Case Number: TUR3/3/(2006)
CENTRAL
ARBITRATION COMMITTEE
TRADE
SCHEDULE A1 -
COLLECTIVE BARGAINING: RECOGNITION
PART III TO
THE SCHEDULE: CHANGES AFFECTING BARGAINING UNIT
DECISION TO
DETERMINE UNION SUPPORT IN NEW UNIT UNDER PARAGRAPH 86
DECISION TO
DETERMINE WHETHER TO ISSUE A DECLARATION OF RECOGNITION OR HOLD A BALLOT UNDER
PARAGRAPH 87
The National
and
1.
This document contains two decisions. The first is made under paragraph 86. This is the determination of the questions
(a) whether members of the
2.
The
3.
The
Deputy
Editor and Assistant Editor, News Editor, Deputy News Editor, District News
Editor, Reporters and one of the Messengers; Chief Sub Editor, Deputy Chief Sub
Editor, Assistant Chief Sub Editor and Sub-Editors; Features Editor, Assistant
Features Editors and Writers/Subs; Picture Editor, Deputy Picture Editor and
Photographers, Design Editor and Artist; Sports Editor, Deputy Sports Editor,
Assistant Sports Editor and Writers/Subs; Night Editor, Night News Editor and
Night Chief Sub Editor; Production Editor.
4. In accordance with section 263 of the Act, the CAC Chairman established a Panel to deal with this case. The Panel consisted of Professor Roy Lewis, Panel Chairman, and as Members, Paul Gates and Jackie Patel. The Case Manager appointed to support the Panel was Sharmin Khan, but for the purposes of all proceedings to date Maverlie Tavares has been substituted for Sharmin Khan.
5.
By a decision dated
6. Under paragraph 70 of the Schedule, the CAC was next required to decide (a) whether the original bargaining unit continued to be an appropriate bargaining unit, and (b) if it did not so continue, what other bargaining unit or units were appropriate.
7.
There was a hearing to determine these issues on
8.
The Panel issued a decision dated
(1) Editorial staff working on the
(2) Editorial staff working on the Western
Daily Press.
(3) Editorial staff within the spinal departments servicing both the Bristol Evening Post and the Western Daily Press, including George Halladay.
Wendy Jean Butt, Community Editor, was counted as a member of the editorial staff of the spinal departments servicing both titles.
9. The following were expressly excluded from the bargaining unit:
(1) The Editor of the
(2) The Editor of the Western Daily Press.
(3) The PAs to the aforementioned Editors.
(4) The staff (other than Wendy Jean Butt)
listed under the heading of Administration (non-journalists) on the Employer’s
organisational chart attached to Mike Norton’s witness statement.
(5) The following 5 freelance journalists: Liz
Marleyn, Phil Tottle, Frank Emery, Allan Ford, and Des Price.
Need to assess support for the Union
10.
The CAC Panel, with Ged Fisher still substituted
for Jackie Patel, made a further decision dated
11.
Support for the
SECTION 2 – OVERVIEW OF PARTIES’ SUBMISSIONS AND EVIDENCE
12. The decisions under paragraphs 86 and 87 are to be made on the papers, that is, on the basis of the written submissions and evidence supplied by the parties. One of the noteworthy features of this case is that both parties and their respective legal teams were very keen to take every opportunity to supply the CAC with written comments and other materials with reference to the decisions that might have to be made under paragraphs 86 and 87. The parties’ willingness to inform the CAC exactly what they thought about the application of these paragraphs was manifest throughout the process and sometimes with and sometimes without invitation or prompting from the CAC.
13. The parties’ communications, on which the Panel will draw when summarising the evidence and arguments, were as follows:
(1) The Employer’s counsel in his written submission dated 24 January 2007 for the hearing on 2 February addressed issues arising under paragraphs 86 and 87, which did not in fact form part of the matter for determination at the hearing.
(2)
On
(a)
The Employer’s response suggested that the
majority of workers did not favour recognition of the
(b) The
(3)
On 9 March the Case Manager wrote to the parties
asking for their co-operation in carrying out a check of union membership and
also a check of the emails and letters indicating that individuals did not wish
to be covered by collective bargaining.
