Decision

Recognition Decision

Updated 26 January 2021

Case Number: TUR1/1193 (2020)

26 January 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

National Education Union (NEU) & National Association of School Masters/Union of Women Teachers (NASUWT)

and

Notre Dame School

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 6 August 2020 that they should be recognised for collective bargaining purposes by Notre Dame School (the Employer) for a bargaining unit described as: “Teachers and NQTs (excluding Visiting Music Teachers and the Warden)”. The location of the bargaining unit was given as Notre Dame Preparatory & Senior School. The application was received by the CAC on 6 August 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted its response to the application dated on 12 August 2020 which the CAC copied to the Unions.

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 Tariq Sadiq as Panel Chair, and, as Members, Mr Len Aspell and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 14 October 2020, the Panel accepted the Unions application. 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 virtually on 18 December 2020. After due consideration of the parties’ submissions, both written and oral, the Panel decided that the appropriate bargaining unit was that as proposed by the Unions and as clarified at the hearing, namely “teachers and newly qualified teachers (excluding Headteachers)” ^{[footnote 1]}.

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 union (or 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 union (or 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. 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.

3. The Unions claim to majority membership

5) In a letter dated 4 January 2021 the Unions were asked by the CAC if they claimed majority membership within the bargaining unit, and if so, whether they submitted that they should be recognised without a ballot. By an email dated 4 January 2021 the Unions confirmed that they were claiming majority membership within the bargaining unit and this letter was copied to the Employer asking for their comments on the qualifying conditions.

6) In an email dated 13 January 2021 the Employer addressed each qualifying condition separately

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

The Employer believed that industrial relations would be affected as they understood that there were a number of teachers who were opposed to union recognition and they had been told that some teachers had left the unions. The school believed all members of the proposed bargaining unit should be given the opportunity to take part in an anonymous ballot.

• 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;

The Employer understood that members of the teaching staff had contacted the CAC directly to give their reasons for opposing union recognition.

• 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.

Due to staffing changes during the last term the Employer believed that union membership would have changed.

7) The Case Manager confirmed to the Panel that emails had been received from workers confirming that they either did not want the Unions to be recognised or that they wanted a ballot to be held. Due to the staff changes that the Employer referred to in their email dated 3 January 2021 and the emails received from workers the Panel decided that in this case a further membership check should be carried out together with a check against the emails received.

4. The Membership Check

8) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Unions and to establish the significance of the emails received from the workers, the Panel proposed independent checks to be carried out. The information required for the purposes of the check was received by the CAC from the Employer on 15 January 2021 and from the Unions on 18 January 2021. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 15 January 2021. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 91 workers in the bargaining unit. The list of members supplied by the Unions contained 60 names. According to the Case Manager’s report the number of members of the Unions in the bargaining unit was 57, a membership level of 62.64% of the bargaining unit. According to the Case Managers report emails had been received from 12 workers stating that they either did not want the Unions to be recognised or requesting a ballot to be held. Out of the 12 emails received 4 were from Union members (4.4% of the bargaining unit).

10) A report of the result of the membership check was circulated to the Panel and the parties on 19 January 2021.

5. Considerations

11) 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.

12) The membership check conducted by the Case Manager, described in paragraphs 8 and 9 above, showed that 57 (62.64%) of the 91 workers in the bargaining unit were members of the Unions. As stated in paragraph 8 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. Accordingly, the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Unions.

13) The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

14) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer put forward an argument that industrial relations would be affected as they understood that a number of the teachers were opposed to union recognition and that they had been told that teachers had left the Unions. Considering the recently conducted check against the first check carried out at acceptance stage it shows that the number of union members has only changed by 2 still giving the Unions majority membership. As regards those workers opposed to union recognition, as stated in paragraph 9 above, of the 57 Union members only 4 (4.4%) stated that they did not want the Union to be recognised or requested a ballot be held which if this was taken away from the proportion of Union members in the bargaining unit it would still give the Unions majority membership of 58.60%. The Panel has not received any other evidence that a ballot should be held in the interests of good industrial relations and is therefore not satisfied that this condition has been met.

15) 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 unions to conduct collective bargaining on their behalf. As stated above, the CAC received 4 emails from members of the Unions which equated to 4.4% of the bargaining unit which still gave the Unions majority membership. The Panel received no other evidence and the Panel has therefore concluded that this condition has not been met.

16) 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 unions to conduct collective bargaining on their behalf. As stated in paragraph 14 above, considering the recently conducted check against the first check carried out at acceptance stage it shows that the number of union members has only changed by 2 still giving the Unions majority membership. The Panel is satisfied that no such evidence has been produced, and the Panel has therefore concluded that this condition has not been met.

6. Declaration of recognition

17) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the majority of the workers constituting the bargaining unit are members of the Unions. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is fulfilled. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Unions are recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Unions are recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “teachers and newly qualified teachers (excluding Headteachers)”.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Len Aspell

Mr David Coats.

26 January 2021

1. At the start of the hearing the Panel Chair referred to the Unions’ submission in which they had clarified that there had been an administrative error in the definition of the proposed bargaining unit in the application in the reference to “Warden” as one of the excluded categories of worker. The Unions asked that “teachers and newly qualified teacher’s (excluding Headmistresses or Headteachers)” be substituted to which the Employer consented. The Panel Chair proposed that the definition be non-gender specific and so the exclusion would be ‘headteachers’ to which both parties agreed. ↩