Decision

Validity Decision

Updated 1 October 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1206(2021)

25 June 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING DETERMINATION OF THE BARGAINING UNIT

The Parties:

GMB

and

Fablink Tank Systems Ltd

1. Introduction

1) The GMB (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 29 January 2021 that it should be recognised for collective bargaining by Fablink Tank Systems Ltd (the Employer) for a bargaining unit comprising “All hourly paid employees up to and including Team Leaders but excluding Supervisors, Office Staff, Managers and Personal Contract Holders”. The application was received by the CAC on 29 January 2021 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC dated 2 February 2021 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 Chair established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Virginia Branney. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 12 February 2021 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing to determine the appropriate bargaining unit was held via zoom on 11 May 2021. The Panel decided that the appropriate bargaining unit was “all hourly paid employees up to and including Team Leaders but excluding Supervisors, Office Staff, Managers and Personal Contract Holders located at the Company’s two plant sites at Evenwood and Tursdale”. The difference between the bargaining unit proposed by the Union and the one decided by the Panel is that the determined bargaining unit includes hourly paid employees at the Company’s plant site at Tursdale.

4) As the determined bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of the Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.

2. Issues

5) Paragraph 20 of the Schedule states that where an application has, as in the present case, been accepted under paragraph 11 and the CAC has determined an appropriate bargaining unit that differs from the proposed bargaining unit then the CAC must, within the decision period, decide whether the application is invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs are:-

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

6) In letters dated 7 June 2021 both parties were asked for their views as to whether the application remained valid following the determination of the bargaining unit.

3. Views of the Union

7) In an email dated 10 June 2021 the Union confirmed that in their view there was no existing or competing unions for recognition on that site. The Union said it was unaware of the exact number of employees or their names to determine whether any were members of the GMB or not and had not canvassed that site for membership or support.

4. Views of the Employer

8) In an email dated 11 June 2021 the Employer confirmed that there was no existing agreement covering any of the workers in the new bargaining unit, no competing application from another union covering any of the workers in the new bargaining unit nor had there been a previous application in respect of the workers in the new bargaining unit.

9) As to whether 10% of the new bargaining unit were members of the Union the Employer stated that they did not know and in answer to the question as to whether the majority of workers in the new bargaining unit would be likely to favour recognition the Employer said that they were not sure but would say not.

5. The membership and support check

10) To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit. The Employer agreed to supply to the Case Manager a list of the names, date of birth and job titles of workers within the agreed bargaining unit and the Union agreed to supply to the Case Manager a copy of its petition and a list of its paid up members within that unit, including their full name and date of birth 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 from the Case Manager to both parties dated 15 June 2021. The information from the Employer was received by the CAC on 16 June 2021 and from the Union on the 17 June 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

11) The list supplied by the Employer indicated that there were 149 workers in the determined bargaining unit. The list of members supplied by the Union contained 50 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 46, a membership level of 30.87%.

12) The Union’s petition consisting of 27 names/signatories was set out as follows:

GMB @ WORK

IN

FABLINK TANK SYSTEMS LTD

Evenwood, Bishop Auckland, County Durham, DH14 9NJ

I, the undersigned, support GMB in recognition and collective bargaining

Signature: ____

Print Name: ____

Workplace: ____

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

Surname: ____

Forename:____

Address: ____

Post Code ____

Job Title: ____

Are you an existing union 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

This information will NOT be shown to your employer

Please return this slip to:

…………………………………………………………….

13) The comparison of the Union’s petition, which was only signed by non-members, with the Employer’s list of workers revealed that a total of 21 workers (6 not appearing on the Employer’s list) had indicated that they wanted the Union to be recognised which corresponded to 14.09% of the bargaining unit.

14) A report of the result of the membership check was circulated to the Panel and the parties on 18 June 2021 and the parties were invited to comment on the result.

6. Parties’ comments on the result of the membership check

15) A lengthy response was received from the Employer dated 21 June 2021. Readdressing two of the previous tests as per their email dated 11 June 2021 (see paragraph 9 above) as to whether 10% of the new bargaining unit were members of the Union the Employer answered ‘YES’ and as to whether the majority of workers in the new bargaining unit would be likely to favour recognition the Employer answered ‘NO’.

