Recognition Decision
Updated 20 May 2019
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Case Number: TUR1/1079/2018
20 May 2019
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
Manheim Limited
1. Introduction
1) GMB (the Union) submitted an application to the CAC dated 3 December 2018 that it should be recognised for collective bargaining by Manheim Limited (the Employer) in respect of a bargaining unit comprising “All those employed in Administration, Yard Operatives, Plate Drivers, Inspectors, Imaging, Swift and HGV Drivers up to, but not including, all First Line Managers, at the Manheim Auction Centre, Yew Tree Trading Estate, Kilbuck Lane, Haydock, WA11 9SZ”. The CAC gave both parties notice of receipt of the application on 4 December 2018. The Employer submitted a response to the CAC dated 10 December 2018 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 Mr James Tayler, Panel Chair, and, as Members, Mr Len Aspell and Mr Keith Sonnet subsequently replaced by Mr Paul Talbot. The Case Manager appointed to support the Panel was Linda Lehan.
3) By a decision dated 15 January 2019 the Panel accepted the Union’s application. Following this decision the parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached the parties were invited to supply the Panel with and to exchange written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 20 March 2019 and the Panel’s decision was that the appropriate bargaining unit was that as specified by the Union in its application namely “All those employed in Administration, Yard Operatives, Plate Drivers, Inspectors, Imaging, Swift and HGV Drivers up to, but not including, all First Line Managers, at the Manheim Auction Centre, Yew Tree Trading Estate, Kilbuck Lane, Haydock, WA11 9SZ”.
2. Issues
4) Paragraph 22 of the Schedule provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:
(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations; (ii) 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 the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.
Paragraph 22(5) provides that “membership evidence” for these purposes is:
(a) evidence about the circumstances in which union members became members, or
(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.
The Union’s claim to majority membership and submission that it should be recognised without a ballot
5) In a letter dated 17 April 2019 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in a letter dated 29 April 2019 submitted that it clearly had majority membership in the bargaining unit and their assertion was borne out of the recent CAC Case Manager’s “Confidential Support Check”. The Union stated that the analysis of the report revealed that the proposed bargaining unit population of 27 workers carried 18 GMB members, a membership density of 66.67%. The Union stated that furthermore, the CAC Panel (as noted in the Acceptance Decision) concluded that, given the membership density was as high as the support check indicated, the union had easily persuaded the CAC Panel that, on the balance of probabilities, the union had majority support of the proposed bargaining unit. The Union stated that the union’s proposed bargaining unit was, following a CAC Bargaining Unit hearing held on the 20th March 2019, accepted by the CAC Panel and in fact became the declared Bargaining Unit and therefore, it contended that the Case Manager’s support check and the Acceptance Decision still retained all their relevance and currency.
6) The Union maintained that it could not perceive any merit or value to good industrial relations by the holding of a ballot and that a ballot and the accompanying 20 day period would be likely to polarise the workers and the Employer. The Union stated that it had recently been informed that the Employer had previously suggested to their workers that they didn’t need recognition and attached a copy of a document dated 31 January 2019 shared with all Employees. The Union said that shortly after/during this period the union’s membership actually increased.
7) The Union stated that it was not aware of any credible evidence or contact with the CAC Case Manger or Panel that any members of the GMB, or indeed the bargaining unit, were opposed to them conducting collective bargaining on their behalf. The Union stated that this observation was supported by the CAC Panel concluding, (in the Acceptance Decision), that “the Panel has not received, from either the Employer or any workers within the proposed bargaining unit, any documentary evidence that employees in the bargaining unit would not support recognition of the Union”.
8) The Union stated that it was informed by its members that they not only desired recognition but that they were, in fact, looking forward to recognition and having a tangible connection and input into collective bargaining. The Union stated that additionally, there was even some further support (7.41%) for collective bargaining from outside their membership base which became evident through petition signers and noted by the Case Manager, in the support check and recognised by the CAC Panel in the Acceptance Decision.
9) The Union stated that there was some 74.08% cumulative support for collective bargaining from within the bargaining unit which comprised of 66.67% union members and 7.41% petition signers of the bargaining unit.
