Decision

Acceptance Decision

Updated 14 October 2019

Case Number: TUR1/1105(2019)

03 July 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

Shred-It Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 30 April 2019 that it should be recognised for collective bargaining by Shred-It Ltd (the Employer) for a bargaining unit comprising “All permanent hourly paid staff (Balers, Customer Service Representatives and Customer Service Representative Helpers) up to and excluding managers”. The location of the bargaining unit stated in the application was “16e Follingsby Close, Follingsby Park, Gateshead NE10 8YG”. The CAC gave both parties notice of receipt of the application on 1 May 2019. The Employer submitted a response dated 8 May 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 Chairman of the CAC established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller as chair of the Panel and, as Members Mrs Maureen Chambers and Ms Virginia Branney. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 15 May 2019. The acceptance period was extended on several occasions in order for the CAC to: obtain more information from the parties; carry out a membership and support check and for the parties to comment on that check, to provide time for the Panel to consider all the evidence and for the Panel to finalise its written decision. The final extension ended the acceptance period on 3 July 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 of the Schedule; and therefore should be accepted.

3. Summary of the Union’s application

5) The Union stated that it had a certificate of independence and confirmed that it had not made a previous application under the Schedule for statutory recognition for workers in the bargaining unit and/or a similar unit.

6) Enclosed with the Union’s application was a copy of the Union’s formal request letter to the Employer dated 24 January 2019. The Union stated that the Employer’s response was to refuse voluntary recognition but requested Acas involvement. The Union met with Acas and the Employer on 3 April 2019. Several points of agreement were reached on that day relating to arrangements and communications with workers for a ballot, however most of these had been ignored by the Employer. The Union felt it had been reasonable but had now reached an impasse with the Employer and had therefore instigated the statutory process.

7) The Union stated that the Employer employed 27 workers and that there were 23 workers in the proposed bargaining unit of which 18 were members of the Union. When asked to provide evidence that a majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that the workforce had organised themselves to join the Union. The number of members had increased in the last 6 months and there had been GMB involvement since January 2019. Acas had done a statistical check but this was incorrect as the staffing list provided by the Employer was incorrect. It was not therefore sure if the Employer agreed with the Union as to the number of workers in the proposed bargaining unit.

8) The Union explained that the reasons for selecting the workers in its proposed bargaining unit were because: the job roles operated under similar terms and conditions and they had been the Union’s core membership since day one. The Union did not have members with any other job titles. The Employer had mentioned “team leaders” as being part of the proposed bargaining unit in one document but the Union understood these workers to be salaried staff and therefore did not fall within the description of the Union’s proposed bargaining unit. The Union confirmed that the bargaining unit had not been agreed by the Employer.

9) Finally, the Union stated that it was not aware of any existing recognition agreement that covered any worker in the proposed bargaining unit and that the date on which its application to the CAC and supporting documents were copied to the Employer was 30 April 2019.

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

10) The Employer submitted its completed “Employer’s Response Questionnaire form” to the CAC on 7 May 2019 which together with its covering e-mail to the CAC provided the following information for the Panel.

11) The Employer had received the Union’s formal letter of request on 24 January 2019 to which it had responded by letter dated 7 February 2019 (a copy was enclosed) in which it rejected the Union’s request but expressed that it was willing to negotiate and also proposed that Acas facilitated their discussions.

12) The Employer had not agreed with the Union’s proposed bargaining unit before the Union’s application to the CAC neither did it agree with it now. The Employer did agree however with the Union’s stated figure for the number of workers in the proposed bargaining unit.

13) The Employer stated that it did not track individual union membership. To its knowledge one employee had left Stericycle in recent weeks, and two others had resigned, some or all three may have been Union members. The Acas analysis conducted in March 2019 showed 14 Union members. The Employer had no reason to believe that membership had increased since then. In addition, it had received employee comments expressing concerns that one or more union activists have been applying peer pressure at work and outside work, including threatening not to swap shifts with team members who voted against the union.

14) In relation to the question of whether the majority of the workers in the proposed bargaining unit were likely to favour recognition for collective bargaining, the Employer stated that since the union application several employees had left to pursue other career opportunities. The Employer believed that this changed the Union’s majority status. It was clear to the Employer from team briefings and individual discussions with employees to update them about the Union’s application and Acas ballot proposals, that the differences between individual membership and Union recognition were not fully understood.

