Decision

Whether to Ballot Decision

Updated 16 February 2021

Case Number: TUR1/1189(2020)

9 November 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO BALLOT

The Parties:

NEU & NASUWT

and

Bishop’s Stortford College

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC on 4 August 2020 that they should be recognised for collective bargaining by Bishop’s Stortford College (the Employer or the College) for a bargaining unit comprising “All teachers directly employed by Bishop’s Stortford College, including the Deputy Heads in the Prep and Senior School, excluding teachers on zero hours contracts, Teaching assistants, peripatetic Music teachers, and Heads”. The location of the bargaining unit was given as Bishop’s Stortford College, 10 Maze Green Road, Bishop’s Stortford CM23 2PJ. The CAC gave both parties notice of receipt of the application on 4 August 2020. The Employer submitted a response to the CAC dated 10 August 2020 which was copied to the Unions.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Roger Roberts and Mr Steve Gillan. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 25 September 2020 the Panel accepted the Unions’ application. Although the parties had not reached agreement as to the appropriate bargaining unit prior to the application being lodged with the CAC, the Employer, in its response to the application, stated that it now agreed the composition of the bargaining unit and so the Panel moved immediately to the question as to whether or not a secret ballot should be held.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the Unions, 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 Unions 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.

5) Paragraph 22(5) states that “membership evidence” 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.

6) On 25 September 2020 the Unions were asked whether they were claiming majority membership within the bargaining unit and were therefore submitting that they should be granted recognition without a ballot. The Unions’ comments on the qualifying conditions

7) In a letter dated 1 October 2020 the Unions stated that they had majority membership within the bargaining unit and therefore should be granted recognition without a ballot. The Unions then went on to argue that none of the qualifying conditions in paragraph 22(4) applied. The Unions’ arguments were as follows.

8) The Unions contended that it was a material fact that they enjoyed not just a simple majority but an exceptionally high density and one that had grown considerably during the campaign as more teachers joined to support recognition. The Employer accepted that the Unions had majority membership within the bargaining unit and that a growing membership was an indication of support for recognition. Membership density was now 77%, based on a bargaining unit of 133. However, even if the Employer’s higher figure for the bargaining unit of 139 was taken, density was still exceptionally high at 73%.

9) The campaign for recognition had been instigated by members and led by their workplace representatives and support had been consistent and unambiguous. Workplace members had held numerous meetings, and informal and formal votes. To test the support for a statutory application, in September 2019, the Unions requested permission to conduct a ballot of all teachers but the Employer refused the request. The Unions believed this was pertinent to the question as to whether a ballot should be held now.

10) The Unions did conduct a ballot but limited to their membership. Members were asked a single, unambiguous, question as to whether they were in favour of pursuing recognition of the Unions with 97% voting ‘Yes’ and 3% voting ‘No’ on a turnout of 78% ^{[footnote 1]}. The Unions had clearly demonstrated majority support and satisfied the requirements of the legislation.

11) The Unions stated that there was no evidence from a significant number of union members that they did not want the Unions to conduct collective bargaining on their behalf. Nor had any membership evidence been produced which could lead the CAC to conclude that there were doubts whether a significant number of the members within the bargaining unit wanted the Unions to conduct collective bargaining on their behalf.

12) The Unions noted that, in the Employer’s submission dated 14 September 2020, it stated that it had no objection to recognising the Unions, should that be the wish of its teaching staff. However, the Employer had refused the Unions’ request to conduct a ballot amongst all teachers. Further, it had ignored the evidence of the votes that the Unions had conducted.

13) While the Employer had repeatedly stated that it did not dispute the level of membership, it did contend that union membership did not equate with support for recognition. Recognition campaigns in independent schools and colleges was member-led and the Unions would not support a campaign that was not backed by the membership.

14) The Employer sought to substantiate its argument on the evidence of the ballot on the College Staff Forum ballot. It mispresented this as a ballot on recognition but it was not reliable or credible evidence on support for recognition. It was misrepresented and confusing and was neither fair, credible, nor transparent. The ballot was not conducted among the proposed bargaining unit but all staff, including support staff and management. It had no integrity as staff could change their votes after voting. The Employer also knew how staff had voted and it altered votes after they had been cast.

15) Staff understood that they were principally voting on an all-staff forum, not recognition for teachers, as the vote was presented as a vote on a College Staff Forum. The Employer sought to influence voting in biased comments sent to all staff on 6 February 2020, a copy of which was attached, and disparaging remarks were made by the Head about the Unions in a school briefing. There was no opportunity afforded to the Unions to make the case for recognition and members did not press the case for recognition having been led to believe that recognition was being addressed separately. There was also the suggestion that recognition threatened the success of the school.

