Decision

Acceptance Decision

Updated 20 May 2019

Case Number: TUR1/1079/2018

15 January 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

Manheim Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 3 December 2018 that it should be recognised for collective bargaining purposes by Manheim Limited (the Employer) for a bargaining unit described as: “All those employed in Administration, Yard Operatives, Plate Drivers, Inspectors, Imaging, Swift and HGV Drivers up to, but not including, all First Line Managers, at the Manheim Auction Centre, Yew Tree Trading Estate, Kilbuck Lane, Haydock, WA11 9SZ”. The CAC gave both parties notice of receipt of the application on 4 December 2018. The Employer submitted a response to the CAC dated 10 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 Mr James Tayler, Panel Chair, and, as Members, Mr Len Aspell and Mr Keith Sonnet. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 17 December 2018. The acceptance period was extended to 8 January 2019 and then further extended until 18 January 2018 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.

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 16 November 2018 and the Employer had responded on 29 November 2018 rejecting their request. A copy of the Union’s request letter was attached to the 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 the total number of workers employed by the Employer was not known. The Union stated that there were 27 workers in the proposed bargaining unit, of whom 16 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 stated that it would be willing to provide membership details and petition evidence to the CAC Case Manager on a confidential basis.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it was a traditional bargaining unit comprising of hourly paid workers below the level of first line managers, believed it made sense and was compatible with effective management. 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 it was aware of which covered any workers in the bargaining unit the Union answered ‘No’.

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 3 December 2018.

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 16 November 2018. The Employer stated that it had responded to the Union on 29 November 2018 rejecting the request and a copy of this letter was attached to their response.

11) The Employer confirmed that a copy of a letter and an application form (without any accompanying documentation) was received from the Union by email on 3 December 2018 and a further copy of a similar letter (with an amendment to the alleged numbers of GMB members in the proposed bargaining unit) and the same application form was received by email later that afternoon. The Employer also confirmed that it received from the Union a hard copy of the covering letter and application form (without any accompanying documentation) by post during week commencing 3rd December 2018.

12) 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 considered that the bargaining unit proposed by the Union was, in their opinion, entirely incompatible with effective management.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that it was not aware of the specific membership numbers as workers were not asked to disclose such information. The Employer stated that as no evidence had been provided by the Union they were unable to agree or disagree to the assertion. 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 explained that the Company was in continuous dialogue, both formally and informally, with its workers through a number of mediums, as well as those throughout the wider Cox Group, through its recognised and effective employee representative body called the National Culture Team (the “NCT”). The Employee stated that whilst the main purpose of the NCT was for information and consultation the elected committee of 32 employees represented work collaboratively with the senior leaders and the business. The Employer stated that it was their understanding through these discussions that there was no general support for recognition by any union across sites throughout the UK. In respect of the petition the Employer stated that as a copy of the petition had not been provided it was unable to comment further on it.

14) 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. Summary of the Union’s comments on the Employer’s response

15) On 10 December 2018 the Case Manager wrote to the Union inviting it to comment on the Employer’s response. In a letter dated 12 December 2018 the Union contended that the proposed bargaining unit was totally compatible with effective management in that it was discreetly and directly managed by the local management structure at the Haydock complex.

16) The Union contended that the majority of the proposed bargaining unit did support recognition and had sufficiently indicated their support by, voluntarily, enrolling into GMB membership. The Union stated that not only did it expect its membership density to hold but that it was very likely to increase, going forward. The Union stated that it appeared that the Employer accepted that the National Culture Team did not have a bargaining role on pay, hours and holidays.

6. The membership and support check

17) 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, addresses, 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 addresses of paid up members within that unit, 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 12 December 2018 from the Case Manager to both parties.

18) The information from the Employer was received by the CAC on 17 December 2018 and from the Union on 17 & 18 December 2018. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The Union’s petition consisting of 3 names/signatories was set out as follows: PETITION IN SUPPORT OF RECOGNITION MANHEIM LIMITED, MANHEIM AUCTION CENTRE, YEW TREE TRADING ESTATE, KILBUCK LANE, HAYDOCK, WA11 9SZ

GMB Trade Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers in the “bargaining unit” support our application. If you do support us, please sign this petition.

I support recognition of GMB Trade Union as entitled to conduct collective bargaining on pay, hours and holidays on behalf of “All those employed in Administration, Yard Operatives, Plate Drivers, Inspectors, Imaging, Swift and HGV Drivers up to, but not including, all First Line Managers at the Manheim Auction Centre, Yew Tree Trading Estate, Kilbuck Lane, Haydock, WA11 9SZ.

NAME IN BLOCK CAPITALS	SIGNATURE

This petition is for Central Arbitration Committee purposes only and will not be divulged to your employer.

20) The list supplied by the Employer indicated that there were 27 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 18 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 18, a membership level of 66.67%. The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 2 non-members had indicated that they wanted the Union to be recognised which corresponded to 7.41%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 18 December 2018 and the parties were invited to comment on the results by 21 December 2018.