At the same time the Employer was informed that the Case Manager would
not be making a site visit. The Employer
replied on 12 March indicating its co-operation with the proposed checks and at
the same time expressing regret that the Case Manager would not be paying a
site visit. According to the Employer, a
site visit would have demonstrated that the
(4)
On
(5) By letter dated 16 March 2007 the Case Manager formally invited the parties to comment on the application of paragraph 86 in the light of her report, which contained checks on the Union’s membership and the emails/letters from workers who had indicated to the Employer that they did not wish to be covered by collective bargaining.
(a)
The
(b) The
Employer responded by email dated
(6)
By letter dated 21 March 2007, the Case Manager
wrote to the parties indicating that the Panel was aware that they had already
made submissions in relation to paragraph 87 and - for the first time -
formally invited them to make any points that they would wish the Panel to take
into account in the event that it would find it necessary to make a decision
under paragraph 87. The Employer
responded by email of
14. It is not surprising that the parties put in their evidence and submissions in a way that dealt with paragraphs 86 and 87 at the same time. Clearly evidence and arguments may overlap as between the application of these paragraphs. However, the questions posed under the two paragraphs are analytically distinct. In its own analysis the Panel will deal first and separately with paragraph 86. If it is necessary, it will then turn to the distinct questions that have to be addressed under paragraph 87.
15. It is now necessary to set out and explain the relevant statutory provisions that have or may have to be applied in this case.
16. Paragraph 86 provides as follows:
(1) This paragraph applies if the CAC decides
under paragraph 85(1) that the support of the union (or unions) within the new
unit needs to be assessed.
(2) The CAC must decide these questions-
(a) whether members of the union (or unions)
constitute at least 10% of the workers constituting the new unit;
(b) whether a majority of the workers
constituting the new unit would be likely to favour recognition of the union
(or unions) as entitled to conduct collective bargaining on behalf of the new
unit.
(3) If the CAC decides one or both of the
questions in the negative-
(a) the CAC must issue a declaration that the
bargaining arrangements, so far as relating to workers falling within the new
unit, are to cease to have effect on a date specified by the CAC in the
declaration, and
(b) the bargaining arrangements shall cease to
have effect accordingly.
17.
The first task of the CAC is thus to decide
whether the
18. Paragraph 87 provides as follows:
(1) This paragraph applies if-
(a) the CAC decides both the questions in
paragraph 86(2) in the affirmative, and
(b) the CAC is satisfied that a majority of the
workers constituting the new unit are members of the union (or unions).
(2) The CAC must issue a declaration that the
union is (or unions are) recognised as entitled to conduct collective
bargaining on behalf of the workers constituting the new unit.
(3) But if any of the three qualifying
conditions is fulfilled, instead of issuing a declaration under sub-paragraph
(2) the CAC must give notice to the parties that it intends to arrange for the
holding of a secret ballot in which the workers constituting the new unit are
asked whether they want the union (or unions) to conduct collective bargaining
on their behalf.
(4) These are the three qualifying conditions-
(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 new
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 new unit want the union (or unions) to conduct
collective bargaining on their behalf.
(5) For the purposes of sub-paragraph (4)(c)
membership evidence is-
(a) evidence about the circumstances in which
union members became members;
(b) evidence about the length of time for which
union members have been members, in a case where the CAC is satisfied that such
evidence should be taken into account.
(6) If the CAC issues a declaration under
sub-paragraph (2)-
(a) so far as it affects workers in the new
unit who fall within the original unit, the declaration shall have effect in
place of any declaration that the union is (or unions are) recognised as entitled
to conduct collective bargaining on behalf of the original unit;
(b) the method of collective bargaining
relating to the original unit shall have effect in relation to the new unit,
with any modifications which the CAC considers necessary to take account of the
change of bargaining unit and specifies in the declaration.
19. Paragraph 87 thus provides that, if the two questions under paragraph 86 have been answered in the affirmative, and the CAC is satisfied that a majority of workers in the new unit are union members, it must issue a declaration of recognition, unless any of the 3 qualifying conditions in paragraph 87(4) have been fulfilled, in which case it will notify the parties that it intends to hold a secret ballot. The stated purpose of such a ballot is to ask whether the workers want the union to conduct collective bargaining on their behalf.
