Decision

Acceptance Decision

Updated 20 November 2020

Case Number: TUR1/1185(2020)

11 September 2020

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:

PDAU

and

McKesson UK (LloydsPharmacy)

1. Introduction

1) The PDAU (the Union) submitted an application to the CAC on 10 July 2020 that it should be recognised for collective bargaining by McKesson UK (LloydsPharmacy) (the Employer) for a bargaining unit comprising “All UK General Pharmaceutical Society or Pharmaceutical Society of Northern Ireland registered pharmacists or pre-registration pharmacists employed within LloydsPharmacy Limited (excluding those with area management status and those of equivalent or more senior status)”. The location of the bargaining unit was given as “At 1500+ locations throughout the UK and Northern Ireland”. The CAC gave both parties notice of receipt of the application on 10 July 2020. The Employer submitted a response which was received by the CAC on 17 July 2020 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 Professor Kenny Miller, Panel Chair, and, as Members, Mr Derek Devereux and Mrs Anna Berry. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 7 February 2020. There followed a series of positive meetings which resulted in the Union putting forward several draft templates for a recognition agreement. Since 15 June 2020 however, no further contact had been received from the Employer.

5) According to the Union, there were a total of 17,000 workers employed by the Employer with approximately 2000 of these within the proposed bargaining unit. The Union stated that it had in excess of 1200 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that since it had secured collective bargaining arrangements with Boots there had been growing calls for recognition to be sought within the Employer’s business. Membership of the Union could be taken as a reliable indicator of the views of pharmacists towards seeking recognition with employers. With an estimated 60% of the proposed bargaining unit already in membership the CAC could have a high degree of confidence that a significant proportion of the remainder of the bargaining unit not in union membership would either be contemplating joining the Union as they supported recognition, particularly at a time of redundancies; would join a union that had proper negotiating rights; currently had a low awareness of union recognition, but would support recognition if asked and did not want to belong to a union but would support recognition as they would benefit from it.

6) The Union planned to undertake a pledge exercise should the Employer dispute the level of support for recognition amongst the bargaining unit. This exercise was not progressed earlier due to the Employer expressing positive views about recognition. The Union submitted that the 10% threshold for membership within the proposed bargaining unit was easily met and that due to the high membership density within the proposed bargaining unit, a significant majority of the bargaining unit were likely to support recognition.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the workers in the prosed bargaining unit performed a unique and clearly defined statutory role within the business and were highly regulated professionals responsible in law for the safe and effective running of the pharmacy. The Union confirmed that the bargaining unit had not been agreed with the Employer.

8) The Union stated that it copied the application and supporting documentation to the Employer on 10 July 2020. The Union confirmed that it was in possession of a certificate of independence. When asked if, following receipt of the formal request for recognition, did the Employer propose that Acas be requested to assist, the Union answered “NO”.

9) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

10) The Employer stated that it had received the Union’s formal request for recognition on 7 February 2020. The Employer responded by way of a letter dated 10 March 2020 and an email sent on 15 June 2020 and enclosed copied of both with its response. In its letter of 10 March 2020, the Employer asked the Union to formally withdraw its formal request for recognition so that discussions could take place in a positive spirit.

11) When asked for the date it received a copy of the application form directly from the Union, the Employer stated this was 10 July 2020. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this remained the case and it set out its objections to the proposed bargaining unit. Its 1547 Pharmacies had a very wide geographical spread and were usually staffed by a handful of people including the pharmacist. For this reason they had to work together in a very flexible way without the pharmacist being isolated from the other staff. If recognition was granted just for pharmacists then the Employer would potentially need to deal with two lots of negotiation for a handful of staff in all 1547 Pharmacies. To create a formal divide within each shop as proposed would not be compatible with effective management. Further, the very different nature of the 1547 Pharmacies would mean that whilst it may look like a large bargaining unit, in reality it would be a combination of a lot of small, fragmented bargaining units because many issues related to the staff in a shop, or a group of shops rather than all the staff in one particular function.

12) The Employer stated that it employed 20,409 workers in total. It did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that it had 2423 Lloyds Pharmacy based Pharmacists plus a further c140 in other legal entities. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had no evidence at all of any substantial trade union membership within its workforce or of pharmacists pushing for union recognition. The Employer was aware of pharmacists taking advantage of the Union’s insurance cover which covered full liability against medical negligence etc.

13) When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer repeated that it had no substantial pressure for trade union recognition from its pharmacists and did not believe that they wanted recognition. The Employer believed that many pharmacists might see the Union as a sensible way of obtaining insurance cover for themselves rather than as a trade union that they wanted to collectively bargain with the Employer.

14) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No” adding that the Union had not suggested involving Acas but that, even at this late stage, the Employer believed that involving Acas in discussions could be helpful to both parties.

15) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer answered “No”.

