Case Number: TUR1/513/2006

4 September 2006

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECLARATION OF RECOGNITION WITHOUT A BALLOT

 

 

The Parties:

 

TGWU

 

 

and

 

 

Knightsbridge Guarding Ltd

 

 

Introduction

 

1.         TGWU (the Union) submitted an application to the CAC dated 22 May 2006 that it should be recognised for collective bargaining by Knightsbridge Guarding Ltd (the Employer) for a bargaining unit comprising “All hourly paid employees who are employed on the Goldman Sachs Contract at the following sites; Peterborough Court, Rivercourt, Petershill, Christchurch Court and the Offline Data Centre.”. The CAC gave both parties notice of receipt of the application on 23 May 2006.  The Employer submitted a response dated 24 May 2006 which was received by the CAC on 31 May 2006 and then 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 Ms Mary Stacey, Chairman of the Panel, and, as Members, Mr Robert Hill, and Mr Simon Petch.  The Case Manager appointed to support the Panel was Miss Sharmin Khan and for the purpose of this decision, Nigel Cookson.

3.         By a decision dated 3 July 2006, the Panel accepted the Union’s application.  The parties then entered into a period of negotiation with a view to reaching an  agreement as to the appropriate proposed bargaining unit.  This period was extended to 4 August 2006 upon the application of both parties.  In emails dated 3 August 2006 and 4 August 2006 the parties confirmed that they had reached agreement as to the appropriate bargaining unit.  The bargaining unit as agreed by the parties was one comprising “All hourly paid employees who are employed on the Goldman Sachs Contract including: Access Controllers (and Access Supervisor), Controllers, Design & Construction (D&C), Front of House Officers, GSOC Controllers, Junior Loading Bay Supervisors, Junior Supervisors, Operations Team, Senior Loading Bay Supervisor, Senior Supervisor, Escort Officers and Fire Safety Supervisors who are located at the following sites: Peterborough Court, Rivercourt, Petershill, Christchurch, and the Offline Data Centre”.  The parties confirmed that this bargaining unit was the same as that proposed by the Union in its application although expressed in more detail.    

 

Issues

 

4.         Paragraph 22(2) of Schedule A1 to the Act (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.         In a letter dated 8 August 2006 the Union was asked by the CAC if it claimed majority membership within the bargaining unit, and if so, whether the Union wished to submit to the Panel that it should be recognised without a ballot in accordance with paragraph 22(2) of the Schedule.  In a letter dated 10 August 2006 the Union replied stating that it should be awarded recognition without a ballot.  It submitted that the CAC had verified, in the membership check carried out on 16 June 2006, and subsequently confirmed in its written decision dated 3 July 2006, that membership of the Union equated to 66.7 % of the bargaining unit and this was clear evidence that the majority of workers in the bargaining unit were members of the Union.

 

6.         The Union then went on to argue that none of the qualifying conditions as set out in paragraph 22(4) were met.

 

7.         In respect of the first condition the Union explained that although the Employer had always resisted recognition the Union had sought to establish good industrial relations, both before and during the CAC process, and there was currently a friendly and professional relationship between the parties.  Over the last two years various meetings (including numerous disciplinary and grievance hearings) had been held between the Union and senior management or HR personnel, which had been constructive and cordial.  These meetings had been held at both the Employer’s and the Union’s offices and the bargaining unit had been agreed by the parties without the need to involve the Panel.

 

8.         The Union believed that a ballot and the resulting delay in reaching a final decision on recognition will not further good industrial relations.  The practical effect of a ballot would, by its very nature, engender an adversarial situation within the workplace as the Employer and the Union become entangled in a divisive contest that would be detrimental to good industrial relations.  A ballot would have an effect beyond the immediate result and would sour future relations between the parties and also between the shop floor and management. 

 

9.         In respect of the second condition the Union submitted that there was no evidence to the effect that its members did not want the Union to conduct collective bargaining on their behalf and therefore this condition was not applicable.  On the contrary, the Union was of the view that this was the primary reason for workers becoming members.