20. Finally, if the CAC is not satisfied that a majority of workers constituting the new unit are members of the union, it is required by paragraph 88 to give notice to the parties that it intends to arrange for the holding of a secret ballot. As it will become clear, paragraph 88 is not relevant to he circumstances of the present case.
21. The Case Manager was asked by the Panel to produce a report containing data about (a) union membership, and (b) the emails and letters that had been sent by some employees to the Employer. Such data was potentially relevant to the issues to be determined under both paragraph 86 and 87.
Membership check
22.
To assist the Panel’s consideration of the questions
specified in paragraph 86(2)(a) and (b), the Panel proposed that a check be
undertaken by the Case Manager on the level of union membership within the new
bargaining unit. In order for a comparison to be made, the Employer
agreed that it would supply to the Case Manager a list of the names of workers
within the new bargaining unit, and the
23.
The Employer provided a list of 139 names. The
24. The membership check carried out by the Case Manager showed that there were 89 members of the Union within the new bargaining unit; a membership level of 64.03%.
25.
A report of the result of the check of the
membership level was circulated to the parties on
Check of emails and letters received by the Employer from workers
26.
On
27.
The Case Manager was provided with 36 emails and
13 letters sent to the Employer from workers.
She checked this material in order to ascertain the content of the
emails/letters, the dates on which they were produced, how many were from
workers in the new unit, and how many were from members of the
28. The result of the check showed that the 36 emails and 13 letters were dated from September 2002 to March 2007. The dates broke down as follows: 4 in 2002; 2 in 2003; 2 in 2004; none in 2005; 23 in 2006 which included 7 received in November and 13 in December; and 16 in 2007 with 6 received in January and 10 in March. One letter did not have a date on it and another did not have a year.
29. The Case Manager’s report stated that “the emails and letters were not identical but were similar in nature”. The report quoted 2 examples: “This is to confirm that I wish to opt out of the bargaining unit in negotiating my pay, hours and holidays. I have also informed the National Union of Journalists of my decision”, and “I am writing to inform you that I opt out of the pay bargaining process and wish to negotiate on an individual basis”.
30. The check showed that of the 49 emails/letters from workers provided by the Employer, 46 were from workers in the new bargaining unit, that is, 33.09% of the workers in the new unit. Of these 46 emails/letters, 18 were from union members (12.95% of the workers in the new unit) and 28 were from non-union members (20.14% of workers in the new unit).
31. A further check was conducted on the emails/letters produced in 2006 and 2007. There were 39 for this period, of which 35 (25.18%) were from workers in the new unit. There were 15 from union members (10.79% of the workers in the new unit) and 20 from non-union members (14.39% of the workers in the new unit).
32.
The result of this check was included in the
Case Manager’s report circulated to the parties on
Summary of the
33. The Union submitted that the requirements of paragraph 86(2) were satisfied, that is, members of the Union constituted at least 10% of the workers in the new unit, and a majority of the workers constituting the new unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the new unit.
34.
The
(1) The
requisite 10% threshold of union membership was clearly satisfied in that the
(2) The
(3) The
64% level of the
(4) The test in paragraph 86(2)(b) was not whether a majority of workers in the bargaining unit would be likely to support recognition of the Union but whether they would be likely to “favour” it. Favouring was a less demanding test than supporting.
(5) The Employer could not rely on the letters and emails to argue with any plausibility that the majority of the workers was not likely to favour recognition in the light of the following matters.
(a)
The Employer had used its email system to
campaign against the
(b) The false information about collective bargaining included the claims that it was incompatible with merit pay and that it was incompatible with differential reward structures for the 2 titles.
(c) The Employer had placed pressure on employees, whose career prospects depended on having a favourable working relationship with the Editor-in-Chief. The Employer was attempting to coax individuals to sign statements that they wished to opt out of collective bargaining as a test of their loyalty. This was elaborated in the witness statement of Steve Baxter. He quoted the cases of 3 individuals, who had been encouraged to sign up against being covered by collective bargaining in the light of an Employer-suggested conflict of interest between their seniority and union membership.
(d) It was significant that all the emails/letters were supplied to the CAC by the Employer and not by the individuals who wrote them. Journalists were surely literate and capable of sending their own communications to the CAC, if that is what they had intended to do.
