Case Number: TUR1/435(2005)
31 March 2005
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:
Amicus
and
Fibrothetford
Introduction
1. Amicus
(the Union) submitted an application to the CAC dated 1 March 2005 that it
should be recognised for collective bargaining by Fibrothetford (the Employer)
in respect of a bargaining unit comprising “All workers except senior managers
i.e. operations and maintenance manager upwards at Thetford Power Station,
Mundford Road, Thetford, Norfolk, IP24 1LX”. The CAC gave both Parties
notice of receipt of the application on 2 March 2005. The Employer submitted a
response to the CAC on 11 March 2005 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 Linda Dickens MBE
(Panel Chairman) and as Members, Ms Judy McKnight and Mr Mike Regan. The
Case Manager appointed to support the Panel was Sarah Kendall.
3. The
CAC Panel has extended the acceptance period in this case twice. The
initial period expired on 16 March 2005. The period was extended to 22
March 2005
in order to allow time for a membership and support check to be conducted, for
the Parties to comment on the subsequent report and for the Panel to consider
said comments before arriving at a decision. The period was extended
further to 31 March 2005 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 therefore should be accepted.
5. The
Union had stated in its application that
the number of workers in the proposed bargaining unit was 29; the Employer, in
its response, stated the number of workers in the proposed bargaining unit was
33. The Employer did not agree with the Union’s proposed bargaining unit.
The Employer stated that it was unable to comment fully on the Union’s estimated membership within the
proposed bargaining unit as it did not have the necessary information
available. The Employer also reported that since the Union had prepared its figures it was
probable that 3 Union members had left the company and membership may be lower
than 8. The Employer also commented on that it felt the forms completed
by a number of workers within the proposed bargaining unit had not been
gathered properly and should undergo further scrutiny of the CAC. The Employer
stated that there were no existing agreements for recognition covering the
workers in the proposed bargaining unit nor did it contend that the Union’s application failed to meet any of
the other admissibility or validity criteria in the Schedule.
6. To
assist the determination of two of the admissibility criteria specified in the
Schedule, namely 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 support recognition of the union
(paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the Case
Manager of the level of union membership and support for recognition within the
proposed bargaining unit. It was agreed with the Parties that the Employer
would supply to the Case Manager a list of the names of 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 copies of signed pledge cards to enable
comparisons to be undertaken. It was explicitly agreed with the Parties
that, to preserve confidentiality, the respective lists and the pledge cards
would not be copied to the other Party. These arrangements were confirmed
in a letter dated 16 March 2005 from the Case Manager to both
Parties. The Union’s
membership list and forms were received at the CAC on 16 March
2005.
The information from the Employer was received at the CAC on 18
March 2005.
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 18
March 2005.
Thereafter a calculative error was identified and an amended version of the
report was issued on 22 March 2005.
7. The
list supplied by the Employer indicated that there were 30 workers in the Union’s proposed bargaining unit. The
list of members supplied by the Union contained 13 names, though two individuals’
names were crossed through due to having left the company. The check
therefore was based on the 11 live members listed in the Union’s printout. According to the Case
Manager’s report, the number of Union members in the proposed bargaining unit
was 10, a membership level of 33.33%. The Union’s signed pledge cards
were entitled “Vote YES for amicus” and “amicus the union” and then stated “Amicus
wants to present the management of Fibrothetford with evidence to show that if
we asked to implement a statutory ballot for recognition (so the Union could
formally bargain wages and conditions) we would win the ballot. Please
show your support by completing this pledge card. Even if you do not
wish to access union representation please do not vote to deprive others of the
opportunity – people need someone to turn to sometimes. You do not
need to be a member to vote yes.” The pledge card set out the
following statement “If Amicus were to implement a ballot on recognition I
would vote to have Amicus as the Trade Union recognised by Fibrothetford to
negotiate terms and conditions of employment”. A footnote on the
pledge card stated “All names to be kept strictly confidential”. Although
signatories did not date the pledge cards the Union in its covering letter dated 16
March 2005
stated that all pledge cards had been collected during the month of December
2004. The check of the Union’s pledge evidence established that 7 of the 30
workers listed by the Employer as being in the proposed bargaining unit had
signed the Union’s pledge card, none of whom was a
Union member.
