Case Number: TUR1/445[2005]

2 November 2005

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECLARATION OF RECOGNITION WITHOUT A BALLOT

 

 

The Parties:

 

Amicus

 

 

and

 

 

21st Century Logistics Ltd

 

 

Introduction

 

1.         Amicus (the Union) submitted an application to the CAC on 4 April 2005 that it should be recognised for collective bargaining by 21st Century Logistics Ltd (the Employer) in respect of a bargaining unit comprising “all permanent 21st Century Logistic’s Employees excluding office staff on Blue Dot contracts and based at WMS Warehouse, off Ridham Ave, Sittingbourne Kent, Kemsley Mill, Kemsley, Sittingbourne, Kent and Sittingbourne Mill, Mill Way, Sittingbourne Kent”. The CAC gave both Parties notice of receipt of the application on 7 April 2005.  The Employer submitted a response to the CAC on 14 April 2005 that 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 Roy Lewis, Chairman, and, as Members, Mr Bob Hill and Ms Lesley Mercer.  The Case Manager appointed to support the Panel was Nigel Cookson.

 

3.         By a decision dated 13 July 2005, the Panel (with Mr Derek Hodgson substituted for Lesley Mercer) accepted the Union’s application and, as no agreement was reached on the bargaining unit, subsequently invited both Parties to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.  A hearing was held on 18 August 2005 following which the Panel determined that the appropriate bargaining unit was that as proposed by the Union.  In its decision the Panel made clear that this bargaining unit included those drivers who were described as shunters and runners, in addition to the mhe staff.

 

Issues

 

4.         Paragraph 22(2) of the Schedule requires the CAC to issue a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of a group of workers constituting the bargaining unit if it is satisfied that a majority of the workers constituting the bargaining unit are members of the applicant union, unless any of the three qualifying conditions set out in Paragraph 22(4) are fulfilled.  If any of these conditions are met, or the CAC is not satisfied that a majority of workers in the bargaining unit are members of the applicant union, the CAC must give notice to the parties that it intends to arrange for a secret ballot to be held.  The qualifying conditions in paragraph 22(4) are as follows:

 

i) the CAC is satisfied there should be a ballot in the interests of good industrial relations;

 

ii) that 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;

 

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

 

Union’s submissions

 

5.         Following the Panel’s decision as to the appropriate bargaining unit, the Union was

asked whether or not it wished to submit that it should be granted recognition without a ballot. 

 

6.         In a letter received by the CAC on the 14th September 2005 the Union submitted that it should be awarded recognition without the need for a ballot.  It also commented on the three qualifying conditions as set out in paragraph 22(4).

 

7.         In respect of the first condition the Union submitted that the Employer had been aware for some months that it was seeking recognition.  The Employer had then entered into a recognition agreement with the Transport and General Workers Union and, as far as the Union was aware, that agreement was signed without a workplace ballot being conducted. The Union believed that if a ballot was held it would exacerbate the problems between the Parties.  It argued that, as a ballot took time to organise and allowed for canvassing at the workplace, it often resulted in a polarisation of views where there was already a feeling of distrust amongst many Union members.  The Union believed that, in the interests of good industrial relations, a ballot should not be held.  It submitted that it would be more beneficial to all concerned if following a recognition declaration the local Union representative was given the opportunity to establish a good working relationship with the Employer.

 

8.         The Union was not aware of any evidence that any Union members had contacted the CAC to voice any concerns or informed the CAC that they did not wish to be represented by the Union for collective bargaining.

 

9.         When the Case Manager undertook the membership and support check on 24 May 2005 he found that the proportion of Union members in the proposed bargaining unit was 73.85% i.e. a very clear majority.  The Union submitted that the proportion of workers that had signed the petition was 78.46% which was far above the 50% plus one show of support required.  It was also determined by the Case Manager that 11 of the signatures on the petition were not members of the Union.  It argued that the fact that people who were not Union members were prepared to sign the petition in favour of recognition only strengthened its claim that a ballot was not required.  The Union had demonstrated that it had the support of a vast majority of the workers within the bargaining unit.  In conclusion the Union believed that the level of membership and support shown for recognition should not require a ballot to be held.  The Union therefore asked that, on the evidence provided, the Panel declared recognition without the need for a ballot.

