Decision

Acceptance Decision

Updated 26 March 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1208(2021)

26 March 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

Community

and

Euro Car Parts Ltd

1. Introduction

1) Community (the Union) submitted an application to the CAC on 11 February 2021 that it should be recognised for collective bargaining by Euro Car Parts Ltd (the Employer) for a bargaining unit comprising the “Salaried Warehouse Operatives employed by Euro Car Parts at Tamworth T1 and T2 sites – B78 1SE”. The Union went on to state “For clarity, this list should contain staff only and not include agency workers as they are not proposed to be part of the bargaining unit and are not part of this application for recognition”. The CAC gave both parties notice of receipt of the application on 11 February 2021. The Employer submitted a response to the CAC dated 18 February 2021 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mr Gerry Veart. The Case Manager appointed to support the Panel was Sharmin Khan and, for the purposes of this decision, Nigel Cookson.

2. Issues

3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 10 December 2020. A copy of the Union’s letter was enclosed with the application. The Employer responded by arranging a virtual meeting on 12 January 2021 when it indicated its preference was that the Union submitted an application to the CAC.

5) The Union stated that following receipt of the request for recognition the Employer proposed that Acas be requested to assist and the Union agreed to this proposal.

6) According to the Union, a total of 20,000 workers were employed by the Employer with 689 of these falling within the proposed bargaining unit. The Union stated that the figure for the number of workers in the proposed bargaining unit was agreed by the Employer. The Union stated that it had 123 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had an online petition to support its application ^{[footnote 1]}. This petition required signatories to provide an online signature. The last membership check conducted in July 2019 placed the membership at 123 members out of a bargaining unit of 689 which met the 10% threshold. Given the turnover of staff since that date, the Union considered that a fresh membership check should be conducted. The Union disputed the stated size of the bargaining unit and believed it to be smaller than the figure declared by the Employer.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that T1 and T2 were the central distribution centres of Euro Car Parts Limited for the UK supplying all of its service/over the counter centres. As the sole distribution centres, the proposed bargaining unit was a separate and distinct group of workers and would be compatible with effective management given that these two depots carried out a distinct activity within the wider business within the UK. The Union confirmed that the bargaining unit had been agreed with the Employer.

8) The Union confirmed that it had copied the application and supporting documentation to the Employer on 10 February 2021 ^{[footnote 2]}.

9) The Union said there had not been a previous application in respect of this or a similar bargaining unit although a Schedule A1 letter was sent to the Employer in April 2019 but no application was pursued. Finally, the Union confirmed that there was no existing recognition agreement that covered any of the workers in the agreed bargaining unit.

4. The Employer’s response to the Union’s application

10) The Employer stated that it had received the Union’s formal request for recognition on 10 December 2020 although there had been extensive discussion prior to this dating back to March 2019. These prior discussions resulted in agreement being reached over the bargaining unit. When asked what its response was to the formal request, the Employer stated that it discussed the application with the Union over the phone and was looking to validate the petition names through Acas. The parties formally met by virtual means on 12 January 2021 when the Employer asked the Union to apply for recognition through the CAC.

11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 10 February 2021. The Employer confirmed that it had agreed the bargaining unit prior to having received a copy of the completed application form from the Union adding that it was agreed that agency staff would not be included.

12) The Employer confirmed that following receipt of the Union’s request, it had proposed Acas be requested to assist. Discussion had taken place with Acas in both December 2020 and January 2021 when the parties were looking to validate the level of union membership again as well as the level of support for recognition.

