Case Number: TUR1/572/(2007)

12 June 2007

 

 

 

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:

GMB

 

and

 

Uponor Limited

Introduction

 

1.         The GMB (the Union) submitted an application under paragraph 12(4) of the Schedule to the CAC dated 30 April 2007 that it should be recognised for collective bargaining by Uponor Limited (the Employer) for a bargaining unit constituting “all permanent manufacturing and supply chain operatives excluding supervisory/team leader roles and staff” at the Employer’s Hilcote site. It further stated that the bargaining unit was agreed by the Employer.  The CAC gave both Parties notice of receipt of the application on 3 May 2007.  The Employer submitted a response to the CAC dated 11 May 2007 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 Lynette Harris, Deputy Chairman, and, as Members, Mr David Bower and Sir Kenneth Jackson.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

Issues

 

3.                   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 paragraph 12(4); is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted. The request for recognition was made to the Employer in a letter dated 26 October 2006.  In a letter dated 23 November 2006 the Employer declined the Union’s offer of approaching Acas on an informal basis to discuss voluntary recognition and the Union consequently made the application mentioned above.

 

4.         In its application the Union indicated that the number of workers in the agreed bargaining unit was 130 of whom 45 were its members.  The Union further stated that, if required, it could provide to the CAC a copy its petition indicating the number of workers in the bargaining unit, who supported recognition of the Union.

 

5.                   The Employer, in its response to the CAC, confirmed that the bargaining unit was agreed and was made up of 130 workers (notwithstanding fluctuations due to staff turnover).  The Employer stated that it was unable to authenticate the Union’s estimated membership within the agreed bargaining unit and presumed that a membership and support check would be conducted to clarify the position. 

 

6.                   The Employer did not consider that a majority of the workers were likely to support Union recognition for the following reasons.  The Employer stated that the site had been in operation for over 30 years without the workers expressing a need to have recognition arrangements in place.  The Employer surmised that due to a relatively low level of staff turnover, a majority of its workforce had been in service for at least 10 years suggesting a significant level on satisfaction in the way the Employer operated.  This was also reflected in yearly employee satisfaction surveys which indicated a generally increasing level of worker satisfaction.  The Employer also contended that, despite giving the Union access to the workers for this purpose, it had not been successful in rallying support on a number of occasions.

 

7.                   The Employer was aware of there being some strongly “polarised views” of workers within the agreed bargaining unit and felt these were unlikely to change.  However, the Employer was of the opinion, after seeking views of the workers on this matter, that individuals had not had the opportunity to hear a balanced view on the issue of recognition or what the Employer was offering the workers (i.e. to broaden the current informal agreement) which meant they might not be in a position to make an informed choice on what was being offered.  The Employer reported that it intended to address this imbalance by asking the Union to jointly hold discussions with the workers to clarify any issues that the workers might have.

 

8.                   The Employer did not contend that the Union’s application failed to meet any of the other admissibility or validity criteria in the Schedule.

 

Membership and Support Check

 

9.                   To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the agreed 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 as entitled to conduct collective bargaining on behalf of the bargaining unit (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 agreed 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of Union members within that unit together with its petition to enable comparisons to be undertaken.  It was explicitly agreed with the Parties that, to preserve confidentiality, the respective lists would not be copied to the other Party.  These arrangements were confirmed in a letter dated 16 May 2007 from the Case Manager to both Parties. 

 

10.               The Employer on the 17 May 2007 provided the CAC with a list of 129 workers including full names, addresses, job titles and dates of birth and on the 18 May 2007 the Union provided its list of Union members comprising 44 names and addresses.

 

11.               The Union also supplied the CAC with a copy of its petition comprising 87 signatures as an indication of support from the workers within the agreed bargaining unit for recognition.  The petition comprised 5 A4 pages entitled GMB - Britain’s General Union Confidential Petition.  Below was written the following statement: “We the undersigned employees of Uponor Limited wish the Company to recognise the GMB Trade Union for the purposes of collective bargaining:”  The signatory was requested to sign the petition, to print their name and provide the date upon which the petition was signed.  The petition was collected between the 12 and 17 April 2007.   One petition signature was unreadable so has not been included in the findings of this report.

