Decision

Acceptance Decision

Updated 12 March 2021

Case Number: TUR1/1188(2020)

21 September 2020

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

Dyer Engineering Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 9 June 2020 that it should be recognised for collective bargaining purposes by Dyer Engineering Ltd (the Employer) in respect of a bargaining unit comprising “All hourly paid shop floor workers up to and excluding Managers employed by Dyer Engineering Limited on both your sites at: Unit 3&5, Morrison Road Industrial Estate, Annfield Plain, Stanley, Co Durham, DH9 7RU and Hare Law, Industrial Estate, North Road, Annfield Plain, Stanley.” The application was received by the CAC on 3 August 2020 and the CAC gave both parties notice of receipt of the application on 4 August 2020. The Employer submitted a response to the CAC dated 10 August 2020 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 Kenneth Miller, Panel Chair, and, as Members, Miss Kerry Holden and Mr Matt Smith. The Case Manager appointed to support the Panel was Kate Norgate.

3) The Panel has extended the acceptance period in this case. The initial period expired on 17 August 2020. 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 22 September 2020.

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 its request for recognition to the Employer on 26 March 2020. The Union stated that the Employer had responded to its request in a letter dated 4 April 2020, stating that it was unable to deal with the issue at that time and that it would contact the Union at a later date. The Union said that there had been no further contact from the Employer concerning the matter and it therefore proceeded with its application to the CAC. A copy of the Union’s request and the Employer’s letter of 1 April 2020 were attached to the Union’s 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 according to the 2019 accounts, the total number of workers employed by the Employer was approximately 190, of whom 132 were in the proposed bargaining unit. The Union stated that the number of union members in the proposed bargaining unit was 36. 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 “the workplace approached us about wanting the Union involved in the workplace and have actively joined and collected petitions themselves. As well as 36 members we also have 44 non-member petitions which show that over 50% of those in the bargaining unit wish to be represented by the Union”.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it was selected with the members and covers those on hourly paid terms and conditions, namely, those on the same terms and conditions. The Union said that those on salaried terms and other work groups had shown no interest in having the Union represent them. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said, “Unknown as have not engaged”. The Union said that there was no existing recognition agreement of which it was aware that 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 3 August 2020.

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 26 March 2020. The Employer said that it had responded by confirming that the focus was on the impact of the Covid-19 epidemic and on keeping the business going and preserving jobs. The Employer said that it had also confirmed that it was unable to commit to dealing with the Union at that current time.

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 3 August 2020. The Employer stated that it had not, before receiving a copy of the application form from the Union, but it did now agree with the proposed bargaining unit.

12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer stated “No”.

13) The Employer said that it agreed with the number of workers in the bargaining unit as set out in the Union’s application.

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

15) When invited to comment on the Union’s estimate of membership in the proposed bargaining unit, and 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 answered “No evidence to indicate support outside current number of union membership

16) Finally, the Employer did not comment when asked both whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and, whether it had received any other applications in respect of any workers in the proposed bargaining unit.

5. The membership and support check

17) To assist in 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 dates of birth) 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 would not be copied to the other party and that agreement was confirmed in a letter dated 10 August 2020 from the Case Manager to both parties.

18) The information requested from the Union was received on 20 August 2020. The information requested from the Employer was received from the Employer on 25 August 2020 ^{[footnote 1]}.

19) 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 130 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 36 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 33, a membership level of 25.38%.

21) The petition supplied by the Union contained 45 names and signatures, of which 42 were in the proposed bargaining unit, a figure that represents 32.3% of the proposed bargaining unit. Of those 45 signatories, 8 were members of the Union (6.15% of the proposed bargaining unit) and 34 were non-members (26.15% of the proposed bargaining unit). The petition consisted of 45 individual slips of paper which individuals had signed. Each was headed with the GMB Logo, following by “GMB @ WORK in Dyer Engineering Ltd, Unit 3 and 5, Morrison Road Industrial Estate, Annfield Plain, Stanley, Co Durham, DH9 7RU”, and the following statement to which individuals had signed up to:

“I the undersigned, support GMB in recognition and collective bargaining.” Beneath which it was set out as follows:

“Signature: ______

Print Name: ______

Workplace: _____

Please note this section can be completed by both members and non-members.

Surname:

Forename:

Address:

Postcode:

Job Title:

Are you an existing union member? YES / NO

If yes, please indicate which;

□ GMB □ OTHER:

GMB Memb No. (if known):”

At the bottom of each slip it stated:

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

This information will NOT be shown to your employer

Please return this slip to: Etain Stobbart, Freepost GMB Northern

You can join online at: www.gmb.org.uk/join”

22) The Petition slips were not dated but the Union, in its accompanying e-mail, had stated that “The petitions were collected by the members onsite and sent through to me in batches. The vast majority received on the 19th and 20th of March in the post and a few came in, in small amounts over the week or so prior.”