13) The Employer stated that it employed a total in excess of 10,000 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that there were currently 741 workers within the agreed bargaining unit as of 17 February 2021. When asked to give reasons if it disagreed with the Union’s estimate of its membership in the bargaining unit, the Employer stated that the number had not been validated since March 2020. The number of members was correct at that date but with 12 months having elapsed, it would no longer be accurate. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that the Union had not provided any evidence of likely majority support for recognition within the agreed bargaining unit. Even if the membership level remained the same as established by the Acas check, which was around 17%, this was not evidence of likely majority support for recognition. The petition supplied by the Union was not credible evidence of majority support. It had no veracity. The petition was an online petition that was open for a number of months as the Excel spreadsheet confirmed. There appeared to have been no ability to authenticate or verify who was signing the petition. This was evidenced by the fact that the spreadsheet provided by the Union contained numerous repeat entries with one employee having signed it 16 times, another 11. If people were allowed to do sign it on multiple occasions, there was presumably nothing to stop one person signing a number of times using different names. The petition therefore did not come close to providing credible evidence for support of recognition.

14) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit.

15) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer stated that an application was made previously on 28 March 2019. There were some discussions with the Union around voluntary recognition which petered out. Discussion continued into March 2020 which again petered out as a result of the Coronavirus outbreak with the Union not making contact again until 10 December 2020.

5. The Union’s comments on the Employer’s response

16) The Employer’s response was copied to the Union and its comments invited. In a letter dated 24 February 2021 the Union firstly questioned the Employer’s version of events concerning the involvement of Acas. Secondly, the Union expressed surprise as to the figure given by the Employer as to the total number of salaried warehouse operatives across T1 and T2. This was an increase on the number since the last count in 2020 and was notable since no recruitment exercise had been observed during the Covid19 pandemic. The Union was concerned that the Employer was seeking to manipulate the numbers by including staff who were not truly salaried warehouse operatives. Thirdly, the Union did not accept that it had not provided evidence of majority support. It had provided the petition to the Employer at an early stage and membership had grown over a four year period. It was against that background of growth that the application was made.

17) The Union explained that the petition was open for a period of two months in November and December 2020. The response was good as was evidenced by the petition. Whilst it appeared that there may be duplicate signatures, the Union would urge caution in jumping to conclusions. Further, the Union considered that 250 signatures in a two-month period was not an insignificant number or one which lacked credibility.

6. The membership and support check

18) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed independent checks of the level of union membership within the bargaining unit and the number of workers in the unit who had signed an e-petition supporting recognition of the union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit including their full names and dates of birth and a copy of an e-petition in support of recognition. 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 dated 2 March 2021 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 1 and 3 March 2021 and from the Employer on 3 March 2021.

19) The list supplied by the Employer contained the names of 746 workers and the list of members supplied by the Union contained 148 names.

20) The Union also provided an e-petition which took the form of a page hosted on the Union’s website with fields for workers to complete. The webpage stated:

“Euro Car Parts Union Recognition

We’re looking to get trade union recognition at Euro Car Parts. This would mean we would be able to negotiate with your employer on your behalf for better pay as well as terms and conditions.

If you support Community securing a recognition agreement with your employer and therefore being able to negotiate on your behalf for better pay and terms and conditions, please fill in your details below. We will not share this information with your employer.”

Under this were boxes for individuals to enter their first name, last name and date. There was also a box that allowed for a freehand signature to be added. The results of the e-petition were provided in the form of a spreadsheet. The information on the spreadsheet included the signatories ‘first’, ‘middle’ and ‘last name’, ‘User IP’ and ‘Signature’. In a covering email the Union explained that User IP showed the IP address of the device that had been used by the individual when completing the e-petition. Also, an individual’s freehand signature could be found by selecting the unique link in the spreadsheet column headed ‘Signature’ and entering the link into the search engine. This would then show if two individuals had used the same computer e.g. family members or alternatively, to show duplicate signatures.

21) According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 135, a membership level of 18.10%. The check of the e-petition showed that it had been signed by 178 workers in the proposed bargaining unit, a figure which represents 23.86% of the proposed bargaining unit. Of the 178 signatories, 84 were members of the Union (11.26% of the bargaining unit) and 94 were non-members (12.60% of the bargaining unit). A report of the result of the checks was circulated to the Panel and the parties on 11 March 2021 and the parties’ comments invited. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Parties’ comments on the membership check

22) In a letter dated 17 March 2021 the Union noted that the Employer had stated that warehouse operatives in the bargaining unit numbered 746 in total. The Union was somewhat surprised by this figure as when checks were being discussed in December 2020 and January 2021, the Employer was content to rely on the list it provided in April 2019 which numbered 689 workers.

