Decision

Acceptance Decision

Updated 15 February 2019

Case Number: TUR1/1080/2018

15 February 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 13 December 2018 that it should be recognised for collective bargaining purposes by Grant Westfield Ltd (the Employer) for a bargaining unit described as: “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 13 December 2018 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 18 December 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 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 extended the acceptance period in this case. The initial period expired on 31 December 2018. The acceptance period was extended on two further occasions to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider these comments before arriving at a decision. The final extension ends the acceptance period on 12 February 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 made a request for recognition to the Employer on 20 September 2018. By e-mail dated 2 October 2018 the Employer had declined the request. A copy of the Union’s request letter and the Employer’s e-mailed response was 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 had left this blank. 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 210. The Union stated that there were 37 workers in the proposed bargaining unit, of whom 34 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, the Union had left this blank.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it comprises the production staff, the majority of whom were members of the Union. The Union stated that the bargaining unit had not been agreed with the Employer.

9) 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 a recognition agreement exists, which applies to workers formally based at the Grant Westfield site in Livingston. The Employer closed the Livingston site and re-located workers to Westfield Avenue, Edinburgh. The Union contended that the recognition agreement relating to the Livingston Site was part of the workers terms and conditions and therefore migrated to Westfield Avenue. The Employer however has disputed this.

10) 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 13 December 2018.

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

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 20 September 2018. The Employer stated that it had declined the request in a letter to the Union dated 13 August 2018 and attached a copy of that letter to its response.

12) The Employer confirmed that it had received a copy of the Union’s application form on 14 December 2018. 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 Grant Westfield had been established since 1881 and it respects the right to union recognition and had done so for decades. The Employer said that the Union’s request for recognition was declined due to declining GMB membership amongst its employees, difficulties experienced by management during engagement with the GMB union representative over the past year, and direct feedback from employees. The Employer further stated that in the past 5 months alone, the number of resignations received from the Union meant that membership had reduced by more than 50% from 21 employees in June 2018 to 10 employees at the beginning of December 2018. The Employer said that with 132 employees the Union now represents 7.5% 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 the total number of workers it employed was 132. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that the actual number of hourly paid employees within the bargaining unit was 41. The Employer stated that in the absence of any supporting information from the Union it could not explain the difference, except that it was perhaps related to out of date information held by the Union.

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

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that there were only 10 employees for whom its payroll department makes deductions for union membership subscriptions. The Employer listed the names of those employees within its response. 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 stated that it had no evidence to suggest that a recognition agreement was being sought by the workers in the proposed bargaining unit. It stated that it did not believe that a majority of workers in the bargaining unit were likely to support recognition. The Employer stated that its belief was based on direct feedback from employees and was supported by the dwindling union membership at Grant Westfield. The Employer reiterated its point in paragraph 12 above, that union membership had reduced to 10 employees as at the beginning of December 2018, which represented just under 25% of the bargaining unit.

16) The Employer further explained 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 past year had seen a significant 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. Further, there may well be a correlation between the development of policies and the changing profile of union membership within the company. The Employer stated that the strongest evidence it had was the reducing membership group.

17) The Employer answered “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. 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. 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 the names and dates of birth of paid up members within that unit. It was explicitly agreed with both parties that to preserve confidentiality the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 3 January 2019 from the Case Manager to both parties.

19) The information from the Employer was received by the CAC on 4 January 2019 and from the Union on 7 January 2019. 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 42 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 34 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 26, a membership level of 61.90%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 9 January 2019 and the parties were invited to submit any comments by the close of business on 11 January 2019.

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

22) In a letter to the CAC dated 11 January 2019 the Employer stated that along with its comments it had enclosed documentation, which it stated evidenced the withdrawal of GMB membership for 15 employees, two of which were no longer employed by Grant Westfield. The Employer had also enclosed a spreadsheet, which it stated detailed all current Hourly Paid employees, 10 of whom had active payroll deduction, and all Hourly Paid employees who had left Grant Westfield during 2018.

23) The Employer stated that there were 10 employees in GMB membership within the proposed bargaining unit and that the total number of employees in the relevant bargaining unit was 41, with a recent leaver in this group. The Employer stated that it recognised that the first test had been met.

24) In respect of the second test the Employer re-iterated the points it had made in paragraph 17 above, that following the harmonisation of benefits for hourly paid employees and the announcement of those changes, on 2 October 2018 it received requests from 15 employees to cease payroll deductions with immediate effect.

25) The Employer stated that all 15 employees were within the proposed bargaining unit and that those requests were in the form of resignations from the GMB union.

26) The Employer stated that those letters of resignation received on 2 October were attached by way of evidence. The Employer said that they were forwarded to the Union following receipt and payroll processing of the request to cease deductions.

27) The Employer stated that it believed there were currently 10 employees, who were GMB members in the proposed bargaining unit, representing less than 25% of the group.

28) The Employer stated that it had no evidence to suggest that a recognition agreement was being sought by the identified group of employees and that it believed this request for recognition was being sought independent of its employees, by the Union.