5. The membership check

16) 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 in support of recognition. 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 the workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and dates of birth of its paid-up members within that unit. 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 27 July 2020 from the Case Manager to both parties.

17) The information from the Union and the Employer was received by the CAC on 3 August 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 2413 workers in the Union’s proposed bargaining unit. The job titles given by the Employer were: Relief Manager, Pharmacist, Pharmacy Manager (P), Clinical Pharmacist, Cluster Manager (P), Conversion Pharmacist, PAS Pharmacist, PSS, Relief Manager and Superintendent Pharmacist. The list of members supplied by the Union contained 1364 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 994, a membership level of 41.19%.

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 7 August 2020 and the parties were invited to comment on the results.

6. Summary of the Union’s comments on the membership and support check

20) On 13 August 2020 the Union commented on the Case Manager’s membership report. It reminded the Panel of the definition of its proposed bargaining unit and noted that Pre-registration Pharmacists were missing from the list provided by the Employer and these workers were included in the proposed bargaining unit. Furthermore, the Union did not recognise some of the Job Titles provided and it was possible that workers had been included who were not in the proposed bargaining unit. For this reason, the Employer should confirm that the list of workers provided to the CAC were all employed by LloydsPharmacy Limited rather than by an associated employer or employers within the McKesson group of companies.

21) The Union was surprised to note that 367 of its members did not appear on the Employer’s list particularly as significant efforts had been made to ensure the accuracy of member data. Due to the nature of the community pharmacy sector, members frequently changed employers and typically did not update union records with their current employer until they were prompted to do so at their next annual renewal cycle. It was therefore probable that members recorded as working for another employer did, in fact, currently work for the Employer.

22) Union members were initially asked to identify their employer upon joining and then again upon annual renewal of their membership. Some members would therefore either have left the Employer during a period of membership and were yet to update the Union with their new employer details or had started employment since their last renewal and, again, were yet to update the Union with the new details.

23) Subject to the Employer having provided complete and accurate data for the proposed bargaining unit, the membership check was likely to have identified the 367 members who fell into the first category and therefore did not appear on the Employer’s list. However, the matching exercise would not pick up those members falling into the second category who work for the Employer unbeknown to the Union and would be in addition to the 994 members common to both lists. If after considering the Union’s submissions, the Panel had reservations about whether the second test had been met, the Union requested permission for the entire member database to be matched against the Employer list for the reasons stated above.

24) The Union submitted that the first test of 10% membership under paragraph 36(1)(a) was comfortably met as the membership check confirmed that 41.19% of the proposed bargaining unit were members of the Union. As for the second test, the CAC was not required to determine the actual level of support for recognition at this stage. Rather, it had to answer a hypothetical question after considering all the evidence for and against the proposition that if matters were to proceed to a statutory ballot, would a majority of the workers within the relevant bargaining unit be likely to favour recognition. The Union would suggest, that on current figures, it had 41.19% of the workers in membership and this was highly indicative of the likelihood of majority support.

25) Membership of the Union could be taken as a reliable indicator of the views of pharmacists towards seeking recognition with employers, as the primary objective of the Union was, where appropriate, to be recognised by Employers for the purpose of regulating the relations between the Members and Employers through negotiation and consultation and, where appropriate, the provisions of the Information & Consultation Regulations.

26) With a large proportion of the proposed bargaining unit already in membership, the CAC could be confident that the remainder of the bargaining unit not in membership would either be contemplating joining the union as they supported recognition, particularly at a time of redundancies and generally poor morale in the sector; would join a union that had proper negotiating rights; currently had a low awareness of union recognition, but would support recognition if asked; or did not want to belong to a union but would support recognition as they would benefit from it.

27) The Union understood that the CAC adopted a broad-brush approach to the interpretation of paragraph 36(1)(b) and that the Panel would apply its own experience of the issues and the particular industry, rather than view it as a purely mathematical exercise. The Union then went on to refer to a number of CAC cases that it believed were relevant to the test at paragraph 36(1)(b) in support of its argument in relation to the above.

28) The Union also asked the Panel to note the growth in membership since the Union first applied for recognition at Boots in 2011, where its membership had almost doubled since that date. This was evidence of sustained growth and a high level of union membership within the pharmacy industry, which added weight to the Union’s case that there was likely to be majority support in the proposed bargaining unit for recognition. The Union was the only independent trade union exclusively for pharmacists and pharmacy undergraduates in the UK and it reported membership of 28,213 out of a total of 56,288 registered pharmacists.

29) Additional positive indicators underpinning the likelihood of majority support included significant business difficulties reported by the Employer which have led to widespread discontent within the bargaining unit. Also, broader problems across the community pharmacy sector and the recent recognition agreement secured at Boots had led to a growing appetite for union recognition.

