Case Number: TUR1/624/2008

23 July 2008

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

 

DETERMINATION OF THE BARGAINING UNIT

 

 

 

The Parties:

 

Unite the Union

 

and

 

Knightsbridge Guarding Limited

 

Introduction

 

  1. Unite the Union (the Union) submitted an application to the CAC on 28 February 2008 that it should be recognised for collective bargaining purposes by Knightsbridge Guarding Limited (the Employer) for a bargaining unit comprising “all hourly paid employees up to and including the level of shift manager employed by Knightsbridge Guarding Limited on the Lehman Brothers contract at 25 Bank Street, London”.  The CAC gave both parties notice of receipt of the application on 29 February 2008.  The Employer submitted a response to the CAC dated 6 March 2008 that was copied to the Union.

 

  1. 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 of the Panel, and, as members Mr George Getlevog and Mr Michael Leahy.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

  1. By a decision dated 8 April 2008 the Panel accepted the Union’s application.  The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.  However, no agreement was reached and so the parties were informed that a hearing would take place at which the bargaining unit would be determined.  The parties were duly invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit and a hearing was held in London on 19 May 2008.

 

  1. In a decision dated 11 June 2008, the Panel decided that the appropriate bargaining unit should be one that comprised all workers up to and including the level of control room operative employed by Knightsbridge Guarding Limited on the Lehman Brothers contract at 25 Bank St and Broadgate, London.  This bargaining unit differed from that originally proposed by the Union firstly by the removal of the description “hourly paid”.  The second difference was the inclusion of the Broadgate site which was subject to the Lehman Brothers’ contract.

 

Issues

 

5.       As the determined bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of the Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50.  To this end both parties were invited, by way of letter dated 11 June 2008, to supply the Panel with written submissions relating to the validity tests.

 

Union’s submissions

 

  1. In a letter dated 16 June 2008 the Union stated that there was no competing application to the CAC from any other union, where the proposed bargaining unit covered any workers within the determined bargaining unit, nor had there been a previous application in respect of the determined bargaining unit.

 

  1. Referring to the membership and support check reported in the acceptance decision dated 8 April 2008, the Union stated that it was unsure whether the check had included the workers at the Broadgate site.  However, due to the small number of workers employed at the Broadgate site the Union wished to rely on the membership and support check conducted at acceptance which showed that 50% of the workers in the proposed bargaining unit were members of the Union. 

 

  1. The Union considered that a majority of the determined bargaining unit would be likely to favour recognition.  The membership and support check had found that 41 members of the Union had signed its petition in support of recognition of the Union for the purposes of collective bargaining; further an additional 14 non-members had also signed the petition.

 

  1. The Union stated that workers in membership exceeded 10% and called upon the Panel, using its industrial relations experience, to conclude that a majority within the determined bargaining unit would be likely to favour recognition.

 

Employer’s submissions

 

  1. In a letter dated 12 June 2008 the Employer confirmed that there was no existing recognition agreement covering any of the workers in the determined bargaining unit and that it was not aware of any competing application from any other union.  In addition, it was not aware of any previous application in respect of the determined bargaining unit.

 

  1. The Employer did not accept that the Union had 10% union membership within the determined bargaining unit.  Neither did it accept that the majority of the workers in the determined bargaining unit supported recognition.  The Employer requested that the CAC conduct a further membership and support check.

 

Membership and support check

 

  1. Having considered the submissions received from the parties, and to assist the determination of the two admissibility tests under paragraph 45(a) and 45(b) of the Schedule, namely whether 10% of the workers in the determined bargaining unit were members of the Union and whether a majority of the workers in this bargaining unit were likely to favour recognition of the Union, the Panel instructed the Case Manager to carry out checks on the level of union membership within the bargaining unit.

