Decision

Acceptance Decision

Updated 19 June 2019

Case Number: TUR1/1103/2019

19 June 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

Cranswick Country Foods

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 29 April 2019 that it should be recognised for collective bargaining purposes by Cranswick Country Foods (the Employer) for a bargaining unit described as: “Butchery One – Knife Holders, Butchery Two – Knife Holders and Cutting Lines” located at Cranswick Country Foods, Staithes Road, Preston, Hull. The application was received by the CAC on 30 April 2019 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 8 May 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 Mr James Tayler, Panel Chair, and, as Members, Mr Tom Keeney and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case on three occasions. The initial period expired on 15 May 2019. The acceptance period was extended until 31 May 2019 to allow time for a membership and support check to be carried out and for a further period until 14 June to allow time for a revised membership and support check to be carried out and for the parties to comment. The acceptance period was further extended until 21 June 2019 for the Panel to consider these 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 made a request for recognition to the Employer on 11 April 2019. A copy of the Union’s request letter and the Employer’s email response was attached to the application.

6) The Union stated that the total number of workers employed by the Employer was 1,650. The Union stated that there were 195 workers in the proposed bargaining unit, of whom 100 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 referred to their covering letter which stated that 190 of the workers in the bargaining unit had signed a petition in support of their request for recognition. The Union was willing to submit evidence of the workforce support on a confidential basis to the Committee.

7) The Union stated that the reason for selecting the proposed bargaining unit was because the majority of their members worked in the area and had done so for many years. The Union contended that it made industrial common sense as the bargaining unit contained workers carrying out similar functions and have broadly similar terms and conditions. The Union stated that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which covered any workers in the bargaining unit, the Union answered ‘no’.

8) 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 29 April 2019.

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

9) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 11 April 2019. The Employer stated that it had responded to the Union on 15 April 2019.

10) The Employer confirmed that it had received a copy of the Union’s application form on 29 April 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 and that it did not agree the proposed bargaining unit. The Employer stated that it had no evidence to demonstrate that a majority of workers within the proposed bargaining unit supported the GMB or that there was 10% membership within that bargaining unit. The Employer alleged that the numbers in the GMB’s application were grossly understated and misleading. The Employer argued that the proposed bargaining unit excluded a portion of the grouping of knife holders, the abattoir staff.

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

12) The Employer went into considerable detail as to why it considered that the Union’s proposed bargaining unit was unsuitable, which will, if necessary, be considered by the Panel at a later stage of the process.

13) The Employer confirmed that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) The Employer argued that in the application dated 29 April 2019 the GMB sought to rely on letters seeking voluntary recognition dated 11 April 2019 and 1 March 2019. The Employer contended that the bargaining unit contained in the letter dated 1 March 2019 did not accord with the application for statutory recognition and so the application was invalid.

5. Summary of the Union’s comments on the Employer’s response

15) On 8 May 2019 the Case Manager wrote to the Union inviting it to comment on the Employer’s response, in particular on the Employer’s contention that the Union was seeking to rely on both its letters of 11 April 2019 and 1 March 2019 in which the bargaining unit was defined differently. In a letter dated 10 May 2019 the Union clarified that it was relying only on the letter dated 11 April 2019.

16) The employers contention that the union was relying on both the letters of 11 April 2019 and 1 March 2019 appears to be based on the entry in section 6 of the application in which the Union stated the date of the request and a brief summary of the response;

17) Where it was stated “employer referred back to original application” we consider that the Union was not referring back to the letter of 1 March 2019 as part of the application for recognition; but was a reference to the Employer’s response sent on 15 April 2019 in which it referred back to the response it had made to the previous application; which stated: “I write further to your email … received on 11 April 2019, in which the GMB has requested for the Butchery department at Cranswick Country Foods, Preston. As outlined in … [the] letters dated 22 February and 12 March 2019, the relationship between the GMB and Cranswick Country Foods has become untenable and a voluntary agreement is not in the best interests of the workers or the Company”.

18) We accept that the relevant request to the Employer for the purposes of this application is that made in the letter of 11 April 2019. That is the bargaining unit to which the acceptance tests are to be applied.

6. The membership and support check

19) 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, date 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 the names and date of birth of paid up members within that unit and a copy of a petition signed by workers 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. These arrangements were confirmed in a letter dated 14 May 2019 from the Case Manager to both parties.

20) Information from the Union was received by the CAC on 16 May 2019 and from the Employer on 20 May 2019.

21) A report of the result of the initial membership and support check was circulated to the Panel and the parties on 24 May 2019 and the parties were invited to comment on the results.

7. Summary of the parties’ comments following the initial membership and support check

22) In a letter to the CAC dated 10 April 2018 the Union stated the Employer had included workers in the Slaughterhouse and Abattoir in the proposed bargaining unit which had inflated the number of workers in the bargaining unit, and decreasing the percentage of support. The Union said they had members in the Slaughterhouse, information about whom they had not shared previously with the CAC. The Union stated that they were happy to provide the additional information for consideration. The Union requested a further membership check including those not counted previously. Alternatively, the Union asked that the CAC remove the numbers included from the Slaughterhouse and Abattoir and recalculate.

