Decision

Acceptance Decision

Updated 28 June 2019

Case Number: TUR1/1109(2019)

28 June 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:

RMT

and

Edwards Coaches Ltd

1. Introduction

1) The RMT (the Union) submitted an application to the CAC on 16 May 2019 that it should be recognised for collective bargaining by Edwards Coaches Ltd (the Employer) for a bargaining unit comprising “National Express Drivers employed by Edwards Coaches Ltd”. The location of the proposed bargaining unit was given as “Llantrisant”. The CAC gave both parties notice of receipt of the application on 23 May 2019. The Employer submitted a response to the CAC dated 23 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 CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Chairman of the Panel, and, as Members, Mr Michael Shepherd and Mr Paul Talbot. 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 19 March 2019. It received no response from the Employer despite correspondence being sent via both recorded delivery and email. A copy of the Union’s letter was enclosed with the application. The Union confirmed that the Employer did not propose that Acas be requested to assist following its receipt of the request for recognition.

5) According to the Union, there was a total of 800 workers employed by the Employer with 77 of these falling within the proposed bargaining unit. The Union did not know whether the Employer agreed on the number of workers in the proposed bargaining unit. The Union stated that it had 25 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 the workers had joined the Union as there were issues affecting all workers and collective bargaining rights would give them the opportunity to negotiate and be consulted through their union. The organising campaign had been carried out specifically to achieve collective bargaining rights. Approximately 32% of these workers were members of the Union. In addition, the Union had statements of support for recognition from 12 non-members. This was a clear indication that the majority of workers were likely to support recognition of the Union. The Union offered to supply its membership list and further documentation to the CAC on a confidential basis if requested.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was a coherent and specific group of workers with similar issues and it would make industrial sense for this group of workers to be recognised as a collective entity for negotiation and consultation purposes. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it had served the Employer with a copy of the application and supporting documents on 16 May 2019. The Union also confirmed that it had a certificate of independence.

8) 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

9) The Employer stated that it had received the Union’s formal request for recognition on 27 March 2019. When asked what its response was, the Employer referred to an attached document which was a letter dated 27 March 2019 from the Employer to the Union in which the Employer declined the Union’s request for voluntary recognition.

10) The Employer stated that it received a copy of the application form directly from the Union on 23 May 2019. It confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and this remained the case. It explained that it objected to the proposed bargaining unit on the basis that it was implementing employee working parties where representatives nominated by their peers would be selected in a fair and democratic way. This would cover all parts of the business and be totally inclusive of union members affiliated with any membership and non-union members providing a voice for all employees irrelevant of their position. For the specific purpose of National Express, the staff impacted by decisions made was varied and were based across four sites, Haverfordwest, Pembroke, Llantrisant and Swansea. There were also drivers in this group based at Bristol, Heathrow, Barnstable and Frome. The Employer believed that all staff should be represented if agreements made impacted their working conditions and/or practices.

11) The Employer stated that it employed a total of 900 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that there were 183 National Express registered drivers in South Wales and 118 registered National Express drivers in West England making a total of 301. When asked to give reasons if it disagreed with the Union’s estimate of its membership in the bargaining unit, the Employer answered “N/A/”. 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 again answered “N/A”.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed 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 “N/A”.

13) Finally, the Employer failed to answer 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.

5. Clarification of the proposed bargaining unit

14) The Employer’s response was copied to the Union and its comments were invited both in general and specifically on the Employer’s answer to question 8 as to the number of workers in the Union’s proposed bargaining unit. In an email dated 4 June 2019 the Union stated that its application was for the Llantrisant depot only which, it believed, would explain the disparity in figures. The membership check

15) 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. 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 ^{[footnote 1]}, and that the Union would supply to the Case Manager a list of its paid up members within that unit including their full names and dates of birth and a copy of its petition in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter dated 6 June 2019 from the Case Manager to both parties.

16) The information requested from the Employer was received by the CAC on 6 June 2019 and from the Union on 12 June 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer contained the names of 91 workers. The details provided for each worker were: surname, forename, whether the worker was a “Driver” or not and date of birth. All of the workers were described as “Driver” save for six workers who were described as “Other” with the Employer explaining that this indicated that they carried out a mixture of work on National Express and office based duties.

18) The Union provided a spreadsheet with the details of 32 members. The information provided for each member was: forename, surname, date of birth, age, date of joining the union, National Insurance No and workplace code. The workplace codes given by the Union were “SWANSEA” and “LLANTRISANT”.

19) The Union also provided a 3 page petition bearing the names and signatures of 16 individuals. Two of the pages of the petition took the form of A4 sheets headed:

Confidential

We, the undersigned, support the RMT claim for recognition for collective bargaining rights on behalf of National Express drivers employed by Edwards Coaches based at the Llantrisant depot.

