Decision

Acceptance Decision

Updated 5 December 2018

Case Number: TUR1/1069(2018)

04 October 2018

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

Careline Lifestyles (UK) Ltd

1. Introduction

1) GMB (the Union) submitted an application dated 31 August 2018 to the CAC that it should be recognised for collective bargaining purposes by Careline Lifestyles (UK) Ltd (the Employer) in respect of a bargaining unit comprising “all support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators”. “Management, Agency workers and contractors” were excluded from the application. The location of the bargaining unit was given as “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”. The application was received by the CAC on 6 September 2018 and the CAC gave both parties notice of receipt of the application on 7 September 2018. The Employer submitted a response to the CAC on 18 September 2018 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, Mr David Crowe and Mr Paul Talbot. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 21 September 2018. The acceptance period was extended to 5 October 2018 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.

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 26 July 2018. The Union stated that it had received no reply to date. A copy of the Union’s request letter was attached to its application. The text of the letter stated that it was being sent recorded delivery.

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 “N/A”. 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 58. The Union stated that there were approximately 57 workers in the proposed bargaining unit, of whom 28 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 members and non-members had informed the Union orally that the majority “would support the trade union for full recognition.” The Union stated that it also had a petition signed by what it believed to be the majority of the workforce which it would be willing to release to the CAC to scrutinise at the appropriate time.

8) The Union stated that the reason for selecting its proposed bargaining unit was that this group of workers had been members of the Union for some time and had always shown an interest in the Union being recognised for collective bargaining. When asked whether the bargaining unit had been agreed with the Employer the Union answered with a question-mark. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union said that, as far as it was aware, there was none.

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 August 2018.

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

10) In responding to the Union’s application the Employer’s Director of Operations and Nominated Individual, Mr Stockdale, stated that all previous correspondence relating to this matter should have been directed to him and that he had first been alerted to the Union’s request on 11 September 2018. In answering the question about the Employer’s response to the Union’s request Mr Stockdale referred to an e-mail sent by him to the Union on 11 September 2018. In that e-mail Mr Stockdale stated that the Employer had received notification from the CAC of the Union’s application on 11 September. He stated that Deneside Court was one of ten homes that the Employer operated and that it was therefore not appropriate to recognize that individual home as a collective bargaining unit. Mr Stockdale stated that the Employer operated employee forums and engagement sessions across all its homes and took the views of its employees very seriously. Mr Stockdale offered to meet the Union to discuss this. He also stated that the Union had been corresponding with a generic e-mail address that was not in use and said that none of the written correspondence had been directed to him as the designated responsible individual within the business. Mr Stockdale asked the Union to engage directly with him on this moving forward. Mr Stockdale asked the Union to withdraw its application to the CAC so that the parties “can attempt to find a way through this without the need for formal procedures or at least until I have been given a fair amount of time to review the paperwork, previous correspondence and the relevant legislative considerations.”.

11) Mr Stockdale confirmed that he had received a copy of the Union’s application form on 11 September 2018. He stated that the Employer had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. Mr Stockdale stated that his first exchange with the Union had been on 11 September and that he had reached out to the Union to ask for the formal procedure to be withdrawn so that the parties could meet informally on the matter to try to reach an agreement to move forward. Mr Stockdale stated that the Employer did not agree the proposed bargaining unit. He reiterated that Deneside Court was one of ten homes that the Employer operated and it was therefore not appropriate to recognize that individual home as a collective bargaining unit. Mr Stockdale stated that the members of the Union who worked at Deneside Court represented only a small number of the people the Employer employed. He further said that the statement by the Union in its application that the Employer employed approximately 58 people was completely inaccurate and was only around 10% of the number of people it actually employed.

12) In its response to the question of whether, following receipt of the Union’s request, the Employer had proposed that Acas should be requested to assist, Mr Stockdale replied “As stated, I have only just been made aware of this situation and I would prefer - initially – to meet informally” with the Union

13) When asked to state the total number of workers it employed, the Employer gave the following information: Manufacturing Food, Beverages and Tobacco – 20; Financial and other Administration – 50; Education – 10; and Health and Social Work – 500+. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that there were 100+ workers in the proposed bargaining unit. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that the Union’s estimate of the number of its employees was incorrect, which gave it concern about the accuracy of the Union’s calculations. Mr Stockdale stated that he was a regular presence within the home and that the Employer held monthly employee engagement sessions and 1:1 supervisions. Mr Stockdale said that he had never been aware of any kind of union presence in that or any of its services. 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 responded “as above”.