(e)
The emails/letters quoted in the Case Manager’s
report did not express opposition to recognition of the
(f) In any event, the Panel was invited to discount the emails/letters dated prior to 2006. Signatures on a petition presented by a trade union in support of recognition would not usually be counted if dated two years prior to a membership and support check and there was no reason why an employer should be treated more favourably.
(g) Based on the emails/letters in 2006 and 2007, only 25% of the workers in the bargaining unit expressed any degree of reluctance to be included within the scope of collective bargaining, despite the pressure that had been exercised by the Employer.
35.
The
Summary of the Employer’s case on paragraph 86
36.
The Employer submitted that the requirements of
paragraph 86(2) were not satisfied.
According to the Employer, a majority of the workers constituting the
new unit would not be likely to favour recognition of the
37. The Employer’s main supporting arguments were as follows:
(1)
Although at least 10% of the workers in the new
unit were members of the
(2)
In the circumstances non-membership of the
(3)
Union membership was not a reliable guide to
likely support for recognition of the
(4)
This was evident from the emails and letters
from employees indicating that they did not wish to be covered by collective
bargaining. Specifically, this material
showed that it was not likely that a majority of the workers in the new unit favoured
the recognition of the
(5)
It also showed that there was a question mark
over whether Union membership could be taken as an indication of support for
collective bargaining. 18 Union members
out of a total of 89 were writers of the emails and letters relied upon by the
Employer. If 18 was deducted from the
Case Manager’s total of 89 members in the new unit, that left only 71 Union
members whose membership might arguably be seen as an indication of favouring
collective bargaining. That was not much
more than 50% of the workers in the new unit and might have been lower still
if, as seemed probable, the number of Union members was overstated due to the
confusion in the
(6)
The Employer explained the origin of these
emails and letters in its email of
The truth is that the
Employer has asked its staff to write if they do not want the
(7) This evidence should be relied upon in the light of the following matters.
(a)
The Employer’s conduct in asking its staff to
write if they did not want the
(b) The logic of the Case Manager’s categorising of the emails/letters from workers by reference to the year/month of receipt was dubious. If the CAC was contemplating ignoring the communications received prior to 2006, the Employer wanted the opportunity to ask the writers of those emails/letters if they still reflected their views.
(c) The Case Manager’s report stated that the “emails and letters were not identical but were similar in nature”. This implied that the Employer had given guidance on content. It was denied that any such guidance had been given. The Case Manager was invited to anonymise the emails/letters and to disclose them to the Panel so that it could see at first hand what the workers had written.
(d)
The Employer was not embarrassed by the fact
that it preferred to deal with its employees directly rather than through a
third party. It had not sought to place
senior members of staff in an invidious position, as claimed by the
38. In reaching its conclusions on paragraph 86 the Panel has carefully considered the views and evidence of the parties.
Paragraph 86(2)(a): level of union membership
39.
The Case Manager’s check of the
Paragraph 86(2)(b: whether majority likely
to favour recognition of the
40. In reaching its conclusion on paragraph 86(2)(b), the Panel has had regard to a range of considerations.
41. The Case Manager’s check has shown that union membership within the new bargaining unit was 64.03%. This is a relatively high level of membership, which - in the ordinary case – is likely to be taken as indicative that a majority of workers in a bargaining unit favour recognition of the union in question for collective bargaining on pay, hours and holidays.
42.
In this case there is a question mark over the
precise figure for union density. As the
Employer has pointed out, the Case Manager worked from lists indicating that
there were 95 members and yet Steve Baxter’s
witness statement referred to 91 members. To add to the confusion, the
43.
The critical question in the present case arises
from the emails and letters from workers in the new unit who indicated that
they did not want to be covered by collective bargaining. In the period from 2002 to 2007 46
individuals or a third of the workers in the bargaining unit authored such
emails or letters, including 18 members of the
44. Although these proportions of workers – either a third or a quarter - are significant[3], the Panel considers that this evidence should be treated with some caution for the following reasons:
(1) All the emails and letters were addressed to the Employer. Not a single individual wrote directly to the CAC.
(2)
According to its own account, the Employer
invited its employees to write the emails and letters in question. Given the background of the Employer’s
opposition to recognition of the
(3)
Although the