Decision

Recognition Decision

Updated 12 June 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1378(2023)

12 June 2024

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 Union of Journalists (NUJ)

and

The Press Association Limited

1. Introduction

1)         National Union of Journalists (the Union) submitted an application to the CAC dated 28 November 2023 that it should be recognised for collective bargaining purposes by The Press Association Limited (the Employer/PA Ltd) in respect of a bargaining unit comprising “editorial roles which ultimately report to the Editor in Chief, barring the senior management roles. For the avoidance of doubt the senior management roles that are excluded are as follows: Editor in Chief, Business Editor, Chief News Editor, Head of Analytics and Insight, Head of Entertainment and Features, Head of Page Production, Head of Pictures, Head of Production, Head of Puzzles, Head of Video, Ireland Editor, Scotland Editor, Social Media and Real Life Editor and Sports Editor.” The location of the bargaining unit was given as “The Point, 37 North Wharf Road, London, W2 1AF and at various satellite offices throughout the nations and regions of the UK, as well as those whose roles classify them as home workers or working from home and those working as UK contracted overseas staff.”  The application was received by the CAC on 28 November 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 5 December 2023 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 Ms Laura Prince, K.C., Panel Chair, and, as Members, Mr Martin Kirke and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 15 January 2024 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. As no agreement was reached, a hearing took place over zoom on 20 March 2024. In a decision dated 17 April 2024 the Panel determined that the appropriate bargaining unit was “editorial roles which ultimately report to the Editor in Chief, barring the senior management roles and the following positions (the Deputies positions):

Deputy Chief News Editor

Deputy Real Life and Social Media Editor

Lifestyle Editor

Puzzles Deputy

Deputy Editor Entertainment

Deputy Sports Editor

Scotland Deputy Editor

Group Picture Editor

Deputy Head of Video

Deputy Business Editor

Deputy Head of Production

Head of Features

Deputy Picture Editor

Page Production Editor

As the bargaining unit differed to that originally proposed by the Union in its application the Panel was required to decide whether the Union’s application was invalid. In a decision dated 13 May 2024 the Panel decided that the application was not invalid.

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 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.

5)         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.

3. The Union’s claim to majority membership and submission that it should be recognised without a ballot

6)         In a letter dated 13 May 2024 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 an email dated 15 May 2024, stated “I confirm that our position is that the NUJ has majority membership within the bargaining unit and therefore submits that it should be granted recognition without a ballot. The recent check showed that union members comprised 51.46% of the bargaining unit.” The Union went on to say “since the validity check another 5 members of the bargaining unit have joined the NUJ.”

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

7)         On 15 May 2024 the CAC copied the Union’s email of 15 May 2024 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

8)         In its response dated 22 May 2024 the Employer said that a ballot should take place notwithstanding the fact that the Union had a “minimal” majority in the bargaining unit. The Employer submitted that all three of the qualifying conditions were satisfied however the Employer’s primary argument related to paragraph 22(4)(a) and could be summarised as follows:

“a. There is evidence before the Panel that industrial relations in the BU have been detrimentally affected by this process. Opinion within the Editorial department is sharply divided by the issue of union recognition and collective bargaining. PA submits that this can only hope to be improved and resolved if a ballot is to be held.

b. Union membership does not equate to support for collective bargaining in this particular BU. The NUJ has been unable to demonstrate that it has actual majority support for collective bargaining: (a) a minority of employees in the BU have signed the union’s e-petition in support of union recognition; (b) 23% of union members have not signed that petition; and (c) a substantial number of employees in the BU have written to the CAC either requesting a ballot or stating their opposition to collective bargaining;

c. A ballot enables all eligible employees to hear arguments from both sides, ask questions, and make an informed decision. If union recognition then happens it will be, and will be seen to be, a genuine choice reflecting majority opinion, irrespective of union membership status. A secret ballot is a demonstrably fair and democratic process to determine a key and divisive issue.

9)         The Employer went on to make more detailed submissions in relation to each of the qualifying conditions.

