Decision

Acceptance Decision

Updated 28 March 2019

Case Number: TUR1/1090(2019)

22 March 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

Brintons Carpets Limited

1. Introduction

1) GMB (the Union) submitted an application dated 4 February 2019 to the CAC that it should be recognised for collective bargaining purposes by Brintons Carpets Limited (the Employer) in respect of a bargaining unit comprising “Production Operatives, all shifts, shown on wage slips as Brintons Hourly Paid (Month). I believe that the bargaining unit will be shop floor operatives.” The location of the bargaining unit was given as “Brintons Carpets Limited, Harcourt, Halesfield 15, Telford, TF7 4LE.” The application was received by the CAC on 4 February 2019 and the CAC gave both parties notice of receipt of the application on 4 February 2019. The Employer submitted a response to the CAC on 11 February 2019.

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 Kenneth Miller, Panel Chair, and, as Members, Mr Rob Lummis and Mr Paul Talbot. The Case Manager appointed to support the Panel was Sharmin Khan, who was subsequently replaced by Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 18 February 2019. The acceptance period was extended on two further occasions in order to allow time for a membership and support 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 final extension ends the acceptance period on 25 March 2019.

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

5) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 21 January 2019. A copy of the Union’s request letter was attached to its 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 answered “No”. 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 100. The Union stated that there were 63 workers in the proposed bargaining unit, of whom 34 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 membership information and a copy of its petition could be provided to the CAC on a confidential basis in order for a check to be carried out at the appropriate time.

8) The Union stated that the reason for selecting its proposed bargaining unit was that it had proposed a traditional bargaining unit, which it believed “makes industrial sense” and was compatible with effective management. The Union stated that it was in line with a recognition agreement that had been in use for over 20 years. The Union stated that the company was now refusing to recognise the Union as it believed the agreement was never signed. A copy of the agreement to which the Union was referring was attached to its application.

9) The Union stated that the bargaining unit had not been agreed with the Employer and that it was not aware of any other existing recognition agreement which covered any of the workers in the proposed bargaining unit.

10) 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 21 January 2019.

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

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 23 January 2019. The Employer stated that it had declined the request in an e-mail to the Union, dated 1 February 2019, and attached a copy of that e-mail to its response.

12) The Employer confirmed that it had received a copy of the Union’s application form on 4 February 2019. 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 “Brintons rejected all applications, and have never spoken or had any communications regarding the said bargaining unit or other.” The Employer further stated that “the existing GMB members do not form part of the requested bargaining unit. An estimated 30% are not in the bargaining unit (even as suggested hourly paid production operatives), we therefore confirm that by default they do not have above 50% membership.”

13) The Employer did not agree with the proposed bargaining unit, stating that management continued to have a good relationship with its employees regardless of whether or not they were a member of a Trade Union. The Employer referred to a number of documents attached to its response. The Employer said that that it paid above the living wage, and in both 2017 and 2019 it had increased pay in-line with inflation. The Employer stated that it had significantly enhanced Team Leaders’ pay, although they would not form part of the suggested bargaining unit, job roles such as technicians were also created as was enhanced pay.

14) The Employer stated that it always allowed legal representation and it did not see the need to recognise the Union. The Employer stated that it treated its employees with dignity and respect and supported them when required. The Employer said that it was not sure why the Union would ask for a bargaining unit to cover “only part of their membership.” The Employer stated that if the Union were to cover all hourly paid employees, it believed the Union “would achieve less than 25% membership.”

15) The Employer said that “the business also had members of alternative unions that we may well wish to recognise in the future.” The Employer stated that it believed the Union had chosen its bargaining unit carefully, to ensure that the thresholds could be met. It further stated that the Union had relied on “factually incorrect data.” The Employer stated that it urged the CAC to consider that not all of the Union’s members were in the requested bargaining unit.

16) The Employer stated that it had carried out its third annual employee survey in August 2018, the results for which were very positive, and a copy was attached to its response. The Employer said that the survey “gave us evidence (from employees themselves) that shows the majority of workers are content with their terms and conditions.” The Employer believed that this pointed to the fact that “they are unlikely to favour recognition of GMB.” The Employer stated that it was unclear to which petition the Union was referring but from “video surveillance” it was aware that GMB staff were actively stopping its employees entering the work premises from mid-December until mid-January 2019, to ask for signatures.