 

  1. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names of workers within the determined bargaining unit, and that the Union would supply to the Case Manager a list of its members within that unit and a copy of its petition to enable comparisons to be undertaken.  It was explicitly agreed with the parties that, to preserve confidentiality, neither the respective lists nor the Union’s petition would be copied to the other party. These arrangements were confirmed in a letter dated 23 June 2008 from the Case Manager to both parties.  The information from both the Union and the Employer was received by the CAC on 24 June 2008. 

 

  1. The list supplied by the Employer showed that there were 80 workers in the determined bargaining unit.  The list of members supplied by the Union contained 52 names.  According to the Case Manager’s report, the number of Union members in the bargaining unit was 43, a membership level of 53.75% (9 of the names submitted by the Union did not appear on the Employer’s list).  The check of the Union’s petition evidence established that there were 51 workers from within the determined bargaining unit who had signed the Union’s petition in support of recognition of the Union for the purposes of collective bargaining.  This represented 63.75% of the workers in the determined bargaining unit.  Thirteen of the signatories (16.25%) were not members of the Union.

 

  1. A report of the result of the check of the level of Union membership and the petition was circulated to the Panel and the parties on 26 June 2008.

 

Views of the Union

 

  1. In a letter dated 2 July 2008 the Union reiterated its view that there was no competing application to the CAC from any other union, where the proposed bargaining unit covered any workers within the determined bargaining unit, nor had there been a previous application in respect of the determined bargaining unit.

 

  1. The Union stated that the membership check showed that out of bargaining unit of 80 workers there were 43 members, a membership density of 53.75%.  Further, having regard to (a) the number of members and (b) the fact that 63.75% of workers within the bargaining unit signed the petition, the Union asked the Panel to use its industrial experience to conclude that a majority within the determined bargaining unit would be likely to favour recognition.

 

Views of the Employer

 

  1. In a letter dated 2 July 2008 the Employer stated that it did not accept that the findings of the Case Manager’s membership and support check provided an accurate reflection of either union membership or the level of likely support for union recognition. 

 

  1. The Employer noted that the Union’s application was submitted to the CAC on 29 February 2008 and that it had produced an undated petition with signatures allegedly collected during the first two weeks in March.  There had thus been a time lapse of four months since the petition.  The Employer also noted that the petition dated from a period when the Union was proposing a bargaining unit different from that determined by the CAC.  Further, according to the Employer, the circumstances had changed since the Union’s application.    A 48 hour week had been introduced with employees working fewer hours for more money.  This was part of a wider restructuring exercise.  There had been 27 interviews for positions of Senior Security Officer and none of the interviewees had been accompanied by a union representative.  The Employer contended that this reflected its view that employees did not look to the Union for representation.  The Employer voiced its concern over reports from its managers that employees believed that they had been pressurised or even intimidated into supporting trade union recognition.

 

  1. The Employer noted that there was a disparity between the list of employees provided by the Employer and “the list of employees on the Union’s list”.  It suggested that it would be wrong to accept the Union’s membership level at face value.  The Employer submitted that a check ought to be made of the Union’s register to verify that the names of those the Union claimed as members were in fact members of the Union, and that the petition should be ignored.

 

Considerations

 

  1. The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force covering any of the workers in the determined bargaining unit, that there is no competing application and that there has been no previous application to the CAC in respect of the determined bargaining unit.  The remaining tests to be considered by the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the determined bargaining unit are members of the union and that a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

 

  1. In respect of the first test of whether union members constitute at least 10% of the workers in the bargaining unit, the Case Manager’s check conducted on 26 June 2008 established that 53.75% of the workers in the determined bargaining unit were members of the Union.  The Employer contended that the findings of the report did not provide an accurate reflection of the membership within the determined bargaining unit and asked the Panel to verify the information provided by the Union.  However, in the absence of evidence to substantiate the Employer’s claim or an argument that the Panel finds persuasive, it is unnecessary to go behind the figures contained in the Case Manager’s report.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties.

 

  1. Further, the Employer suggested that there was “a substantial disparity (representing over 11%) between the list of employees on the Union’s list and that on the list provided by us as the Employer”.  Presumably this was a way of stating that, out of the Union’s list of 52 members, 43 were among the 80 listed by the Employer as workers constituting the determined bargaining unit.  