Paragraph 22(4)(a) – the interests of good industrial relations

The Employer submitted that the statutory recognition process to date had detrimentally impacted upon previously good industrial relations within the Editorial Department. In particular it had opened up (or at least brought to the surface) divisions which were not previously evident amongst employees and between union and non-union members. The Employer said that this had created an atmosphere of suspicion, mistrust and frustration and that this had been borne out by comments fed back to managers by employees that the process was creating divisions within teams. The Employer attached a letter from Peter Clifton, Editor in Chief, which explained this in more detail.

The Employer said that although it did not consider that collective bargaining was necessary or desirable, it had at the same time consistently argued above all else that it believed the matter would be best decided democratically by employees in a secret ballot and that it would fully respect the outcome of such a ballot. The Employer said that it considered that a ballot was the only way of restoring good industrial relations and that the absence of a ballot would leave employees feeling frustrated that they had not had the opportunity to have their voice heard.

The Employer went on to say “in this case the NUJ’s claimed majority membership in the BU of 51.46%1 is almost as slim a majority as it gets (and this has been obtained over a 12 month period). In layperson’s terms this BU is split 50:50 between union and non-union members. It is submitted that this is not a case where union membership in the BU is so high that it speaks for itself, on the contrary the BU union density provides no clear mandate for support for collective bargaining.” The Employer said that there was no evidence of actual majority support for collective bargaining in the bargaining unit and that the e-petition relied upon by the Union had been signed by only 49.64% of members of the bargaining unit which did not amount to a majority. The Employer said that “again, this demonstrates that the BU in this case is split down the middle; between those in favour of collective bargaining and those against.”

The Employer said that the Union had “sought to cherry pick between union membership figures and non-union members who have signed the e-petition to suggest higher levels of majority support but this is conflating two separate things. The e-petition was open to all members of the BU (union and non-union). PA has reservations about how the e-petition was organised, publicised and worded and it is doubtful that early signatories would have properly understood what the union recognition process and collective bargaining would mean. Notwithstanding this, it is highly unlikely that actual support for collective bargaining in the BU is any higher than that stated in the e-petition. The NUJ has stated in an email to the CAC dated 15 May 2024 that since the last membership check another 5 members of the BU have joined the NUJ. It is submitted that this should not be taken into account by the Panel unless it is subject to a further full membership check as there have also been leavers and joiners to the BU since the last membership check.”

The Employer said that it recognised the rights of its employees to be members of a union and recognised that there was a range of reasons why an individual might choose to be a member of a union. The Employer did not accept “in this particular case”, that union membership could be equated to support for collective bargaining. The Employer said that it was important to note that 108 union members had signed the e-petition out of 141 union members in the bargaining unit. The Employer said that this meant that 23% of union members had not signed the e-petition despite the ease of online access, ample opportunity and it having been opened by the Union “on or around 15 March 2023 (well over a year ago) and no doubt promoted by the NUJ throughout this time. This represents 33 union members.” The Employer said that despite persistent campaigning by the Union this had only yielded 8 additional union members signing the e-petition since the first union membership check report of 21 December 2023. The Employer said that it was therefore perfectly reasonable to assume that those union members who had not signed the petition were not in favour of collective bargaining.

The Employer said that if it is assumed that those 33 union members were not supportive of collective bargaining then the union did not enjoy “de facto majority support” for collective bargaining. The Employer said that even if the Panel was not prepared to assume that all of the union members who had not signed the e-petition were against collective bargaining, “the Panel could not reasonably assume that none of them are.” The Employer submitted that it would only take four of the union members who had not signed the e-petition to be against collective bargaining for the Union to no longer have “a majority in support based upon union membership only.” The Employer said that if the Union had majority support for recognition in the bargaining unit it was “a majority in name only” and that was relevant to whether the Union would have legitimacy if recognition was declared without a secret ballot. The Employer said that the Panel was entitled to have regard to the fact that the employees in this bargaining unit were journalists and as such were sophisticated professional workers many of whom dealt on a daily basis with news stories involving politics, democratic legitimacy and workplace conflict. The Employer went on to say “there is a genuine concern that the half of the BU not in the union and the half of the BU who don’t support union recognition will not readily accept the negotiation of their core terms and conditions of employment being surrendered to a third party organisation without them having the opportunity to vote for or against that in a secret ballot.”

