Case Number: TUR1/375/(2004)

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

National Union of Journalists

and

Archant London – East London Newspapers

Introduction

1. The Union in this case, The National Union of Journalists (the NUJ) submitted an application dated 3 March 2005 to the CAC that it should be recognised for collective bargaining purposes by Archant London – East London Newspapers (the Employer) for a bargaining unit comprising “all Journalists employed in the editorial department.” The stated location of the bargaining unit was “138 Cambridge Heath Road, London, E1 5QJ”

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 Ms Mary Stacey, Chairman of the Panel, and, as Members, Lord David Lea OBE and Ms Patricia Woods. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3. By a decision dated 14 April 2005, the Union’s application was accepted by the Panel. Subsequently, the Parties reached an agreement on the appropriate bargaining unit. The Union and Employer confirmed this by e-mail to the CAC on 12 May 2005 and 25 May 2005 respectively. The Parties agreed that the appropriate bargaining unit was as proposed by the Union in its application and included Reporters, Sub-Editors, Editors, Editorial Assistants, Sports Reporters/sub Editor and Sports Editors as categorised by an e-mail from the Employer on the 26 April 2005 to the CAC.

Issues

4. Schedule A1 to the Act provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the Union under paragraph 22(1)(b) it must issue a declaration of recognition under paragraph 22(2). Paragraph 22(3) of the Schedule requires the CAC to hold a ballot even if it has found that there is a majority of union members in the bargaining unit where any of the qualifying conditions as set out in paragraph 22(4) is fulfilled. The three qualifying conditions specified by paragraph 22(4) are as follows:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

5. Following the Parties’ agreement on the appropriate bargaining unit, the Panel instructed the Case Manager to ascertain whether the Union claimed that it had a majority of the workers in the bargaining unit as its members and, if so, to seek the Parties’ views with regard to whether or not a ballot should be held.

6. By a letter dated 26 May 2005, the Union confirmed that a majority of the agreed bargaining unit were Union members, and that it could provide evidence to support this. In response, on the 6 June 2005, the Employer by e-mail requested that a check of the membership level within the agreed bargaining unit was carried out to confirm the level of Union membership.

Membership Check

7. To assist the Panel in its decision on whether or not it was satisfied that the majority of the bargaining unit were members of the Union, it requested the Case Manager to conduct an independent check of Union membership in the agreed bargaining unit.

8. A list of Union members in the agreed bargaining unit was provided by the Union on 14 June 2005 and the Employer provided a list of workers in the agreed bargaining unit on 13 June 2005. It was agreed that to preserve confidentiality, the information provided by each Party would not be copied to the other. The arrangements for the membership check were confirmed in a letter to both Parties on 8 June 2005.

9. The Case Manager carried out a comparison of the lists and the results of the membership check were produced in a numerical report. The check established there were 22 workers in the agreed bargaining unit of whom 12 were Union members, resulting in a membership level of 55%. The Membership Check Report was circulated to the Parties and their comments requested on 17 June 2005. Additionally, the Employer was specifically asked for its views in respect of the three qualifying conditions specified in paragraph 22(4) of the Schedule as described in paragraph 4 of this decision.

Employer’s views

11. In its e-mail dated 6 June and its further e-mail to the CAC on 21 June 2005, the Employer submitted to the Panel that it considered itself to be a first class employer and as such, since its acquisition of the ‘East London Titles’ in September 2004, had implemented several improvements to the East London office including pay increases and extra holiday. In its view, holding a ballot would be in the interests of good industrial relations. On the 22 June 2005 the Employer informed the CAC that the “proposed Deputy Mother of the Chapel” had resigned as of the 21 June 2005, and requested that the Panel considered the impact of this on the Union’s claim of majority membership together with its initial comments. On 28 June 2005 in a telephone conversation with the Case Manager, the Employer further clarified for the Panel that the proposed Deputy Mother of the Chapel was a worker within the agreed bargaining unit that had resigned from the Company and was working out a 4 week notice period.

Union’s Views

12. In its letter of 26 May 2005 and in its further letter of 20 June 2005 the Union maintained that it had shown that a majority of the workers in the agreed bargaining unit were Union members and that its petition submitted at the acceptance stage of the application process demonstrated that the majority of the workers ‘wanted recognition’. In its view, holding a ballot would not be in the interests of good industrial relations. In respect of the resignation referred to by the Employer, the Union contended that at the time the check to establish the level of membership was carried out; the resignation had not taken place. Therefore the Union had satisfied the CAC requirements at that time. In its view, as exemplified by voluntary recognition membership checks carried out by ACAS, results were not reviewed once announced. In conclusion the Union stated that the Employer’s arguments were submitted once the deadline for comments had passed and did not have any validation in law. In a telephone conversation with the Case Manager on 28 June 2005, the Union confirmed for the Panel that it was aware that a worker within the agreed bargaining unit had resigned from the Company.