30) Notwithstanding the reservations about the completeness of the Employer’s data, the Union firmly believed there were members currently working in the proposed bargaining unit who had not shown up as such on its database and that, if they had, the majority of the bargaining unit would be in membership.

31) The Union respectfully submitted that based upon the evidence before it and after applying its own industrial experience, the Panel could safely conclude that there was likely to be majority support within the proposed bargaining unit for recognition and that the application should be accepted.

7. Summary of the Employer’s comments on the membership and support check

32) In a letter dated 11 August 2020 the Employer stated that it was clear that the Union did have more than 10% membership of the bargaining unit it had identified.

33) As for the test under paragraph 36(1)(b), the membership check showed that the Union had 41.19% of the bargaining unit as members which was significantly less than the proportion it believed it had prior to the membership check. It was clear the Union did not have the majority of members in the proposed bargaining unit, and the Employer was unsure what evidence the Union had that the majority of the workers wished the Union to represent them.

8. Matters arising from the Parties’ comments

34) The parties’ comments on the membership report were cross copied and the Panel Chair directed that the Employer be asked for its comments on the Union’s letter of 13 August 2020, both in general and specifically on the matter of the Pre-registration Pharmacists. The Employer was also asked for confirmation that those on its list of workers provided for the check were all in its employ rather than employed by an associated employer or employers. At the same time, the Union was invited to lodge any observations it wished to make on the Employer’s letter of 11 August 2020.

35) On 19 August 2020 the Employer responded to the two additional questions raised by the Panel Chair. It had reviewed and re-checked the data it had submitted and could confirm that all Pharmacists included in its submission were employed by Lloyds Pharmacy Limited. It had also checked the inclusion of Pre-registration Pharmacists and unfortunately could confirm that these were inadvertently missed from the original data submission. The Employer apologised for this error and provided a full list of its 150 Pre-Registration Pharmacists.

36) The Employer’s email was copied to the Union and the parties were informed that the Panel Chair had requested that a further membership check be carried out using the list supplied by the Union for the original check against the list supplied by the Employer consisting of the 150 Pre-Registration Pharmacists.

37) On 21 August 2020 the Employer lodged its observations on the original membership check. It submitted that the check clearly demonstrated that the Union had met the test under paragraph 36(1)(a) as it had more than 10% membership in the proposed bargaining unit.

38) However, in relation to the test under paragraph 36(1)(b) the Union had claimed an estimated 60% of the proposed bargaining unit already in membership but the Case Manager’s check showed that statement to be materially wrong. Even when taking into account the 150 pre–registration pharmacists the actual trade union membership in the proposed bargaining unit (which comprised 2,563 employees) was not 1,200+ and was nowhere near a majority. If every single Union member was in favour of recognition that still would not be a majority of those in the proposed bargaining unit. The Employer had no evidence of any latent support for recognition whilst acknowledging that a number of its pharmacists had joined the Union for the benefits that came with membership, particularly the insurance cover. In the circumstances, the Employer did not see how the Union had met the test under paragraph 36(1)(b). On the information that had been provided, the Panel could not be satisfied that it knew anything at all about the non-member’s views on union recognition.

9. Further membership check

39) On 25 August 2020 a further membership check was conducted with the 150 names on the Employer’s list of Pre-registration Pharmacists being compared with the Union’s list of members supplied earlier. The result of this further check was that 105 members were identified as being on the Employer’s further list. Adding both the original and further lists together established that there were 2563 workers in the Union’s proposed bargaining unit. According to the Case Manager’s report the total number of Union members in the proposed bargaining unit was 1099 members, a membership level of 42.87%.

10. Union’s comments on the further membership check

40) In an email dated 1 September 2020 the Union stated that in respect of the missing Pre-registration Pharmacist Cohort, the check demonstrated that the Union had 70% membership density within this element of the proposed bargaining unit. This significantly high level of density could be attributed to an acute awareness by pharmacy students of the benefits of trade union membership acquired during the four years of their pharmacy degree.

41) In previous submissions the Union had highlighted the unique challenges a geographically dispersed bargaining unit presented to the ability of the Union to communicate with non-members. The Employer had chosen a low profile, minimal approach through its internal networks towards the Union’s application, and the bargaining unit would be pre-occupied with the major redundancy/restructuring exercise currently in progress. It was therefore likely that general awareness of the recognition application amongst non-members was low.

42) The Union respectfully suggested that the Panel could safely extrapolate the results of the additional membership check to others in the proposed bargaining unit who were not union members, on the basis that once workers were exposed to the benefits of union membership and recognition there was likely to be significant majority support for recognition, as was the case with preregistration pharmacists. The remaining workers in the bargaining unit, who were not union members, would:

a) be contemplating joining the union as they supported recognition, particularly at a time of redundancies

b) would join a union that had proper negotiating rights

c) currently had a low awareness of union recognition but would support recognition if asked

d) or did not want to belong to a union but would support recognition as they would benefit from it.