The Employer said “it is relevant in this regard that a significant number of employees in the BU (at least 63 as of 21 May 2024 which represents 23%) have written to the CAC to either express a desire for a secret ballot or to state opposition to union recognition. We have been informed that in terms of non-union members in the BU 49 requested a ballot and 11 stated they were against the union being recognised. From union members we understand that 3 emails have been received so far, with 2 requesting a ballot to determine recognition with 1 member expressly against the Union being recognised. PA submits that it is reasonable to assume that employees who have written to the CAC to request a ballot have at the very least significant reservations about the idea of collective bargaining and concerns about the industrial relations climate if this were to proceed without a secret ballot.”

The Employer said that having regard to “the wafer-thin majority of the union, these numbers (23% of the BU) expressing a desire for a ballot or objecting to collective bargaining are sufficient to demonstrate why it would be detrimental to good industrial relations to proceed without a ballot.” The Employer said that if a ballot did not take place, then a sizeable number of employees in the bargaining unit were going to be left feeling disenfranchised. The Employer submitted that a ballot would therefore be in the interests of good industrial relations. Even if the number of union members writing to the CAC was found not to be “significant” for the purposes of Paragraph 22(4)(b) limb, the Employer said that any union members who had gone out of their away to write to the CAC to request a ballot or oppose collective bargaining should carry substantial weight on the question of what good industrial relations required. The Employer said “it should be recognised that it is a major thing for any union member to take such a step. It might also explain why other union members remained silent rather than express their view directly to the CAC.”

The Employer said that it was very easy for employees to sign up to an e-petition with a couple of clicks and despite the Union keeping this e-petition open for more than a year they had still not obtained majority support and it was not clear to the Employer whether there was any facility for an employee who had previously signed it to un-sign the petition or redact their signature from it with the same ease as it took to sign it. The Employer said “on the other hand, it is submitted that it takes more time and commitment to compose emails and letters to the CAC, which also represent a more recent and better-informed opinion of the employees concerned. In simple terms, PA submits that the emails and letters received by the CAC should carry more evidential weight than names on an e-petition.”

The Employer said that the process of collective bargaining was unfamiliar to most employees in the bargaining unit so although more employees had requested a ballot than had expressly stated that they were against collective bargaining, it was a fair assumption that they were in fact either against collective bargaining or at least had major concerns or reservations about what it might mean for them. The Employer submitted that the only way to clear the air, draw a line under the process, and provide a foundation for stable and harmonious industrial relations in the future was to hold a secret ballot.

The Employer said that it was recruiting in the Editorial department and expected at least 10 new starters to join the bargaining unit over the next couple of months. The Employer said that if a ballot was ordered then these new joiners, regardless of union membership status, would have a say in whether to move towards collective bargaining. The Employer further submitted that if, the Union enjoyed strong majority support for collective bargaining then the union had nothing to lose by a ballot taking place. The Employer went on to say “the NUJ stated in an email to the CAC Case Manager on 8 May 2024 that there are all sorts of reasons that an individual employee might support recognition but also favour this being determined by ballot. PA agrees and submits that good industrial relations demand this. The NUJ, however, appear happy to seek automatic recognition, notwithstanding the wishes of many in the BU. If the union are successful in a ballot, as they presumably anticipate that they would be, then a positive vote in a democratic secret ballot would provide them with a clear moral as well as legal mandate when sitting around the negotiating table with the employer.”

