Decision

Validity Decision

Updated 13 March 2019

Case Number: TUR1/1062 (2018)

12 October 2018

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:

PDAU

and

Boots Management Services Ltd

1. Introduction

1) PDAU (the Union or PDA Union) submitted an application to the CAC dated 24 July 2018 that it should be recognised for collective bargaining by Boots management Services Ltd (the Employer or Boots) for a bargaining unit comprising “The registered and pre-registration pharmacists at levels 5, 6 and 7 who are employed by Boots Management Services Ltd”. The CAC gave both parties notice of receipt of the application on 25 July 2018. The Employer submitted a response to the application dated 1 August 2018 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 Her Honour Judge Stacey, Panel Chair, and, as Members, Mr Roger Roberts and Mr Paul Talbot. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 17 August 2018 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 on the appropriate bargaining unit and a hearing to determine the issue was held in London on 28 September 2018. The Panel decided that the appropriate bargaining unit was “All registered and pre-registration store-based pharmacists at levels 5, 6 and 7 who are employed by Boots Management Services Ltd”. The difference between the bargaining unit proposed by the Union and the one decided by the Panel is that the determined bargaining unit excludes the field based and office support pharmacists and pre-registration pharmacists.

4) As the determined bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of the Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.

2. Issues

5) Paragraph 20 of the Schedule states that where an application has, as in the present case, been accepted under paragraph 12 and the CAC has determined an appropriate bargaining unit that differs from the proposed bargaining unit then the CAC must, within the decision period, decide whether the application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. It is for the Union to prove to the civil standard that their application has met the validity tests on the determined bargaining unit. The tests that the Panel must consider under these paragraphs are:-

· is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

· is there 10% union membership within the new bargaining unit? (paragraph 45(a))

· are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

· is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

· has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

6) In letters dated 1 October 2018 both parties were asked for their views as to whether the application remained valid following the determination of the bargaining unit.

3. Views of the Employer

7) In a letter dated 4 October 2018 the Employer confirmed that there was no existing agreement covering any of the workers in the new bargaining unit, there was no competing application from another union covering any of the workers in the new bargaining unit nor had there been a previous application in respect of the workers in the new bargaining unit.

8) As to whether 10% of the new bargaining unit were members of the Union the Employer stated that as at 3 October 2018 the number of employees in the bargaining unit determined by the CAC was 6,922. The number of employees who were in the bargaining unit originally proposed by the Union but were not included in the bargaining unit, as identified by the CAC, was 171 (the non BU Workers). The Employer stated that as set out in their original response to the Union’s application on 1 August 2018, they accepted that the proposed bargaining unit contained approximately 2,500 PDAU members, although they had no means of accurately of assessing the same, and that remained the case. The Employer said that no doubt the Union could provide an update on its membership numbers. The Employer stated that in the absence of any dramatic change in the union membership even if all of the non-bargaining unit workers were PDAU members, this would leave approximately 2,300 PDAU members within the new bargaining unit which would still be in excess of 10% membership.

9) Turning to the question as to whether the majority of workers in the new bargaining unit would be likely to favour recognition the Employer stated that even if none of the non-bargaining unit workers were PDAU members, the PDAU would (assuming no dramatic changes in the union membership) still only have approximately 35% membership within the bargaining unit.

10) The Employer continued to believe that the majority of workers in the new bargaining unit were not likely to favour recognition for the same reasons as they explained in their original response to the Union’s application. The Employer stated that, assuming the CAC remained of the view that the majority of workers in the bargaining unit were likely to favour recognition, given that the Union would still not have 50% membership in the new bargaining unit, a ballot would be required (paragraph 23 of Schedule A1). If the Union claimed an increase in membership, in excess of 50% of the bargaining unit, then a membership check would be necessary and they would wish to make further submissions on how to proceed.

4. Views of the Union

11) In an email dated 4 October 2018 the Union confirmed that it was not aware of any existing agreement covering any of the workers in the new bargaining unit, a competing application from another union covering any of the workers in the new bargaining unit nor that there had been a previous application in respect of the workers in the new bargaining unit..

12) As to whether 10% of the new bargaining unit were members of the Union the Union stated that the bargaining unit determined by the CAC at the hearing on 28th September 2018 is almost the same as their proposed bargaining unit, save for approximately 150 – 170 workers who had been removed. The Panel found in its acceptance decision that in the region of 36% of workers in the proposed bargaining unit were members of the union. The final bargaining unit has shrunk by roughly 2% compared to the union’s proposed one and the Union has approximately 2500 members working for Boots; they therefore believed the 10% threshold had been met.

13) Turning to the question as to whether the majority of workers in the new bargaining unit would be likely to favour recognition the Union referred to their application for recognition and the Panel’s acceptance decision dated 17th August 2018 and stated that the union submitted that the Panel’s reasoning on this point remained valid in respect of the final bargaining unit. The slightly condensed bargaining unit determined by the CAC consists of workers in roles where PDA Union membership is more established than in the excluded field and support office roles. The Union stated that Dr Blain at paragraph 56 of his witness statement stated in respect of the employer’s smaller alternative bargaining unit (which excluded the field/support office workers) “[Boots] has done this even though it believes that the wider bargaining unit suggested by the PDAU would be less likely to support union recognition than the narrower bargaining suggested by Boots” and the Union did not disagree with this part of Dr Blain’s evidence.

14) The union submitted that the Panel’s considerations and the decision made in its acceptance decision remained valid at this stage, because the appropriate bargaining unit is a slightly condensed version of the union’s proposed bargaining unit and there are no new categories of workers added that might potentially dilute support amongst the workers in the bargaining unit.

5. Considerations

15) The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and whether a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

6. Paragraph 45(a)

16) No argument was put forward by either party to dispute that the Union had 10% membership in the bargaining unit. As pointed out by the Employer even if all of the non-bargaining unit workers were PDAU members, this would leave approximately 2,300 PDAU members within the new bargaining unit which would still be in excess of 10% membership. The Panel is therefore satisfied that the test set out in paragraph 45(a) of the Schedule is met and that at least 10% of the workers constituting the new bargaining unit are members of the Union.

7. Paragraph 45(b)

17) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel 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.

18) The considerations and issues set out in our earlier decision as to whether to accept the Union’s application dated 17 August 2018 remain applicable and relevant now, and the parties are referred again to that decision. In that decision we explain why the combination of the Union’s sustained and growing levels of Union membership in challenging circumstances, together with the support for recognition demonstrated by the online petition they had organized in support of their application for recognition, and thirdly, the outcome of the ballot to de-recognise the non-independent Union (which in the full context of the long history of this case is indicative of support for recognition by the Union), led us to conclude that a majority of the workers in the Union’s chosen bargaining unit would favour recognition by them.

19) All that has changed in the last two months is that the bargaining unit has been marginally reduced in size shedding some 170 workers out of a bargaining unit of nearly 7,000. The Employer considers that the Union’s support from within the approximate 170 workers who are registration and pre-registration pharmacists in field based or office support roles are less supportive of Union recognition. If the Employer is right about this, the support for the Union will therefore be greater in the slightly smaller, determined bargaining unit, than it was in the proposed bargaining unit, and the Union’s arguments become stronger.

20) It therefore follows, almost as a matter of logic, that the Union has satisfied the validity tests. For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and that the test set out in paragraph 45(b) of the Schedule is therefore met.

8. Decision

21) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC will therefore proceed with the application.

Panel

Her Honour Judge Stacey, Panel Chair

Mr Roger Roberts

Mr Paul Talbot

12 October 2018