17) The Employer stated that, following receipt of the Union’s request, it held detailed discussions with Acas in September 2018. The Employer said that it was asked by Acas, on behalf of the Union, whether it wanted to partake in a voluntary recognition agreement, the Employer further stating that it declined. The Employer considered that this proved that the Union “were fully aware they did not have an agreement”.

18) The Employer stated that the total number of workers it employed was 1500. In answer to the Question on whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer stated that “we agree that there are 63 Operatives at Telford site but deny that they form part of the bargaining unit requested by GMB.” The Employer stated that the proposed bargaining unit did not represent all members. Brintons employed over 1500 employees, of whom 100 employees were at the Telford site.

19) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit and this was confirmed during talks with Acas in September 2018. The Employer said that if there were such an agreement in place “why were we asked to voluntarily agree an agreement?”, and “Why was this document typified as a recognition agreement by the GMB not signed, stamped or dated?” The Employer further stating “Why did Acas agree that this was NOT a recognition agreement?”

20) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that the bargaining unit would not cover other members’ roles, including Team Leaders, Quality Inspectors, Site Co- ordinators, etc, and “would bring their bargaining unit members to below 26”. The Employer stated that the 34 referred to by the Union were in other roles to that of Operatives and would not form part of the bargaining unit.

21) When invited 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 re-iterated its points in paragraph 13 above. The Employer also gave further examples of what it referred to as “many enhanced terms and conditions” received by its employees. The Employer stated that it considered the Union had “factually incorrect data to try and ensure the above 50% can be met.”

22) The Employer answered “N/A” 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, and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties

23) In a letter dated 12 February 2019 the CAC copied the Employer’s response to the application to the Union and, at the request of the Panel Chair, asked the Union to provide further clarification on the definition of its proposed bargaining unit. The Union was also asked for its response to the Employer’s allegation that many of the GMB members claimed by the Union in its application were outside the union’s proposed bargaining unit, and its views on the Employer’s claim that the collective agreement referred to by the Union in its application is not valid and is not a live agreement.

24) In a letter to the CAC dated 13 February 2019 the Union stated that “it proposed support from shop floor operatives and did not include the management of that group nor office or administrative staff.” The Union stated that it believed it was accurate to declare approximately 63 operatives on the shop floor, whether direct or indirect, and it was happy to refer to them as operatives for the purposes of the bargaining unit. The Union stated that with 35 members, it had in excess of 50% membership.

25) The Union refuted the Employer’s claim that “Acas had agreed there was no recognition agreement.” The Union stated that this was not the case as although it had arranged a conciliation meeting with Acas, “they refused to conciliate and no meeting took place”.

26) The Union stated that it had always been aware that there was an agreement in place historically. The Union referred to a copy of an agreement, a copy of which it had enclosed with its comments. The Union stated that the agreement was from 2007 signed by Senior Management, us, Amicus and Community. Unite had recognition with Maintenance and Community with Kidderminster. The Union contended that its files showed shop stewards were on site and joint agreements were being negotiated. The Union further stated that it also wished to highlight a copy of a flyer, which it had enclosed with its submission. The Union stated that the Union’s rates quoted on the flyer were from 3 or 4 years ago as they were £3.15 and £1.83 but it considered that this evidenced its presence on site.

27) The Union stated that the list of members currently on its system showed in excess of eight who paid via their payroll and as far as it was aware they were all shop floor workers. The Union stated that the fact that they paid via payroll was also indicative that it had some sort of agreement, as it did not have check off facilities unless an agreement of some description was in place, otherwise they would all be Direct Debit payers.

28) The Union stated that conversations with its members did not suggest a workforce that was happy, and the signatures on the petition was also a clear indication that there was an issue. The Union stated that although in its response the Employer had agreed with its numbers and that there were 100 staff on site in total, it was interesting to note that the survey indicated a much higher total which perhaps suggested that it was not from this site alone and therefore it would be unfair to include the statistics as other sites might have better working conditions.