16) The Employer stated that the latest membership report showed GMB membership density of 30.87% which was above the 10% threshold and as such agreed that GMB satisfied the numerical test.

17) In respect of whether a majority of the workers are likely to favour union recognition the Employer pointed out that the report showed that the petition was only signed by 21 workers out of a total workforce of 149 workers which equated to 14.09% of the new bargaining unit. When added to the number of Union members this equated to 44.96% which the Employer believed was not a majority of the new bargaining unit by a significant margin and therefore the Union did not meet the test.

18) The Employer noted that the CAC’s decision to accept the Union’s first application considered that “union members would be likely to favour union recognition” and believed workers joined unions for various reasons, which sometimes included support for collective representation. The Employer believed it was an unsafe presumption that this was always the case. The Employer pointed out that not a single union member had signed the petition and said that it would be fair to assume that if the union’s members favoured union recognition, many, or at least some, would have signed the petition to indicate their support and this was not the case and as such there was no factual evidence that union members favoured recognition.

19) The Employer contended that the absence of any union signatures clearly demonstrated ambivalence by union members, especially as they understood the petition was circulated by union members actively pushing for union recognition.

20) The Employer said that it believed that the petition statement “I, the undersigned, support GMB in recognition and collective bargaining” was too general and ambiguous and was open to multiple interpretations. The Employer felt that the Union were relying on aged petition evidence as it was carried out some six months ago, or probably longer, and as such it no longer reflected the views of employees. The Employer urged the Panel to consider the incontrovertible evidence that the petition had not been signed by 86% of the new bargaining unit even though all workers had ample opportunity to sign it.

21) In conclusion the Employer believed that the CAC Panel should use the same logic it applied in its first admissibility tests (decision dated 12 February 2021) when the Panel took the 53.97% aggregate total (membership and petition signatories) as indicative that a majority would be likely would to favour union recognition. The Employer stated that applying the same logic of a 44.96% aggregate (30.87% membership, and 14.09% petition signatures), and taking account of its additional comments, it believed the Panel should conclude on a balance of probabilities, that a majority of workers in the new bargaining unit would not support union recognition

22) In an email dated 22 June 2021 the Union stated that it still believed that even with the inclusion of the additional numbers of non-canvassed workers at the Tursdale site, it was still above the required thresholds to trigger a ballot of the workforce. The Union informed us that it had not pursued a further canvassing of the total workforce since the recognition process began. The Union said that it believed that the numbers of non-members already supplied showed that the majority of the total workforce in the bargaining unit would continue to support Trade Union recognition and it would welcome a ballot of the respective employees.

7. Considerations

23) The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and whether a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

8. Paragraph 45(a)

24) The membership and support check established that there was a membership level of 30.87% and the Employer confirmed in their letter dated 21 June 2021 that they agreed that this test was met (see paragraph 16 above). The Panel is therefore satisfied that the test set out in paragraph 45(a) of the Schedule is met and that at least 10% of the workers constituting the new bargaining unit are members of the Union.

9. Paragraph 45(b)

25) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

26) The result of the membership check showed a membership level of 30.87% and the check of the petition showed that 21 non-members had signed the petition which equates to 14.09% of the bargaining unit giving an aggregate total of 44.96%.

27) The Panel notes the Employer’s comment concerning the, in their view, too general and ambiguous wording of the petition and that the petition had not been signed by 86% of the new bargaining unit even though all workers would have had ample opportunity to sign it. However, the Panel has not received, from either the Employer or any workers within the proposed bargaining unit, any form of documentary evidence that they do not want Union recognition. At this stage of the statutory process the Panel is tasked with simply establishing, in effect, whether an application has any prospect of success. The test that has to be applied under paragraph 45(b) is not a strict arithmetical check of support for recognition such as would be established through conducting a ballot, but rather a case of the Panel being asked to gauge hypothetical support taking into account the evidence presented as well as its collective employment relations experience for which it was appointed to the CAC. The Panel is therefore content to take at face value the result of the Case Manager’s membership check. The Panel has decided that, on the balance of probabilities, a majority of the workers in the agreed bargaining unit would be likely (emphasis on likely) to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 45(b) of the Schedule.

10. Decision

28) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC will therefore proceed with the application.

Panel

Professor Kenny Miller, Panel Chair,

Mr Sean McIlveen

Ms Virginia Branney

25 June 2021