 

10.       On the third condition the Union believed that its members had joined for collective bargaining purposes and there was no evidence to suggest otherwise.  The Union pointed out that membership had increased since the original membership check was carried out and now stood at 69.66 %.  In addition, the Union had produced a petition as evidence that the workers wished the Union to be recognised for the purposes of collective bargaining.  The check of the petition that was conducted by the CAC established that it was signed by 76.39 % of the workers in the bargaining unit.

 

Employer’s submissions

 

11.       The Employer, in a letter to the CAC dated 15 August 2006, stated that it was not in the interests of good industrial relations for the Panel to declare the Union recognised without the holding of a ballot.  

 

12.       It was the Employer’s view that it had good relations with its workers and therefore it did not see the need for union recognition.  It explained that it had recently had to take issue with a union representative using an e-mail system for the purpose of calling a ballot in circumstances where the individual knew that such use of the e-mail system was strictly forbidden.  In addition, the information that he passed to the workers was factually incorrect.  Consequently, incidents such as this had the effect of souring the relationship and made it much more difficult to maintain a good relationship with Union officials.

 

13.       The Employer had not received any evidence from the Union to verify the figures in its letter (although it understood a petition did take place) and as a consequence believed that a proper, supervised ballot should take place.  The Employer explained that, because a ballot is a fair process, it would accept the result of a ballot if the outcome was in the Union’s favour as this would be the will of the workers.  This, the Employer contended, would greatly assist good industrial relations.   

 

Considerations

 

14.       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.

 

15.       In this case the check undertaken by the Case Manager on 16 June 2006 indicated that the level of Union membership was considerably over 50% of the bargaining unit.  The Employer, when invited to comment on the results of the check did not challenge the finding that 66.67% of the workers in the bargaining unit were members of the Union but merely reiterated its objection to the composition of the proposed bargaining unit.  When given the opportunity of commenting on the Union’s claim to majority membership for the purpose of this decision the Employer simply stated that it had not received any evidence to verify the figures given by the Union in its letter of 10 August 2006.  However, there was clear majority membership at the end of June 2006 when the Case Manager carried out her checks and the Panel has not been apprised of any significant changes to the composition in the bargaining unit in the meantime.  The correspondence that was copied to the CAC during the negotiations between the parties as to the appropriate bargaining unit indicated that the numbers of workers in the bargaining unit may have increased by three (147 compared to 144 at the time of the acceptance decision based on the earlier membership check), but this is very small in percentage terms and does not affect majority membership even if all three of the new workers are not Union members.  Furthermore, the Union also asserted that its membership had increased from 66.67% at acceptance to nigh on 70% which was not disputed by the Respondent.  Having carefully considered the papers before it, and in the absence of any persuasive evidence to the contrary, the Panel is satisfied that the majority of the workers in the bargaining unit are Union members.

 

Paragraph 22(4)(a)

 

16.       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 Employer, though submitting that a ballot should be held in the interests of fairness, has not made out a convincing case for a ballot to be held in the interests of good industrial relations.  Union membership appears to have been steady and sustained since the Union's application on 22 May 2006 with a comfortable majority. The current industrial relations appear to be generally mature and professional and well-informed. If there was a fear by the Employer of misinformation and acrimony during an election campaign, industrial relations would perhaps not best be served by a ballot given the convincing evidence of majority support for recognition through Union membership.

 

17.       Having considered the Parties’ representations the Panel is satisfied that the qualifying condition under paragraph 22(4)(a) has not been met.  

 

Paragraph 22(4)(b)

 

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.  No such evidence has been produced.  The Panel is therefore satisfied that this condition is not met.

 

Paragraph 22(4)(c)

 

19.       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.  No such membership evidence has been produced.  The Panel is therefore satisfied that this condition is not met.

 

Declaration

 

20.       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 as particularised in paragraph 3 above.

 

 

Panel

 

Ms Mary Stacey (Chairman)

Mr Robert Hill

Mr Simon Petch

 

 

4 September 2006