16) It was also the case that the ballot period was unreasonably short with it opening on 6 February 2020 and closed the following day. There was little time to seek clarification, discuss with colleagues, or take advice. After complaint, this period was extended to 12 February 2020, though many had already voted.

17) The Employer had argued that the Unions had not introduced evidence that membership density had increased during the campaign for recognition which would be the expectation if teachers were actively committed to recognition. However, since February 2020, teacher membership had, taking into account leavers and new members of staff, risen by 15 which was a significant increase. By the Employer’s own argument, this was evidence of support for recognition.

18) The Unions submitted that they had been discussing recognition with the College for two years and believed that the fact that the Employer had spent so much time and resources on discussions and negotiations was an indication that it believed that there was majority support for recognition. The Unions believed that the request for a ballot was just the latest attempt to frustrate staff desire for union recognition.

19) The Unions asserted that they had majority membership within the bargaining unit and therefore should be granted recognition without a ballot. There was no credible or reliable, evidence to support any of the three qualifying conditions to substantiate the need for a ballot, as specified in paragraph 22(4) of the Schedule.

20) The Unions’ letter was copied to the Employer on 1 October 2020 and it was invited to make submissions on the Unions’ claim that they had majority membership within the bargaining unit and on the three qualifying conditions specified in paragraph 22(4) of the Schedule.

3. Employer’s comments on the qualifying conditions

21) In a letter dated 7 October 2020 the Employer submitted that, whilst accepting there was majority membership in the bargaining unit, it did not accept that Union membership equated with support for recognition nor did it accept that growing Union membership was evidence of support for recognition and submitted that all of the three qualifying conditions, as specified in paragraph 22(4) of the Schedule, were fulfilled.

22) With regard to the first qualifying condition - whether the CAC was satisfied that a ballot should be held in the interests of good industrial relations - the Employer explained that it had held a ballot on recognition in February 2020 and attached a sample ballot paper for the Panel’s information. Teaching staff were given the option to vote for trade union recognition or a Whole College Forum for consultation which would be inclusive of all staff within the College (not just teachers) and indeed could vote for both trade union recognition and a Whole College Forum.

23) The results of this ballot, limited to the teaching staff, were that out of a possible 141 teacher votes in February 2020, 55 voted for trade union recognition, whilst 91 voted for a Whole College Forum. Support for Union recognition was 39% whilst support for the Whole College Forum support was 64%. This, the Employer submitted, was the evidence of the democratic mandate which the Governing Council had been given by its teaching staff. Good industrial relations involved responding to a democratic mandate and implementing it. A new approach should not be imposed on the teaching staff by the Employer, the Unions or the CAC. This would damage the trust and confidence which was nurtured and maintained by the College in respect of its staff.

24) The Employer’s position was that 61% of teaching staff did not support Union recognition in February 2020 and this figure may have increased since the Whole College Forum came into being. Introducing additional consultation arrangements now would have a deleterious impact on the ‘whole school’ inclusive nature of the Whole College Forum as this would introduce be duplication in discussing the same subject matter within two separate forums and damage industrial relations between teachers, as well as between teachers and support staff.

25) It was not in the interest of good industrial relations to impose statutory recognition on the 61% of teaching staff who did not support recognition of the Unions without the opportunity for a further vote. The Unions had not engaged with the whole teaching staff. They did not have a democratic mandate whereas the Employer’s ballot of the whole teaching staff carried democratic legitimacy.

26) The Unions had referred to a ballot they conducted of their members. However, no date was given as to when this took place. The question asked by the Unions was binary and there was no context to their secret campaign or the information they provided to their members. None had been produced in evidence in correspondence with the CAC. Indeed, the Unions had questioned the legitimacy of the Employer’s ballot without providing any evidence as to the fairness of its own process, of the counting of the ballot papers, of the information provided to their members to properly explain what recognition entailed etc. An independent ballot was needed to provide evidence of the current wishes of the teaching staff.

27) Good industrial relations were not built on criticising the Employer whilst acting unilaterally without evidence of fairness or justification of the Unions’ own actions. The allegations made by the Unions were argued to be inflammatory and to have impugned the Employer’s motive and process inappropriately. The Unions wished to avoid a true democratic vote now, wishing to impose recognition without a ballot of all teachers.

28) The Employer argued that, if the Unions believed in democracy, they should support the Employer in requesting a ballot to get the true democratic mandate from the teaching staff, rather than seeking to deny the teachers a democratic vote. The Employer was not seeking a ballot merely to delay the process, but because it genuinely believed that the requisite majority of the teaching staff did not support Union recognition. Good industrial relations did not involve imposing Union recognition on the teaching staff. A vote was essential and required.

