Decision

Acceptance Decision

Updated 4 May 2020

Case Number: TUR1/1163/2020

4 May 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:

TSSA

and

Govia Thameslink Railway

1. Introduction

1) TSSA (the Union) submitted an application to the CAC dated 2 March 2020 that it should be recognised for collective bargaining purposes by Govia Thameslink Railway (the Employer) for a bargaining unit described as: “GTR employees in Operational Control (TSM and TSOM MG3)”. The CAC gave both parties notice of receipt of the application on 3 March 2020. The Employer submitted a response to the CAC dated 10 March 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr James Tayler, Panel Chair, and, as Members, Miss Mary Canavan and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case on three occasions. The initial period expired on 17 March 2020. The acceptance period was extended to 3 April 2020, 24 April 2020 and then further extended until 6 May 2020 to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider these 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 made a request for recognition to the Employer on 14 January 2020 and the Employer had responded on 20 January 2020 confirming that they would contact the Union within 10 days. In a letter dated 31 January 2020 the Employer requested 20 days for further discussions. Copies of the documents dated 14 January and 31 January were attached. The Union stated that they met with the Employer on 21 February 2020 and 27 February 2020 and no agreement was reached about the bargaining unit or their claim for recognition.

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 ‘yes’ stating an application was submitted on 4 February 2020, which was subsequently withdrawn.

7) The Union stated that, following receipt of the request for recognition, it had suggested that ACAS should be involved but the Employer had refused.

8) The Union stated that the total number of workers employed by the Employer, according to their website, was 27,000. The Union stated that according to the Network Ops spreadsheet, a copy of which they attached to their application, there were 55 workers in the proposed bargaining unit, of whom 32 were members of the Union. 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 stated that at least 50% were in TSSA membership. The Union stated that there had been a recent increase in membership as workers within the bargaining unit wanted the Union to have collective bargaining rights for them.

9) The Union stated that the reason for selecting the proposed bargaining unit was because the employees performed a unique, discrete function within the Company making their proposed bargaining unit fully compatible with effective management. The Union did not answer the question “Has the bargaining unit been agreed with the Employer”. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘No’.

10) The Union confirmed that it held a current certificate of independence and enclosed a copy of the Certificate. The Union stated that it had copied its application and supporting documents to the Employer on 2 March 2020.

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

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition dated 14 January 2020 by post on 20 January 2020. The Employer stated that it had responded to the Union on 31 January 2020 confirming that it was prepared to negotiate and asked the Union to confirm dates of availability.

12) The Employer confirmed that a copy of the application was received from the CAC on 3 March 2020 but stated that they had not been sent a copy by the Union.

13) The Employer stated that the Union had previously submitted an application to the CAC on 4 February 2020 which it had withdrawn once it was brought to their attention that it had failed to honour the “second period” as specified in paragraph 10(7) of Schedule A1.

14) 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. The Employer stated that it did not agree the bargaining unit and that until the application was ruled admissible the question as to the appropriateness of the proposed bargaining unit does not arise. The Employer stated that it reserved the right to set out its position if the application was accepted. The Employer advised the CAC that they had received a previous request for recognition from the Union dated 18 March 2019 which was in respect of a different, larger bargaining unit but no application was submitted in respect of that bargaining unit. The Employer alleged that (following a targeted recruitment campaign in which discounts of 50% off membership fees were offered) the Union submitted the January 2020 request which was in respect of a much smaller bargaining unit. The Employer stated that no explanation was given by the Union as to the reason for this fundamental change in the bargaining unit and it seemed clear to them that the Union was not turning its mind to what bargaining unit would be appropriate rather it was attempting to propose a bargaining unit which they believed put the Union in the best position to secure recognition.

15) The Employer stated that it found the bargaining unit a bit confusing in that it was unclear whether MG2 Managers were included, however, they had been able to identify the total number of TSMs and TSOMs in its employment, all of whom were MG3 grade, and as at 2 March 2020 had a combined total of 50.

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that it disagreed with the Union’s claim that it had 32 members and considered that unlikely to be accurate When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer stated that it was unclear whether MG2 managers were included and the Union had not provided detailed membership data indicating how its membership had grown and over what period. The Employer stated that it come to their attention that during the period 16-20 September 2019 the Union had offered substantial membership discounts of 50% for a period of 24 weeks which ended on 6 March 2020. The Employer said that it had also heard (anecdotally) that the Union had offered 3 months free membership. The Employer stated that, given the issue of discounted and/or free membership, there should be a full membership and support check carried out. The Employer said that in summary they were concerned that many of the 32 members referred to in the Union’s application may have ceased to work for them and/or ceased to be members of the Union; or had never been full members of the TSSA.

