Decision

Validity Decision

Updated 24 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1242(2021)

22 March 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

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

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 but for the purposes of this decision the Case Manager supporting the Panel was Kate Norgate.

3) By a decision dated 13 January 2022 the Panel accepted the Union’s application. Following this decision, the parties then reached agreement on the appropriate bargaining unit. The agreed bargaining unit was described as “3 tiers of Salaried Staff, Professional I/Clerical, Professional II/ Technical, Middle Management, based at Muir of Ord site”.

2. Issues

4) As the agreed bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule.

3. Membership and support check

5) To assist 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 and 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of the petition signed by workers in favour of recognition. It was explicitly agreed with both the 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 4 March 2022 from the Case Manager to both parties.

6) The information from the Employer was received by the CAC on 4 March 2022 and from the Union on 8 March 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The list supplied by the Employer indicated that there were 36 workers in the agreed bargaining unit. The list of members supplied by the Union contained 8 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 7, a membership level of 19.44%.

8) The Union also provided a petition which contained 20 names/signatures. The petition consisted of 2 A4 sheets, both of which were headed with the Union’s logo and carried the following proposition: GMB Scotland SGL

“I, as an employee of SGL Carbon, and who does not, yet, have the right to Collectively Bargain, wish to declare my support for the GMB to be recognised for my Working Department and Job Role”.

Each signatory to the petition was asked to provide their name, signature, job title and date.

9) The check of the Union’s petition showed that it had been signed by 20 workers in the agreed bargaining unit, a figure which represents 44.44% of the agreed bargaining unit. Of those 20 signatories, 3 were members of the Union (8.33% of the agreed bargaining unit) and 13 were non-members (36.11% of the agreed bargaining unit).

10) A report of the result of the membership and support check was circulated to the Panel and the parties on 8 March 2022. In a letter dated 10 March 2022 the Case Manager invited each party comment on the result of the check. The parties were also invited to make their submissions on the validity tests for consideration by the Panel.

11) In a letter to the Case Manager dated 11 March 2022 the Employer made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “No, we as Senior Site Management currently present all business cases to our Corporate level colleagues in Germany on behalf of all ‘white collar’ staff.”

b) Is there 10% union membership within the new bargaining unit? “Going by the numbers you have provided there is 19.44%.”

c) Are the majority of the workers in the new bargaining unit likely to favour recognition?

The Employer did not believe that a majority would be in favour of Union representation as the survey was carried out at a time where the annual bonuses were in question of being removed, no announcement of salary increases, and general low morale with COVID restrictions. The Employer further explained that it was now in a position where it had;

1. secured the bonus structure for the future;

2. received a % salary increase plus additional payment towards energy costs;

3. introduced more flexible working for those who could;

4. with COVID restrictions easing, started to reintroduce some of its employee well-being strategy again e.g. Reward & Recognition Programme, Team Building, Training and Development, Occupational Health Support, and the Company Family Day event for the summer.

The Employer maintained that it could not ignore the fact that the request and questionnaire had been generated at a time when the majority of the human race were suffering low morale with everything that came with the Global Pandemic.

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No.”

e) Has there been a previous application in respect of the new bargaining unit? “No.”

12) In an e-mail to the Case Manager dated 14 March 2022 the Union made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “No.”

b) Is there 10% union membership within the new bargaining unit? “Yes.”

c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “Yes, this is represented in the petition that was signed by members and non-members.”

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No.”

e) Has there been a previous application in respect of the new bargaining unit? “No.”

4. Considerations

13) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it.

14) The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

5. Paragraph 45(a)

15) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (see paragraphs 5 to 7 above) showed that 19.44% of the workers in the agreed bargaining unit were members of the Union. As stated in paragraph 6 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 agreed bargaining unit as required by paragraph 45(a) of the Schedule.

6. Paragraph 45(b)

16) Paragraph 45(b) provides that the application in question is invalid unless the CAC 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. The Panel notes that the support check conducted by the Case Manager (see paragraphs 8 to 9 above) showed that 44.44% of the workers in the agreed bargaining unit (16 out of 36 workers) had signed a petition in support of recognition of the Union. Of those who had signed the petition, 3 were union members (8.33% of the agreed bargaining unit) and 13 were non-members (36.11%). The check also showed that the level of Union membership is 19.44%. The Panel notes the Employer’s submission that the survey had been conducted at a time of ‘low morale’. However the Panel also notes that Employer did not provide any evidence to indicate that this had changed in recent times and that those who signed the Union’s petition had changed their minds about whether they favoured recognition of the Union. The Panel considers that in the absence of any evidence to the contrary, the level of union membership (19.44%) and the fact that 13 non-members signed the Union’s petition in favour of recognition (36.11%), taken together (suggesting a total level of support of 55.55%), constitutes sufficient evidence for the Panel to conclude that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition.as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 45(b) of the Schedule.

7. Decision

17) For the reasons given in paragraphs 14 - 16 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Professor Kenny Miller, Panel Chair

Miss Kerry Holden

Mr Matt Smith OBE

22 March 2022