Decision

Acceptance Decision

Updated 5 July 2019

Case Number: TUR1/1111/2019

05 July 2019

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:

GMB

and

Amazon

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 31 May 2019 that it should be recognised for collective bargaining purposes by Amazon (the Employer) in respect of a bargaining unit described as: “All those employed as FC Associates who have blue badge status at the Rugeley site”. The application was received by the CAC on 31 May 2019 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 11 June 2019 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 Professor Gillian Morris, Panel Chair, and, as Members, Mrs Susan Jordan and Mr Paul Talbot. The Case Manager appointed to support the Panel was Linda Lehan but Kate Norgate acted as Case Manager for the later stages of the process.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 14 June 2019. The acceptance period was extended to 28 June 2019 to allow time for a membership check to take place, for the parties to comment on the subsequent report and for the Panel to consider said comments before arriving at a decision. The acceptance period was further extended until 12 July 2019 to provide more time for the Panel to consider all the evidence.

2. Issues

4) 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. Summary of the Union’s application^{[footnote 1]}

5) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 1 May 2019 and that the Employer had responded on 16 May 2019 stating that it was not willing to grant recognition. A copy of the Union’s request and the Employer’s response was attached to the application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union said that it had made three previous applications but that the present application had a slightly different bargaining unit from the earlier ones. The Union stated that it had withdrawn two previous applications due to the description of the bargaining unit highlighted by the Employer and the third after a membership check showed that it did not have the requisite 10% of members in the proposed bargaining unit due to the Union not having targeted the exact group of workers it was organising. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was approximately 2000. The Union stated that there were approximately 1120 workers in the proposed bargaining unit, of whom 132 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that evidence of membership and signed petitions could be provided. The Union said that it would not be providing this information to the Employer due to fear of reprisals and said that the Employer had proven itself to be hostile. The Union attached to its application letters sent on behalf of the Employer which the Union submitted gave an insight into the lengths the Employer had gone to in order to stop the Union having access to workers.

8) The Union stated that the reason for selecting the proposed bargaining unit was because those workers were all permanently employed throughout the year whereas other employees were on agency or temporary contracts and whether or not they were on site varied with the workload. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 31 May 2019.

4. Summary of the Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 2 May 2019. The Employer stated that it had responded to the Union on 16 May 2019 rejecting its request and explaining its reasons for doing so. A copy of the Employer’s letter to the Union was attached to the Employer’s response. In this letter the Employer stated that it firmly believed that direct communication was the most effective way to understand and respond to the needs of its workforce. The Employer said that it also had long established employee forums where employee representatives worked directly with site leadership to escalate and resolve questions and concerns about the working environment.

11) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 3 June 2019. The Employer submitted that the Union had failed to provide certain documents supporting the application in accordance with paragraph 34(b) of the Schedule, namely a copy of the petition on which it sought to rely with the names of the signatories redacted. The Employer submitted that this would have preserved anonymity and enabled the Employer to understand the evidence given in support of the application, in particular whether the Union was seeking to rely on the same petitions on which it sought to rely in its third application to the CAC. The Employer stated that the Union had failed to comply with this requirement and submitted that the application was, therefore, inadmissible.

12) The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. The Employer stated that the question as to whether it agreed with the proposed bargaining unit was not applicable at this stage but that it reserved its right to set out its position if the application were to be accepted. The Employer stated that the Union appeared to have accepted that it had defined its bargaining unit by reference to where its membership was at its most dense rather than addressing what would be an “appropriate” bargaining unit. The Employer submitted that the reason given by the Union for selecting the proposed bargaining unit in paragraph 15 of its application – that those workers were “all permanently employed throughout the year” – qualified the description of the bargaining unit in paragraph 14 as “those employed as FC Associates who have blue badge status at the Rugeley site”, a description which made no reference to the type of contract under which such workers were employed. The Employer submitted that this meant that the description of the proposed bargaining unit in the Union’s request letter of May 1 2019 and in its application to the CAC were not identical, rendering the Union’s application inadmissible. The Employer also submitted that this qualification of the bargaining unit rendered the description of the bargaining unit so vague and imprecise as to be unworkable because “permanently employed throughout the year” was not a description of a recognisable type of contact. The Employer said that the term “throughout the year” would seem to limit the bargaining unit to permanent employees who had been employed by the Employer for a year or more.

13) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application. The Employer said that there were 1239 workers in the proposed bargaining unit as described in paragraph 14 of the Union’s application; the number in the proposed bargaining unit as amended (see paragraph 12 above) could not be identified. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit and thought it was unlikely to be accurate. The Employer said that it was unclear whether this estimate comprised membership within the bargaining unit as described in paragraph 14 of the Union’s application or as qualified by paragraph 15; that between 2 and 31 May 2019, 16 workers who were employed as FC Associates had ceased employment or transferred to another site; that the Union had claimed to have 173 members in its third application whereas a check had shown it had only 126; and that, as the bargaining unit proposed for the present application was smaller, the number of Union members was likely to be lower than 126. The Employer contended that, under Rule 45 of the Union’s Rulebook, a non-paying member was classed as a “financial member” or “full financial member”. The Employer submitted that such members could not be considered to be full members of the Union for the purposes of satisfying the 10% minimum requirement.

16) When asked to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that no reliable evidence of this had been provided by the Union. The Employer stated that, even on the basis of the Union’s own evidence, the number of Union members had declined from March 2018, when the Union said that it had 251 members, to 132 at the time of the current application. ^{[footnote 2]} The Employer acknowledged that it had not allowed the Union access to its workers inside the Rugeley premises to recruit members but said that the Union had had material access to workers at the site and other locations and had pursued a vigorous and sustained public campaign to increase its membership over many months. The Employer gave examples of the different ways in which the Union had sought to attract members and attached some documentation relating to these examples. The Employer said that the fact that the Union’s membership levels were low and declining was evidence that its workers did not want to join the Union and did not support recognition for collective bargaining purposes. The Employer denied that it was hostile and said that the allegations of hostility concerned the Employer’s legitimate efforts to protect its staff and business from unlawful and criminal activities. The Employer said that Union representatives had accompanied members at numerous meetings. The Employer said that the Panel could not infer that a significant number of workers were unwilling to associate themselves with the Union for fear of reprisal and denied that it had campaigned against the Union being recognised at the Rugeley site. The Employer said that it presumed that the Union would be relying on the documents from its third application, namely “a paper format petition” and an “online petition” in support of recognition. The Employer said that it had serious concerns about the reliability of these petitions. These concerns were, in summary, that those petitions were stale; contained the signatures of workers who had left its employment or may have changed their view about recognition; did not refer to the proposition of collective bargaining; were not multilingual where English was not the first language of some workers; and were unverifiable and open to abuse when any individual could sign online using multiple different names or not be a member of the bargaining unit.

17) When asked if it was aware of any previous application under the Schedule made by the Union in respect of this or a similar bargaining unit the Employer stated that a first application had been made by the Union on 11 July 2018 and withdrawn on 19 July 2018; a second on 8 March 2019 and withdrawn on 1 April 2019 and a third on 2 April 2019, which was withdrawn on 18 April 2019.

5. 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 proposed 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 an independent check of the level of union membership within the proposed bargaining unit and of a petition compiled by 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 the workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and dates of birth of its paid up members within that unit and a copy of a petition signed by workers in the proposed bargaining unit in favour of recognition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 14 June 2019 from the Case Manager to both parties.

19) The information from the Union was received by the CAC on 18 June 2019 and from the Employer on 19 June 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 1229 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 129 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 123, a membership level of 10.01%.

21) Two petitions were supplied by the Union: a paper format petition and a copy of an online petition. The paper format petition consisted of 19 sheets and was set out as follows:

GMB Trade Union Recognition:

Amazon UK Services – Rugeley BHX1

We, the undersigned, are all employees working at Amazon Rugeley. We fully support the GMB application for Trade Union recognition in our workplace.

NAME	JOB TITLE	SIGNATURE	TRADE UNION
			GMB │ NONE

One sheet had a date stamp of 8 May 2018 at the top, two sheets had a date stamp of 14 May 2018, four had a date stamp of 11 June 2018 and the rest had no date stamp.

The online petition was set out as follows:

GMB UNION

Amazon: recognise GMB Union to

improve conditions for your staff

The Petition

GMB Union is determined to work with Amazon to help improve working conditions for employees at their Rugeley site.

But so far, Amazon are refusing to recognise the union, putting the health and safety of their workers at risk.

In order to challenge this we need your support.

We’re taking our case to the Central Arbitration Committee. If they think we have the support of Amazon workers, they can rule that the company must allow us in to talk to you, the employees, and help improve conditions. We want to make your working life better; we want you to feel safe and free from harassment at work. We have done this in lots of companies where the management agree to work with us. Good unions help workers feel more satisfied at work but also help businesses to flourish and secure jobs for the future.

Do you want us there, on your side, making a difference in the workplace?

If so, and if you’re an Amazon worker holding a blue badge at the Rugeley site (meaning you are directly employed on a permanent contract), then please scroll down to sign this petition to support GMB’s application for a recognition agreement with Amazon.

Please note: your details will not be shared with your employer

Full name:	Job title:	Blue badge number:

22) The petitions supplied by the Union contained 305 names, of which 183 were in the proposed bargaining unit, a figure that represents 14.89% of the proposed bargaining unit. Of those 183 names, 59 were members of the Union (4.80% of the proposed bargaining unit) and 124 were non-members (10.09% of the proposed bargaining unit).

