the agreed bargaining unit had diminished to a level of
44%. The Employer contended that this
demonstrated a downwards trajectory in Union membership at Yamada and as at 24 August 2004 the proportion of
members in the agreed bargaining unit stood at 33.33%.
16. The Employer argued that the Union’s
petition did not accurately reflect the workers’ views on the issue of
recognition. The Employer stated that
the Union’s petition was at least 5 months old, that it
had not been presented to the Employer for inspection and was of limited value
in assisting the CAC in respect of the validity requirement of Paragraph
45(b). The Employer informed the Panel
that the overwhelming majority of workers was not in favour of Union
recognition.
17. The Panel heard evidence from a worker
(Worker A) in the bargaining unit who stated that he had worked for the
Employer for 2 years as a team leader in the assembly section. Worker A observed that the Employer was
relatively new, the workforce young and these facts, when combined with no
direct route to senior management created uncertainty. He described himself as very much a team
player who was respected and looked upon by his colleagues as a father
figure. This was demonstrated by the
fact that he was approached regularly for advice. Worker A expressed the view that once the
Staff Forum had been set up conditions had improved because management was responding
to issues raised from the shop floor.
Improvements included a safer, cleaner working environment, work clothes,
a bicycle shed and a canteen. He also
informed the Panel that there had been two pay rises. One had been part of a pay review which
occurred every April and the other addressed the historical inequalities of the
pay system resulting in additional pay rises varying from 12 to 15 percent. Worker A further stated that some workers in
the bargaining unit wanted more from senior management and the Staff Forum but
in his view, pay and conditions could not be improved upon in the company even
if the Union gained recognition.
18. Worker A reported that in early September
2004 the workers, because of confusion on the shop floor, had decided to
conduct their own opinion poll where workers were given a piece of paper and
asked to tick a box indicating whether they were in favour of Trade Union
recognition or whether they favoured the Staff Forum. The workers without any management involvement
or communication on this issue conducted this informal ballot. The result of the informal ballot was posted
on a notice board showing that 30+ people out of a total bargaining unit of 45
were not in favour of Union recognition.
The Employer did not submit this information to the CAC because there
was no way of demonstrating who had ticked the particular boxes. Worker A stated that this result had been
communicated to the Union in order to give it the
opportunity to reconsider its position on recognition at this time.
19. Worker A reported that he and a colleague
(Worker B) had approached a senior manager seeking advice on how the CAC could
be alerted to the views of the workers at that time. It was suggested that the workers could
collect their own petition. A petition
was then drawn up by Worker B and then circulated amongst others within the
bargaining unit. Again there was no
management involvement and the purpose of the petition was explained and signed
openly on the factory floor. Worker A
also explained to the workers that if they said that they were not in favour of
Union recognition and signed the petition the Union
could reapply for recognition at any time.
He repeated that individuals had a choice but they still wanted to sign
it even in the knowledge that it would be forwarded to the Union. Worker B when giving evidence to the Panel confirmed
that management had not been included and that workers held no fear of
discussing this matter or putting their views forward. Worker B stated that he had personally taken
signatures during the day shift and passed it to a colleague who covered the
night shift. Worker B confirmed that he
had facsimiled the petition to the CAC.
20. The Employer stated that a total of 40 workers
out of the agreed bargaining unit of currently 54 workers had signed this
petition, amounting to 74%, of workers in the agreed bargaining unit. It referred to the petition report where the
Case Manager had determined that 10 of the signatures were unreadable;
concluding that the proportion of petition signatories in the agreed bargaining
unit was 55.55%. The Employer reported
that after discussing the potential concerns regarding the unreadable
signatures with the CAC the Human Resources/Administration Manager approached workers
in the bargaining unit and asked them to identify whether they had signed the
petition and if so which signature was theirs.
This list was copied to the CAC and the Union and
although this list wasn’t used as part of the confidential check the Employer
contended that the 10 unreadable signatures were genuine worker
signatures. The Employer urged that the
Panel should consider the list of names of workers who had signed the workers’ petition
as pertinent evidence when considering those workers who were not likely to
favour Union recognition.
21. The Employer argued that the Union’s
suggestion that worker signatures were not freely given was unfounded. The
Employer stated that it had clearly explained the circumstances in which the
petition signatures were obtained and in contrast it believed that the Union's
petition, as well as being over five months old, was conducted in a secretive
manner with no explanation as to what workers were being requested to sign. The
Employer added that the Union had argued in its letter
of 21 September 2004 that
the most recent worker petition submitted to the CAC it should be disregarded
because of its late submission. In
response the Employer argued that the statutory position at paragraph 23 of the
Schedule states that in deciding whether the application is valid the CAC must
consider all evidence submitted by both the Union and
the Employer. The recent worker petition
constituted evidence.