17) As to whether the Employer considered that a majority of the workers in the bargaining unit are likely to support recognition the Employer stated that it reserved the right to comment fully once the membership and support check was undertaken. The Employer stated that the union was asserting over 55% membership which it considered was likely to be a heavily inflated figure in the light of the factors already dealt with previously i.e. discounted or free membership. The Employer stated that the Panel should not infer that a majority of the workers in the proposed bargaining unit, as and when it was properly identified, would be likely to favour recognition.

18) 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 stated that an application was made on 4 February 2020 and subsequently withdrawn on 10 February 2020.

5. Further comments received from Employer

19) In an email dated 17 March 2020 - the Employer’s representative confirmed that the Employer had received a copy of the application and attachments by email from the Union, on 13 March 2020.

6. The Membership Check

20) To assist in the application of the admissibility tests 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, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their full name and date of birth). The proposed bargaining unit did not include MG2 Managers, who were not included in the check. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 23 March 2020 from the Case Manager to both parties. The information from the Union was received by the CAC on 25 March 2020 and from the Employer on 27 March 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

21) The list supplied by the Employer indicated that there were 54 workers in the proposed bargaining unit. The list of members supplied by the Union contained 31 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 30, a membership level of 55.56%.

22) A report of the result of the membership check was circulated to the Panel and the parties on 30 March 2020 and the parties were invited to comment on the result.

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

23) In an email to the CAC dated 31 March 2020 the Union reported that their members, within the bargaining unit, could not wait to see their union being able to conduct collective bargaining on their behalf. The Union also stated that the membership check showed that their membership exceeded 50% of the workers in their proposed bargaining unit and sincerely hoped that the Employer would stop resisting their claim for recognition.

24) The Employer in a lengthy letter dated 9 April 2020 stated that the report showed that there was 55.56% union membership in the proposed bargaining unit but asked the CAC to take into account that the proposed bargaining unit of GTR employees in Operational Control (TSM and TSOM MG3) was a tiny, artificial and tactical construct of the TSSA, consisting of only c. 4% of GTR’s management and administrative grades and c. 8% of the management grade MG3, spread over a number of geographically disparate work sites.

25) The Employer reiterated what it had said in its response form about having received no explanation from the Union in respect of the fundamental changes in respect of the present bargaining unit and the bargaining unit previously set out in their earlier request in March 2019. The Employer stated that there was no ostensible business reason for selecting TSMs and TSOMs to form the bargaining unit and no other roles.

26) The Employer repeated its allegation that the Union had offered substantial membership discounts and contended that only fully paid up members of the Union within the bargaining unit should be used for the purposes of the tests in paragraph 36 of the Schedule and that the CAC should conduct a validity check accordingly if it were minded to admit the application.

27) The Employer stated that given the very small numbers involved, the results of any membership check were susceptible to substantial percentage adjustments in respect of a small number of employees or small number of members. With only 54 employees in the proposed bargaining unit, the Employer said that the existence or otherwise of valid union membership had an effect on the relevant percentages of 1.9% per individual. In these circumstances, issues of discounted, non-paying and limited term membership were clearly of relevance to the tests at 36(1)(a) & (b).

28) The Employer advised that since the report was produced 2 employees had left the proposed bargaining unit although they did not know whether those individuals are or were members of the TSSA; but said that the CAC could determine that issue by cross referring the details provided above by reference to the confidential employee list provided on 27 March 2020 against the membership list provided by the Union and invited the CAC to do so.

29) The Employer stated that in respect of paragraph 36(1)(b) of the Schedule support is particularly important. There had been no petition of the proposed bargaining unit, even though the conduct of such a petition amongst a workforce of 56 individuals would have been a relatively straightforward matter. There has been no indicative ballot or indicative vote. No letters in support had been produced from the relevant employees. There were no pledge cards, or similar evidence and the CAC should draw adverse inferences in respect of the application from this absence of evidence. The Employer referred the CAC to what they considered to be a similar argument in the case of Amicus and The College of Law (TUR1/563/2007), which involved a small bargaining unit that was stated to have a majority union membership and which had been cut from the much larger employee base of the College of Law. The Employer, however, stated that the facts of Amicus and College of Law differed from the present matter in that additional evidence of support was tendered by Amicus in the form of signed statements of support for the union.