The Employer went on to cite previous CAC decisions which had recognised that the Panel might order a ballot:

“a. to clear the air and where it would be beneficial for a long-term stable relationship if the parties’ respective cases were to be presented to workers in the regulated environment of a ballot campaign and for future relations if the union is able to demonstrate it had a mandate (Unite the Union and Wheelbase Engineering Limited (TUR1/1006/2017, 12 October 2017) and ISTC and Mission Foods (TUR1/256/03, 22 August 2003));

b. if it is satisfied that there was substantial conflicting evidence about the level of support for recognition within the workforce and that therefore a ballot would be desirable to clear the air and avoid the risk that there would always be a question over the legitimacy of any declaration of recognition (NASUWT and NEU and Radley College (TUR1/1302(2023) 20 June 2023);

c. on the grounds that there were doubts whether a union with majority membership really did enjoy majority support and the consequences for industrial relations if recognition was ordered in those circumstances (Unite and Gillette Ltd (TUR1/667/09, 3 June 2009), CAC); and

d. where it would be in the interests of good industrial relations to have the level of support clearly established by a ballot, notwithstanding that this might entail a short period of heightened tension during the ballot campaign (NEU & NASUWT and Bishop’s Stortford College (TUR1/1189/(2020), 9 November 2020).”

Paragraph 22(4)(b) – union members against collective bargaining

The Employer said that it was aware that a significant number of workers in the bargaining unit had written to the CAC to express their views on the Union’s application. “As is proper, PA have not been a party to such correspondence and therefore are entirely reliant upon the Case Manager of the CAC to review, collate, analyse and report on such correspondence. As at 21 May 2024 it appears that two union members had expressed a desire for a ballot to decide union recognition and 1 had stated that they were against the union being recognised for collective bargaining. When it comes to the Panel evaluating what a significant number of union members is for these purposes, PA submits that this is not simply a numerical proportion of the total number in the BU, but rather the number of objectors should be seen as significant if it raises doubts whether the union’s majority membership in the bargaining unit really is equivalent to a majority in favour of collective bargaining. So objections taking the apparent level of support derived from equating union membership with support for recognition to 50% or below would be significant.” The Employer said that a number of previous CAC decisions had adopted this approach such as Unite the Union and Splunk Services UK Ltd (TUR1/1191/2020, 6 April 2021), CAC. The Employer said that there was no reason to doubt the credibility of any correspondence from workers in the bargaining unit requesting a ballot or objecting to collective bargaining. The Employer said it had pointed out to the workers in the bargaining unit that they had the right and opportunity to make their views known to the Case Manager of the CAC, because otherwise they would simply not have been aware of this or have known who to contact. The Employer said that it had expressed its position on the desire for a democratic solution to the Union’s application. The Employer said that it had not put workers under pressure and had no part in the composition of any correspondence which had gone to the Case Manager, neither had the Employer seen this correspondence. The Employer said that it had nothing to hide in this regard and enclosed some examples of the emails which it had sent to the Editorial department. “As stated above, 23% of union members (33 individuals) have not signed the e-petition despite ease of online access, ample opportunity since it was opened by the NUJ and publicised since March 2023. PA submits that the Panel is entitled to assume that those union members who have consciously not signed the petition (or a sizeable proportion of them) are disinclined to support the NUJ representing them in collective bargaining, and submits that this is the conclusion that should be reached.”

Paragraph 22(4)(c) – membership evidence doubts support for collective bargaining

The Employer said that there were good reasons to doubt the sincerity and stability of some union members’ commitment to the union and this raised doubts whether majority membership could be said to equate to majority support for collective bargaining. The Employer referred to AEEU and Huntleigh Healthcare Ltd (TUR1/19/00, 26 March 2001 and 23 May 2001). The Employer said that the Union had conducted an aggressive recruitment campaign throughout the recognition process. The Employer said that this had included the Union offering to workers in the bargaining unit half price union membership for a limited time period of 6 months (and a further discounted rate to under 25s for one year), as part of a membership drive with a view to “boosting the Union’s chances of recognition (without a ballot).” The Employer said that this initial offer of discounted membership was then extended until the end of May 2024. The Employer said that this was likely to have resulted in a temporary bump in union membership which may well not be sustained once new union members had to pay the full subscription fees. The Employer submitted that there was a clear risk new union members could cancel membership after 6 months when faced with higher membership fees and this would create an unrepresentative minority shortly after the imposition of recognition by the CAC. The Employer said that the clear purpose of paragraph 22(5) of the Schedule was to deal with “situations where unions deliberately maximised recruitment on the run up to an application for recognition where promises made to union members may well be influenced by a desire simply to recruit with a view to avoiding a ballot.” The Employer said that according to the membership check there appeared to have been an increase in union membership in the bargaining unit of 30 employees over the last few months since the first membership check report of 21 December 2023 and that this coincided with the discounted membership offers. The Employer said that the Union had made no attempt to conceal the desire to hit 50%+ membership in the bargaining unit purely to avoid the necessity for a secret ballot. The Employer attached some examples of Union communications including the discounted membership offers to Press Association employees.