15) The Employer did not respond to the question when asked it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor did it respond when asked if it had received any other applications under the Schedule in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties on the number of workers in the proposed bargaining unit

16) On 18 September 2018 the CAC copied the Employer’s response to the application to the Union. In a letter to the Employer dated 18 September 2018, written at the request of the Panel Chair, the Case Manager asked the Employer to clarify the precise number of workers within the Union’s proposed bargaining unit, at the location of that bargaining unit, as stated in the Union’s application to the CAC. In an e-mail dated 19 September 2018 the Employer said that its original response was as accurate as it could be. The Employer said that the number of staff in the proposed bargaining unit varied week by week depending on occupancy numbers, service user escalations and need. The Employer said that the number of 100+ indicated that it operated with around 100 staff members but the number could fluctuate. In an e-mail dated 19 September 2018 the Case Manager asked the Employer to confirm that the figure of 100+ excluded management, agency staff and contractors. In an e-mail dated 19 September 2018 the Employer stated that “the precise number as of today is 102”, excluding management, agency staff and contractors. The Case Manager copied this correspondence to the Union.

17) In an e-mail to the CAC dated 20 September 2018 the Union stated that it wished to make a number of observations on the Employer’s figures. The Union stated that it considered the figure of 102 in the proposed bargaining unit to be “bogus and a blatant attempt by Mr Stockdale to deliberately inflate the Bargaining Unit to hamper the process and keep the … [Union] … out.” The Union stated that its confirmed figure was that there were 58 workers within the bargaining unit. The Union stated that in earlier correspondence to the CAC the Employer had quoted a figure of approximately 590 workers in what appeared to be a company-wide bargaining unit. The Union stated that this figure also appeared to include a number of Head Office personnel. The Union stated that to have 17% (102 personnel) of the company-wide workforce located at one of nine in its portfolio, assuming the figure of 590 was correct, would equate to an average of 65 personnel at each establishment. The Union stated that it understood that there were 35 residents at the location of the bargaining unit and that a figure of 102 was way above the sector norm for an establishment of that size. The Union stated that this gave rise to even more concern on the part of the Union that the Employer was attempting to inflate the bargaining unit. The Union stated that it had offered to meet with the Employer in good faith.

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 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 in a letter dated 20 September 2018 from the Case Manager to both parties.

19) The information requested from the Union was received by the CAC on 24 September 2018 and from the Employer on 25 September 2018. 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 102 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Administrator - 1

• Assistant Cook - 1

• Bank Care Assistant - 2

• Bank Nurse - 1

• Care Assistant - 67

• Care Assistant / Activities - 2

• Domestic - 4

• Head Cook - 1

• Kitchen Assistant - 1

• Maintenance - 1

• Nurse - 3

• Peripatetic Nurse - 2

• Senior Care Assistant - 9

• Staff Nurse – 1

• Support Worker - 2

• Team Leader - 2

• Therapy Assistant – 2

21) The list of members supplied by the Union contained 38 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 35, a membership level of 34.31%.

22) The petition forms supplied by the Union contained 60 names and signatures, of which 54 were in the proposed bargaining unit, a figure that represents 52.94% of the proposed bargaining unit. Of those 60 signatories, 27 were members of the Union (26.47% of the proposed bargaining unit) and 27 were non-members (26.47% of the proposed bargaining unit).

23) The petition consisted of 60 A4 sheets each containing a signature along with the information set out below. All 60 forms were date stamped and those dates ranged between 2 August and 20 September 2018.

24) There were two versions of the petition form.

(i) VERSION 1 was headed with the Union’s logo and alongside this it stated “GMB @ WORK in Careline Lifestyles, One Central Parkway, Off Neville Street, Newcastle Upon Tyne & Wear, NE1 3BZ”. Beneath this was the following statement:

“YES, I support the GMB claim through recognition to conduct collective bargaining on my behalf and would welcome the opportunity to register my opinion in a secret ballot.”

Each signatory was asked to sign and print their name. In the section below it stated “Please note this next section can be completed by both members and non-members.”

Each signatory was then asked to provide their surname, forename, address, postcode, and job title, and answer the following questions:

“Are you an existing member? Yes/NO If yes, please indicate which union you are a member of: □ GMB □ OTHER: ______ Membership number (if known):____”

At the bottom of the form it stated “This information will NOT be shown to your employer”, followed by “Please return this slip in the envelope provided or to: GMB Northern Region, FREEPOST NAT4244, Newcastle upon Tyne, NE1 1ZL.”

Alongside this was the GMB@Work logo, followed by “You can join online at: www.gmb.org.uk/join”.

(ii) VERSION 2 was headed with the Union’s logo and alongside this it stated “GMB @ WORK in Careline Lifestyles”. Beneath this was the following statement:
“I, the undersigned, support GMB in recognition and collective bargaining.”