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

22) In a letter to the CAC dated 18 December 2018, which the Union also copied to the Employer, the Union stated that the report recorded that the proportion of GMB members in the proposed bargaining unit was 66.67% (18 workers) and submitted that it satisfied the 10% union membership test set out in Paragraph 36 (1) (a) of Schedule A1. The Union stated that the report also showed that an additional 2 workers (7.41%) in the bargaining unit had signed a petition in support which equated to 20 workers out of a bargaining unit of 27 (70.7%) expressing support for recognition and submitted that this was also sufficient to satisfy the test in Paragraph 36 (1) (b) of Schedule A1.

23) The Union stated that in any pool of workers there were likely to be workers who either did support recognition or would do so if asked in a secret ballot, but who would be reluctant for various reasons to express support by joining the Union when it was not recognised by the employer or to sign a petition. In addition, the “bandwagon effect” was likely to increase support for recognition as a result of union campaigning and the possibility of recognition drawing closer.

24) The Union submitted that in the present application it already enjoyed majority support and submitted that a level of support of 70.7% was evidence, on the balance of probabilities, that the majority of workers in the proposed bargaining unit would be likely to favour recognition of GMB as required by Paragraph 36(1) (b) of the Schedule.

25) The Employer in a letter dated 21 December 2018 confirmed that the report showed that in excess of 10% of the workers in the proposed bargaining unit were members of the GMB, and appeared to have satisfied the first aspect of the threshold test set out in paragraph 36(1)(a) Schedule A1 TULRCA.

26) The Employer did not consider that the evidence presented by the Union showed that the test in paragraph 36(1)(b) Schedule A1 TULRCA had been met. The Employer stated that whilst it was appreciated that the CAC Panel may well start with the proposition that all of the GMB members were likely to favour recognition, it submitted that this was not necessarily appropriate in the case of the workers in the proposed bargaining unit. The Employer contended that they were in an industry where union membership was relatively high in comparison to other sectors. The Employer stated that many union members (including, it was submitted by the Employer, those in the proposed bargaining unit) were union members by virtue of tradition rather than recruits who had joined the union because they necessarily wished it to be recognised as entitled to conduct collective bargaining on their behalf. The Employer stated that throughout Manheim, including in the Haydock site, very few employees were accompanied by a trade union representative to disciplinary meetings as their companion, so whilst membership may be relatively high, the employees did not appear to be using their union. The Employer stated that no unions were currently recognised throughout the Manheim or wider Cox Automotive UK group in the UK.

27) The Employer stated that some of the workers in the proposed bargaining unit were members of Manheim’s National Culture Team (the “NCT”) so already had a voice, and others were represented by the committee. The Employer stated that by collaborating with Manheim through the process of the NCT, those staff had effected change for all workers throughout the Manheim sites in the UK, for example, by gaining a commitment from Manheim that they will pay to all staff above the national minimum wage and securing additional benefits such as long service awards and an additional day’s holiday this year. Whilst the Employer said they were not suggesting that the NCT would cease to exist if the GMB were recognised in relation to the proposed bargaining unit, it would certainly change the dynamics and the feedback from the NCT had been very positive. In addition they stated that some workers would not be afforded the opportunity to negotiate with Manheim directly about their pay, hours and holiday, which they did not think they would necessarily support. The Employer submitted that there was likely to be antipathy to this within the proposed bargaining unit.

28) The Employer said that they appreciated that the test at this stage of the CAC process did not require the GMB to demonstrate that it already had actual majority support, but rather that if the application was to proceed to a statutory ballot that a majority of workers in the proposed bargaining unit would be likely to favour recognition, however, they did not feel that the evidence presented showed that to be the case.

29) In respect of the petition the Employer said that it had concerns about the reliability and legitimacy of this as evidence of majority support. The Employer stated that the question posed by the Union provided no background detail or explanation to the proposed signatories about what “recognition” meant and how it would affect their ability to negotiate directly with Manheim about their terms and conditions of employment in relation to pay, hours and holiday.

30) The Employer stated that no explanation had been offered by the GMB about the circumstances in which the alleged signatures were obtained for the purposes of the petition. The Employer said it understood that the GMB had advanced the petition process by stopping workers in their vehicles as they left the Haydock site at the exit gate handing out brown envelopes and saying “Do you want Christmas to come early” and some workers had reported to management that they felt intimidated by the GMB’s approach.

31) The Employer stated that no explanation had been provided about the timing of the gathering of the alleged signatories or for how long the petition had been in existence (and remained unsigned/signed by very few people). The Employer pointed out that only three individuals had signed the petition, two of whom were workers in the proposed bargaining unit, neither of whom were GMB members, despite the apparently high membership of GMB within the proposed bargaining unit. The Employer stated that whilst the GMB stated in their letter that these are additional to the support of its members in the proposed bargaining unit, Manheim questioned why the GMB members had not signed the petition, particularly as it was left within the operations team staff room at the Haydock site. The Employer submitted that the petition is evidence that 92.59% of the workers in the Proposed BU had not expressly indicated their agreement and it was therefore possible, and even probable, that a majority would not be likely to favour recognition.

