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					                                                            Case No. TUR1/301/2003
                                                                  10 December 2003


                      CENTRAL ARBITRATION COMMITTEE

   TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

         SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

            DECLARATION OF RECOGNITION WITHOUT A BALLOT


                                    The Parties:

                                        GMB

                                         And

                     Oughtred and Harrison (Facilities) Limited


Introduction

   1. The GMB (the Union) submitted an application to the CAC dated 26 August
      2003 that it should be recognised for collective bargaining purposes by
      Oughtred and Harrison (Facilities) Limited (the Company) in respect of a
      bargaining unit comprising „All skilled – semi skilled – non skilled – Labourers‟
      located at Larsen Road, Goole. The CAC gave both parties notice of receipt
      of the application on 02 September 2003. On 09 September 2003 the
      employer submitted a response to the CAC.

   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
      consider the case. The Panel consisted of Professor Paul Davies (Panel
      Chairman) and Mr Paul Gates and Mr George Getlevog (Members). The
      Case Manager appointed to support the Panel was Matt Penfold.

   3. The Panel is required by the Act to decide whether the Union‟s application to
      the CAC is valid within the terms of paragraph 5 to 9; is made in accordance
      with paragraph 11 or 12 and is admissible within the terms of paragraphs 33
      to 42 of Schedule A1 to the Act and is therefore to be accepted. By its written
      decision dated 17 October 2003, the Panel accepted the Union‟s application
      as admissible. The parties subsequently agreed the appropriate bargaining
      unit as all skilled, semi skilled, non skilled and staff designated as Labourers.
      The agreed bargaining unit specifically excluded managerial , supervisory and
      office-based secretarial and administrative and sales employees. This
      agreement was communicated by the employer to the union in a letter dated
      04 November 2003. In its letter to the employer dated 07 November 2003, the
      Union acknowledged the agreement in relation to the bargaining unit. The



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     Panel was satisfied that the bargaining unit that was agreed was the same as
     that proposed in the Union‟s application to the CAC. That being so the CAC
     must proceed with the application in accordance with paragraph 21 of the
     Schedule.

  4. Paragraph 22 of the Schedule directs that where the CAC proceeds with an
     application in accordance with paragraph 20 or 21 and it is satisfied that a
     majority of the workers constituting the bargaining unit are members of the
     union then the CAC must issue a declaration that the union is recognised as
     entitled to conduct collective bargaining on behalf of the workers constituting
     the bargaining unit. This declaration must be made unless any of three
     qualifying conditions in paragraph 22(4) applies. Paragraph 22(3) requires
     the CAC to hold a ballot even where it has found there is a majority of union
     members in the bargaining unit if any of these conditions is fulfilled. The
     qualifying conditions are set out in paragraph 22(4). They are:

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

     ii)   a significant number of the union members within the bargaining unit
     inform the CAC that they do not want the union 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 the union members
     within the bargaining unit want the union to conduct collective bargaining on
     their behalf.

  5. On 10 November 2003 the Case Manager wrote to the Union on behalf of the
     Panel requesting that it make clear whether it claimed that it had a majority of
     the workers in the bargaining unit as its members and whether it claimed that
     the Panel should declare it recognized without a ballot. In its emailed
     response of 19 November 2003, the Union stated that its membership records
     identified that it had a majority of the workers constituting the bargaining unit
     as its members and requested that the CAC declare it recognized without a
     ballot.

Membership check

  6. To assist its consideration of paragraph 22(1)(b) and whether recognition
     without a ballot must be considered, the Panel proposed that the Case
     Manager undertake a confidential check to establish the current level of union
     membership within the bargaining unit. In letters dated 25 November 2003,
     following telephone conversations between the Case Manager and both the
     Company and the Union, the Case Manager requested that the Employer
     provide a list of the names and job titles of the workers in the bargaining unit
     and that the Union provide a list of its membership within the bargaining unit.
     The Case Manager‟s letter confirmed that neither list would be copied to the
     other party or to the Panel. On 28 November 2003 the Company provided a
     list of 84 workers stated to be in the bargaining unit and the Union provided an



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   „Excel‟ document of its members within the bargaining unit. Both the
   Company‟s and the Union‟s list included all workers and members at two
   Companies which are the subject of separate applications to the CAC.