29) The Union stated that it had a good working relationship with the Employer both at Telford and Kidderminster over many years and it was unfortunate that following transfers and restructures the facilities that it was providing on site had been discarded.

30) In a letter to the CAC dated 20 February 2019 the Employer responded to the Union’s clarification of its proposed bargaining unit. The Employer stated that accurate payroll data confirmed that there were 85 hourly paid employees who worked on the shop floor “which did not include office, staff or managerial numbers.” The Employer stated that it believed it was clear that the Union did not have over 50% in membership in their respective bargaining unit. The Employer stated that it therefore requested that the CAC conduct a confidential check with its data supplied to ascertain the facts behind its statement and it asked that the same check be carried out with the numbers that the Union had supplied.

31) The Employer further stated that in September 2018 it had met at the Acas offices with Emma Slaven and an Employee Relations expert. After several hours it was “agreed by Acas” that the alleged recognition agreement was “not a recognition agreement and in principle was a communication document.”

32) The Employer stated that it was however agreed that “we did allow payment to be taken out at source for members, this was a voluntary arrangement and not as suggested because there is a recognition agreement.” The Employer stated that Brintons had now communicated to all those members that the last payment at source would be 28 February 2019, and those members were referred back to their GMB representative.

33) The Employer stated that it had no recognition with any Trade Union at either site and refuted the claims made by the Union in relation to a recognition agreement with Brintons.

34) The Employer stated that, in response to the Union’s comments on “payment at source”, Brintons had various payments taken out at source, such as childcare vouchers, pension contributions, savings plans and CSA payments. The Employer stated that it had been supportive where payments at source had been requested and as the Union were fully aware, there was no legal requirement for it, as an employer, to do this. The Employer stated that it had therefore formally advised all those members with “payment at source” to contact the Union and arrange Direct Debit arrangements.

35) The Employer stated that the Telford site had seen a reduction in headcount from the time the 2018 survey was carried out and that was the reason for the difference in numbers. The Employer stated that the data it supplied was factually correct, and it did not appreciate honesty and integrity being brought into question.

36) The Employer stated that if required, it could provide to the CAC, suggestions forms, near misses, safety KPIs, absence KPIs and minutes of meetings.

37) The Employer stated that it believed there were a “small number of militant members inciting ill feeling.” The Employer said that “Union membership had only increased due to manning the gates and stopping people leaving site unless they listened and signed their petitions.”

38) The Employer stated that it wished to challenge the need for recognition and that the Union did not have “50% or above membership.”

39) In a further letter to the CAC dated 25 February 2019, including 15 enclosures to support its comments, the Employer re-iterated the points it had made in paragraphs 31 to 38 above.

40) The Employer clarified that it had now been communicated to union members that the last payment at source would be 28 February 2019, and those members were therefore referred to their GMB representative.

41) The Employer stated that it wished to ask for “certification of members” from Direct Debit mandates at the end of March, the Employer stating that it believed this would give a “true representation of membership and feeling.”

42) The Employer stated that as with many companies headcount numbers fluctuate, and it was therefore prepared to carry out a further survey “showing the feeling of Telford Shopfloor”. The Employer stated that this would take at least 3 weeks due to the rotating shift pattern but would “lend itself nicely to true membership”. The Employer referred to the documents it had enclosed, stating that they showed “a happy and content shopfloor”.

43) The Employer further explained why it believed that the Union’s proposed bargaining unit was unsuitable. However this is an issue that will, if necessary, be considered by the Panel at a later stage of the statutory recognition process.

6. The membership and support check

44) 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 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 its petition. 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 during a telephone call from the Case Manager to both parties on 19 February 2019, and subsequently confirmed in a letter dated 22 February 2019 from the Case Manager to both parties.

45) The information requested from the Union was received by the CAC on 19 February 2019 and from the Employer on 25 February 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

46) The list supplied by the Employer indicated that there were 89 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Apprentice Carding Technician

• Blending Operative

• Carding/Spinning Operative

• Chem-set Operative

• Chemset Technician

• Dual Skilled Engineer

• Dyeing Operative

• Engineering Co-ordinator

• Garnett Operative

• Logistic Co-ordinator Telford

• Logistics Supervisor

• Pre-Winding Operative

• Quality & Environmental Co-Ordinator

• Quality Technician

• Re-Blending Operative

• Semi- Skilled Engineer

• Senior Area Team Leader- Finishing

• Senior Area Team Leader- Spinning

• Servicer Operative

• Site Services Engineer

• Site Services Operative

• Site Shift Co-ordinator

• Skilled Engineer

• Stock Dye Technician

• Telford Engineering Apprentice

• Twisting Operative

• Yarn Development Technician

47) The list of members supplied by the Union contained 34 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 32, a membership level of 36%.

