Decision

Acceptance Decision

Updated 23 June 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1223(2021)

23 June 2021

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

Springvale EPS Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 27 May 2021 that it should be recognised for collective bargaining purposes by Springvale EPS Ltd (the Employer) in respect of a bargaining unit comprising “A proposed bargaining unit of employees of Springvale EPS Ltd, Coach Lane, Hazlerigg, Newcastle Upon Tyne, NE13 7AP, who are defined as general factory operatives including fork lift truck drivers, machine operators, yard operatives and warehouse operatives. Engineers / Maintenance operatives. Transport / HGV drivers. Quality assessors / analysts. Charge hands.” The application was received by the CAC on 28 May 2021 and the CAC gave both parties notice of receipt of the application the same day. The Employer submitted a response to the CAC dated 2 June 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 Chairman established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller, Panel Chair, and, as Members, Mr Paul Moloney and Mr Willian O’Shaughnessy. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 14 June 2021. The acceptance period was extended to 25 June 2021 in order to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those 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 sent its request for recognition to the Employer on 7 May 2021, and that the Employer had not responded to its request.

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 further 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 it estimated that the total number of workers employed by the Employer was approximately 60. The Union stated that there were 49 workers in the proposed bargaining unit, of whom 28 were members of the Union. The Union was willing to share its membership data with the CAC on a confidential basis.

8) 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 said that in addition to its 28 union members, it also had 9 unique signed petitions in support of its application for recognition from employees within the proposed bargaining unit who were non-members. This equated to 75% support within the bargaining unit. The Union was willing to share those petitions on a confidential basis so that they could be checked and validated.

9) The Union stated that the reason for selecting its proposed bargaining unit was because union members and non-members who had signed the petitions fall within the proposed bargaining unit. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

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 27 May 2021.

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

11) The Employer said that it had received the Union’s request for recognition on 24 March 2021. The Employer said that it had responded by e-mail dated 26 March 2021 in which it acknowledged receipt of the Union’s letter and asked for the names of the sizable numbers to see what percentage it was of the workforce. A copy of the Union’s letter of 23 March 2021 and the Employer’s e-mailed response dated 26 March 2021 were attached the response. The Employer also attached a copy of the Union’s formal request for recognition dated 7 May 2021.

12) The Employer said that it had received a copy of the application form and supporting documents from the Union on 27 May 2021. 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, as the Union would not supply the numbers or names, claiming GDPR. The Employer said that it did not agree with the proposed bargaining unit and maintained that when the Union were seeking dialogue, the Employer had asked a simple question to which the Union would not answer. There was also a new factory manager who had started a workforce council and was working through the points raised whilst improving the communication between management and shopfloor.

13) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer answered no, as it had not realised that this was an option until it had received the Union’s letter on 7 May 2021.

14) In answer to question whether it agreed with the number of workers in the bargaining unit as set out in the Union’s application, the Employer said that it did not know as the names had not been provided.

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

16) When asked both whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit and, when invited to give reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer said that it was unable to answer as it had only received the alleged numbers on the application form.

17) Finally, when asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and, whether it had received any other applications in respect of any workers in the proposed bargaining unit, the Employer responded, “No application since I started Springvale in 2006.”

5. The membership and support check

18) To assist in 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, 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 dates of birth) and 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 would not be copied to the other party and that agreement was confirmed in a letter dated 7 June 2021 from the Case Manager to both parties.

19) The information requested from both parties was received by the CAC on 9 June 2021. 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 67 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 25 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 25, a membership level of 37.31%.

21) The petition supplied by the Union contained 33 names and signatures, of which 31 were in the proposed bargaining unit, a figure that represents 46.27% of the proposed bargaining unit. Of those 31 signatories, 20 were members of the Union (29.85% of the proposed bargaining unit) and 11 were non-members (16.42% of the proposed bargaining unit). The petition supplied by the Union consisted of 33 A4 sheets, each headed with the GMB logo and set out as follows:

“Springvale EPS Ltd

Coach Lane, Hazlerigg, Newcastle upon Tyne, NE13 7AP.