Views of the Union
8. In
its letter dated 21 March 2005, commenting on the Case Manager’s
check, the Union stated that Union members clearly
constituted more than 10% of the bargaining unit. The Union further
stated that that it could be assumed by the CAC that all Union members would
vote for union recognition and the membership in the bargaining unit was 36.67%
(later agreed with the Case Manager in a telephone conversation that the
correct figure was 33.33%). The Union submitted that recognition was granted if a
majority of those voting and 40% of the overall bargaining unit vote in favour
of recognition. Only one (later agreed with the Case Manager in a telephone
conversation that the correct figure would be two) non-union member would be
required to vote in favour of recognition, (along with all union members), to
meet the 40% requirement. The Union contended that it was likely that at least one
non-union worker would vote in favour of recognition. The Union stated that seven non-Union members
had signed the pledge cards which said “If Amicus were to implement a ballot on
recognition I would vote to have Amicus as the Trade Union recognised by
Fibrothetford to negotiate terms and conditions of employment.” The Union argued that this could be taken as
an indication of the intention of those employees to vote in favour of recognition.
If taken together with the Union members, it would account for 17 out of 30
employees in the bargaining unit, or 56.66% in percentage terms, who would be
likely to vote in favour of recognition. The Union stated that this obviously
represented both a clear majority of those who could vote, and more than
exceeded 40% of the entire bargaining unit.
Views of the Employer
9. The
Employer stated that the Union
acknowledged that the pledge cards were at the time of the Case Manager’s check
at least three months old, and that only seven non-members had signed pledge
cards as opposed to the ten mentioned in the Union’s Application. It added that
two of the Union’s members had already left the
Employer. The Employer argued that the figures relating to the actual
level of current Union membership and those non-members pledged to recognition
had both moved significantly over a relatively short period and the Employer
contended that that situation may continue to evolve rather than remain
static. Given the situation reported in the CAC statistics dated 18
March, 2005
which suggests that 17 out of 30 employees in the proposed bargaining unit may
be in favour of recognition, and the Employer suggested that relatively small
movements in these numbers could turn what is apparently a majority in favour
into a minority. The Employer stated that it did not believe that the
current statistics provide grounds for the granting of recognition without a
ballot.
Considerations
10. The
Panel is required 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 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. The Panel
considered carefully the submissions of both Parties and the supporting
documentation.
11. The
Panel is satisfied that the Case Manager’s membership check described in
paragraphs 6 and 7 above, which showed that 33.33% 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 is 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.
12. The
Panel must also be satisfied that 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
Union relied on both the level of its
membership and the number of non members who signed pledge cards in the
proposed bargaining unit as evidence towards meeting this test. The Panel
accepts that the level of union membership is 33.33% for reasons set out in
paragraph 11 and has received no evidence to suggest these workers would not
support recognition of the Union
for collective bargaining.
14. The
Employer commented on the age of the pledge cards, which the Panel accepts were
collected within the month of December 2004. The Panel is satisfied that the
wording on the pledge cards left the signatories in no doubt as to what they
were being asked to support. The Panel is of the view that the pledge
cards may be regarded as ‘live’ and can identify no persuasive reason why it
should not rely on the pledge cards as reflecting the views of those workers
who signed them and concludes that the seven non union workers would be likely
to favour recognition of the Union as entitled to conduct collective bargaining
on behalf of the proposed bargaining unit.
15. Aggregating
the 10 Union members in the bargaining unit with the 7 non members who pledged
support indicates that 56.7% of the Union proposed bargaining unit are likely to favour recognition of the Union.
16. Having
taken into account all the evidence, the Panel is satisfied that the level of
Union membership, together with the level of support indicated by the Union's
pledge cards provides a proper basis for concluding that the majority of
workers constituting the relevant bargaining unit would be likely to favour
recognition of the Union as entitled to conduct collective bargaining on behalf
of the bargaining unit; and so the test set out in paragraph 36(1)(b) is also
satisfied.
17. In
addition, the Panel is satisfied, after considering all the documentation
submitted by the Parties, that the Union’s application meets the remaining
statutory tests.
18. The
Parties made additional observations relating to the next stage of the process
which are noted.
Decision
19. For
the reasons given above, the Panel’s decision is that the application is
accepted by the CAC.
Panel
Professor Linda Dickens MBE
Ms Judy McKnight
Mike Regan
31 March 2005