Case Number: TUR1/373/[2004]

25 June 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:

UCATT

and

F W Mason & Sons Ltd

Introduction

1. UCATT (the Union) submitted an application to the CAC dated 2 June 2004 that it should be recognised for collective bargaining by F W Mason & Sons Ltd (the Employer) in respect of a bargaining unit comprising “(s)hop floor manual workers” based at the Employer’s premises on the Colwick Industrial Estate, Nottingham. The CAC gave both Parties notice of receipt of the application on 2 June 2004. The Employer submitted a response to the CAC on 8 June 2004 which was duly 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 Lynette Harris, Chairman, and, as Members, Mr Ged Fisher and Mr Paul Gates. The Case Manager appointed to support the Panel was Nigel Cookson.

3. The Panel extended the statutory deadline for it to decide if the Union’s application could be accepted to 23 June 2004 to allow time for a membership and support check to be conducted, for the Parties to comment on the resultant report and for the Panel to consider said comments before it reached a 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 (the Schedule); and therefore is to be accepted.

5. In its response to the Union’s application the Employer stated that whilst it agreed the definition of the bargaining unit as proposed by the Union, it did not agree the Union’s estimate as to the number of workers in the bargaining unit. The Union, in its application, had stated that there were approximately 78 workers whereas according to the Employer there were 86 workers in the bargaining unit. The Employer also questioned the Union’s estimate of its membership in the proposed bargaining unit and stated that it would require a list of members to substantiate the Union’s claim. As to whether a majority of the workers in the bargaining unit would be likely to support recognition the Employer explained that it practiced Investors in People policies and that the open communication between workforce and management had indicated no need or requirement for union recognition.

6. To assist the determination of two of the admissibility criteria specified in the Schedule, namely whether 10% of the workers in the Union’s proposed bargaining unit are members of the Union (paragraph 36(1)(a)) and whether a majority of the workers in the Union’s proposed bargaining unit are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel requested a check be undertaken by the Case Manager.

Membership and Support Check, results and the Parties’ responses

7. It was agreed with the Parties 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 and a copy of its petition in support of recognition to enable comparisons to be undertaken. It was explicitly agreed with the Parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other Party. These arrangements were confirmed in a letter dated 14 June 2004 from the Case Manager to both Parties. The information from both Parties was received by the CAC on 16 June 2004. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the Parties. A report of the result of the check of the level of Union membership and of support for recognition was circulated to the Panel and the Parties on 17 June 2004.

8. The list supplied by the Employer indicated that there were 86 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 16 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 15, a membership level of 17.44%. The petition supplied by the Union contained 43 names and signatures, of which 38 were in the proposed bargaining unit, a figure that represented 44.19% of the proposed bargaining unit. Of the 38 signatories that the Case Manger identified as being in the proposed bargaining unit, 3 were members of the Union and 35 were non-members. The petition contained the following statement: “We the undersigned support the Union’s request for recognition at F W Mason & Sons Limited, Colwick Nottinghamshire and would vote in favour of Trade Union recognition in any forthcoming independent ballot”. Signatories were asked to print their name, and sign and date the petition. The signatures were dated between 10 May 2004 and 13 May 2004. No additional checks were carried out to verify the information supplied by the Parties.

9. The Parties were invited to comment on the results of the Case Manager’s report. The Union, in a letter dated 18 June 2004, contested that all the names/signatures were on the Employer’s list and that all the names were “legible on the information given”.

10. The Employer, in a letter dated 21 June 2004, noted that the petition was signed by less than 50% of the bargaining unit, but more importantly, that it was not put forward for recognition of the Union on the question of collective bargaining, and as such, the Employer argued, it did not comply with paragraph 36(1)(b).

11. Further, the Employer submitted, whilst acknowledging that the test under paragraph 36(1)(a) was satisfied, nonetheless only 3 out of 15 Union members had demonstrated support for the Union’s application for recognition and signed the petition. The Employer questioned whether a majority of the workers in the bargaining unit would be likely to vote in favour of recognition given that less than 20% of Union members were prepared to sign the petition. The Employer concluded its submissions by questioning the validity of the alleged membership of the Union and called upon the CAC to carry out a validity check to ensure that members were in compliance.

Considerations

12. The Panel has to decide 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.

13. The Panel is satisfied that the Case Manager’s check, which showed that 17.44% of the workers in the proposed bargaining unit were members of the Union, was conducted properly and impartially and in accordance with the arrangements agreed with the Parties. The Panel has therefore decided 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.

14. The test in paragraph 36(1)(b), is whether a majority of the 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. This test is not one that requires the Union to demonstrate a definite arithmetical majority but is simply a question as to whether the Panel is satisfied that a majority of the workers in the bargaining unit would be likely to favour recognition. To support its position, the Union relied on the level of Union membership that, for the reasons given in the previous paragraph, the Panel accepts is 17.44%, and its petition in support of recognition. The Case Manager’s check indicated that 44.19% of the workers in the bargaining unit had, through signing the petition, indicated support for recognition of the Union. The Panel also considers that it is likely that the 12 Union members who had not signed the petition are also in favour of trade union recognition, which when added to the petitioners, gives a total of 50 workers out of a proposed bargaining unit of 86, indicating a level of support of 58.14%.

15. The Panel has considered the criticism of the petition made by the Employer specifically that of its wording. However, the Panel notes that the Employer has not provided evidence to support its claim that the petition signatories were ignorant of the implications of statutory recognition in that the Union would be bargaining on their behalf in respect of pay, hours and holidays. Whilst the Employer was correct in stating that the wording did not refer to collective bargaining, it is the view of the Panel that the proposition clearly left the signatory with no doubt that they were being asked whether they supported recognition of the Union. It was unlikely that the absence of the term ‘collective bargaining’ caused widespread misunderstanding of the petition’s purpose. The Panel has also considered the Employer’s assertion that the majority of Union members, by not signing the petition, have implied that they do not favour recognition of the Union. However, the Employer has not provided any evidence in support of this interpretation.

16. Taking all the above matters into account, the Panel is satisfied that the level of Union membership, when considered with the level of support indicated by the Union's petition, provides sufficient evidence that the 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 and that the test set out in paragraph 36(1)(b) is satisfied.

17. 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

18. For the reasons given above, the Panel's decision is that the application is accepted by the CAC.

Panel

Professor Lynette Harris, Chairman

Mr Ged Fisher

Mr Paul Gates.

25 June 2004