29) With an insufficient teacher support level for Union recognition in a democratic process, Union recognition would be imposed on a teaching body which had only supported the Whole College Forum, not Union recognition as well. The Employer was only requesting a further ballot, so it could allow the evidenced will of its teaching staff to be recognised, whatever the outcome.

30) If, in a CAC organised ballot, recognition was supported by the requisite majority, the Employer would accept that outcome and work collaboratively with the Unions. If Union recognition was imposed on the teaching staff without a democratic mandate, this would be divisive and the support for the Unions would always be questioned.

31) In relation to the second qualifying condition - that the CAC had evidence, which it considered to be credible, from a significant number of the union members within the bargaining unit that they did not want the Unions to conduct collective bargaining on their behalf - the Employer referred again to the evidence set out above to the effect that 61% of the teaching staff did not support Union recognition.

32) In relation to the third qualifying condition - that membership evidence was produced which leads the CAC to conclude that there were doubts whether a significant number of the union members within the bargaining unit wanted the Unions to conduct collective bargaining on their behalf - the Employer stated that it was not privy to Union membership statistics but had no reason to doubt the veracity of the union membership density claim. It was, however, common knowledge, within the teacher and trainee teacher profession, that membership of a teaching union was necessary. Many teachers joined from university and college time, remaining passive members throughout their professional careers. It was a sensible defensive step when teachers were at the coal-face of safeguarding and at risk of allegations by children.

33) The Unions were wrong to attribute an increase in membership to their campaign without any causative evidence. The increase in numbers could simply be because a percentage of staff who left this year were not members of the Unions whilst newer recruits were. So, whilst the Employer accepted the level of union density and that it may have changed, it could not comment on specific numbers as there had been no evidence of the reasons for the change submitted. Evidence to support the Unions’ position could have been provided by a petition or witness statements supporting recognition for example.

34) In summary, the Employer contended that:

• The teaching staff did not support Union recognition in a democratic and secret ballot in February 2020.

• The Whole College Forum, which consulted and negotiated for all the staff, was supported by 64% of the teaching staff.

• Density of membership was no true indication of support by the teachers for the Unions to conduct collective negotiate on behalf of the teaching staff.

• The Unions had not produced any evidence as to how they conducted their purported vote of members. The Unions criticised the Employer’s ballot without providing any evidence of the fairness of their own process.

• Good industrial relations required a democratic vote before Union recognition was imposed on the 61% majority of teaching staff who did not support Union recognition.

• Were the CAC to permit this application for recognition to go forward, the only fair way to proceed would be to permit the teaching staff to vote on whether they wished the Unions to be recognised, especially as this would involve an additional, duplicative consultation body which would exclude its loyal support staff.

• The Employer would accept recognition of the Unions if that was the democratic wish of its teachers, in accordance with the statutorily required support levels, but, on the evidence submitted and Employer’s experience so far, the necessary level of support was not apparent and was not evidenced.

35) The Employer’s letter was copied to the Unions and the Unions were informed that, if they wished to add to the comments already provided, they should do so by no later than noon on 13 October 2020. No further comments were received from the Unions by this deadline.

4. The Schedule

36) The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Unions. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Unions, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

5. Majority membership

37) The Panel, under paragraph 22(1)(b) of the Schedule, has to be satisfied that a majority of workers constituting the bargaining unit are members of the Unions. Whilst no membership check has been undertaken in this case the Panel takes into account that, although given the opportunity to challenge the Unions’ claim as to the density of their combined membership at the time it completed its response to the application on 10 August 2020, the Employer did not do so nor did it challenge the Unions’ subsequent claim to majority membership - although it is acknowledged that the Employer did challenge whether the level of membership could be taken as a legitimate indicator as to the desire of the union members for recognition. However, at this stage of the application of the Schedule the Panel is only concerned with the level of membership and, in the absence of any evidence to the contrary, the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Unions.

6. Considerations

38) The Panel has given thorough consideration to each of the qualifying conditions laid down in paragraph 22(4) of the Schedule and the detailed submissions made by the Unions and the Employer.

39) A particular concern for the Panel has been its assessment of the arguments which the parties have put forward as to the wishes of the members within the bargaining unit with regard to trade union recognition given that, on the one hand, the Employer’s ballot indicated majority support for a staff forum and that trade union recognition did not have majority support whilst, on the other hand, the Unions’ indicative survey on its account demonstrated overwhelming support for trade union recognition.

40) The Employer’s ballot has been criticised at length by the Unions but we are not satisfied, on the basis of the submissions before us, that its results are unreliable or irrelevant. The Employer’s ballot indicated that majority support for recognition was not established.