 

Employer’s submissions

 

10.       The Employer, in a letter received on 20th September 2005, submitted that a ballot should be held.  It was the Employer’s opinion that the only way of establishing good industrial relations between the Parties was if a secret ballot was held and it was proven that the Union still had sufficient paid-up members who wished the Union to conduct collective bargaining on their behalf.  The Employer did not support the Union’s belief that a ballot would exacerbate the problems between the Parties.

 

11.       The Employer had, during the course of a week, obtained 10 signatures from staff saying that they did not wish the Union to conduct collective bargaining on their behalf.  The Employer explained that it was unable to talk to many of its workers due to the fact that they worked a shift system and that it was only given a short period time in which to respond. The Employer claimed that some staff did not wish to sign its petition as the Union had told them that it would be informed as to their names.  The Union would no doubt argue that the Employer had coerced workers into signing its petition against recognition.  However, it argued, it would not gain an advantage by coercing the workers into signing its petition against recognition because, if the Panel accepted the petition, the workers would then get the opportunity to take part in a secret ballot.

 

12.       The Employer reminded the Panel that the Union's petition was gathered between 20 January and 23 January 2005 which was some time ago and in fact formed part of a previous application.  The Employer believed that this was far too long ago and that many of the so called Union members had not paid dues and therefore were not members.  The Employer claimed that 25 workers had informed it that they were not members.  It also made the point that the newly elected shop steward had left the company.

 

Membership check and the Parties’ comments thereon

 

13.       The Panel proposed an independent check of the level of Union membership in the bargaining unit.  The information from the Employer and the Union was received by the CAC on 26 September 2005.  It was explicitly agreed with both Parties that, to preserve confidentiality, the respective lists would not be copied to the other Party and that agreement was confirmed in a letter from the Case Manager to both Parties dated 26 September 2005.

 

14.       The Employer provided a list of 81 workers in the bargaining unit.  The Union provided a list of 55 members.  The result of the check was that 52 names on the Union's list appeared on the Employers list; a membership level of 64.2%.  In addition to its list of workers in the bargaining unit the Employer also provided the CAC with a petition signed by workers opposing recognition of the Union and a list of names headed "stated non-members of Amicus".  Two further checks were undertaken.  The names on the Employer’s petition were compared with the list of workers in the bargaining unit and the list of Union members.  Then the names on the list of those workers that had informed the Employer that they were not members of the Union were compared with the names on the Union's list of members.  The Employer’s petition carried the proposal "I the undersigned am aware that Amicus the union are about to gain union recognition, but I do not want them to collectively bargain on my behalf".  There were 10 signatures on the petition with each signature dated between the 15 September and 20 September 2005.  Seven of these names appeared on the list of the workers in the bargaining unit and four names out of the seven also appeared on the Union’s list of members.  The final check conducted was a comparison of the names on the list provided by the Employer that was headed "stated non members of Amicus" against the list of workers as provided by the Employer and the list of Union members.  There were 25 names on the list headed "stated non members of Amicus", all of which were on the list of workers as provided by the Employer.  Six of these names also appeared on the Union's list of members.  The report of these comparisons was issued to the Parties and the Panel on the 4 October 2005.

 

Considerations

 

15.       The Act requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are union members.  If the Panel is satisfied that the majority of the bargaining unit are union members, it must then decide if any of the three conditions in paragraph 22(4) are fulfilled.  If the Panel considers any of them are fulfilled it must give notice to the Parties that it intends to arrange for the holding of a secret ballot.