 

12.               The result of the membership check was that there were 129 workers in the agreed bargaining unit of whom 37 were members of the Union; a membership level of 28.68%.  The check of the petition showed that 76 of the 129 workers had demonstrated support by signing the petition (58.91%).  Of those 76 signatories, 31 were members of the Union (24.03% of the agreed bargaining unit) and 45 were non-members (34.88% of the agreed bargaining unit).

 

13.               No additional checks were undertaken to verify the information supplied by the Parties.  The Case Manager’s report of the results of the membership and support check was circulated to the Panel and the Parties on 24 May 2007.

 

14.               The Parties were invited to submit comments on the membership and support check.  In its letter dated 24 May 2007 the Employer stated that it was clear from the Case Manager’s membership and support check that members of the Union constituted at least 10% of the workers in the agreed bargaining unit.

 

15.               However, in terms of whether a majority of workers would be likely to favour recognition of the Union, the Employer drew the Panel’s attention to the views expressed in its response to the Union’s application set out in paragraphs 5 to 8 of this decision and believed that, despite the analysis of the petition, those views were still valid.

 

16.               The Employer argued that the views of the non-union workers (just over 50%) in the bargaining unit who had not signed the petition must be considered.  The Employer stated that it remained concerned with the process involved in drawing up the petition, namely that signatures may have been gained without a full and balanced perspective being presented and surmised that there was sufficient reason to suggest the result was far from a forgone conclusion.     

 

17.               The Union in a telephone conversation with the Case Manager on 4 June 2007 confirmed that it did not wish to comment on the content of the membership and support check.

 

Considerations

 

Paragraph 36 (1)(a)

 

18.               Paragraph 36(1)(a) of the Schedule provides that the CAC must be satisfied that at least 10% of the bargaining unit are members of the Union.  The Panel is satisfied that the Case Manager’s membership and support check, described in paragraphs 9 and 13 above, was conducted properly and impartially and in accordance with the arrangements agreed with the Parties.  This check showed that 28.68% of the workers in the agreed bargaining unit were members of the Union.  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 agreed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

 

Paragraph 36(1 )(b)

 

19.               Paragraph 36(1)(b) of the Schedule provides that, for an application to be admissible, the CAC must be satisfied that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.    

 

20.               The Panel is not persuaded by the Employer’s suggestion that Union members were not likely to want the Union recognised for collective bargaining purposes on the basis that workers’ views gathered by way of staff opinion surveys over a number of years had shown an increase in the level of worker satisfaction.  Neither is the Panel persuaded by the Employer’s argument that the workers who signed the petition lacked the understanding to make an informed choice on what is being offered by the Employer and the Union.   Whilst the Panel commends the Employer for allowing the Union access for the purposes of recruiting members, there is an absence of evidence to support the Employer’s belief that workers did not have the appropriate facts to make an informed decision about whether or not to support the Union in its application for recognition.  In the Panel’s view it would expect that within the day to day running of its business, the Employer would have had opportunity to communicate openly with its workers on the issue and therefore does not accept this as a compelling argument.   

 

21.               The petition was signed by 87 workers and, of those, 68 were confirmed as workers in the proposed bargaining unit of 129; 58.91% of workers in the agreed bargaining unit had therefore indicated support for recognition of the Trade Union.  The Panel is satisfied that the wording of the statement on the petition left the signatories in no doubt as to the proposition they were being asked to support.

 

22.               The Panel considers it important to note that at this stage in the statutory process it is dealing with likelihood of support.  If necessary and appropriate under the legislation, actual support for recognition can be tested at a later stage by a ballot.  Taking account of the evidence, together with the results of the Case Manager’s check described above, the panel is of the opinion that, on the balance of probabilities, a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit in accordance with the requirements of paragraph 36(1)(b) of the Schedule.

 

Decision

 

23.               For the reasons given above, the Panel is satisfied that the application is valid within the terms of paragraphs 36(1)(a) and 36(1)(b) of Schedule A1.  The Panel is also satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance with paragraph 12(4) and is admissible within the terms of paragraphs 33 to 42 of Schedule A1.  The application is therefore accepted by the CAC.

 

Panel

 

Professor Lynette Harris, Panel Chairman

Mr David Bower

Sir Kenneth Jackson

 

12 June 2007