48) The petition forms supplied by the Union contained 45 names and signatures, of which 34 were in the proposed bargaining unit, a figure that represents 38% of the proposed bargaining unit. Of those 45 signatories, 18 were members of the Union (20% of the proposed bargaining unit) and 16 were non-members (18% of the proposed bargaining unit).

49) The petition consisted of 45 individual slips of paper which individuals had signed. There were two versions of the petition form. One was headed with the GMB Union logo and the following statement:

“I the undersigned, am an employee working at Brinton’s carpets. I fully support the GMB application for Trade Union recognition of my workplace.”

The other was headed with the following statement:

“I the undersigned, am an employee working at Brinton’s carpets. I fully support the GMB application for Trade Union recognition in my workplace.”

Below which was a table that individuals completed:

NAME	JOB TITLE	SIGNATURE	TRADE UNION
			GMB │ NONE

50) By e-mail dated 7 March the Union clarified for the Case Manager that the signatures were collected between 11 December 2018 and 22 January 2019.

51) A report of the result of the membership and support check was circulated to the Panel and the parties on 27 February 2019 and the parties were invited to comment on the results of that check by noon on 4 March 2019. The Union was also invited to submit comments on the Employer’s letter of 25 February 2019.

7. The parties’ comments following the membership and support check

52) In a letter to the CAC dated 5 March 2019 the Union stated that the check was carried out based on 63 workers in the proposed bargaining unit “following information provided by the Employer and agreed with the Employer in their initial response.” The Union stated that it would therefore comment on both figures.

53) The Union stated that if the check had been based on 63 workers as it had claimed the check would have showed that the proportion of union members in the proposed bargaining unit was 53%. The Union stated that this satisfied the first test set out in paragraph 36(1)(a) of the Schedule.

54) The Union stated that the report also recorded that 57 workers had signed a petition in support of recognition, of whom 18 were union members, and Sixteen (20%) of workers in the proposed bargaining unit who had signed the petition were non-union members. The Union stated that it therefore believed it had satisfied the test in paragraph 36(1)(b) of the Schedule.

55) The Union stated that it believed it that did not have to demonstrate at this stage that it already enjoyed majority support, that would only be required if the application was to proceed to a statutory ballot. At present, the test was whether a majority would be likely to favour recognition. The Schedule does not require that a majority of workers in the proposed bargaining unit be already members of GMB, nor that the majority has explicitly expressed support for GMB, and nor that they are guaranteed to do so. Further in any pool of workers, there are likely to be workers who either do support recognition of the union, or would do so if asked in a secret ballot, but who will be reluctant for various reasons to express support by joining GMB where it is not recognised by the employer or to sign a petition. Membership of a union per se indicates that a worker supports the recognition of the union for the purpose of collective bargaining. In addition, the “bandwagon effect” is likely to increase support for recognition as a result of union campaigning and the possibility of recognition drawing closer.

56) The Union stated that according to its figure of 63 workers, the proportion of union members in the proposed bargaining unit was 53%. In addition to this, with 39 non-members, this represented 61%. The Union submitted that their combined figure indicated an overall level of support of 73%, which it stated, would also satisfy the statutory tests.

57) The Union stated that it had noted that the employer had provided information based on a bargaining unit of 89 workers. The Union stated that its intention was to support a bargaining unit at the Telford site with an agreed workforce of 63. Employees based at Kidderminster would not be supported. The Union stated that at this stage in determining the admissibility tests its understanding was that this should be assessed on the basis of the Union’s proposed bargaining unit and the next stage was for the parties to agree the bargaining unit. The Union stated that on any analysis, whether 89 or 63 workers in the proposed bargaining unit, it believed that the union had satisfied the relevant tests.