5. Summary of the Union’s response to the qualifying conditions raised by the Employer.

10)       On 30 May 2024 the Union responded with its own submissions and asked that they be read alongside a statement prepared by Jonathan Brady (the union representative for the NUJ) which is attached to these submissions; and a PDF comprising further correspondence from the Employer to workers encouraging them to write to the CAC expressing their views on recognition and asking for a ballot. The NUJ has not attached any such correspondence which has previously been sent to the CAC.

11)       The Union submitted that none of the three qualifying criteria at paragraph 22(4) of the Schedule were met. The Union said that it was for the Employer to satisfy the CAC that one of the criteria at paragraph 22(4) was made out. The union said “if the CAC is not satisfied any of these criteria are made out, the statutory scheme provides that that the CAC shall award recognition.” The Union said that the Employer has robustly opposed the application for recognition at every stage and was seeking to defeat recognition by requesting a ballot. The Union said that the Employer had conducted an extensive campaign to encourage workers to write to the CAC opposing recognition and/or expressing support for a ballot. The Union said that it had made reference to this correspondence in the past and that the PDF it had attached contained further correspondence not previously seen by the CAC. The Union said that it was concerned about the impact of this correspondence on members of the workforce. The Union went on to illustrate comments made by members of the bargaining unit. These are detailed below:

“I don’t see why it would be necessary to call a ballot if a majority of staff are already union members. The decision to seek recognition was taken after a unanimous vote of the chapel, and anyone who has joined since then has been aware that their joining would make recognition more likely, so I find it unlikely that there is a significant number of union members who don’t want collective bargaining. I also believe that dragging out the process would lead to further aggressive anti-union messaging from management and that this would be very detrimental to staff wellbeing and the relationships between staff and PA management. Given management’s persistent anti-union messaging so far, I believe their actions during any ballot would make PA a less pleasant place to work.”

“I’ve received approximately an email per week from Pete Clifton telling me why I should be opposed to the union, even asking (rather than inviting) me to contact the CAC to ask for a ballot. He has also written to my home address which I found both a waste of company resources and an infringement of my right to disconnect from work outside my working hours. The tone of much of the messaging from senior management has been overwhelmingly negative towards the union, and based in a large part on trying to make us as staff afraid of collective bargaining. I think this is very irresponsible and has made me and other staff members feel much more anxious about this process than I think was necessary.”

“Management messaging has been pretty over the top against collective bargaining, including scaremongering about what it’d take away and letters posted to people’s houses - with handwritten to and from on the printout. There have been regular emails etc from management too, some of which have seemed pretty disingenuous. It’s been quite divisive, and the sooner the process is concluded the better.”

12).       The Union acknowledged that the effect on the workforce was not strictly relevant to the questions which the CAC had to determine. However, the Union suggested that the CAC should be slow to give too much weight to correspondence which has been “at the very least” prompted by the Employer “in the hope that it might strengthen the Employer’s hand if and when the question of whether any of the criteria under paragraph 22(4) were met.”

The Union went on to make more detailed submissions in relation to each of the qualifying conditions.