15) When asked whether it was aware of any previous application covering any worker in the proposed bargaining unit or a similar unit, the Employer replied “This occurred a few years back?” but confirmed that there was not any existing agreement for recognition in force covering workers in the proposed bargaining unit.

16) In its covering e-mail when submitting the CAC’s Employer’s Response Questionnaire the Employer raised its concern that the Union’s application to the CAC suggested that the parties had reached an impasse which created the situation upon which the Union applied to the CAC. In its view, in the labour world, reaching true impasse was where two parties had exhausted all alternatives in the course of negotiation. However the Union had unilaterally withdrawn from the Acas process without any rationale in support of their position or any further negotiation about the process. The Employer had submitted documentation to Acas about establishing the ballot process and the access agreement but Acas had not communicated with the Employer on these matters. Assuming that it had not communicated with the Union either, the application appeared to be premature.

5. Summary of the Union’s comments on the Employer’s response

17) By invitation of the Panel, on 20 May 2019 the Union submitted its comments on the Employer’s response. The Union confirmed that it had sent a copy of its application on 30 April 2019 to the Employer and Acas just prior to submitting the application to the CAC (a copy of the Union’s covering e-mail to the Employer was enclosed).

18) It was the Union’s understanding that the workers referred to by the Employer who had left the Company were not Union members. The Union reiterated that it did not agree with the outcome of the Acas analysis. Union members who were missing from the Employer’s staffing list were contacted to double check and they confirmed to the Union that they were still employees of the Company and based at the site in Washington. The Union raised the issue of incorrect information directly with the Employer at the meeting on 3rd April with Acas at which the Employer agreed to supply an up to date membership list. The Union maintained its position that as of 3rd April it had 16 members and as at the date of the application it had 18 as 2 of its members had joined the workforce.

19) The Union questioned why the Employer had not raised the issue of workers expressing concerns about Union activists applying peer pressure at work and outside work before. GMB members were aware that no bullying, intimidation or harassment was acceptable in the workplace. During the negotiations with Acas, the Union had itself reported to Acas an incident regarding threatening behaviour from one of the managers in the work place which Acas had reported back to the Employer who then addressed the matter. The Union provided the Panel with a copy of the relevant e-mail exchange between the Union, Acas and the Employer in respect of the incident dated 11 April 2019.

20) The Union disputed the Employer’s point that the differences between individual membership and Union recognition were not fully understood by the workers. When meeting with the majority of its members in January, prior to submitting its written request for recognition to the Employer, these members did understand the difference between recognition and individual membership as this was the subject discussed. In particular these members discussed with the Union their pay award and how the Employer currently carried out the pay award with individuals. There was a feeling amongst these members that the Employer’s method was unfair and that there were long serving employees earning less than those with shorter service length, issues that the Union could address with the Employer through recognition. The Union highlighted to the Panel that the workers had organised themselves, and that the Union had not conducted any recruitment drives to build up membership.

21) The Union disagreed with the Employer that its application to the CAC was premature. As evidence, the Union provided the Panel with the list of items that were agreed between the parties at the meeting of 3 April 2019 regarding communication with the workers in preparation for an Acas ballot. The Union also provided the Panel with an extensive list of occurrences and actions by the Employer that it believed were unreasonable and in opposition to what was agreed at that meeting including:

• Unacceptable behaviour from a manager on site a week after the parties had agreed to no intimidation or bullying;

• The Employer sending out communications that were either objected to or not seen by the Union as agreed;

• The Employer changing its position from wanting a postal ballot to wanting a workplace ballot and the Employer informing the workers that this change of position was to avoid intimidation.

• The Employer had not responded to the Union’s objection to a workplace ballot;

• A 20 point draft access agreement proposed by the Employer much of which from the Union’s perspective was unreasonable and included the addition of roles outside of the Union’s proposed bargaining unit.

22) The Union had concluded that the draft access agreement proposed by the Employer was a delaying tactic. The Union’s understanding was that if an agreement was reached, it should be met and not challenged for weeks after. The Union felt that if at the meeting on the 3 April 2019, the Employer had said it would take the matters discussed and come back to the Union with its thoughts and views, this would have seemed reasonable, but this was not the case and consequently, the Union believed that it had exhausted that process and withdrew from it.

6. Membership and Support Check

23) 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.

24) 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 as outlined in the Union’s application to the CAC, and that the Union would supply to the Case Manager a list of its paid up members, providing their names, addresses and dates of birth (where possible). 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 the CAC’s letter to the parties dated 24 May 2019.