7. The confidential check of the respective lists established that there were 46
   members of the Union within the bargaining unit; a membership level of
   54.76%. A written report of the result of the check of the membership level
   was sent to both parties on 03 December 2003.

8. On 19 November 2003 the Case Manager sent a copy of the Union‟s claim to
   the employer and asked the employer to comment. In its letter dated 27
   November 2003 the Company, commenting on the Union‟s claim to majority
   membership, stated that it did not dispute that a majority of the workers in the
   bargaining unit were members of the union. However the Company did assert
   that one of the three conditions for the holding of a ballot under paragraph
   22(4) of the Schedule was met, specifically the Company believed that a
   secret ballot should be held in the interests of good industrial relations. As
   evidence in support of this view, the Company stated that some workers might
   have felt pressurised into becoming members of the Union. There were,
   stated the Company, a number of advantages to union membership and
   membership did not necessarily equate to a desire on the part of union
   members for the union to negotiate collectively for them. The Company
   stated that there had been a number of improvements to working conditions,
   pay and benefits negotiated by the workers themselves recently through the
   works council. The Company‟s view was that it would be bad for industrial
   relations if the Union were permitted to bargain collectively on behalf of the
   workers if this was not what the majority of the workers wanted, the optimal
   way of ascertaining the true wishes of the workers was, submitted the
   Company, by the holding of a secret ballot. The Company stated that, were
   such a ballot ordered, it would not actively campaign for workers to vote
   against recognition of the union.

9. At the Panel‟s request the Case Manager sought clarification from the
   Company of its comments in its letter of 27 November 2003. In response to
   this request for clarification the Company stated that it believed the interests
   of workers would be best served through the existing works council. Whilst the
   Company would not take active steps to persuade workers to vote against
   recognition of the Union, if it were asked, by the workers, its views as to
   whether the Union should be recognised then the management at the
   Company would express its view. On the question of pressure having been
   brought to bear by pro-Union forces on workers, the Company believed that
   workers may, in particular, have been pressurised into signing the Union‟s
   petition in support of recognition. Finally the Company clarified that the range
   of services offered by Union‟s to those it seeks to recruit make it
   unreasonable to assume that a worker joining a Union is indicative of that
   workers desire for the Union to negotiate on his behalf. The Company asked
   the Panel to consider a leaflet titled “GMB – Benefits and Services” that gives
   details of the benefits and services available to those who join the applicant
   Union, which includes details of such matters as free legal advice and
   assistance for personal injury claims, free legal advice for non-employment



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     matters and discounts on holidays. The leaflet does not, stated the employer,
     make reference to collective bargaining.

  10. In an email to the CAC dated 03 December 2003, the Union invited the Panel
      to declare recognition without a ballot based on the level of its membership
      within the bargaining unit.

Considerations

  11. The Act requires the Panel to consider whether it is satisfied that the majority
      of the workers in the bargaining unit are members of the Union. If the Panel is
      so satisfied 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.

  12. In this case the check undertaken by the Case Manager indicated that the
      level of union membership within the bargaining unit is 54.76%. This figure is
      not disputed by the Company; in fact it acknowledged the majority
      membership in its letter dated 27 November 2003. The Panel is satisfied that
      the majority of the workers in the bargaining unit are union members.

  13. Notwithstanding the evidence that the Union has a majority of the workers in
      the bargaining unit as its members the Panel must give consideration to the
      conditions for a ballot to nonetheless be held in accordance with paragraph
      22(4) of the Schedule.