10) Finally the Union asked that the CAC note that it had done everything that could be done to clearly demonstrate that it had majority support of the bargaining unit and therefore, with the foregoing in mind, asked the Panel to award recognition without a ballot.
3. Summary of the Employer’s response to the Union’s claim and submission it should be recognised without a ballot
11) On 29 April 2019 the CAC copied the Union’s letter of 29 April 2019 to the Employer and invited it to make submissions on the Union’s claim that it had majority membership within the bargaining unit and on the three qualifying conditions specified in paragraph 22(4) of the Schedule.
12) In a response from the Branch Manager to the CAC sent on 9 May 2019 it was submitted that, following confirmation that the bargaining unit was granted across Transport, Operations and Service Delivery, a number of strong reactions and feedback had been received directly from the branch where team members had openly and honestly confirmed their views that they genuinely did not feel they required a union to represent them in workplace matters. The Branch Manager stated that team members of the bargaining unit may not have specifically contacted the CAC to express their concerns or relayed their feedback to the CAC directly as the Employer had not solicited that kind of information from team members nor directed them to take any formal action, as the information had been shared in confidence. The Branch Manager asked that the CAC note that the confidentiality and reactions that had been shared with her, as the Branch Manager of the site, had not been compromised.
13) The Branch Manager stated that as a result of the reactions that had been shared with her she felt in the interests of maintaining positive and effective industrial relations a ballot process would ensure everyone at the Haydock branch had the opportunity to give their opinion. The Branch Manager stated that due to the matrix management reporting lines of the branch it was her strong opinion that at the current time her branch genuinely had divided views and opinions across the three functions that made up the bargaining unit. The Branch Manager stated that she felt that the branch was already becoming polarised in their opinion and reaction to recognition and a ballot process would enable all members to have their final say in a process which impacted the whole branch. The Branch Manager stated that she was deeply concerned that if they were not all afforded the opportunity to have a ballot and express their preference then going forward, and in the long term, this would not create a conducive climate for effective industrial relations across the Haydock branch. The Branch Manager said that recognising that union recognition was deemed by the will of the people not allowing the branch to have that opportunity via a ballot process she felt would impact the moral of the teams going forward and, as the CAC would appreciate, was something she wanted to avoid.
14) The Branch Manager summarised up by saying that she was concerned that recognition without this being discussed between colleagues, and without a ballot taking place, would be harmful to workplace relations, particularly between job functions across the branch, hence it was something she thought should be fully considered to enable positive and effective industrial relations in the Haydock branch.
4. Considerations
15) The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.
16) In this case the membership check issued by the Case Manager on 18 December 2018 showed that 66.67% of the workers in the bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and, in the absence of evidence to the contrary, is satisfied that a majority of the workers in the bargaining unit are members of the Union.
17) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.
18) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by both parties and has concluded that it is not satisfied that a ballot should be held in the interests of good industrial relations. For this condition to be met the Panel requires evidence that a ballot would be in the interests of good industrial relations. The Panel notes Ms Wareing’s contention that employees have expressed discontent about the prospect of union recognition. However, despite having access to legal advice, and being given an extension of time in which to reply to the Union’s contention that it has majority membership and should be awarded recognition without a ballot, Ms Wareing did not provide any documentary evidence to support her assertion, state the number of employees who have raised concerns or state whether they are union members or not. The CAC has had regard to the high level of union membership in the bargaining unit. The CAC received no direct communication from employees stating they did not want recognition. The Employer has not put forward any cogent evidence before the Panel to show how industrial relations would be detrimentally affected if it were to award recognition without a ballot taking place and why industrial relations would improve if a ballot were to be held. The Panel has therefore concluded that this condition has not been satisfied.
19) The second condition is 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 to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel has therefore concluded that this condition has not been satisfied.
20) The third condition is that 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 evidence has been produced and the Panel has therefore concluded that this condition has not been satisfied.
5. Declaration of recognition
21) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All those employed in Administration, Yard Operatives, Plate Drivers, Inspectors, Imaging, Swift and HGV Drivers up to, but not including, all First Line Managers, at the Manheim Auction Centre, Yew Tree Trading Estate, Kilbuck Lane, Haydock, WA11 9SZ”.
Panel
Mr James Tayler, Panel Chair
Mr Len Aspell
Mr Paul Talbot
20 May 2019