The below can be completed by both union members and non members, the information provided will not be shown to your employer.

I the undersigned, support GMB in obtaining recognition and collective bargaining at my workplace “Springvale EPS Ltd”.

Signature:

Print Name:

Address:

Postcode:

Job Title.

Are you currently a GMB Member? (please tick YES □ NO □

GMB Membership number if known:

I consent to GMB using my data in this petition for the purpose of obtaining recognition and collective bargaining in the workplace. (Please tick) □

PLEASE NOTE: THE INFORMATION PROVIDED WILL NOT BE SHOWN TO THE EMPLOYER.

Please complete the above and return as soon as possible to:

Michael Hunt – Regional Organiser

FREEPOST GMB NORTHERN.”

22) In its covering e-mail to the CAC the Union clarified that the petitions were sent by post to union members to give to non members, and that this was due to the Covid restrictions. The petitions were posted out on 22 April 2021 and returned by post between 4 - 13 May 2021.

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 10 June 2021 and the parties were invited to comment on the results of that check by close of business on 14 June 2021.

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

24) In an e-mail to the CAC dated 14 June 2021 the Union stated that following consultation with its membership, it believed that the list of employees provided by the company, totalling 67, included workers who were not in the proposed bargaining unit, namely, management, finance / admin, and agency workers.

25) The Union maintained that it believed the Employer was anti-trade union and that this was a deliberate attempt to inflate the bargaining unit so as to keep GMB from obtaining recognition. However, the Union believed that it still met the requirements and tests specifically outlined in paragraph 36 of the Schedule, with at least 10% of the proposed bargaining unit as union members.

26) The Union said that it also believed that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union, given that 16.42% of the 67 workers on the Employer’s list who are non-members support recognition. The Union believed that this figure in addition to the level of union membership (37.31%) showed that it was able to demonstrate that the level of support was 53.73%. The Union also believed that its majority was likely to increase should the classification of workers be properly defined by the Employer and that those not in scope of its proposed bargaining unit were excluded.

27) No comments were received from the Employer by the stated deadline. However, in an e-mail dated 18 June 2021 the Employer stated that it wished to make a few observations concerning the Union’s comments. The Employer took exception to the Union’s claim that the company was anti-union, and that it was deliberately trying to inflate numbers. The Employer explained that in 33 years of managing businesses in different parts of the UK it had never been approached by a union to represent the workforce and as such it had never heard of CAC.

28) The Employer further stated that Springvale EPS Ltd consisted of 2 sites, and senior management looked after both sites as Newcastle was not stand alone, the Employer further stated that “You already have the total employees of the business - 146.”

7. Considerations

29) 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 material to the matters it is required to decide in reaching its decision.

30) 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.

8. Paragraph 36(1)(a)

31) 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. The membership check conducted by the Case Manager (described in paragraphs 18 - 20 above) showed that 37.31% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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 proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

32) 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.

33) The Case Manager’s check of the Union’s petition against the list of 67 workers provided by the Employer indicated that 31 of the 33 petition signatories were identifiable as workers within the bargaining unit, a support level of 46.27%. Of those there were 21 union members (29.85%) and 11 non-members in the bargaining unit (16.42%). The membership and support check identified as union members 25 workers (37.31%) in the proposed bargaining unit. The Panel considers that union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union (37.31%). Equally significant is the number of non-members who signed the Union’s petition (16.42%). Taking these two percentages together (53.56%.), the Panel is satisfied that a majority of the workers in the bargaining unit would be likely to support collective bargaining.

34) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

35) The Panel notes the Union’s concerns that the information provided by the Employer includes categories of workers who do not fall within the description of the Union’s proposed bargaining unit. However, in view of the Panel’s decision that the admissibility criteria set out in paragraph 36(1)(a) and paragraph 36(1)(b) have been met, the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. However this does not preclude the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

10. Decision

36) For the reasons given in paragraphs 30 - 35 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Mr Paul Moloney

Mr Willian O’Shaughnessy

23 June 2021