  14. Paragraph 22(4)(a) requires the CAC to order a secret ballot even when faced
      with majority Union membership in the bargaining unit where it is satisfied that
      to do so would be in the interests of good industrial relations. In the present
      case, the Company has submitted that the holding of a secret ballot would be
      in the interests of good industrial relations. The Panel concluded that it must
      attach little importance to the Company‟s assertion that pressure was brought
      to bear on workers to sign the Union‟s petition in support of the original
      application to the CAC. The union‟s claim to recognition without a ballot is
      based at this stage on its membership levels. No evidence was brought
      forward which would indicate that any worker was pressured into joining the
      Union.

  15. The Company also asserted that it is unreasonable to conclude that a worker
      who has joined the Union has necessarily done so with the desire for that
      union to negotiate on his behalf with his employer. This argument is, no doubt,
      correct, as far as it goes. However, it seems to the Panel that Parliament must
      have been aware of this argument when it decided to make available
      recognition without a ballot on the basis of majority membership. The mere
      fact that this argument can be advanced in a particular case, as indeed will
      always be possible, cannot be taken as a strong reason in favour of holding a
      ballot on the grounds of good industrial relations, for otherwise the exception
      would swallow up the rule. No evidence has been submitted which suggests
      that in this case the Union‟s non-bargaining benefits were unusually generous
      or effective or that the Union had mounted a recruitment campaign primarily



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   on the back of its non-bargaining benefits. Further, the Panel noted that in the
   period between the two membership checks being undertaken by the case
   manager, the first on 23 September 2003 and the second on 02 December
   2003, membership of the Union remained at the figure of 46. Whilst there
   appeared a small decline in the percentage of membership between the two
   checks, from 55.42% to 54.76%, this was due to an increase of one worker on
   the overall figure of workers in the bargaining unit as shown on the Company‟
   list. The Panel is satisfied that the level of Union membership having
   remained constant, and having remained as a majority, outweighs what is an
   unsubstantiated assertion by the employer that Union members may have
   joined the union for reasons other than collective bargaining.

16. The Company indicated that it could provide confidential evidence of its
    statement that it had become aware that some employees who do not favour
    recognition of the union have been put under some pressure by union
    members and have been called „scabs‟. It is unclear whether this evidence
    related to pressure to join the union or to sign its petition in favour of
    recognition. In any event, it is not open to the Panel to accept evidence from
    one side which that party is not prepared to make available to the other side.

17. In conclusion, the Panel is satisfied that there is no evidence before it which
    should lead it to conclude that it is in the interests of good industrial relations
    to conduct a secret ballot in this case. The Panel is therefore satisfied that this
    condition is not met.

18. Paragraph 22(4)(b) requires the CAC to order a ballot where a significant
    number of Union members within the bargaining unit inform the CAC that they
    do not want the union to conduct collective bargaining on their behalf. The
    Panel has not been so informed by any Union members from the bargaining
    unit. No members of the Union from within the bargaining unit have so
    informed the CAC. The Panel is therefore satisfied that this condition is not
    met and is additionally reassured of its conclusions in the preceding
    paragraph.

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.

20. Having fully considered the submissions made by both parties to this case
    along with the evidence before it, the Panel is satisfied that a majority of the
    workers constituting the bargaining unit are members of the Union. The Panel
    is additionally satisfied that none of the conditions under paragraph 22(4) of
    the Schedule are met.




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Declaration


   21. The Panel declares, in accordance with paragraph 22(2) of Schedule A1, that
       the GMB is recognised by Oughtred and Harrison (Facilities) Limited as
       entitled to conduct collective bargaining on behalf of all skilled, semi skilled,
       non skilled and staff designated as labourers (excluding Managerial,
       supervisory and office based secretarial and administrative and sales
       employees).


Panel

Professor Paul Davies (Panel Chairman)

Mr George Getlevog (Panel Member)

Mr Paul Gates (Panel Member)


10 December 2003




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