8. Revised Membership and Support Check

23) In a letter dated 31 May 2019 the Case Manager advised the parties that, as it was the Union’s contention that the proposed bargaining unit did not include the Abattoir and Slaughterhouse workers, it was the CAC’s intention to repeat the check excluding those workers. The parties were given the opportunity to comment.

24) In a letter dated 4 June 2019 the Employer reiterated that they considered the application was inadmissible. The Employer again argued that the Abattoir workers were legitimate members of the bargaining unit.

25) The Employer stated that there was no evidence that the Union had provided translation services for non-English speaking members and non-members who had potentially signed the petition and argued that they might not be aware what they had signed to support. The Employer submitted that it was incumbent upon the CAC only to count signatures where they were satisfied the signatory understood the petition being signed and had had it explained to them, in a language they understand.

26) The Union in an email dated 5 June to the CAC confirmed that it agreed to a further membership check being undertaken that would exclude Slaughterhouse and Abattoir workers. We conclude that this is the bargaining unit that was set out in the Union’s request to the Employer for recognition in its letter of 11 April 2019 and in the application to the CAC. The test is to be applied to the bargaining unit identified by the union, not an alternative put forward by the Employer. The question of the appropriateness of the bargaining unit is not for determination at this stage.

27) A further membership and support check was carried out using the information received from the Union by the CAC on 16 May 2019 and from the Employer on 20 May 2019.

28) The Union’s petition consisting of 257 names/signatories showing as being received on 20 March 2019 was set out as follows:

GMB

MEMBERS PETITION

CRANSWICK COUNTRY FOODS - PRESTON

We are signing this petition in support of the GMB; to be recognised by Cranswick Country Foods, Staithes Road, Preston, for collective bargaining and trade union recognition.

NAME	DEPARTMENT	SIGNATURE	EMAIL/TEL. NO.

29) The Abattoir and Slaughterhouse workers were excluded from the Employer’s list and the check was conducted against the proposed bargaining unit as described in the Union’s request to the Employer dated 11 April 2019. The number of workers on the list provided by the Employer excluding the Abattoir and Slaughterhouse workers was 368.

30) The revised membership check established that there were 77 members of the Union within the proposed bargaining unit; a membership level of 20.92%. The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 147 workers (excluding 41 names/signature which were unreadable and 69 that did not appear on the Employer’s list) had indicated that they wanted the Union to be recognised; 39.95% of the proposed bargaining unit. 43 of the 148 were union members (11.68%) and 104 were non-members (28.26%).

31) A report of the result of the membership and support check was circulated to the Panel and the parties on 5 June 2019 and the parties were invited to comment on the results having regard to the two admissibility tests set out in paragraph 36 (1)(a) and paragraph 36 (1)(b). The Panel is satisfied that the checks were conducted properly and impartially.

9. Summary of the parties’ comments following the membership and support check

32) In an email dated 7 June 2019 the Employer stated that the position of the company remained the same as outlined in their response and attached document submitted on 8 May 2019, their email sent on 29 May and their letter dated 4 June 2019.

33) In a letter dated 7 June 2019 the Union stated that the recount had demonstrated the 10% was reached.

34) The Union contended that the majority were in favour of the GMB being recognised for collecting bargaining and that their contention that including abattoir and slaughterhouse had inflated the bargaining unit was borne out by the percentage in the revised report.

10. Considerations

35) 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.

36) 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 the 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 paragraphs 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.

11. Paragraph 36(1)(a)

37) 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.

38) The revised membership check showed that 20.92% of the workers were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel accepts that at least 10% of the workers in the proposed bargaining unit are members of the union as required by paragraph 36(1)(a) of the Schedule.

12. Paragraph 36(1)(b)

39) 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. We do not have to determine that a majority currently support recognition; but consider whether a majority would be likely to support recognition were a ballot to be held.

40) The Panel notes that the revised support check shows that 39.95% of the workers in the proposed bargaining unit (147 out of 257 workers) had signed a petition in favour of recognition of the Union (see paragraph 30 above). Of those who had signed the petition 43 were Union members (11.68% of the proposed bargaining unit) and 104 were non-members (28.26% of the proposed bargaining unit).

41) The Panel notes the Employer’s contention that there was no evidence that the Union had provided translation services for non-English speaking members and that non-members who had signed the petition may not have been genuinely aware of what they had signed. However the Panel has not received any documentary evidence from individuals stating that they do not want the Union to be recognised for collective bargaining or that they have signed a document they did not understand. No such evidence was received from the employer to support their argument and counter the evidence from the petition that there is substantial support for recognition, including from non-members of the Union. Our experience is that such support generally increases after an application is accepted and the statutory process takes place (commonly called the bandwagon effect). The Employer did not provide any documentary evidence to suggest that the bandwagon effect would be unlikely to apply to this bargaining unit.

42) The Panel considers that it is likely that members of the Union support recognition (20.92%). We also consider that those who have signed the petition are likely to support recognition. The total percentage of those in the bargaining unit who are members of the Union and those who have signed the petition but are not members (28.26%) is 49.18%.

43) Taking into account the bandwagon effect, that tends to result in an increase in support for recognition as the statutory process is undertaken, we consider that it is likely that the majority of staff in the bargaining unit would support recognition.

44) On the basis of the evidence before it, the Panel has decided that, 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.

13. Decision

45) For the reasons given above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr James Tayler, Panel Chair

Mr Tom Keeney

Mr David Coats

19 June 2019