29) The Employer considered that if the number of union members itself was a reliable assessment of the level of support for recognition of the union then the test would fail. The Employer stated that it did however acknowledge that union membership alone may not be an adequate basis upon which to assess the level of support. The Employer said that it therefore relied on evidence in the form of specific actions and feedback from its employees during interactions with the Union in the recent past. The Employer stated that this included:

i. Those resignations received. Termination of a subscription was perhaps the strongest indicator of dissatisfaction. Union membership at Grant Westfield had been declining and reduced by more than 50% in the past six months and by 75% in the past 18 months. ii. Feedback from employees in respect of their own experiences when engaging with the Union. During a transfer of operations from a satellite site, employees chose to ignore the Union’s advice and agreed to the revised terms of employment which included increases in pay. On another occasion dissatisfaction of the tone of engagement at a meeting with management resulted in union member employees feeling the need to apologise to management. They did not feel that the approach and behaviour at a meeting reflected their views. Views which had been shared with the GMB representative in advance of the meeting. iii. The deputy shop steward submitted a resignation to the GMB and to date, they had not received a response or any acknowledgement from the Union.

30) The Employer stated that for the reasons it had given it did not believe that a majority of the workers constituting the bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit, and it therefore believed that the test had not been met.

31) No comments on the report of the membership and support check were received from the Union by the due deadline.

7. Additional comments from the parties

33) On 15 January 2019 the Employer’s letter of e-mail of 15 January 2019 was copied to the Union and its comments invited. In a letter dated 17 January 2019 the Union stated that it concurred with the Employer’s acknowledgement that it exceeded the threshold required by the first test.

34) The Union stated that it did however disagree with the Employer’s estimation of the Union’s membership at Westfield Avenue. The Union stated that as well as those listed in the hourly paid spreadsheet provided by the Employer as having union subscriptions deducted by payroll, the Union could also evidence that 12 Grant Westfield employees currently paid their subscriptions by Direct Debit. In addition, there were 3 current employees who had submitted membership applications which were currently being processed. The Union stated that of its members that the Employer claimed had resigned their union membership in October 2018, several had since re-joined. The Union stated that their union subscriptions were however levied quarterly, and therefore those individuals would only be apparent in membership lists after the passage of three months from the date of their re-joining.

35) The Union stated that with regard to the assertions made by the Employer in relation to the second test, it wished to contest the regrettable attempt made by the Employer in its submission of 11 January 2019 to contrive the impression that the Union does not enjoy a strong and long standing support from the employees within the proposed bargaining unit.

36) The Union stated that it had been collectively bargaining on behalf of its employees at Grant Westfield since at least 2015 “when I assumed organisational responsibility for our members with the company”.

37) The Union explained that at that time the company was affiliated to the CIJC and relations with the GMB existed, in the first place, because the Union was one of the employees’ representatives collectively bargaining with the employers association on behalf of its members in the construction industry.

38) The Union stated that secondly, over and above this basic relationship, during the period of Grant Westfield’s affiliation with the CIJC, the GMB was also the sole union recognised by the company at local level for representation of its members’ interests. The Union referred to a copy of a document the Union had submitted with its comments, which it stated was a copy of the relevant page from a contemporaneous copy of the Grant Westfield Company Handbook acknowledging GMB recognition. The Union stated that the handbook was active and unamended until September 2018.

39) The Union went on to explain the history of collective bargaining with the employer and contended that as recently as July 2018, the Employer and the Union started negotiations on pay for hourly paid staff. The Union conducted a survey of its members and a claim was submitted to the company. Prior to and during subsequent negotiation meetings, it became apparent that the company negotiating team seemed to lack an understanding, or experience, of the dynamics of negotiation. Given that pay talks were conducted under the auspices of the CIJC Forum, this was understandable.

41) The Union explained that nevertheless, the talks resulted in a failure to agree and it was after this that the Employer “capriciously” decided that the Union was no longer recognised. Moreover, the Employer then arranged a mass meeting to inform members that the union was no longer being recognised; that it would cease to deduct staff union subscriptions from payroll; and produced a pre-written document for staff to sign suggesting that they resign from the Union.

42) The Union stated that notwithstanding this attempt to undermine the Union’s standing amongst its members, it contends that the Union enjoys the confidence and support of all its members at Grant Westfield. The Union said that it had been openly acknowledged that its members were sufficient in number to qualify the Union to be recognised for the purposes of collective bargaining.

43) Finally, the Union stated that it did not agree with the charactarisation of the Union by the Employer. The Union stated that the Employer’s submission of 11 January 2019 contained factual inaccuracies, false insinuations and tendentious reporting. The Union said that the truth of the matter was that the Union had enjoyed a cooperative and mutually respectful relationship with the Employer until, it would appear, recent appointments to senior management.

44) In a letter to the Union dated 22 January 2019, written at the request of the Panel, the Case Manager asked the Union to confirm the number of letters of resignation, which had been enacted upon by the Union. In that letter the Union was also asked if it Union was claiming that those individuals were still in membership in accordance with the Union’s rule book, and if it was, to provide a copy of the relevant rule.