 

  1. The most likely and usual explanation for this kind of discrepancy is that a union’s register of members has not kept pace with the most recent labour turnover.   In this case there are signs of labour turnover among the Employer’s workforce.  The Case Manager’s report of 17 March 2008 indicated that the Employer had provided a list of 88 workers in the Union’s proposed bargaining unit, whereas her report of 26 June indicated that the Employer had provided a list of 80 workers in the bargaining unit determined by the CAC.  This was so notwithstanding the fact that the determined bargaining unit included an additional site – Broadgate - as well as the original site at 25 Bank Street[1].   It is also relevant that the Employer’s letter of 2 July 2008 referred to a recent exercise in “restructuring”.  There are thus several pointers consistent with labour turnover.

 

  1. The Case Manager’s report itself highlights the discrepancy between the number on the Union’s register of members and the number of workers in the determined bargaining unit supplied by the Employer.  It is manifestly clear that the Union is not allowed to claim any statistical advantage in respect of members who do not appear on the Employer’s list of workers. 

 

  1. Against the background of these considerations and specifically of the figures contained in the Case Manager’s report of 26 June, the Panel concludes that the level of union membership constitutes at least 10% of the workers in the relevant bargaining unit, as required by paragraph 45(a).

 

  1. The second contested issue for the Panel to consider is whether, under paragraph 45(b), a majority of workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

 

  1. The Case Manager’s report contains 2 quantitative measures relevant to the issue of whether the majority is likely to favour collective bargaining.  The first is the level of union membership.  43 of the 80 workers in the bargaining unit were union members, that is, 53.75 %.  For the reasons already set out, the Panel sees no good reason to go behind this figure.  Further, union density increased since the first Case Manager’s report of 17 March, which had indicated membership density of 50% in the Union’s proposed bargaining unit that did not include Broadgate.

 

  1. The second quantitative measure contained in the Case Manager’s report relevant to the issue of whether the majority is likely to favour collective bargaining is the petition evidence.  The Panel is satisfied that the wording of the petition’s proposition in favour of union recognition, which is set out at paragraph 3 of the Case Manager’s report of 26 June, left the signatories in no doubt as to what they were being asked to support.  The petition was signed by 56 workers, of whom 51 were confirmed in the check carried out by the Case Manager as being workers in the determined bargaining unit of 80.  In short, 63.75% of the workers in the bargaining unit determined by the CAC indicated support for recognition of the Union.  On the face of it, this is persuasive evidence in support of the Union’s contention that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union.

 

  1. It is true that the petition was undated.  However, in the absence of any evidence to the contrary, the Panel accepts the Union’s indication that it was conducted in the first 2 weeks of March 2008.  On that basis it is undoubtedly true that that the petition is more than 4 months’ old.  The Employer contended that in the circumstances the petition was unreliable for the reasons set out in its letter of 2 July.  With respect, this letter does not contain persuasive evidence or argument that would lead the Panel, as an evidence-based body, to conclude that the petition can no longer be relied upon.  Specifically, the Panel is unable to conclude that the reduction in hours, and/or the restructuring exercise and/or the interviews for Security Officer positions, all referred to in the letter, would have led to a reduction in the number of those likely to favour recognition of the Union for the purposes of collective bargaining.  Further, the Employer offered no evidence to support the allegation of reported intimidation.

 

  1. Accordingly, the Panel is satisfied that the majority of workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, and therefore the test set out in paragraph 45(b) is satisfied.

 

Decision

 

32.   The application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

 

 

 

 

Panel

 

Professor Roy Lewis, Chairman

Mr George Getlevog

Mr Michael Leahy

 

23 July 2008


[1] On 22 July, at the Panel Chairman’s request, the Case Manager asked the Employer how many workers based at Broadgate were in the determined bargaining unit at the time the Employer provided the list used by the Case Manager in her report of 26 June.   The answer confirmed on 23 July was 10.