41) With regard to the Unions’ survey of its own members, we note that no evidence has been provided as to how its survey of its members was conducted, a point highlighted by the Employer. However, in the absence of cogent evidence criticising that survey, we likewise do not consider the Unions’ survey of the relevant membership to be unreliable or irrelevant.

42) Nonetheless, the Panel has considered carefully what the Unions’ survey does indicate insofar as it goes towards evidence of the intentions of members of the Unions in the agreed bargaining unit. We were told that the turnout was 78% of the membership. On this basis 22% of the members of the Unions therefore did not take part in the survey and 63 members of the Unions within the bargaining unit indicated, in the Unions’ own survey, that they supported recognition. Two members, so we were told, voted against the Unions being recognised. On this analysis, 24% of the Unions’ membership within the bargaining unit either were not inclined to give the Unions the support they were seeking through the medium of the survey or voted against the Unions being recognised. We have taken into account the point that the act of not taking part in the survey cannot of itself be taken as an indicator that the individual concerned was not in favour of union recognition, However, the level of “turnout” in relation to this survey is in our view relevant to the assessment of the level of support for recognition within the members of the Unions and the bargaining unit more generally.

43) Taking each of the qualifying conditions laid down in paragraph 22(4) of the Schedule, in turn, the first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. It is clear to the Panel from the papers submitted that relations between the parties appear, not least from the submissions made to the Panel, to have become somewhat strained during the period in which the Unions have been campaigning for recognition within the College and in the course of this statutory recognition process. For the parties to adopt a robust approach to their submissions to the Panel should not in our view in this case lead to the conclusion that a ballot should be held in the interests of good industrial relations - nor indeed has either party argued that this is the case here. However, there is sufficient uncertainty and debate about the true level of support for trade union recognition within the bargaining unit that, having considered the submissions of the parties, we have concluded that, in these particular circumstances, recognition without a ballot could be harmful to good industrial relations and that, whilst in the short term there may be heightened tension during the period of the ballot as the parties conduct their respective campaigns, a ballot providing a conclusive result will clear the air one way or the other and provide a definitive answer as to the question of whether the workers in the agreed bargaining unit do indeed favour recognition of the Unions. Both sides credibly claim that there is majority support for their particular position, although both sides have raised material challenges to the reliability of the other’s position that it is not possible for the Panel conclusively to adjudicate on the basis of the evidence before it., The Panel considers that a ballot will resolve the position conclusively and would be in the interests of good industrial relations by providing an independently verified basis for trade union recognition if the requisite level of support is established. The Panel notes the undertaking given by the Employer that, if a ballot ordered by the Panel were to go in the Unions’ favour, it would accept the outcome and work collaboratively with the Unions going forward.

44) The second qualifying condition laid down in paragraph 22(4) of the Schedule 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 Unions to conduct collective bargaining on their behalf. A material number of members of the Unions did not participate in the Unions’ survey. This and the level of support for recognition the Employer’s ballot could be argued to indicate that a material number of union members must have voted against recognition. However, the Panel does not consider that there is sufficient credible and cogent evidence before it which supports the satisfaction of this condition.

45) The third qualifying condition laid down in paragraph 22(4) of the Schedule 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 Unions to conduct collective bargaining on their behalf. Here the Employer argued that teachers joined the Unions for reasons other than a desire to be presented by the Unions for collective bargaining purposes arguing that the they took advantage of the protection that the Unions afforded them and described it as ‘a defensive step’ when teachers were in the front line of safeguarding and at risk of allegations by children.

46) The Panel has considered carefully this contention to the effect that membership of a trade union does not necessarily connote support for trade union recognition but does not consider that it can take that argument into account. It may well be that in some professions, including teaching, trade union membership does offer a higher degree of support and reassurance in the workplace given the very nature of the work undertaken. However, the Panel is unable to accept this assertion without corroborative evidence and in any event does not consider that it provides the requisite membership evidence which leads the CAC to conclude that there are doubts as to whether a significant number of the union members within the bargaining unit want the Unions to conduct collective bargaining on their behalf.

7. Decision

47) For the reasons given above, the Panel’s decision is that, in the interests of good industrial relations, a ballot should take place. The Panel now gives notice, pursuant to paragraph 22(3) of the Schedule, that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit will be asked whether they want the Unions to conduct collective bargaining on their behalf. The Panel will seek the views of the parties on the form of ballot they feel is most appropriate.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Roger Roberts

Mr Steve Gillan

9 November 2020

1. That was out of a total of 83 members; 65 voted with 63 voting ‘Yes’ and 2 voting ‘No’. ↩