58) By e-mail to the CAC dated 4 March 2019 the Employer stated that it believed it had responded fully in earlier correspondence and it would therefore await the Panel’s decision.

8. Further comments from the parties

59) On 6 March 2019 the CAC copied the Union’s comments to the Employer and its comments invited. In a letter to the CAC dated 8 March 2019 the Employer stated that although it had not initially submitted further comment on the result, following recent submissions made by the Union it wished to make the following comments. The Employer stated that it believed the signatures to the petition were as a result of “coercive tactics”. The Employer stated that “employees simply did not understand what they were signing and signed under duress. I myself was personally approached to ‘just sign here’, until they realised who I was.”

60) The Employer said that it had open dialogue with both members and non-members and it could confirm that “employees felt that they had to sign to gain entry and egress to work and home”. It was the Employer’s view that “if employees were motivated and indeed in favour there should have been a meeting arranged and one petition signed there and then, and not several attempts over 8 weeks.”

61) The Employer stated that it believed union membership continued to fall and the petitions were a “diversionary tactic” as membership was in decline, and a “tactical ploy to try and show solidarity”. The Employer stated that it therefore did not agree that the petition was carried out in good faith, and more importantly not by choice, and it was certainly not independent.

62) The Employer stated that the Union “actively marketed posters” across its site and on their own website, which invited employees to attend a meeting. The Employer believed that if, as the Union suggested, the strength of feeling for attaining recognition was strong, attendance at the meeting would been very good, and one petition from that meeting should have been adequate.

63) The Employer stated that the means by which the Union went about obtaining those signatures meant that employees had no choice in signing the petition. The Employer stated that in its opinion, the Union used coercion. The Employer further stating that “surely standing in the way of an employee getting to work in the rain is simply not acceptable.” The Employer said that the Union “stopped entry and egress from Brintons establishment to coerce employees to sign, in an under-handed tactic”. The Employer stated that should the CAC wish to see footage, it could provide “actual CCTV footage of this poor coercive tactic taking place over a period of 8 weeks.”

64) The Employer stated that it believed the list of members was inaccurate as there were members on the list, who were no longer, or had never been employees of Brintons.

65) The Employer stated that “engagement at the Telford site was healthy”, with a motivated workforce.

66) The Employer stated that it believed membership of the Union continued to fall since the Union had submitted its list of 34 names for the purpose of the check. The Employer re-iterated its request for a further check of membership to be carried out at the end of March for those members who paid by Direct Debit, as it no longer allowed union members to “pay at source.” The Employer stated that “should 51% of the workforce be members then we obviously would respect their wishes”, further stating that to obtain 51% membership the Union would require “47 members or over.”

67) The Employer stated that it recently had a serious complaint regarding the Union, which the Employer stated provides further evidence that “employees do not support their members”. The Union attached to its letter a copy of an e-mail concerning a disciplinary matter. The Employer stated that this alone would only serve to create the Union’s members to leave.

68) The Employer re-iterated its point that 63 employees in the bargaining unit were only a percentage of hourly paid shop floor workers and referred to its “actual list of 89 hourly paid shop floor workers”, which it stated, does not include office, staff or managerial numbers.

69) The Employer also re-iterated its point in paragraph 42 above.

70) Finally, the Employer stated that it wished to make the following comments in response to the Union’s recent correspondence. The Employer believed that the petition supplied by the Union for the purpose of the check was a “coerced petition”. The Employer stated that the Union’s assertion that there were 63 workers in the proposed bargaining unit was factually incorrect. It further stated that it had evidence to show that the number of Union members in the proposed bargaining unit was also factually incorrect. The Employer stated that it did however agree that the Union had satisfied the test set out in Paragraph 36(1)(a) of the Schedule. It was also the Employer’s belief that the 57 workers who were alleged to have signed a “coerced petition” did not satisfy the test in Paragraph 36(1)(b) of the Schedule. Those who had signed the petition had done so “not understanding and under duress and thus were coerced.”