23) The Union members who had signed the e-petition represented 11.26% of the workforce. Whilst 84 members had signed the petition, which was less that the total number of members in the bargaining unit, nevertheless this satisfied the requirement of at least 10%.

24) Turning to the second limb that must be satisfied, the Union considered that a significant number of workers in the bargaining unit would favour recognition. The current figure of union and non-union members who indicated support by signing the e-petition totalled 23.86%. The Union asked the CAC to note that this application had been made during a period of lockdown when there had not been the usual option of meeting face to face with workers to discuss the proposal and answer any questions. Based upon this, the Union considered that the turnout to the e-petition was a good figure upon which to base belief in the level of support.

25) Furthermore, not all Union members had participated in the petition with the implication being that they likely believed that being a member was sufficient to demonstrate support. If all union members common to both lists were included this would bring the percentage to 30%.

26) A significant number of the workers were non-English speaking from Romania or Somalia and the Union was aware that workers from these groups, which were significant in number, were keen that the Union be recognised. The Union would argue that a ballot would support its proposition and that there would be the ‘bandwagon’ effect particularly with a campaign (Covid compliant) pre-ballot. In support of this assertion, the Union asked the CAC to note that union membership within this bargaining unit had been rising year on year over the last four years but particularly so in the last two years. Furthermore, membership had gone up within the bargaining unit since the figures were provided to the CAC as part of this application.

27) In addition to rising membership figures, there had been additional signatories to the petition since the list was provided for the CAC check. As with the original petition supplied to the CAC, some names were duplicates but there were some new names also.

28) In light of the above factors, the Union urged the Panel to accept this application and, as the bargaining unit had been agreed with the Employer, move to a ballot of the warehouse operatives in the bargaining unit.

29) In an email dated 17 March 2021 the Employer accepted that the Union satisfied the requirement to have at least 10% membership in the bargaining unit. The Employer did not, however, believe that it had satisfied the second limb of the test in that it had not shown that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union. The Employer believed that the CAC should not accept this application and find that this second limb was not satisfied.

30) The Union’s direct membership in the bargaining unit only represented 18% of the workforce. Once corrected for the many duplications which distorted the numbers, the Union’s e-petition only managed to attract signatures from 23.86% of the workforce, although it was open for several months. The petition was easily accessible to all and there was nothing that prevented people being able to sign if they had wanted to do so. There was no barrier and no opposition or resistance from the Employer that would have prevented people signing. Despite this, the Union did not even get close to demonstrating majority support.

31) The Employer therefore submitted that the Panel could not determine on the balance of probabilities that the majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union to conduct collective bargaining on their behalf as required by paragraph 36(1).

32) Based on evidence from the Employer’s own working groups there did not appear to be any demand for union recognition from the workforce generally. Given the above, there seemed no real basis for suggesting that a majority of the workforce would be likely to vote in favour of recognition.

33) The Employer noted the Union had expressed surprise at the number of employees in the bargaining unit. This may be due to the fact that the Employer had been decreasing its agency workforce and increasing its direct workforce over recent years, which had led to an increase in overall direct workforce numbers.

8. Considerations

34) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

35) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12(4) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer did not accept the request but indicated a willingness to negotiate. However, whilst before the end of the second period the parties agreed a bargaining unit, they did not reach agreement that the Union was to be recognised as entitled to conduct collective bargaining on behalf of the unit. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

9. Paragraph 36(1)(a)

36) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the agreed bargaining unit. In this case the check of union membership conducted on 11 March 2021 established that 18.10% of the workers in the agreed bargaining unit are members of the Union. In its comments following the membership check the Employer accepted that the Union did have at least 10% membership in the bargaining unit. It is clear to the Panel that members of the Union therefore constitute at least 10% of the workers in the bargaining unit and the test under this paragraph is satisfied.