43) The revised membership data further strengthened the Union’s position that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the union and that the application should be accepted.

11. Employer’s comments on the further membership check

44) On 1 September 2020 the Employer stated that the revised figures confirmed that the Union had 42.87% membership in the proposed bargaining unit not the estimated 60% stated in the application for recognition.

45) In the circumstances, the Employer saw nothing that would change the view expressed in its response of 21 August 2020 that there had been no evidence provided by the Union to demonstrate that the test in paragraph 36(1)(b) had been satisfied.

46) To sum up briefly, the Employer believed that there were good reasons in this instance to question whether all of the members have actually joined the Union because they supported recognition and no evidence had been put forward by the Union to indicate why there were at least a further 183 employees in the bargaining unit who were not members but would be likely to favour recognition. The Employer also understood that pre-registration pharmacists were given free membership.

12. Considerations

47) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

48) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer failed to respond to the request ^{[footnote 1]}. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

13. Paragraph 36(1)(a)

49) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case, the check conducted on 25 August 2020 established that 42.87% of the proposed bargaining unit were members of the Union. This finding was one that was accepted by the Employer. It is clear to the Panel that this test is therefore satisfied.

14. Paragraph 36(1)(b)

50) The test in paragraph 36(1)(b) is whether 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. It is in the application of this test that the parties have conflicting views.

51) The Union relied upon its membership density as evidence that this test was met submitting that it was a reliable indicator of the views of the pharmacists as to whether they wished to have the Union recognised for collective bargaining purposes. As to the views of those not in membership the Union believed that some would be contemplating becoming members as they supported recognition whilst others would become members if the Union was afforded recognition. There were also some workers whom the Union believed had a low awareness of union recognition but would support recognition if asked and also some workers who had no inclination to join a union but would support recognition as they would share the benefits derived from collective bargaining.

52) In its response to the application the Employer stated that it had not been subjected to any substantial pressure for trade union recognition from its pharmacists and so was not of the view that there was a collective desire for recognition. It argued that the worker’s main incentive in becoming members was to benefit from the insurance cover that would come through membership rather than any aspiration to have the Union negotiate with the Employer on their behalf.

53) Commenting after the first check of membership had been undertaken the Employer pointed out that the results were significantly less than the 60% membership originally claimed by the Union in its application and the Employer question the basis on which the Union claimed that a majority would be likely to support recognition. After the second check was conducted the Employer again questioned the motive of its workers in joining the Union adding that no evidence had been submitted to persuade the Panel that that at least a further 183 workers in the bargaining unit not in membership would be likely to favour recognition.

54) The Panel accepts that it has been difficult to get a genuinely accurate assessment of union membership for a number of reasons not least employment volatility as well as issues to do with the robustness of the data provided by both parties. Both parties have also engaged in a fair amount of speculation as to the views of the workers in the proposed bargaining unit but the only genuine piece of evidence is that based on the data provided by both parties which shows that union membership stands at roughly 43%.

55) At this stage of the statutory process the Panel is tasked with simply establishing, in effect, whether an application has any prospect of success. The test that has to be applied under paragraph 36(1)(b) is not a strict arithmetical check of support for recognition such as would be established through conducting a ballot, but rather a case of the Panel being asked to gauge hypothetical support taking into account the evidence presented as well as its collective employment relations experience for which it was appointed to the CAC. In the absence of any evidence to show that workers joined the Union solely for member benefits, the Panel is of the view that the level of Union membership within the proposed bargaining unit can be taken as a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. The Panel is also conscious of the point made by the Union in respect of the high number of its members ^{[footnote 2]} that were not found to be present on the Employer’s list as they had changed employer without passing on this information to the Union so it could amend its records accordingly. The Union argued that there would be a similar number of its members that were now employed by the Employer but had not informed the Union of the change in employer.

56) The question for the Panel is the likelihood that the Union could gain sufficient support from amongst the pool of 1,464 workers not established as being in membership, for it to be successful at ballot. As the Employer pointed out in its final comments, it would take 183 of these workers on top of the totality of the Union’s membership, for the Union to have the support of the majority. Having given the matter serious consideration including our collective employment relations experience, the Panel is of the view that it is likely that there would be sufficient additional colleagues in the various categories as described by the Union and listed in paragraph 42 above, to achieve a majority in favour of recognition.

57) For the reasons given, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

15. Decision

58) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Mr Derek Devereux

Mrs Anna Berry

11 September 2020

1. The Employer confirmed that it received the Union’s formal request on 7 February 2020 and responded on 10 March 2020, which was outside the 10 working-day period set by paragraph 10(6). ↩

2. The initial check found 367 members on the Union’s list were not found on the Employer’s list of workers. ↩