22. The Employer stated that the Union’s
representations as to the validity of the application in respect of Paragraph
45(b) relied primarily on the number of claimed Union members within the agreed
bargaining unit who it described as ‘full paying’ Union members. The Employer submitted that there was no
evidence before the CAC that 33%, of the workforce are in fact ‘full paying’
Union members as the Union had not been required to provide details supporting
its contention that all members were paid up to date with their contributions
and were not in arrears. The Employer
further submitted that the Union offer reduced membership levels to workers in
unrecognised workplaces and workers in Yamada were no exception. The Employer stated that a number of workers
who are Union members may well choose for reasons other than a desire for Union
recognition for collective bargaining.
23. The Employer further submitted that Union
membership levels which were significantly below 50%, in this case at best 33%,
and where Union membership is declining over several months demonstrated that
the majority of workers would be unlikely to favour recognition. The Employer referred to the CAC’s decision
in the case of NUM and Hatfield Colliery
to reiterate this argument.
24. The Employer closed its submission by stating
that there was clearly no evidence from the Union that a
majority of workers in the bargaining unit would favour recognition. In contrast there was substantial evidence in
the form of the most recent worker petition to support the proposition that it
was unlikely that a majority of workers in the bargaining unit would favour
recognition. As such the Employer would
ask the CAC to conclude that the application is invalid on the basis that the
CAC cannot be legally satisfied (as required by Paragraph 45(b) of the Schedule)
that a majority of the workers in the agreed bargaining unit would be likely to
favour recognition of the Union. The Employer submitted that the provisions of
Paragraph 45(b) place the onus on the Union to establish
to the satisfaction of the CAC that a majority of the workers would he likely
to support recognition i.e. 50% plus 1[sic]. The Employer contended that it was
inappropriate for the CAC to apply its ‘industrial relations experience’ to
decide this point in favour of the Union in the absence
of clear evidence provided by the Union. The Employer submitted that the correct
approach to resolving this issue was to apply a ‘balance or probabilities’ test
as undertaken by the CAC in the GPMU and
Print Works (Gloucester) limited.
Union’s oral submissions
25. The Union
contended that it was its opinion that it met the requirements set out in
paragraph 36(1)(b) [sic] that a majority of workers in the bargaining unit was
likely to favour recognition of the Union as entitled to
conduct collective bargaining.
26. The Union stated
that there had been two independent membership checks carried out by the Case
Manager and each had demonstrated that the Union had
majority support for collective bargaining at Yamada. It reported that the first membership check
demonstrated that the Union had over 63% support and the
second membership check, on the larger agreed bargaining unit demonstrated
again majority support for recognition.
The Union also referred to a membership check
conducted by Acas prior to the Union submitting its
application to the CAC. The Union
declared that this check also established that the Union
enjoyed majority support in terms of membership within the proposed bargaining
unit and this was reported to the Employer on 18th May 2004.
27. The Union argued
that it had enjoyed majority support despite the opposition to recognition that
has been demonstrated by the Employer.
The Union reminded the Panel that it had first
approached the Employer for recognition in November 2003 and wrote to the
Employer to start the legal process for recognition on 28th January 2004. It was the Union’s
view that the Employer had continuously sought to delay the process. The Union together with
Acas was only able to secure a voluntary meeting with the Employer following
its letter of the 28th January on May
18th 2004. The Union
stated that despite this delay it had maintained its membership at Yamada.
28. The Union asserted
that any decision with regard to validity must be taken in the context of the
Employer’s continued stance on the issue of recognition. It argued that the legislation was clearly
designed to grant recognition where a Union could
demonstrate majority membership levels and likely majority support for
collective bargaining. The Union maintained
that the Employer had never accepted this legal premise and at the meeting
dated 18th May and in the Employer’s subsequent correspondence dated 24th May
it insisted that a ballot would be the only way that recognition would be
accepted.
29. The Union referred
to the Employer questioning whether the majority is likely to support the Union’s
recognition claim with a petition submitted after an agreed deadline. The Union
acknowledged that 55% of workers had signed the petition but it questioned
whether the petition was signed voluntarily.
The Union also noted that the Employer stated
that it was a worker who collected the signatures and submitted the
petition. The Union
stated that the workers were encouraged to vote and put in a position where
they felt they had to choose between the Staff Forum and the Union. The Union argued that
this choice was not a real choice as the workers could have had both the Staff
Forum and the Union.
It was also the Union’s belief that the workers
were not asked if they supported its application for recognition for collective
bargaining. Further, the Union
stated that the petition was made up of signatures only, and the printed list
of signatories’ names was sent to the CAC at a later date by the Employer. The Union believed
that this raised the question on whether the signatures were indeed freely
given and argued that it demonstrated that the Employer was involved in this
process. The Union
contended that this was particularly important because it had been informed that
the Employer had conducted small meetings with workers where an American
associate had been attempting to dissuade workers from supporting the Union's
claim for recognition.