10. Paragraph 36(1)(b)

37) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. For the purposes of this check the Union relies on both its membership and an on-line e-petition which it argues, when combined together, is sufficient to persuade the Panel that this test is also satisfied. The Employer on the other hand argues that the figures simply do not sustain such a finding that it is likely that a majority would support recognition of the Union when only 23.86% of the bargaining unit had signed the Union’s e-petition.

38) The Panel has carefully considered the points made by both parties. The Union has asked the Panel to accept that its level of membership when taken with the number of non-members that had signed the e-petition is sufficient evidence that this test is satisfied. However, combining both figures would only give a total of 30.70% of the bargaining unit likely to favour recognition. The Union goes on to explain that, irrespective of the relatively low figure, there were extenuating circumstances in play that are sufficient to enable the Panel to determine that the test under paragraph 36(1)(b) is nonetheless satisfied. It relies on the difficulties faced by a trade union in conducting petitions during the Covid-19 lockdown as well as the added complication that English is not the first language of a substantial number of the workers in the bargaining unit.

39) The Panel acknowledges that a trade union conducting a petition during the lockdown may well face difficulties. However, this must be balanced with the fact that the Union was asking workers to complete an on-line petition in the comfort of their own homes away from the workplace rather than the workers being asked to sign a paper petition in the workplace where there may be a genuine fear that by doing so, they could be displeasing their employer. What is clear from the Case Manager’s report is that the issue with the Union’s e-petition was the very high number of duplicated signatures. The Employer, in its response to the application made the point that one individual had signed the petition 16 times. It may well be that the Union was unaware of the number of duplicate signatures and this gave it a false sense as to the level of support for recognition within the bargaining unit. As for the assertion that the high number of workers for whom English was not their first language impeded the Union in its gathering of its e-petition, the Panel has not been informed as to how this issue impacted on the Union’s ability to conduct the e-petition. In the absence of submissions in support of its claim, the Panel is unable to give any weight to the Union’s argument on this point.

40) In order to persuade the Panel that this test is satisfied a union does not have to show that it is supported by an actual majority but rather, it is for a Panel, having considered the parties’ evidence, to conclude whether a majority of the workers in the bargaining unit would be likely to favour recognition. It is a hypothetical question rather than a strictly arithmetical one. However, in this case the Panel has concluded that there is insufficient evidence to persuade us as to where the additional support in addition to that established by the various checks conducted by the Case Manager would come from. The gap is simply too great for the Panel to ignore and it would be wrong to allow forward for further examination a case in which the level of evidenced support was so low.

41) These tests are there for a reason. This reason is to ensure that only cases with a reasonable prospect of success are accepted by the CAC. In arriving at our decision that the level of likely support is not sufficient to convince us that this test is satisfied, the consequence of this decision is the Union can address the deficiencies in its application and once it has done so, it can lodge a fresh application for the CAC to consider. The Panel would point out that if the case was allowed forward and a subsequent ballot was to reflect the figures in the recent Case Manager’s report, then the Union would not be awarded recognition nor would it be permitted to reapply for the same, or substantially the same, bargaining unit for a period of three years.

42) For the reasons given, the Panel has concluded that on the evidence presented by the parties, it is not sufficient to support a decision that a majority of workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and so the test in paragraph 36(1)(b) is not satisfied.

11. Decision

43) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Kieran Grimshaw

Mr Gerry Veart

26 March 2021

1. A spreadsheet setting out the names and IP addresses of those that had signed the Union’s e-petition signatories was enclosed with the application. The Union included a copy of this spreadsheet when it complied with the requirement in paragraph 34 of the Schedule to serve a copy of the application and supporting documents on the Employer. ↩

2. See f/n 1. ↩