25) The membership check established that there were 25 workers in the proposed bargaining unit of which 17 were members of the Union; a membership level of 68%. The Case Manager’s report of the results of the membership and support check dated 11 June 2019 was issued to the Panel and to the parties for comments on the same date. The Panel was satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

7. The Union’s comments

26) On 14 June 2019 the Union raised a query by e-mail to the Case Manager regarding the increase in the number of workers in the proposed bargaining unit which the CAC copied to the Employer for a reply. The Employer responded on the same date and explained that the increase was due to employee turnover in the 3 month period since the initial list of workers that was provided to Acas in mid-March. To clarify, the Employer provided a table reconciling the employee complement changes for the proposed bargaining unit at the Gateshead location over that 3 month period which was duly copied to the Union.

27) By e-mail to the CAC dated 17 June 2019 the Union confirmed to the Panel that it had no comments in respect of the membership and support check. The Union also reported to the Panel that according to Union members, the Employer had been approaching the workers individually to ask them if they wanted the Union and also threatened that the workforce could lose their bonuses if the Union was recognised. In its view, this was intimidation, harassment and a threat of inducement. The Union stated that if the Employer was to submit a survey to the Panel as evidence of workers not in support of Union Recognition, this survey would not be a true reflection of the workers’ feelings and would have been obtained by offering inducement. The Union also stated that the Employer’s survey would be unreliable as it was a verbal survey.

8. The Employer’s comments

28) The Employer accepted the numerical analysis carried out by the CAC Case Manager as determining that the Union had a density of 68%, and that the Union had met the 10% threshold required by paragraph 36(1)(a) of the Schedule.

29) With regard to the test set out at paragraph 36(1)(b) of the Schedule however, the Employer contended that the results of the check was a numerical exercise but that individual membership of a trade union did not translate into support for union recognition. It believed it was for the Union to provide credible evidence which demonstrated a majority of workers would be ‘likely to favour’ union recognition. The Employer urged the Panel to apply the ‘likely majority support test’ strictly on tangible evidence, such as relevant correspondence from workers in the proposed bargaining unit. The Union had not provided any supplemental information which positively demonstrated that the Gateshead employees were in support of Union recognition for the purposes of collective bargaining. In contrast, through many one-to-one chats and small group discussions with team members over recent weeks, workers had expressed to the Employer that they were happy with the positive actions the Employer had taken to address concerns and implement workplace improvements raised in an Engagement Survey conducted in October 2018. Actions that included: addressing shift swaps between team members; opportunities for additional overtime; rest days; Bank Holiday lieu days; end-of shift refreshments, and increasing the hourly pay rate which addressed the concern about a pay differential with a nearby branch in the region. It was likely that these concerns might have initially led employees to join the Union. Several workers had voluntarily shared with local supervisors and the branch manager that they believed a union was not required at Gateshead.

30) The Employer provided the Panel with anecdotal evidence it had obtained from workers during work related ride-a-longs with Newcastle drivers in the “the last 3 weeks”: One driver had stated clearly his opposition to union recognition as he was pleased with his current terms and conditions of employment and another driver told his supervisor that he had resigned his union membership, but that the following day an activist approached him to re-join the union who told him it was because ‘we need the numbers’.

31) The Employer stated that it had reasonable grounds to believe that a core group of Union activists had been applying peer pressure on colleagues to join the Union and threatened that unless they supported the Union, they would not swap shifts with them or assist with branch tasks. Aside from inappropriate behaviour this also demonstrated that the Union was relying solely on its majority density, which in its view did not validate actual support for union recognition.

32) In conclusion workers had not clearly declared their support for union recognition, nor had the Union provided supporting documentation to that effect. In the absence of any credible evidence, the Employer believed it would be wrong for the CAC to assume that a majority of Union members, let alone all of them, supported Union recognition and urged the Panel to reject the Union’s application.