Each signatory was asked to sign and print their name, and state their workplace. In the section below it stated “Please note this next section can be completed by both members and non-members.”

Each signatory was then asked to provide their surname, forename, address, postcode, and job title, and answer the following questions:

“Are you an existing member? Yes/NO If yes, please indicate which; □ GMB □ OTHER:___ GMB Memb No. (if known):____

I consent to GMB using this data for the purpose of this petition □”

At the bottom of the page it stated “This information will NOT be shown to your employer”, followed by “Please return this slip to: Laura Gatiss Freepost GMB Northern”.

Alongside this was the GMB@Work logo, followed by “www.gmb.org.uk/join”.

25) A report of the result of the membership and support check was circulated to the Panel and the parties on 27 September 2018 and the parties were invited to comment on the results of that check and on any other aspect of the admissibility criteria by noon on 1 October 2018.

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

26) In an e-mail to the CAC dated 27 September 2018 the Union stated that if, according to the check, the bargaining unit was “seen to be” 102, the Union had a confirmed figure of 35 members, representing 34.31% of the bargaining unit. In addition to this, 27 non-members (26.47% of the bargaining unit) had signed the Union’s petition. The Union submitted that those figures combined meant that 62 (60.78%) of the workers within the bargaining unit wished to have the Union recognised if the figure of 102 was accepted by the CAC and that this would meet the relevant tests at the acceptance stage.

27) The Union reiterated its concerns, set out in paragraph 17 above, regarding the number of workers the Employer was purporting to include within the bargaining unit. The Union said that it understood that the figure of 102 included workers who had not yet commenced employment in the bargaining unit and that this was part of the reason for the discrepancy in the figures stated by the parties. The Union said that it understood that the two Peripatetic Nurses were not solely employed at the bargaining unit but were in in effect supernumerary or floated between establishments within the wider company. The Union also stated that it understood the figure of 67 Care Assistants included approximately ten workers who were currently on maternity leave and five who were new starters but had since left their employment at the bargaining unit. The Union stated that it understood that the three nurses included did the work of Staff Nurses and that the two Support Workers listed were in effect Care Assistants. The Union stated that it believed some of the employees included in the Employer’s figure were not directly employed by the Employer but were “Primary Care Recruitment” or “Randstad Employment Bureau” at that bargaining unit.” The Union stated that if this were the case, the Union had members amongst some of the additional workers listed. The Union said that it believed that some of the 102 workers quoted by the Employer could well work in other establishments within the company. The Union stated that it would be happy to provide to the CAC the additional names, job titles or departments/sections that had not been included within its figure of 58 in the bargaining unit but which it believed the Employer had included in its figure. The Union stated that it believed one way to resolve the matter would be to inspect the respective time sheets within the Employer cohort of 102 to establish a further evidence test of the correct figure within the bargaining unit.

28) No comments on the report of the membership and support check or any other aspect of the admissibility criteria were received from the Employer by the due deadline.

8. Considerations

29) 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.

30) 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. Paragraph 11 reads as follows:

(1) This paragraph applies if-

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

The “first period” is defined in paragraph 10(6) of the Schedule as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. Paragraph 172(2) of the Schedule states that in its application to a part of Great Britain a “working day” is a day other than (a) a Saturday or a Sunday, (b) Christmas day or Good Friday, or (c) a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in that part of Great Britain. In this case the Union’s request letter was dated 26 July 2018. The Panel notes the statement by the Employer’s Director of Operations and Nominated Individual that he was first alerted to the Union’s request on September 11 2018 and that all previous correspondence relating to the matter should have been directed to him (see paragraph 10 above). However the Panel considers that the relevant date for the purposes of defining the “first period” under paragraph 10(6) is when the request is received by the Employer as an organisation not when it is received by a specific individual within the Employer.

31) 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.

9. Paragraph 36(1)(a)

32) 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.

33) The membership check conducted by the Case Manager (described in paragraphs 18-21 above) showed that 34.31% of the workers in the proposed bargaining unit 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 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.

10. Paragraph 36(1)(b)

34) 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.

35) The Panel notes that the support check conducted by the Case Manager showed that 52.94% of the workers in the proposed bargaining unit (54 out of 102 workers) had signed a petition in support of recognition of the Union (see paragraphs 18 - 24 above). Of those who had signed the petition 27 were union members (26.47% of the proposed bargaining unit) and 27 were non-members (26.47% of the proposed bargaining unit). On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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.

36) The Panel notes the Union’s concerns, set out in paragraphs 17 and 27 above, that the figure of 102 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 preclude the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

11. Decision

37) For the reasons given in paragraphs 30-35 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Crowe

Mr Paul Talbot

04 October 2018