Paragraph 22(4)(a) – the interests of good industrial relations

The Union said that the Employer’s submissions did not address the question of why a ballot was necessary in the interests of good industrial relations. The Union said that a reference to industrial relations was a reference to “the industrial relationship between the trade union and the employer (and not to the relationship between employers and employees and/or as between employees)” The Union said that much of the Employer’s submissions on paragraph 22(4)(a) sought to re-litigate the question of the level of support for collective bargaining across the bargaining unit and/or the number of union members in the bargaining unit. The Union said that this was not the question the CAC had to answer when determining the question under paragraph 22(4)(a) “or indeed under any subparagraph of 22(4).” The Union said that the statutory scheme provided “that if the CAC is satisfied that 50% of the bargaining unit are members of the union, then the union will be awarded collective bargaining unless one of the qualifying criteria under paragraph 22(4) are met. Parliament could have provided that a ballot must be held if the union could not demonstrate (for example) 75% membership of the bargaining unit (or a particular level of support for collective bargaining). This is not the law.” The Union continued by saying that the Employer had suggested that “there is a narrow majority of trade union members in the bargaining unit. It does not follow (and this does not suggest) that a ballot would be in the interests of good industrial relations in these circumstances. The authors of Harvey on Industrial Relations and Employment Law provide at chapter [1342] (emphasis added):

…The CAC will therefore begin from the premise that a union which has majority membership should be awarded recognition without a ballot unless there is good reason to hold otherwise. In particular, the narrowness of the union’s majority is not of itself a ground for ordering a ballot: the CAC is not entitled to substitute its own, higher hurdle for the hurdle specified in the Act of ‘50 per cent plus one’ (ISTC and Fullarton Computer Industries Ltd (TUR1/29/00, 22 March 2001), per the CAC (affirmed, with some hesitation, on an application for judicial review: Re Fullarton Computer Industries Ltd, [2001] IRLR 752, Ct of Sess); GMPU and Statex Press (Northern) Ltd (TUR1/21/00, 21 December 2000), CAC). This was so even in a case where only 50.88 per cent of the workers in the bargaining unit were union members and 29.6 per cent of the workers in the unit had signed a petition seeking a ballot, but there was no evidence that any of them were union members (Bakers Food and Allied Workers Union and Fyffes Group Ltd (TUR1/912/2015, 15 September 2015), CAC. The narrowness of the majority may, however, be one factor to be taken into account in conjunction with others (GMB and the Royal Pigeon Racing Association (TUR1/331/04, 25 March 2004), CAC; NUJ and BuzzFeed (UK) Limited (TUR1/1000/2017, 11 April 2018), CAC, and Unite and Fowler Welch-Coolchain Ltd (TUR1/786/12, 6 November 2012), CAC—the union had 51 per cent membership and 60 per cent of the workers had signed a petition in favour of recognition; but 55 per cent of the workers had also signed a petition against recognition).

The Union expressed its gratitude to the CAC for the information concerning the numbers in the bargaining unit that had written to the CAC requesting a ballot. The Union said it noted that 49 non-members and 2 union members had written to say they supported a ballot. “This was a total of 51 individuals or 17% of the bargaining unit. The CAC can be confident (given the employer’s sustained campaign) that anyone minded to express support for a ballot has done so. 17% does not suggest particularly significant support for a ballot within the bargaining unit.” The Union continued by saying “that even if the numbers of members of the bargaining unit expressing support for a ballot were higher, this is not relevant to the question the CAC has to determine under paragraph 22(4)(a). The question is whether it is in the interests of good industrial relations ie. the relations between the NUJ and the PA. The question does not relate to the views of the individual employees within the bargaining unit.”

The Union said that the Employer had suggested in its submissions that the only way to clear the air, draw a line under the process, and provide a foundation for stable and harmonious industrial relations in the future was to hold a secret ballot. The Union said that “this is a bald, unevidenced and (it is submitted) self-serving submission. The CAC should not accept it at face value. The NUJ does not accept that there is an atmosphere of suspicion, mistrust and frustration.” The Union went on to say that even if the Employer was right about the atmosphere of “suspicion, mistrust and frustration”, the CAC should consider whether it was satisfied there should be a ballot in the interests of good industrial relations. “As the authors of Harveys say at [1341]:

The CAC might, for example, order a ballot to clear the air where there is an atmosphere of mutual hostility and mistrust (ISTC and Mission Foods (TUR1/256/03, 22 August 2003), CAC; cf NUJ and Bristol United Press Ltd (TUR3/3/06, 23 April 2007), CAC—a case on the equivalent provision in para 87). In such a case, however, the question is not simply whether there is an atmosphere of mutual hostility and mistrust, but whether holding a ballot would do anything to improve the situation (BALPA and Jet2.com (TUR1/726/10, 18 November 2010), CAC)”

The Union said that the CAC could be satisfied that this was a case where the Employer would campaign substantially in relation to a ballot. It would cause further delays which were not in the interests of good industrial relations. The Union suggested that a ballot was not in the interests of good industrial relations. “Indeed – a ballot will have a negative effect on industrial relations.  As the editors of Harveys say at [1342] (emphasis added): On the other hand, a ballot means further delay, and, especially if the employer is refusing to admit the obvious, that the majority of the workers want collective bargaining, then delay of itself is likely to sour industrial relations (NUJ and AOL (UK) Ltd (TUR1/424/05, 25 May 2005), CAC). Moreover, campaigning in the run-up to a ballot will tend to polarise views, stoke up feelings, and further worsen industrial relations. The CAC will therefore begin from the premise that a union which has majority membership should be awarded recognition without a ballot unless there is good reason to hold otherwise…”

The Union said that attached to the Employer’s submissions was a letter from Mr Clifton asking for a ballot. The Union said that in this letter Mr Clifton had the opportunity to explain why he considered a ballot necessary in the interests of good industrial relations. The Union said that it did not agree with what Mr Clifton said but that Mr Clifton had talked about the impact on “employee relations.” The Union suggested that this was not the issue for the CAC “which is required to consider the relationship between the PA and the NUJ. Mr Clifton says nothing about the impact of a ballot on this relationship. The PA have access to excellent legal advice. It is suggested that if Mr Clifton had anything to say in this regard, he would have said it.”

The Union said it wished to draw attention to the statement of Mr Brady one of the local representatives submitted by the Union who would be involved in collective bargaining “(if recognition is awarded).” The Union said that Mr Brady had reported that in practice relations were good “(notwithstanding the effect of the PA’s campaign in relation to the holding of a ballot) and that the PA’s new CEO has communicated that she is keen to work positively with the union (if recognition is awarded). Mr Brady (unlike Mr Clifton) gives a view on the question in issue. He does not consider that determination without a ballot will have any negative impact on industrial relations.”

Paragraph 22(4)(b) – union members against collective bargaining

The Union referred the CAC to the extensive communications from the Employer to members of the bargaining unit. The Union said that it had been told by numerous members that they had felt under considerable pressure and that the CAC should therefore be cautious before determining that any such communications constituted credible evidence. The Union said that if there were any further union members who opposed recognition, the CAC could be confident that they would have written to the CAC. The Union said that only one union member had written to the CAC opposing recognition and that this was not a “significant number of members (as the term is usually understood). It comprises 0.7% of the total number of union members within the bargaining unit (there are 141 union members in the bargaining unit).” The Union went on to say “the PA suggests that the question is whether the number of union members opposing recognition suggests that majority membership (within the bargaining unit) does not equal majority support. There are 141 union members in a bargaining unit of 274. Even excluding this one member (who wrote to the CAC) union members comprise 51.09% of the bargaining unit (141 union members – 1 (the individual who wrote to the CAC) = 140. 140 is 51.09% of a bargaining unit of 274 members).” In relation to the two Union members that had said they supported a ballot the Union said that the CAC should not assume that the fact  union members supported a ballot meant that they did not support recognition. The Union said that if these two union members had opposed recognition then they would have said so. The Union said that even excluding all three union members who had written to the CAC (the one member who opposed recognition and the two members who supported a ballot) union membership was still at 50% of the bargaining unit “(141 union members – 3 members = 138. 138 is 50.36% of a bargaining unit of 274 members).”