The third sheet carried a similar proposition although the depot was given as “the Swansea depot”. None of the four drivers that had signed the Swansea depot petition appeared on the Employer’s list. All three pages of the petition had columns headed: NAME, SIGNATURE, CONTACT DETAILS, JOB DESCRIPTION and DATE and all of the signatories stated that they were a “driver” in the Job Description column. The signatures on the petition were dated between 30 April 2019 and 1 May 2019.

20) According to the Case Manager’s report, the total number of workers in the proposed bargaining unit was 91 and the number of Union members in the proposed bargaining unit was 17, a membership level of 18.68%. The check of the petition showed that it had been signed by 12 workers in the proposed bargaining unit, a figure which represents 13.19% of the proposed bargaining unit. Of those 12 signatories, one was a member of the Union (1.1% of the proposed bargaining unit) and 11 were non-members (12.09% of the proposed bargaining unit). A report of the result of the membership check was circulated to the Panel and the parties on 13 June 2019 and the parties’ comments invited. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

21) In a letter dated 17 June 2019 the Employer stated that it was contracted to provide services across Wales, London and the West of England to National Express. The SLA between Edwards Coaches and National Express was stringent with regards to its obligations around service standards, and key performance indicator matrices that were reviewed and audited regularly to ensure business management processes met the expectations of the latter. To enable provision of this service the Employer had 309 approved staff attached to the National Express Network sharing this characteristic.

22) The Union’s application for statutory recognition applied to National Express – Llantrisant only. The Employer believed that the results of the test undertaken showed that membership of this group of employees currently associated with the contract to be 17. Further, members and petitioners who had been used in support of the Union’s application were either not associated with the proposed bargaining unit or based at Swansea; a group of employees whom the Union in its email to the CAC on 4 June 2019 had advised it was not seeking to represent.

23) When applying the rationale used by the Union the agreed membership across the Network, supported by the attached test, were 29, with only 18 of the 29 being union members. The Employer believed that using these calculations only 5.82% of this group would be recognised by the Union, or 9.38% if the petitioners were to be used as evidence of support.

24) Although the business had many facets, the Employer prided itself on its ability that through a period of unprecedented growth it had maintained the same culture and equality associated with the brand. With this in mind, the Employer would recommend the CAC consider the overall impact of negotiating and or possibly balloting on this basis. The current Employee Forum ensured that all staff irrelevant of location, job role or department had their opinions and aspirations represented. The Employer’s concerns were that segregation of a distinct group of employees taken from a much wider population would impact upon its ability to continue with a harmonised approach to negotiation.

25) An email was received from the Union on 26 June 2019 querying the number of workers on the list provided by the Employer but no action was taken in respect of this email as it was received well after the deadline for comments on the results of the Case Manager’s comparison.

7. Considerations

26) 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.

27) 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 informed the Union that it did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

28) 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 of membership undertaken by the Case Manager established a membership density 18.68% and so it is clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

9. Paragraph 36(1)(b)

29) The test in paragraph 36(1)(b) is whether 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. In its application the Union pointed to its membership and a petition in support of recognition as evidence that this test was met. However, when subject to analysis, the results of the comparison between the Union’s membership list and its petition showed that support for recognition within the bargaining unit was not as strong as the Union believed when it submitted its application. The number of non-members that signed the petition was 11 which accounts for 12.09% of the proposed bargaining unit. If the Panel were to combine the percentage of Union membership and non-member support to give us an indicator as to the level of likely support we arrive at a figure of 30.77%. Whilst this is a test of hypothetical support rather than a strict arithmetical calculation, it is nonetheless, in the absence of any other supporting evidence, the only basis upon which we can make an assessment as to whether it is likely or not that a majority of the workers in the proposed bargaining unit would favour recognition of the Union.

30) Here, we are of the view that there is no indication as to where the Union would find sufficient support to convince the Panel that it was likely a majority, rather than less than a third, of the workers would support its aspirations for recognition. There is simply no evidence to show where such support would come from and in our view it would be a disservice to a union to accept an application on the strength of support as shown here.

31) For the reasons given, the Panel finds that a majority of the workers in the bargaining unit would not be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore not met.

10. Decision

32) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Michael Shepherd

Mr Paul Talbot

28 June 2019

1. It was made clear that for the purpose of this check the Employer’s information should include only those drivers at the Llantrisant depot which comprised the Union’s proposed bargaining unit and that whether or not the proposed bargaining unit was appropriate was not at issue and would not be unless the application was accepted by the CAC. ↩