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 21 June 2019 and the parties were invited to comment on the results by 26 June 2019.

6. Summary of the Union’s comments on the membership and support check

24) In a letter to the CAC dated 26 June 2019 the Union confirmed that it had satisfied the test of 10% membership of the proposed bargaining unit. The Union also contended that it had shown that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. The Union said that it had provided petitions of a representative sample of the workers it had been able to gain access to during its recognition campaign. The Union confirmed that it had only managed to gain access to members of the bargaining unit by speaking to people walking out of the site and some workers on a bus from Erdington. The Union said that this was a relatively small number of workers in comparison to the number in the bargaining unit. The Union said that it had also demonstrated an increase in membership during its recognition campaign. The Union said that it was aware that applications for recognition had been accepted with less than a majority of workers and quoted the notes on the back of the application form ^{[footnote 3]} where it is stated that

Evidence that a majority favour recognition can be in any form available. This could include surveys of the workforce, or of a representative sample of the workforce, or of evidence of growth in union membership as a result of the recognition campaign.

25) The Union said that it had attached to its application documents which evidenced a culture of fear in the workplace and hostility from the Employer to the Union and urged the Panel to consider that it had achieved 20% of workers indicating that they wanted a union even with all of the legal threats and the removal of its officers from site when they had tried to talk to workers. The Union acknowledged that the Employer had allowed it access to the site to represent its members but said that this was merely evidence of the Employer’s compliance with statutory requirements not of a permissive atmosphere in respect of union membership. The Union claimed that it was an unwelcome presence on the Rugeley site and said that the level of hostility to its actions was evidenced by the tone of the correspondence received by the Union and its legal representatives and the reaction towards them from security officers employed at the site. The Union submitted that amicable facilitation of its protests and attempts to recruit members to the union would have ensured an increase in membership and that any decrease in membership was attributable to the openly hostile manner in which its officers had been dealt with by the Employer’s staff. The Union claimed that on multiple occasions Union officials had been removed from the Rugeley site by security guards for handing out flyers. The Union disputed the Employer’s claim that workers with English as a second language were not capable of making an informed decision in respect of union membership.

26) The Union acknowledged that it had not met the threshold for automatic recognition but contended that this was a “dangerous” workplace where a union was badly needed and that it would be a grave miscarriage of justice if workers were denied the opportunity to vote in a ballot to have a recognised union to resolve some of the “appalling conditions” to which they had been subject. The Union begged the Panel to consider all the additional evidence and to grant it access to the workforce to run a ballot.

7. Summary of the Employer’s comments on the membership and support check

27) In a letter to the Case Manager dated 26 June 2019 the Employer referred to the points made in its response to the Union’s application summarised in paragraph 16 above, in particular the Union’s declining membership at the Rugeley site, the defects and inadequacy of the petitions; the length, vigour and intensity of the Union’s campaign; and the lack of evidence supporting the Union’s assertion that the Employer had been hostile to the Union.

28) The Employer said that it did not accept that the test of 10% membership had been met and submitted that a further validity check of membership was required given that 123 members was the absolute minimum required and there was evidence that the number of union members was declining.

29) The Employer said that no explanation had been given as to how those who signed the Union’s petition were a “representative sample” of the workforce. The Employer submitted that there was no such sample and that the Union had sought, over an extended period, to obtain the support of as many workers as possible but had failed to produce any evidence that a majority would support recognition. The Employer submitted that even taking the Union’s membership data and petitions at their highest, so ignoring their defects and inadequacies, the best the Union could produce was bargaining unit membership of 10.01% and non-member petition signatures from 10.09% of the bargaining unit, a total figure of 20.1%. The Employer stated that the percentage of workers in the proposed bargaining unit who were Union members and who had signed the petition was 4.8% and submitted that it should not be assumed that all Union members supported recognition and that support for recognition should be taken to be 14.89%. The Employer submitted that whether the figure of 14.89% or 20.1% were to be adopted was of little relevance, however, as neither figure could support a finding of majority support. The Employer submitted that there was no “bandwagon” of increasing Union membership or support for recognition; rather the membership figures had been decreasing. The Employer submitted that the application did not meet the requirement that a majority of the workers in the proposed bargaining unit would be likely to favour recognition.

8. Considerations

30) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence material to the issues it is required to decide in reaching its decision.

31) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. The Panel notes the Employer’s submission that the Union’s application related to a different bargaining unit to that specified in its request (see paragraph 12 above). Having considered the documentation, the Panel is satisfied that the description of the proposed bargaining unit in the Union’s request to the Employer and in its application to the CAC are identical and does not accept the Employer’s submission that the reasons given by the Union for selecting this bargaining unit in a subsequent paragraph of the application form qualify or amend the description given.

32) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The Panel notes the Employer’s submission set out in paragraph 11 above that the application fails to comply with paragraph 34(b) of the Schedule because the Union did not provide a redacted copy of its petition with its application. Paragraph 34(b) requires the union to give to the employer a copy of the application and any documents supporting the application. Paragraph 34(b) does not specify the documents which unions should send in support of an application and the Panel does not consider that there is any requirement to send a redacted petition, if available, with the application. It is open to a Panel to invite the parties to supply additional evidence to assist it to decide whether the statutory admissibility tests have been met and paragraph 170A of the Schedule empowers the CAC to require specified information to be provided by the parties should this be necessary. Under paragraph 170A the CAC Case Manager must prepare a report from the information provided by the parties which must be made available to them and this practice is also followed where (as is usually the case) information has been provided by the parties to the CAC on a consensual basis. The Panel does not, therefore, consider that an employer is placed at a disadvantage by not having access to a redacted petition at the time when the union gives a copy of the application to the employer.

33) The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

34) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit.

35) The membership check conducted by the Case Manager (described in paragraphs 18-20 above) showed that 10.01% of the workers were members of the Union. As stated in paragraph 19 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel notes the Employer’s submissions set out in paragraph 28 above that a further validity check should be conducted but does not consider that this is necessary at this stage. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

10. Paragraph 36(1)(b)

36) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

37) The Panel notes that the support check conducted by the Case Manager showed that 14.89% of the workers in the proposed bargaining unit (183 out of 1229 workers) had signed petitions in favour of recognition of the Union (see paragraphs 18-22 above). Of those who had signed the petitions 59 were Union members (4.80% of the proposed bargaining unit) and 124 were non-members (10.09% of the proposed bargaining unit). If the Panel were to add the percentage of union members in the bargaining unit (10.01%) to that of non-union members who had indicated their support for recognition (10.09%), this would indicate a level of support of 20.10%. This percentage is considerably lower than a majority of the proposed bargaining unit.

38) The Panel appreciates that deciding that a majority of the workers in a proposed bargaining unit would be likely to favour recognition may not be a purely numerical exercise and that the reasons for such a decision may vary with the circumstances. The Panel understands the Union’s submission that it has faced difficulties in gaining access to workers to obtain evidence of their support for recognition and that the Union believes that workers may fear the consequences of showing their support. However even if this were the case (which the Employer disputes) this does not of itself enable the Panel to conclude that it is likely that a majority would be likely to favour recognition in the absence of a considerably higher level of evidenced support than is before the Panel in this case. The Panel notes the Union’s claim that the petitions represent the views of a “representative sample” of the workforce but has received no evidence to support this claim. The Panel also notes the Union’s claim that there has been an increase in membership of the Union during its recognition campaign. The Panel notes that, on the basis of figures provided by the Union, membership increased from 27 in February 2017 to 251 in March 2018 but there is no evidence of any further increase since that time and indeed the Union itself has acknowledged that membership has fallen. The Panel also notes that the petitions relied upon to support the Union’s claim of majority support are either undated or more than a year old, so raising doubts as to whether they continue to represent the views of those who signed them.

39) On the basis of the evidence before it the Panel is not satisfied that a majority of workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

11. Concluding observations

40) The Panel notes that both the Union and the Employer have made serious allegations against the other party in the documentation submitted for the purpose of this application. These include allegations by the Employer of unlawful conduct by the Union and allegations by the Union of hostile acts against it by the Employer. The Union also made serious allegations about working conditions at the Employer’s site. The Panel has not investigated any of these allegations; makes no findings on them; and they have played no part in its decision.

12. Decision

41) For the reasons given in paragraphs 36 to 39 above the Panel’s decision is that the application is not accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mrs Susan Jordan

Mr Paul Talbot

05 July 2019

1. Both the Union and the Employer made serious allegations about the conduct of the other in the documentation submitted for the purpose of this application. Most of these allegations were disputed. The Panel read all the documentation submitted by the parties and some of these allegations are referred to briefly in the summaries of the parties’ submissions which follow. However, as stated in paragraph 40 below, these allegations were not investigated by the Panel and played no part in the Panel’s decision and the Panel did not consider it necessary or helpful to relations between the parties to record them fully in this decision. ↩

2. The Employer’s response (paragraph 11.2) incorrectly stated that the Union claimed 260 members in March 2018. This was the figure claimed for February 2018 not for March. The response gave the correct figure at paragraph 11.12. The Panel notes that this figure related to a slightly different bargaining unit so the figures may not be comparable: see paragraph 6 above. ↩

3. Note 12. ↩