Decision

Validity Decision

Updated 15 March 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1284(2022)

02 November 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

DETERMINATION OF THE BARGAINING UNIT

The Parties:

GMB

and

The Noble Collection UK Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 3 August 2022 that it should be recognised for collective bargaining purposes by The Noble Collection UK Ltd (the Employer) for a bargaining unit comprising “all managerial, office/administration and retail Staff employed by The Noble Collection UK Ltd at 26-28 Neal Street, London WC2H 9QQ; 26-28 Neal Street, London WC2H 9PS; and Hamleys Toy Store, 188-196 Regent Street, London W1B 5BT” The location of the bargaining unit was given as 26-28 Neal Street, London WC2H 9QQ; 26-28 Neal Street, London WC2H 9PS; and Hamleys Toy Store, 188-196 Regent Street, London W1B 5BT. The application was received by the CAC on 3 August 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 8 August 2022 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 Gillian Morris, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mr Paul Noon OBE . The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 24 August 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. No agreement was reached between the parties as to the appropriate bargaining unit. Following a virtual hearing held on 11 October 2022 the Panel ^{[footnote 1]} decided, by a decision dated 17 October 2022, that the appropriate bargaining unit was “all retail staff employed by the Noble Collection UK Ltd at 26-28 Neal Street, London WC2 and Hamleys Toy Store, 188-196 Regent Street, London W1 excluding the Head of the Retail Team”.

2. Issues

4) As the determined bargaining unit differed from that proposed by the Union in its application, 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. In a letter dated 17 October 2022 the Case Manager invited each party to make submissions on this matter for consideration by the Panel. The initial period for deciding this matter expired on 31 October 2022. The decision period was extended until 7 November 2022 to allow more time for the Panel to consider all the evidence and to reach a decision.

5) In an e-mail to the Case Manager dated 19 October 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”.

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”.

6) In an e-mail to the Case Manager dated 19 October 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.”

b) Is there 10% union membership within the new bargaining unit?

The Employer said that it did not have access to this information, but it assumed that the Union could/would provide.

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

The Employer said that it remained of the firm belief that, if the majority of workers in the new bargaining unit were to be given an opportunity for a full and balanced review of the potential drawbacks/benefits of the Union providing collective bargaining on their behalf (whilst in their employment at the Employer), they would not be likely to favour such recognition.

The Employer also said that, were the Panel to find that the validity test had been met, the Employer believed that it would be in the workers’ best interests that the Employer had an opportunity to write an open letter to them providing a full, fair and reasoned explanation of what recognition would entail; the processes that would change/be required; and the potential effects this may have on them personally and collectively. The Employer further stated that, were the Panel to deem it necessary after applying the required validity tests, a ballot would be appropriate to determine whether or not the workers in the bargaining unit favoured recognition once they were in a position to make an informed decision.

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.”

3. Membership and support check

7) To assist in the determination of two of the validity tests specified in the Schedule, namely whether 10% of the workers in the determined bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined 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 determined 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 determined 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 21 October 2022 from the Case Manager to both parties.

8) The information requested from both parties was received by the CAC on 25 October 2022. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 15 workers in the determined bargaining unit. The list of members supplied by the Union contained seven names. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was seven, a membership level of 46.67%.

10) The Union also provided a petition, which contained seven names/signatures. A further nine entries on the petition had been redacted so that the names and details were not readable. The Union explained that this was because the Panel had determined that only retail staff were in the determined bargaining unit and therefore the Union had only included retail staff who had signed the petition.

11) The petition consisted of two A4 sheets, which were headed, “Print name”, “Signature” and “Date”. The petition was set out as follows:

Petition in support of recognition for: -The Noble Collection UK Ltd, 26-28 Neal Street, London, WC2H 9QQ. 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 staff employed at 26-28 Neal Street, London, WC2H 9QQ, to also include retail staff also (sic) rotate between the shop and the concession in the Hamleys toy store 188-196 Regent St., London W1B 5BT.

12) The check of the Union’s petition showed that it had been signed by seven workers in the determined bargaining unit, a figure which represents 46.67% of the determined bargaining unit. Of those seven signatories, all were members of the Union (46.67% of the determined bargaining unit).

13) A report of the result of the membership and support check was circulated to the Panel and the parties on 27 October 2022 and the parties were invited to comment on the results of that check by noon on 3 November 2022.

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

14) In a letter to the Case Manager dated 28 October 2022, the Employer said that the proportion of workers in the determined bargaining unit who had signed the Union’s petition was 46.67% which did not meet the definition of a majority. The Employer stated that it firmly believed that this figure would reduce further in the event that a ballot proved necessary (following a submission to its employees providing a more balanced consideration of the potential drawbacks of collective bargaining in their particular circumstances, rather than them merely being presented with perceived benefits by the Union, as was the case at present).

15) The Employer said that, in view of its comments, it requested that the Panel consider that the majority of workers in the bargaining unit did not support the Union’s application for collective bargaining and that, as a result, the application did not meet this test.

16) In an e-mail to the Case Manager dated 28 October 2022 the Union said that it had believed that it was supposed to send union membership information in the bargaining unit but that it had seen from the documentation that the Case Manager also looked at workers who would support union recognition as well, and not just union members. The Union said that it could declare that five non-union retail members of staff had signed the petition and that it could confidentially disclose the unredacted petition to the CAC on the basis that this information was not shared with the Employer.

5. Considerations

17) 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.

18) 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.

6. Paragraph 45(a)

19) 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 determined bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 7 to 9 above) showed that 46.67% of the workers in the determined bargaining unit were members of the Union. As stated in paragraph 8 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 determined bargaining unit as required by paragraph 45(a) of the Schedule.

7. Paragraph 45(b)

20) Under paragraph 45(b) of the Schedule an application is invalid unless the CAC decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. For the reasons given in paragraph 19 above the level of union membership within the bargaining unit stands at 46.67%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the determined bargaining unit as to whether they would be likely to favour recognition, as required by paragraph 45(b) of the Schedule. No such evidence to the contrary was received in this case. It is also the Panel’s experience that there will be workers who are not members of the Union who would be likely to favour recognition of the Union. On the basis of the evidence before it the Panel has decided that in this case, on the balance of probabilities, a majority of the workers in the determined 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 45(b) of the Schedule.

21) The Panel recognises that the Case Manager’s check of the Union’s petition showed that 46.67% of the workers in the determined bargaining unit, all of whom were Union members, had signed the Union’s petition and that this figure falls short of a majority. The Panel also notes the Union’s comment that it had erroneously redacted the names of five non-Union members of the bargaining unit from the petition. The Panel considers that the wording of the Case Manager’s letter of 21 October 2022, set out in paragraph 7 above, was clear in stating that the names of all workers in the determined bargaining unit who had signed the Union’s petition, not only workers who were Union members, should be submitted for the purposes of the check. For the avoidance of doubt the Panel has reached its decision that the test in paragraph 45(b) of the Schedule has been met for the reasons set out in paragraph 20 alone.

8. Decision

22) For the reasons given in paragraphs 18 - 20 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Professor Gillian Morris, Panel Chair

Mr Kieran Grimshaw

Mr Paul Noon OBE

02 November 2022

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1. Mr Roger Roberts replaced Mr Grimshaw for the purposes of that decision. ↩