45) By e-mail dated 28 January 2019 the Union made the following comments in response to the Panel’s questions:

i. Confirmation of the number of letters of resignation which have been enacted upon by the Union; “I can confirm that in the spreadsheet provided by the Employer in their submission of January 11 2019, of the 13 individuals listed as being currently employed at Grant Westfield, and submitting a resignation letter, 4 of these have now taken up full financial membership with the GMB”.

ii. A copy of the relevant GMB rule pertaining to the period of time in which individuals will be considered to be financial members of the union even though subscriptions are outstanding; “This rule is Rule 45 Contributions; subsection 4 – 4 In these rules, a “financial member‟ is a member who owes up to six weeks contributions, and a “ full financial member‟ is a financial member who has been a member for at least six months and has paid contributions for 27 weeks in a row. In each case, “paying contributions‟ means paying the full amount of the member’s appropriate contribution rate as set out in these rules.”

46) The Union further stated that “the rule allows a member to owe up to six weeks of union contributions. Furthermore, our administrative practice with regard to apparent leavers is to allow a further 6 weeks to make contact with those individuals to inquire if their intention is to leave the union and to determine the reasons why. The total period for the application of the rule and our approaches to apparent leavers is 12 weeks.”

47) On 31 January 2019 the Union’s response was copied to the Employer and its comments invited. By e-mail dated 31 January 2019 the Employer made the following comments:

i) “I have provided evidence of each of the resignations. Presumably the GMB will provide the same type of evidence – a form signed by the employee taking up membership.” ii) “It would appear that this rule is being interpreted in a way which suits the GMB’s current position and could reasonably be interpreted differently by an objective assessor. Administrative practices are one thing but a resignation is surely a resignation and applies with appropriate notice clauses of which none have been made evident. That said, the resignations received in writing from the individuals were dated 2 October 2018. More than 12 weeks have since passed. As such the applicability of this interpretation may be questionable.”

8. Considerations

48) 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.

49) 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)

50) 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.

51) The membership check conducted by the Case Manager (described in paragraphs 19 - 21 above), before the employer provided evidence to challenge this percentage, showed that 61.90% of the workers were members of the Union. Nevertheless, the employer has not sought to challenge that this first test has been met by the union. As stated in paragraph 20 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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)

52) 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.

53) To support its position the Union relied on its level of membership, which, as stated above, stood at 61.90%. However, when the Employer was asked, following the publication of the Case Manager’s report on 9 January 2019, for its views as to whether a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union. In support of its argument that this test was not satisfied, the Employer submitted copies of 15 letters of resignation (two of whom were from workers whom the Employer stated had left the bargaining unit), that it stated evidenced their withdrawal of GMB membership. The Union subsequently confirmed to the Panel that 13 of those letters of resignation had been enacted upon by the Union, and 4 of those had now taken up full financial membership with the GMB. When asked by the Panel to clarify if it was claiming that those individuals were still in membership in accordance with the Union’s rule book, and, to provide a copy of the relevant rule, the Union responded, quoting “Rule 45 Contributions; subsection 4 – 4 In these rules, a “financial member‟ is a member who owes up to six weeks contributions, and a „full financial member‟ is a financial member who has been a member for at least six months and has paid contributions for 27 weeks in a row. In each case, “paying contributions‟ means paying the full amount of the member’s appropriate contribution rate as set out in these rules.”

54) The Union further clarified its interpretation of the rule it had quoted, stating that “the rule allows a member to owe up to six weeks of union contributions. Furthermore, our administrative practice with regard to apparent leavers is to allow a further 6 weeks to make contact with those individuals to inquire if their intention is to leave the union and to determine the reasons why. The total period for the application of the rule and our approaches to apparent leavers is 12 weeks.”

55) The Panel has to arrive at a decision based on the evidence put before it and is concerned that the union has not been able to provide any clear cut evidence to rebut the employer’s claim that 13 workers in the Proposed Bargaining Unit have resigned from the union. If anything, the more cogent evidence on current union membership levels, particularly with regard to resignations, has come from the employer. The Panel believes that it would be unsound to rely on the Union’s interpretation of its Rule book, particularly when part of its treatment of resigning members is based upon nothing more than the union’s “administrative practice” which is unsupported by any union rule. The Panel notes the Union’s claim that that the Employer had informed its members that it would cease to deduct their union subscriptions from payroll, and that it produced a pre-written document for staff to sign suggesting that they resign from the Union. However, the Panel has received no documentary evidence from the Union to support this claim.

56) Of the 13 union members in dispute, if the Panel were to discount 4 of those individuals, who the Union has claimed have since re-joined the Union, without providing any solid evidence in support, it gives a membership level of 40.47%. However, even this level of union membership is far from certain. The simple fact is that, at present, it is difficult to discern with any degree of accuracy what are the actual current levels of union membership. Accordingly, the Panel has concluded that given the lack of clarity and doubt over how many workers in the Proposed Bargaining Unit are union members it would be unsafe to accept this application.

57) On balance, the Panel is persuaded that based on the evidence before it, a majority of the workers constituting the bargaining unit would not be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and this test is therefore not satisfied.

11. Decision

58) For the reasons given in paragraphs 52 - 57 above the Panel’s decision is that the application is not accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mr Matt Smith OBE

Mr Alistair Paton

15 February 2019