Decision

Acceptance Decision

Updated 24 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1242(2021)

13 January 2022

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

SGL Carbon Fibres Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC on 7 December 2021 that it should be recognised for collective bargaining by SGL Carbon Fibres Limited, (the Employer) for a bargaining unit comprising of “Salaried Paid Staff” (Sometimes referred to as “White Collared Workers” in SGL Carbon Terms, up to and including management). The Union confirmed the titles for these employees as Administrative/Supportive staff, Managerial staff and Specialist department staff. The location of the bargaining unit was given as Muir of Ord Industrial Estate, Great North Road, Muir of Ord, Ross-Shire, IV6 7UA. The CAC gave both parties notice of receipt of the application on 7 December 2021. The Employer submitted a response to the CAC dated 9 December 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, Miss Kerry Holden and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 21 December 2021. The acceptance period was extended to 4 January 2022 and then to 11 January 2022 and subsequently to 18 January 2022 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report and the Panel to consider said comments before arriving at a decision.

2. Issues

4) The CAC 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 the Union said that it had written to the Employer with a formal request for recognition on 2 October 2021. The Union stated that the Employer responded on 2 November 2021 rejecting the Union’s request. Copies of correspondence relating to this were attached.

6) The Union stated that the total number of workers employed by the Employer was approximately 250 and that approximately 50 fell within the proposed bargaining unit. The Union stated that it had 9 members within the proposed bargaining unit. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it could provide evidence that the Union had an existing bargaining unit for 170 employees, who were described as hourly paid. An increase in membership from “salaried staff” from 3 to 9 in the space of several weeks allowed the Union to engage more with those outside the bargaining unit. The Union also had a petition signed by 20 non-members who would support the Union’s recognition of the bargaining unit.

7) The Union stated that the reason for selecting the proposed bargaining unit was that this was where the majority of its members and signatories of the petition worked.

8) The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question was there an existing recognition agreement which it was aware of, the Union stated that there was no existing recognition 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 7 December 2021.

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

10) The Employer stated that it had received the Union’s formal request for recognition on 1 October 2021 by email. When asked what its response was, the Employer’s HR representative stated that it had sent an email to the Union dated 4 October 2021 stating that it could not authorise such an agreement or amendment to the living agreement on behalf of the company without first seeking advice from the legal team.

11) The Employer confirmed it had received a copy of the Union’s application on 7 December 2021 by email.

12) The Employer stated that it did not agree with the bargaining unit as proposed by the Union as it did not believe there was an appetite for union representation from the majority of the salary paid staff. The Employer was in weekly discussions with its workers and when this topic had been raised on occasion, the majority of staff was not interested in joining.

13) The Employer stated the number of workers in the proposed bargaining unit was 50 current salaried staff plus 7 vacancies, taking the total to 57.

14) The Employer confirmed that the total number of workers employed was 246. Asked if it disagreed with the number of workers in the proposed bargaining unit the Employer said that it did not agree as it was only an estimate given by the Union. The Employer stated that according to the Union’s application form it had 6 new members within the proposed collective bargaining unit. The Employer would require confirmation that these individuals were salaried and not hourly paid. The Employer also referred to the Union’s 20 signatories on the petition “the majority of which fall into the proposed collective bargaining group” The Employer stated that this also suggested that these individuals also did not fall into this group. The Employer required clarification as to the exact numbers involved and required evidence that they were current employees and not individuals that had left the company. The Employer stated it could provide all relevant data to the CAC to independently check that it matches the Union’s claim.

15) As to whether it considered that a majority of the workers in the bargaining unit were likely to support recognition the Employer stated to the best of its knowledge that there never had been an appetite for union representation for salaried staff during its entire history at the site. This included the 24 years of SGL ownership and the prior 16 years of RK Carbon ownership.

5. The membership and support check

16) 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 with 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 a petition in support 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 13 December 2021 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 13 December 2021 and from the Employer on 13 December 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer contained the names of 54 workers and the list of members supplied by the Union contained 9 names.

18) The Union also provided a petition that consisted of 2 A4 sheets, both of which were headed with the Union’s logo and were set out as follows: “GMB Scotland SGL. I, as an employee of SGL Carbon, and who does not yet, have the right to collectively bargain, wish to support the GMB to be recognised by my working department and job role”. There then followed a table with columns headed Name, Signature, Job Title and Date. The signatures on the petition were all dated on 16 November 2021.

19) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 9, a membership level of 16.67%. The check of the petition showed that it had been signed by 20 workers in the proposed bargaining unit, a figure which represents 37.04% of the proposed bargaining unit. There were five workers in the proposed bargaining unit who had signed the petition and were union members constituting 9.26% of the bargaining unit. Fifteen non-members signed the petition meaning that the proportion of workers in the proposed bargaining unit who had signed the petition and were non-members was 27.78%.

20) A report of the result of the membership check was circulated to the Panel and the parties on 15 December 2021 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership and support check

21) In an e-mail to the CAC, dated 20 December 2021, the Union stated that it had met the first test with a total of 16.6% in membership adding that it had seen an increase in membership of the proposed unit of 44%. The Union had 15 signatories from non-members who wished to see a bargaining unit created for this group of staff with the signatories of the petition covering varied positions within the proposed bargaining unit. The Union also claimed that it had collected the signatories without any proper access to the proposed bargaining unit. The Union stated that the Employer recognised it for a bargaining unit covering the ‘Hourly Paid Staff’ and regular negotiations took place. The Union requested to be granted access to the proposed bargaining unit to discuss merits of recognition with staff who the Union claimed had not yet been given the opportunity to do so and to also conduct a postal ballot of the proposed bargaining unit to determine whether the bargaining unit can be created.

22) In an e-mail to the CAC dated 21 December 2021 the Employer acknowledged that the report supported its case that the application should be refused.

7. Considerations

23) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

24) 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 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period the Employer informed the Union that the Employer did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

25) The membership check conducted by the Case Manager showed that 16.67% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 21 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.

9. Paragraph 36(1)(b)

26) 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.

27) The Panel notes the absolute numbers and percentages in support of union recognition set out in paragraph 19. It is the case that the number of non-union members signing the petition outnumber the number of union members in the proposed bargaining unit. We acknowledge that the figures do not present an overwhelming case in support of union recognition with the number of union members being particularly low. However, we take the view that those workers who have joined the Union would be likely to favour recognition of the Union for collective bargaining purposes (16.67%). We also believe that it is reasonable to conclude that those non-members who had signed the Union’s petition in favour of recognition (27.78%) would also be likely to favour union recognition. This gives a total percentage of 44.45% of workers in the proposed bargaining unit who we believe would be likely to be in favour of recognition. The Panel, whilst acknowledging that the figure of union members plus non-member support does not achieve an arithmetical majority, would remind the parties that the statutory test is one of likelihood and not absolute levels of support. It would take only 4 non-members out of the pool of 30 workers whose views on recognition had not been expressed, either by way of union membership or by signing the Union’s petition, to support recognition of the Union for the Union to enjoy an actual arithmetical majority. We believe such an outcome is a probable one. The Panel has decided therefore that, based on the evidence before it, 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.

10. Decision

28) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Miss Kerry Holden

Mr Matt Smith OBE

13 January 2022