30. The Union claimed
that the Employer, when recruiting, had held discussions with new staff to the
bargaining unit stating that it would be frowned upon should individuals join
the Union. The Union
disputed the suggestion that its membership had remained static. It also argued that the situation was
becoming so difficult for individuals that it made a conscious decision to cease
its attempts to recruit members to protect its existing members and other
supporters within the bargaining unit.
It also chose not to hold meetings because of the perceived anti Union
feeling which it stated had been cultivated by the Employer. The Union stated that
the Local Organiser had limited access to the activists and it relied on this
small group of individuals to get the message across to non-members. It argued that had it had direct access to
the workers in the bargaining unit individuals, both Union members and non
members, would have understood that they did not have to choose between the Union
and the Staff Forum. The Union
stated that it was convinced that using earlier ratios as a sample proportion
of the staff would have joined the Union. In addition, the Union
maintained that it believed its petition, used to demonstrate majority likely
to support Union recognition at the acceptance stage, to be fresh and did not
think that it was appropriate to refresh it.
31. The Union
acknowledged that Union members paid reduced subscription rates as depicted by
the rules in its rule book and that Union member subscriptions would be
increased to the full amount on the Union being recognised to conduct
collective bargaining. The Union
also indicated that when members signed a direct debit form individuals agreed
that they wished the Union to conduct collective
bargaining on their behalf. These
members amounted to 55% of the bargaining unit when Acas undertook the check in
May. The Union's
proposed bargaining unit was then enlarged by the Employer employing more
workers and subsequently enlarged by agreement with both Parties. The Union stated that
its membership still stood at 33% of the bargaining unit, which, it argued, was
a significant proportion of the bargaining unit. The Union declared
that an individual joining the Union is an act far more
meaningful than signing a petition as they had made the decision to join and
continue to support the Union through their membership
subscription. The Union
proposes that this act demonstrates their level of commitment to Union
recognition.
32. The Union claimed
that it had independently demonstrated support for its claim on three separate
occasions. It believed that it had
clearly demonstrated that a sample of the workforce, supported the Union
for collective bargaining purposes and they continued to be paying Union
members. The Union
contended that a majority of workers in the bargaining unit were likely to
favour recognition of the Union as entitled to conduct
collective bargaining on its behalf.
Considerations
33. 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. In reaching its decision
the Panel has taken in to account all evidence submitted by the Parties to
date. On the evidence available the
Panel is satisfied 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.
34. The remaining questions before the Panel
are whether in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of
the workers constituting the agreed 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.
35. The difference between the original
bargaining unit proposed by the Union and the agreed
bargaining unit is the inclusion of QA inspection workers, production support
and administration workers. The number
of workers in the original bargaining unit was 44 amounting to a level of union
membership of 45.45%. In the agreed
bargaining unit the number of workers rose to 54 which resulted in a union
membership level of 33.33%. The Panel is
satisfied then that although the level of union membership in the agreed
bargaining unit has decreased the 10% test under paragraph 45(a) remains
satisfied. The Panel is satisfied that
the validity test at paragraph 45(a) is met.
The Employer did not contest this matter.
36. The Panel takes the Employer’s point that
it must consider the evidence available to it in written and oral submissions
given by both Parties. The Panel has
considered all the evidence made available to it by the Parties. The petition, conducted by the workers in the
bargaining unit, is the most up to date evidence before the Panel. The Union’s arguments
dismissing the petition were contradicted by the evidence submitted by Worker A
and Worker B. The Union’s
claims were not supported by evidence beyond hearsay and the Union
did not produce witnesses. Given the
history of the relationship between the Parties as indicated by all of the
evidence provided since the application was originally made to the CAC, it is
not possible for the Panel to reach the conclusion that a majority of the
workers in the bargaining unit would support recognition in a ballot.
37. This decision means that the CAC is
unable to proceed with the present application.
However, Schedule A1 does not debar a new application being made by a
Union where the proposed bargaining unit (as judged by the CAC) is not the same
or substantially the same as that proposed by the Union in an earlier
application that was, as in this case, accepted by the CAC. There is no time constraint on making such an
application. This may be made at any
time, but presumably when a Union considers it has appropriate
evidence to meet the admissibility and the validity tests set out in the
Schedule.
The Panel’s Decision
38. The decision of the Panel is that the
application is not valid for the purposes of paragraph 20 of the Schedule and
the CAC will not therefore proceed with the application.
Panel
Professor Frank
Burchill
Mrs. Jackie
Patel
Mr. Bob Purkiss
29 October 2004
Appendix
Names of those who attended the
hearing:
Representing the Trade Union
Ms Christine Hardacre Organiser
Mr Karl Gaudan Local Organiser
Representing the Employer
Mr. S Yamada Managing
Director
Mr. Bev Tallbot Personnel
&. Administration Manager
Mr. Alan Jones Associate
Mr. Dean Savage Associate
Mr. Thomas Player Solicitor
Ms Sarah Parsons Solicitor