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 27 August 2020 and the parties were invited to comment on the results of that check by close of business on 7 September 2020.

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

24) In an e-mail to the CAC dated 28 August 2020 the Union stated that whilst the check showed that it had met the required thresholds, it had some queries. The Union asked for the names of the 3 members who did not appear on the Employer’s list. It also asked the Case Manager to confirm the number of workers who were within the department ‘Office’.

25) The Union further stated that its proposed bargaining unit comprised hourly paid shop floor workers, excluding managers. The Union said that the list of departments supplied by the Employer included ‘Office’. The Union said that as the Employer had only included department and not job title it was unable to understand what roles were included but stated that office staff were not included in the bargaining unit. The Union said that by classing them department-wise as ‘Office’ showed that the Company themselves were stating that they were not shop floor, and that they should therefore be removed.

26) Finally, the Union explained that from speaking to its members onsite it believed that 10 to 12 individuals, who were responsible for managing the workers on the shop floor, may have been included under the department ‘Office’, and therefore should not be included. The Union said that it did not know the exact number as it was based on who the Employer believed had a link to the shop floor.

27) By e-mail to the CAC dated 3 September 2020 the Employer stated that its interpretation of the findings of the report were that out of 130 workers in the bargaining unit 32.3% had signed the petition. The Employer said that this was significantly less than the 50% membership “needed to force the ballot.”

28) The Employer said that “using the unions own findings it is clear that the workforce are not open for GMB recognition.” The Employer said that the Union currently have 33 members within the bargaining unit (25.38%). However, when the Union carried out their earlier ballot, only 8 of those workers (6.15%) had signed the petition. The Employer stated that it therefore respectfully requests that, in line with the workers preference, the committee do not agree to a ballot.

29) In a letter dated 4 September 2020 the CAC wrote to the Employer to seek clarification as to the status of the workers on the list it provided for the purposes of the check. The CAC also requested confirmation as to whether those noted as being “Office” fall within the definition of the Union’s proposed bargaining unit and if they did not, the Employer was asked to confirm the number of workers that were erroneously included in the list.

30) In an e-mail to the CAC dated 7 September 2020 the Employer stated that having checked its list of workers and those described as ‘Office’, there was one name included in error, which should be removed from the list as they were not shop floor. The Employer confirmed that the remainder of the list were permanent hourly paid shop floor workers up to and excluding Managers.

31) On 7 September 2020 the Employer’s further comments were copied to the Union for information. In an e-mail the CAC dated 8 September 2020 the Union stated that it believed it had met the required tests for its application to proceed to the next step of the process. The Union further stated that it believed those included under ‘office’ included individuals, who did manage those on the shop floor and therefore should not be in the bargaining unit. The Union further stated that this was however a matter that could be discussed at the next stage.

7. Considerations

32) 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 matters it is required to decide in reaching its decision.

33) 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.

8. 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. The membership check conducted by the Case Manager (described in paragraphs 17 - 20 above) showed that 25.38% 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.

9. Paragraph 36(1)(b)

35) 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.

36) The Case Manager’s check of the Union’s petition against the list of 130 workers provided by the Employer indicated that 42 of the 45 petition signatories were identifiable as workers within the bargaining unit, a support level of 32.3%. Of those there were 8 union members (6.16%) and 34 non-members in the bargaining unit (26.15%). The membership and support check identified as union members 33 workers (25.38%) in the proposed bargaining unit. 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 (25.38%). Equally significant is the number of non-members who signed the union’s petition (26.15%). Taking these two percentages together (51.53%.), the panel is satisfied that a majority of the workers in the bargaining unit would be likely to support collective bargaining.

37) 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

38) Finally, the Panel notes the Union’s concerns, set out in submissions above, that the figure given by the Employer includes some workers under the description ‘Office’, 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.

10. Decision

39) For the reasons given in paragraphs 33 - 38 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Miss Kerry Holden

Mr Matt Smith

21 September 2020

1. Following a request received from the Employer on 13 August 2020 the Panel agreed to extend the deadline for the parties to submit the information for the check, until 21 August 2020. The information requested from the Employer was not received by the extended deadline. In an e-mail to the Case Manager on 24 August 2020 the Employer explained that this was due to unforeseen circumstances and the information was subsequently provided on 25 August 2020. ↩