32) The Employer stated that the GMB referred in their letter of 18 December 2018 to the ‘bandwagon effect’ likely harnessing greater support for the GMB. In practice, referring not only to the petition, but the efforts made by the GMB over the past few years to increase support, the Employer submitted that either that was simply not the case or, on the contrary, the opposite effect appeared to be taking place.

33) The Employer stated that it engendered an inclusive culture, where employees did not have fear of retribution and therefore, this was not a case where union members had not signed the petition through fear of retribution. The Employer stated that since the application had been made by the GMB to the CAC, the GMB had been actively distributing the petition at the exit gate of the Haydock site in brown envelopes and after seeing a copy of the petition in the operation staff room, Manheim did not remove it.

34) The Employer concluded by submitting that, taking all their points together, and in all the circumstances, the Panel should not have confidence that there would be a likely majority of workers in favour of recognising GMB. Accordingly, they did not consider that the GMB’s application met the threshold tests set out in paragraph 36, Schedule A1, Chapter 52 TULRCA.

35) Because of the unusual fact that the petition had not been signed by any Union members on the 2nd January 2019 the CAC Case Manager asked the Union whether the petition was given to everyone to sign or whether it was only given to non-union members to sign. In a letter dated 3rd January 2019 the Union stated that the petition forms used by them during their campaign were widely used, in that they were posted to GMB members, along with other GMB promotional literature. The GMB members at Manheim were then asked to pass the petition forms on to non-members for them to sign and to return. The Union confirmed that the first such mail shot was dated the 29th November 2018 and the most recent was dated the 3rd December 2018. The Union stated that they also handed petition forms out to workers in the proposed bargaining unit at the Manheim gate during leafleting exercises and said that the packs they used contained other GMB promotional literature and petition forms. The Union stated that when the packs were handed to the workers, they were politely asked to, ideally, join GMB (if they hadn’t already done so) or, alternatively, indicate their support for GMB recognition by signing and returning the petition form. The Union confirmed that all the leafleting exercises were conducted during December 2018.

36) The Union stated that the petition forms were targeted at the non-member population at Manheim. The Union stated that the CAC process recognises that petition support from non-members in a proposed bargaining unit could also be separately calculated and evaluated at the CAC support check and that the numbers from the support check showed membership at 66.67% along with the additional signed petition form support of 7.41%.

37) The Union stated that the mail shots were professional, polite and focussed on GMB benefits and services and the leafleting exercises were conducted in a spirit of good humour and were well received by the workers.

8. Considerations

38) 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.

39) 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 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. It does not at this stage determine whether the proposed bargaining unit is appropriate.

9. Paragraph 36(1)(a)

40) 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.

41) The membership check conducted by the Case Manager showed that 66.67% of the workers were members of the Union. As stated in paragraph 18 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 noted that the Employer in their correspondence dated 21 December 2018 agreed that the report showed that in excess of 10% of the workers in the proposed bargaining unit were members of the GMB, and appeared to have satisfied the first aspect of the threshold test set. 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)

42) 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.

43) The Case Manager’s check of the Union’s petition against the list of 27 workers provided by the Employer indicated that 2 of the 3 petition signatories were identifiable as workers within the proposed bargaining unit, a support level of 7.41% and these identified signatories were non-members in the proposed bargaining unit.

44) The Panel has taken into consideration all the points made by both parties. Because of the unusual feature in this case that no Union members signed the petition the Panel arranged for the union to be asked whether the petition was given to everyone to sign or whether it was only given to non-union members to sign. The Union stated that the petition forms were targeted at the non-member population. While this does not go as far as stating that the forms were only given to non-members or that only non-members were permitted to sign, the contention that employees understood that the petition was for non-members is strongly supported by the fact that no members signed. It is highly unlikely that no members of the union would support recognition.

45) The Panel notes the employer’s contentions that this is an industry where union membership is relatively high, that some may be members because of tradition, that few employees are accompanied by a trade union representative to disciplinary meetings, that some of the workers in the proposed bargaining unit are members of Manheim’s National Culture Team and might be antipathetic to recognition and the concerns that the employer raised about the reliability of the petition. However, the Panel has not received, from either the Employer or any workers within the proposed bargaining unit, any documentary evidence that employees in the bargaining unit would not support recognition of the Union. The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (66.67%), as would non-union members who signed the petition (7.41%); giving a total of 74.08%. Even if the employer is correct and there may be rather less support than can usually be assumed by adding the membership percentage to the percentage of non-members who have signed the petition, the figures are so high that the union has easily persuaded us that there is likely to be greater than 50% support for recognition. The “bandwagon effect” is also likely to result in an increase in support for recognition.

46) 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

47) 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 Len Aspell

Mr Keith Sonnet

15 January 2019