Decision

Acceptance Decision

Updated 27 September 2019

Case Number: TUR1/1102(2019)

17 May 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

Grant Westfield Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 12 April 2019 that it should be recognised for collective bargaining purposes by Grant Westfield Ltd (the Employer) in respect of a bargaining unit comprising “Hourly paid staff group, including but not limited to Machine Operatives, Production Labourers, Forklift Truck Drivers, Dispatch/Distribution Operatives, HGV Drivers and Merchandising Team.” The location of the bargaining unit was given as “Westfield Avenue, Edinburgh, EH11 2QH”. The application was received by the CAC on 12 April 2019 and the CAC gave both parties notice of receipt of the application on 15 April 2019. The Employer submitted a response to the CAC dated 17 April 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 Professor Kenneth Miller, Panel Chair, and, as Members, Mr Alistair Paton and Mr Matt Smith OBE. 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 30 April 2019. The acceptance period was extended on two further occasions in order to allow time for a membership 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 20 May 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 letter to the Employer on 20 March 2019. The Union stated that the Employer had declined its request. A copy of the Union’s request and the Employer’s response dated 25 March 2019 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, the Union stated that it had submitted an application to the CAC on 13 December 2018 but it was declined by the CAC on 15 February 2019. 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 208. The Union stated that there were 37 workers in the proposed bargaining unit, of whom 21 were members of the Union. The Union did not respond when invited to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining.

8) The Union stated that the reason for selecting its proposed bargaining unit was because the bargaining group comprised of the production staff of whom the majority were members of the Union. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. When asked whether there was any existing recognition agreement of which it was aware which covered any workers in the bargaining unit, the Union said that “an agreement exists covering operatives previously based at a satellite site.” The Union stated that the company had however failed to honour the agreement.

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 12 April 2019.

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 20 March 2019. The Employer said that in an e-mail to the Union dated 25 March 2019 it had declined the Union’s request. The Employer stated that it also sent a further letter to the Union on 26 March 2019. A copy of the Employer’s letter sent to the Union was attached to the Employer’s response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 15 April 2019. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, not did it agree with the proposed bargaining unit. The Employer stated that Grant Westfield had been established since 1881 and it respected the right to union membership and had done so for decades. The Employer stated that the Union’s request for recognition was declined due to decreasing GMB membership amongst its employees; difficulties experienced by management during engagement with the Union’s representative over recent years; and direct feedback from employees.

12) The Employer said that in the past year resignations received from GMB members meant that membership had reduced significantly from 21 employees in June 2018, to 9 employees at the beginning of April 2019. The Employer believed that with 137 employees, the Union’s membership now represented 6.6% of its employees. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) 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. The Employer said that the actual number of hourly paid employees in the defined group was 42 employees. The Employer stated that in the absence of any supporting information from the Union it could not explain the difference, except that it perhaps related to “out of date information” held by the Union. The Employer said 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 stated that the Union had incorrectly given the figure of 21. The Employer stated that it wished to re-iterate its point stated above that there were now only 9 employees for whom its payroll department made deductions for Union membership subscriptions, of which 8 were in the proposed bargaining unit. The Employer listed those 9 individuals.

15) 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 said that it had no evidence to suggest that a recognition agreement was being sought by the identified group of employees. Further, it did not believe that a majority of workers in the bargaining unit were likely to support recognition. The Employer stated that its view was based on direct feedback from employees and it was supported by “dwindling union membership” at Grant Westfield. The Employer stated that the 8 union members represented 19% of the proposed bargaining unit.

16) The Employer further stated that Grant Westfield was a long-established business, which continued to evolve to thrive and survive and as the business evolved, so too did its policies. The Employer said that the year had seen significant change which included the harmonisation of employee benefits across all employee groups. For example, there were no longer differentiations in key benefits between Hourly paid and Monthly paid employees. The Employer stated that there may well be a degree of correlation between the development of its policies and the changing profile of Union membership within the Company. The Employer said that the strongest evidence it had was the reduction in union membership.

17) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. Union’s comments on the Employer’s response to the application

18) On 23 April 2019 the CAC copied the Employer’s response to the application to the Union and its comments invited. By e-mail dated 24 April 2019 the Union stated that it wished to address the Employer’s claims that a reduction in the number of GMB members since 2017 was evidence of a decline in support for the union. The Union stated that the Employer had notified staff and the Union of its intention to “restructure its organisational make-up” and the outcome of that restructure had resulted in the company’s Contracts Division being terminated. This resulted in 50 members of staff being made redundant. Of those who were made redundant, 20 were members of the Union, with a further 3 apprentice workers who were also members of the Union choosing to leave the company.

19) The Union said that the total number of GMB members within the company at the time of the restructure in late 2017 was 44 production staff and this figure reduced by 20 following the redundancies arising from the restructure. The Union said that that it believed this event was the single most significant factor in the reduction of GMB members at Grant Westfield and, contrary to the Employer’s belief, “the reduction was not the result of any diminution of union support, but a consequence of the company’s own strategic decision to cut its workforce.”