 

16.       The Panel has considered carefully the results of the Case Manager’s report on the membership level within the bargaining unit as well as the other checks that were conducted as part of that report based on information that was provided by the Employer.

 

17.       Paragraph 22(4)(c) requires the Panel to order a secret ballot where 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 to conduct collective bargaining on their behalf.   Membership evidence being evidence about the circumstances in which union members became members and evidence about the length of time for which union members have been members.  No such membership evidence has been produced.  The Panel is therefore satisfied that this condition is not met.

 

18.       Paragraph 22(4)(b) requires the CAC to order a ballot when it has received evidence, which it considers to be credible, that a significant number of union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf.  The Employer submitted a petition signed by four Union members stating that they did not wish the Union to collectively bargain on their behalf.  Putting aside the issue as to whether this evidence is “credible”, it is the Panel’s view that four members out of a total of 52 does not amount to a significant number and it is therefore satisfied that this condition is not met.

 

19.       Paragraph 22(4)(a) requires the CAC to order a secret ballot even when there is majority Union membership in the bargaining unit where it is satisfied that to do so would be in the interests of good industrial relations.  The Panel considers that there are arguments that could be made both in favour and against a ballot.  

 

20.       The considerations that might indicate the need for a ballot in the interests of good industrial relations are as follows.  Firstly, the report demonstrated a reduction in the proportion of Union members in the bargaining unit since the Case Manager produced the first report of Union membership on 24 May 2005 as part of the acceptance stage of the statutory process.  On this date it was established that the Union had 48 members out of a bargaining unit of 65 workers (it should be noted that the Employer had omitted the names of the 16 shunter and runner drivers for the purposes of this check on the grounds that it did not believe that they fell within the definition of the bargaining unit as set out by the Union in its application) giving a membership density of 73.85%.   However, by the time of the second examination as to the level of union membership on 4 October 2005, there were 52 members in a bargaining unit of 81 giving a reduced density of 64.2%.  Secondly, the Panel also noted that 4 Union members had, in signing the Employer’s petition, indicated that they did not want the Union to conduct collective bargaining on their behalf.  Thirdly, doubt was cast on the membership status of a number of union members as six of the 25 workers whose names appeared on the list produced by the Employer headed “stated non-members of Amicus” also appeared on the Union’s list of members. 

 

21.       Considerations that suggest that there ought not to be a ballot in the interests of good industrial relations follow.  Firstly, 64.2% of the workers in the bargaining unit are members of the Union.  Secondly, the Panel notes that there would still be a clear majority of Union members in the bargaining unit (57%), even if the six members whose names appeared on the Employer's list of non-members were discounted.  Thirdly, the Union’s membership in the bargaining unit has stayed at a high level in spite of the limited role that the Union has been able to play within the company without formal recognition and the protracted nature of the recognition procedure itself.  It has remained high despite the Employer’s known position of not wanting this particular union to have recognition and after taking into account the impact of normal turnover.  Fourthly, while the proportion of Union members in the bargaining unit has fallen in the period between the Case Manager’s checks, the number of members has risen from 48 to 52 members, albeit including the disputed 6 members.  Fifthly, the support from workers in the bargaining unit for the Employer's petition was low.  Whilst seven of the signatories were workers in the bargaining unit, only four of these were also members of the Union.  The proportion of Union members that had signed the petition only amounted to 7% of the total number of Union members in the bargaining unit.  This compares with the 40 Union members and 11 non-members that had signed the Union’s petition in support of recognition in January 2005.     

 

22.       Having considered in detail the Parties’ submissions as well as the results of the various checks conducted by the Case Manager, the Panel, on balance, is of the view that the qualifying condition under paragraph 22(4)(a) has not been met.  

 

Declaration

 

23.       The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union.  Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met.  The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

 

Panel

 

Professor Roy Lewis, Chairman

Mr Bob Hill

Ms Lesley Mercer

 

2 November 2005