Paragraph 22(4)(c) – Membership evidence doubts support for collective bargaining

The Union said that there was nothing in any of the evidence to which the Employer had pointed which would lead the CAC to conclude “there are doubts whether a significant number of members within the bargaining unit want the union to conduct collective bargaining.” The Union said that its communications were entirely standard and industrially appropriate and that members of the bargaining unit had been inundated with communications from the Employer inviting them to write to the CAC saying they opposed recognition. The Union said that only one union members had actually done so and that the CAC could be confident there was no reason to doubt that the other union members wanted the union to conduct collective bargaining on the workforce’s behalf. The Union said that if these individuals opposed recognition, they could and would have written to the CAC. The Union said that the Employer had suggested that there was a risk that new union members might cancel their subscriptions after 6 months. The Union said that it did not agree with this statement and that there was nothing unusual or uncommon about discounted initial subscriptions (particularly in the context of the cost of living crisis). The Union said that it fully expected those individuals to remain members. The Union said that the Employer had no evidence to suggest that any individual may cease his/her membership and the Employer was not in a position to speak as to what was normal in terms of the pattern of union membership following a discounted initial subscription. The Union said that even if the Employer was right the question for the CAC was not whether the Union would have the same number of members 6 months from now, but whether the membership information relied upon actively suggested that union members did not want the union to carry out collective bargaining. The Union concluded by saying that there was nothing to suggest that these union members did not want the Union to carry out collective bargaining.

6. Considerations

13)       The Schedule 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. 

14)       The most recent membership and support check conducted on 1 May 2024 had shown the Employer listing a total of 274 workers in the bargaining unit. As stated in the validity decision dated 13 May 2024, the Union had provided a list of 141 union members. The number of union members in the proposed bargaining unit was 141, a membership level of 51.46%.  Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

15)       The Panel has carefully considered 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.

Paragraph 22(4) (a)

16)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. In this case there has been significant amount of dispute throughout the CAC process and continues to be, it is clear relations between the Employer and the Union are not good and the Panel has reached the conclusion that this is a case where there is, unfortunately, an atmosphere of ‘mutual hostility and distrust’ between the Union and the Employer.  The Panel concluded that there was no evidence to support the assertion that holding a ballot would do anything to improve the situation. In fact, the panel reached the conclusion, that any delay to the process (and the inevitable campaigning and polarising of positions as part of that process) in order to hold a ballot would most likely worsen the relationship between the Union and the Employer and have a negative effect on good industrial relations. The Panel is therefore satisfied that this condition does not apply.

Paragraph 22(4) (b)

17)       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. In this case three members of the Union, out of a total of 141 within the bargaining unit have written to the CAC.  One member has stated that they do not wish the Union to bargain on their behalf, the other two have requested a ballot. As the Union point out in their submissions, only 1 member (equating to 0.7% of union members within the bargaining unit) has stated that they do not wish the Union to conduct collective bargaining on their behalf. Even if the two Union Members, who have requested a ballot are removed from the equation, the Union still has a majority within the bargaining unit (50.36%). In those circumstances the CAC is not satisfied that it has evidence from a significant number of union members that they do not want the Union to conduct collective bargaining on their behalf.

Paragraph 22(4) (c)

18)       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. The CAC found no evidence to conclude that there were doubts that a significant number of union members within the bargaining unit would want the Union to conduct collective bargaining on their behalf. The CAC did not find the Employer’s arguments in respect of the discounted membership period to be persuasive. The actions of the Union in this case were, to the Panel’s knowledge well within normal practices.

7. Declaration of recognition

19)       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 “editorial roles which ultimately report to the Editor in Chief, barring the senior management roles and the following positions (the Deputies positions):Deputy Chief News Editor, Deputy Real Life and Social Media Editor, Lifestyle Editor, Puzzles Deputy, Deputy Editor Entertainment, Deputy Sports Editor, Scotland Deputy Editor, Deputy Group Picture Editor, Deputy Head of Video, Deputy Business Editor, Deputy Head of Production, Head of Features, Deputy Picture Editor, Page Production Editor.”

Panel

Ms Laura Prince, K.C., Panel Chair

Mr Martin Kirke

Mr Nicholas Childs.

12 June 2024