33) In a letter to the CAC dated 23 June 2019 the Employer provided its response to the points made in the Union’s e-mail to the Panel dated 17 June 2019. It was concerned that the Union was attempting to engage in a misinformation campaign based on embellishments and untrue statements to paint it as intimidating or threatening to its own employees. The Union’s statement to the Panel was inaccurate. The Employer did not engage in inappropriate behaviours such as threatening employees. The bonuses referred to by the Union in its submission to the Panel were performance bonuses that were based on serving customers in a timely and professional manner and monitored through performance metrics to qualify for payment on a quarterly basis. The Union’s statements were untrue, unreliable, and served to illustrate that the Union had an inaccurate understanding of its working practices or employment terms. The Union had produced no factual evidence to substantiate its claims of inducements, intimidation or harassment. The Employer considered the Union’s comments as an undisguised form of pressure to discourage it from informing and seeking the views of its employees. It was good practice to engage in regular two-way dialogue with staff, and it was part of normal workplace communications and management contact. Workers were encouraged to share their views about workplace matters so that the workplace could be continually improved. There were no formal agreements in place with the Union. Communications with the workers included: Updates on the progress of the Union’s application since it requested union recognition in January 2019; explaining what effect unionisation could have, and re-affirming the Employer’s preferred approach to treat all of its employees as individuals, work directly with them without the need of a third party and participate in workplace improvements.

34) Finally the Employer stated that though it believed that a core group of Union activists had been putting pressure on peers to join the Union, whilst this was maybe disrespectful and unacceptable behaviour by a minority of the team members, it would take steps to promote an open culture of mutual respect and support, where differences of opinion were respected. The Employer stated that it had engaged in lawful behaviour as part of this process, but could not say the same of the Union and therefore urged the Panel again to reject the Union’s application.

9. Considerations

35) In the submissions of both parties to the CAC there have been claim and counterclaim setting out their respective views on each other’s conduct with the workers in the proposed bargaining unit. Much of this has been anecdotal and lacking detail and would involve the Panel in fruitless speculation if we sought to address each and every one of the parties’ complaints. Moreover, there are no specific provisions in the Schedule at this stage which would empower the Panel to address these issues explicitly. ^{[footnote 1]} The Panel, therefore, has based its decision on the evidence before it - primarily the membership check carried out by the Case Manager.

36) 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.

37) The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. The Panel is also 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.

38) 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.

10. Paragraph 36(1)(a)

39) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether or not members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The check of Union membership in the proposed bargaining unit conducted by the Case Manager as reported on 11 June 2019 established that Union membership stood at 68%. The Panel does not consider that it has any reason not to accept the information reflected in the membership check and is therefore satisfied that this test is met.

11. Paragraph 36(1)(b)

40) 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.

41) At this stage the Panel has a duty to determine whether there is currently a majority of workers within the proposed bargaining unit who are likely to support recognition. The test is not of actual support but likely support as has been pointed out in the Employer’s case. There has been no evidence provided in this case that there were workers within the bargaining unit who were not in support of recognition of the Union aside from a few anecdotal comments provided by the Employer. The Panel notes that at the same time the Employer has requested tangible evidence of the contrary but has not sought to explain what type of evidence it would regard as tangible. Based on the Panel’s extensive industrial relations experience membership of a trade union is indicative of support for that union to be recognised by its employer for the purposes of collective bargaining on the worker’s behalf. The Schedule allows for the testing of actual support of recognition of the Union by the holding of a ballot at a later stage of the statutory application process.

42) The Panel is required to reach a decision on the basis of the evidence provided at the time it is required. We are satisfied that the membership check conducted by the Case Manager was carried out in a fair and impartial manner and in so doing has addressed and assuaged the Union’s reservations regarding the accuracy of the information provided by the Employer for the analysis of all the workers in the proposed bargaining unit with regard to membership and likely support for the Union.

43) The Panel has reviewed carefully the evidence submitted by both parties and the figures produced by the Case Manager in the membership check report of 11 June 2019. The level of membership in the proposed bargaining unit at the time of the membership check was over 68%. This level of membership strongly suggests to the Panel that a majority of the proposed bargaining unit is likely to be in favour of recognition of the Union for the purposes of collective bargaining. The Panel is therefore satisfied that the requirement under paragraph 36(1)(b) of the schedule is met.

12. Decision

44) The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance with paragraph 12 and is admissible within the terms of paragraphs 33 to 42 of the Schedule. The Panel also considers that both requirements of paragraph 36 are met. The application is therefore accepted by the CAC.

Panel

Professor Kenny Miller - Panel Chair

Mrs Maureen Chambers

Ms Virginia Branney

3 July 2019

1. Specific provisions are set out in paragraph 27 of the Schedule which allows either party to make a formal complaint about the other party engaging in unfair practices leading up to and during a ballot should an application reach that stage of the statutory process. ↩