20) The Union stated that by October 2018 there were 34 union members in the bargaining unit. Following pay negotiations between the Union and the company in October 2018, which failed to reach an agreed outcome, the company assumed the position that there was no recognition agreement between the parties. The Union said that the company subsequently informed staff within the bargaining group that the company’s payroll department would no longer be providing a check off service for union subscriptions, and this was done without consulting the union or giving any prior notice. The Union stated that its members had informed the Union that this information was given during a group address to staff, at which pre-typed resignation letters were distributed to staff, who were then asked to sign. The Union maintained that GMB members did not approach the company of their own volition and without coercion to resign their membership of the Union. It was the Union’s view that they were encouraged to believe that “the company’s refusal to recognise the union rendered their continued membership of the GMB ineffectual and therefore, impotent.” The union stated that it was unaware of the company’s machinations, and it therefore had no opportunity to advise its members appropriately before 15 individuals had signed the document presented to them. The Union stated that, of those workers who originally signed the resignations document and were still employed at Grant Westfield, six had since re-joined the union. The Union stated that it could provide supporting evidence.

6. The membership and support check

21) 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 30 April 2019 from the Case Manager to both parties.

22) The information requested from both parties was received by the CAC on 1 May 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

23) The list supplied by the Employer indicated that there were 42 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Cleaner - 1

• CRM and Data Administrator -1

• Customer Service Advisor - 4

• Dispatch Team Leader (FLT) – 1

• Driver – 2

• Driver (FLT) - 1

• Merchandising Assistant - 2

• Procurement & Supply Chain Administrator - 1

• Production Operative - 5

• Production Operative (FLT) - 11

• Receptionist - 1

• Semi-skilled Operative (FLT) – 3

• Skilled Wood Machinist – 3

• Warehouse Operative - 1

• Warehouse Operative 5

24) The list of members supplied by the Union contained 19 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 14, a membership level of 33.33%.

25) The petition supplied by the Union contained 30 names and signatures, of which 20 were in the proposed bargaining unit, a figure that represents 47.62% of the proposed bargaining unit. Of those 20 signatories, 10 were members of the Union (23.81% of the proposed bargaining unit) and 10 were non-members (23.81% of the proposed bargaining unit). The petition consisted of 3 A4 sheets each headed with the GMB Scotland logo and was set out as follows:
“We, the undersigned are employed at Grant Westfield Ltd, Edinburgh. We wish for GMB Scotland to be recognised for the purpose of collective bargaining. We have signed the petition of our own volition and have not been coerced into signing. We have had the benefits of GMB recognition and collective bargaining explained to us and believe this is preferable to the current arrangements.
GMB Scotland Defending Your Interests.
For GMB’s privacy policy go to: www.gmb.org.uk/legal/privacy-policy”

NAME	ADDRESS	SIGNATURE	DATE

At the bottom of the page it gave the GMB’s contact details. The dates on the petition ranged between 24 January 2019 and 5 March 2019.

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 7 May 2019 and the parties were invited to comment on the results of that check by noon the close of business on 9 May 2019.

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

27) In a letter to the CAC dated 9 May 2019 the Employer stated that it had reviewed the findings of the report, and it believed the Union had not met tests set out in paragraph 36 of the Schedule. The Employer stated that it therefore had no comments on the report and it would await the Panel’s decision.

28) The Employer further stated that it would like to emphasise that this was the second application for recognition by the Union in a six month period. The Employer said that during this period it had also been required to defend Employment Tribunal claims brought by the GMB Union, allegedly on behalf of 21 former employees of Grant Westfield for unfair dismissal. The Employer stated that this was following a collective consultation process which led to redundancy due to the closure of a loss making division in Grant Westfield. During the process, it became apparent that the individual applicants to the claims were not aware of the claim submitted on their behalf by the GMB. Defending the claims incurred legal costs and as well as utilising considerable internal resources. The Employer stated that following the advice of the legal representative for the GMB, all claims were subsequently withdrawn and did not proceed to the ET. It was the Employer’s view that, “these persistent attempts by the GMB to achieve a status within Grant Westfield runs contrary to the desire of the majority of individuals they wish to represent”. The Employer also stated that it questioned the motivations of the Union as to whether it was the groups’ individual interests which were at its foremost.

29) Finally, the Employer stated that “it seems incongruous that a failure to meet the earliest test of a statutory process could result in an opportunity to reapply, again and again.” The Employer said that it recognised that this may be a unique situation.

30) No comments were received from the Union.

8. Considerations

31) 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.

32) 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.

9. Paragraph 36(1)(a)

33) 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 21 - 24 above) showed that 33.33% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 22 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 membership and support check conducted by the Case Manager (described in paragraph 25 above) showed that 47.62% of the workers in the proposed bargaining unit (20 out of 42 workers) had signed a petition in favour of recognition of the Union. Of those who had signed the petition 10 of the 14 Union members had signed (23.81% of the proposed bargaining unit) and 10 were non-members (23.81% of the proposed bargaining unit).

36) At this initial stage of the statutory process the assessment that the Panel must make is one of likely support rather than a strict arithmetical measure – one of theoretical rather than concrete support. The level of union membership together with the percentage of non-members who have signed the petition is sufficient evidence for the Panel to conclude that a majority of workers in the proposed bargaining unit are likely to favour recognition.

37) 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.

11. Decision

38) For the reasons given in paragraphs 32-37 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mr Alistair Paton

Mr Matt Smith

17 May 2019