Considerations

13. The Panel must decide whether it is satisfied that the criterion specified in paragraph 22(1)(b) of the Schedule (as described in paragraph 4 of this decision) has been met by the Union. If this criterion has not been met, the Panel must give notice to the Parties that a ballot will be held under paragraph 23(2) of the schedule. If the criterion has been met and the Panel is satisfied that none of the three qualifying conditions as specified in paragraph 22(4) of the Schedule (as described in paragraph 4 of this decision) is fulfilled, the Panel must under paragraph 22(2) of the Schedule issue a declaration that the Union is recognised. The Panel reminds itself that its duty is to consider all the evidence submitted by the Parties at the time that it is required to make its decision and has fully considered all the evidence submitted by the Employer and the Union in reaching this decision, including the fact of the reduction 1 in the number of workers within the bargaining unit.

14. Firstly in respect of paragraph 22(1)(b) of the Schedule the Panel must decide whether or not it is satisfied that the Union has majority membership amongst the workers in the agreed bargaining unit. In the Panel’s view, the membership check reported by the Case Manager on 17 June 2005, clearly demonstrated that the Union had majority membership in the agreed bargaining unit at that time. The Panel also accepts that subsequent to that check, (as informed by the Employer on the 22 June 2005 and later confirmed by the Parties on the 28 June 2005), the number of workers in the agreed bargaining unit has reduced by way of 1 employee of the Company resigning on 21 June 2005 and that worker was the ‘proposed Deputy Mother of the Chapel’ for the Union. The Union did not in its response, refute the new information. The Panel therefore need to take this into account and has now considered it in the context of its impact on the results established by the membership check reported on 17 June 2005 and finds the following:

15. The membership check established at the time that 12 of the 22 workers were Union members which, expressed as a percentage is 55% representing a majority of the agreed bargaining unit. When the proposed Mother of Chapel leaves the Company in the next few weeks the level of Union membership within the agreed bargaining unit will be reduced to 52.4% (11 out of 21 workers which is a proportion of workers that still constitutes a majority of the agreed bargaining unit. The Panel therefore concludes that both as of now, and in the immediately foreseeable future, the Union has majority membership within the agreed bargaining unit and that the criteria specified by paragraph 22(1)(b) of the Schedule has been met by the Union.

16. The Panel has also given thorough consideration to the 3 qualifying conditions set out in paragraph 22(4) of the Schedule (described in paragraph 4 of this decision) and finds the following:

17. The Employer stated in its submissions to the Panel that it would be in the interests of good industrial relations for a secret ballot to be conducted. Although the Employer explained that in its view workers had and continue to enjoy good terms and conditions of employment, it did not provide any specific reasons or evidence to support its view on why a ballot would be in the interests of good industrial relations. The Panel is not aware of any factors that suggest that a ballot would be in the interests of good industrial relations and is not satisfied that the condition of paragraph 22(4)(a) is fulfilled.

18. The Panel notes that no member of the Union within the bargaining unit has informed the CAC that they do not want the Union to conduct collective bargaining on their behalf. The Panel is not satisfied therefore that the condition of paragraph 22(4)(b) is fulfilled.

19. Finally, no membership evidence has been produced to show that there are doubts as to whether any of the Union members within the agreed bargaining unit want the Union to conduct collective bargaining on their behalf. The Panel is not satisfied that the condition in paragraph 22(4)(c) of the Schedule is fulfilled.

Declaration

20. Following careful consideration of all aspects of the case and all relevant evidence to date, the Panel declares that The National Union of Journalists is recognised by Archant London – East London Newspapers as entitled to conduct collective bargaining on behalf of all Journalists employed in the Editorial Department including Reporters, Sub-Editors, Editors, Editorial Assistants, Sports Reporters/sub Editor and Sports Editors, the location of the bargaining unit being 138 Cambridge Heath Road, London, E1 5QJ.

Panel - Ms Mary Stacey (Chairman)

Ms Patricia Woods

Lord David Lea OBE

1 July 2005