71) The Employer stated that it did not agree with the percentage of union members within the proposed bargaining unit as stated by the Union, namely 53%. The Employer stated that this this figure was also factually incorrect. The Employer reiterated its point that it believed those who had signed the petition were “ill-informed and coerced”. The Employer stated that the Union “simply do not understand the bargaining unit that they refer to and accept that there are 89 plus hourly paid shop floor.”

72) On 11 March 2019 the Employer’s comments were copied to the Union and its comments invited. In a letter to the CAC dated 12 March 2019 the Union submitted that its understanding was that at this stage the CAC is simply considering admissibility of the application. Matters raised by the employer in their letter relating to the appropriate bargaining unit and recognition are matters to be determined at the second and third stages in due course.

73) The Union stated that its comments in its letter of 5 March 2019 were directed at the statutory tests set out in Paragraph 36 of Schedule A1.

74) The Union stated that it had noted that the Employer had made a number of comments regarding the petition and it refutes those completely. The Union stated that it was “shocked and surprised at the tone of the letter.” The Union stated that the e-mail submitted with the Employer’s letter of 8 March 2019 did not reflect the views of the member concerned, whose ongoing issue “will be well supported”.

75) The Union stated that, it believed that the Union does not have to explain exactly how the signatures were obtained but it goes without saying that they were obtained fairly and with workers being able to make an informed decision about whether to sign or not. It was the workers themselves, who asked for assistance and have been “leading it forward”. They also confirmed the numbers in the proposed bargaining unit.

76) The Union stated that it had not received, from either the Employer or any workers in the proposed bargaining unit, any documentary evidence that employees in the bargaining unit would not support recognition of the union. The Union stated that “the Schedule provides that the franchise for recognition rests with those employees, as illustrated by the requirements for a ballot of them or automatic recognition if the 50% membership threshold applies.”

77) The Union stated that the Case Manager’s check had been conducted properly and impartially and in accordance with usual practice and with the arrangements agreed with the parties. The fact that there may have been additional signatures on the petition does not undermine the check carried out by the Case Manager, as the Case Manager had been able to cross-reference the details with existing employer data.

78) The Union considered that it would not be appropriate or in the interest of the object of encouraging and promoting fair and efficient practices to carry out further membership and support check, as suggested by the Employer. The Union further stating that any issues relating to the level of membership and support going forward, were matters that would be determined through a ballot in the future in the usual way, or by way of the automatic recognition provisions under Paragraph 20.

79) The Union stated that in view of the above it believed it had satisfied the relevant tests.

9. Considerations

80) 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 in reaching its decision.

81) 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. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. 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.

10. Paragraph 36(1)(a)

82) 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.

83) The membership check conducted by the Case Manager (described in paragraphs 44 -51 above) showed that 36% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 45 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. 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.

11. Paragraph 36(1)(b)

84) 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.

85) The Case Manager’s check of the Union’s petition against the list of 89 workers provided by the Employer indicated that 34 of the 45 petition signatories were identifiable as workers within the bargaining unit, a support level of 38%. Of those there were 18 union members (20%) and 16 non-members in the bargaining unit (18%). The Panel considers that union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union (36%), as would non-union members who signed the petition (18%); giving a total of 54%. The Panel has received contradictory views about the validity of the petition. The Employer has claimed that the Union “coerced” workers into signing the petition. Whereas the Union has argued that the petition enabled workers to make an “informed decision” about whether or not to sign. As far as the Employer’s claim is concerned, the Panel has received no documentary evidence to support this claim The Panel believes that in cases like this the safest course of action is to rely on the figures given in the Case Manager’s report. The Panel has also noted the Employer’s comments in its submissions above but reminds the parties that this is not a definitive test of support and that, for this test to be met, the Panel must only be satisfied that a majority of the workers in the bargaining unit would be likely to favour recognition. It is not a test as to whether the Union has majority membership within the bargaining unit.

86) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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, as required by paragraph 36(1)(b) of the Schedule.

87) Finally, the Panel notes the Union’s concerns, set out in submissions above, that the figure of 89 given by the Employer includes workers who are not in the proposed bargaining unit. In view of its decision that the admissibility criteria set out in paragraph 36 have been met the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. However this does not prevent the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

12. Decision

88) For the reasons given in paragraphs 81 - 87 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mr Rob Lummis

Mr Paul Talbot

22 March 2019