30) The Employer stated that the test is not whether there is evidence of general support for the union, the test is whether the workers in the bargaining unit would be likely to support recognition of the union as entitled to conduct collective bargaining on behalf of the proposed bargaining unit. The Employer stated that the Union in the present matter had not provided statements of support, or any evidence of support, and relied exclusively on trade union membership.

31) The Employer argued that the statutory wording (para 36(2)(a)) specifically defines “the bargaining unit” for the purposes of para 36(1)(b) as the proposed bargaining unit and it is in respect of that proposed unit that the applying trade union must produce evidence of support by the majority of the workers. The Employer stated that it was not open to the CAC to ignore the specific wording of para 36(1)(b) and 36(2)(a) because the bargaining unit “can be fully explored…at the next stage” as was suggested in Amicus and College of Law. If para 36(1)(b) is not satisfied, the application should not be admitted and should not reach the next stage.

32) The Employer stated that the test for para 36(1)(b) is not one of generalised support for the trade union - but a very specific test of support for recognition of the trade union for the purposes of collective bargaining on behalf of the proposed bargaining unit.

33) The Employer stated that there was no evidence that the individuals in the proposed bargaining unit had any idea what was going on, and no evidence that they supported (or are likely to support) recognition in respect of the present proposed bargaining unit. The Employer asked how in such circumstances the CAC could come to the conclusion that a majority would be likely to favour recognition of the Union to conduct collective bargaining in respect of this particular proposed bargaining unit as required by para 36(1)(b).

34) Finally, the Employer stated that given the issues on union membership outlined above, and in their response form, the CAC should not admit the application; but if it was minded to do so, despite the above submissions, the report should be tested by the conduct of a validity check.

8. Further comments from the Union

35) The Union were invited to comment on the points raised by the Employer in their letter of 9 April 2020. In an email dated 17 April the Union stated that it simply wanted to reiterate that they had met both tests set out in paragraph 36 of the Schedule and consequently expected their application to be accepted.

36) The Union said that for completeness they thought it would be useful for the Panel to know that their recognition campaign was initiated after their members within the Control function in GTR asked them to pursue collective bargaining as most of them were co-located in Three Bridges – with Network Rail Control staff for whom they had sole bargaining rights within a separated bargaining. The Union stated that since they had launched their campaign for recognition, they had seen a significant increase in their membership within Control staff at GTR.

9. Considerations

37) 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 in reaching its decision.

38) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 and 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12 of the Schedule.

39) Paragraph 34 reads as follows:

An application under paragraph 11 or 12 is not admissible unless the union gives (or unions give) to the Employer – (a) notice of the application, and (b) a copy of the application and any supporting documents to it.

40) The Panel notes that in its response to the application the Employer stated that it had not received from the Union a copy of its application. The Panel further notes that the Employer’s representative confirmed in an email dated 17 March 2020 that a copy of the application was submitted to them by the Union on 13 March 2020. Accordingly, it was received by the Employer from the Union before the acceptance decision. The Panel is therefore satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 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. It does not at this stage decide whether the proposed bargaining unit is appropriate.

10. Paragraph 36(1)(a)

41) 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.

42) The Panel noted the Employer’s comments on the membership status of the Union’s members. The Union was requested to provide a list of its paid-up members for the purpose of the check. The Panel accepts the information provided by the Union as to its membership in the proposed bargaining unit. Likewise, the Panel accepts that the list of workers submitted by the Employer were workers in the proposed bargaining unit. A Union will be aware of the potential consequences of providing over-optimistic membership numbers which would be likely to result in an unsuccessful application and a three year bar from a further attempt at recognition for the same proposed bargaining unit. There was no evince that employees had, or planned to, leave membership of the union after any period of free or discounted membership. We had no specific evidence to challenge the Union’s contention that the membership drive was the result of members saying that they wanted recognition.

43) The membership check conducted by the Case Manager showed that 55.56% of the workers were members of the Union. As stated in paragraph 21 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. It is clear to the Panel on this basis that members of the Union constitute at least 10% of the workers in the bargaining unit and the test under this paragraph is satisfied.

11. Paragraph 36(1)(b)

44) 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.

45) The Employer has put forward an argument that the bargaining unit now has two fewer workers than at the time of the check. The check is a snapshot of a moment in time to enable the Panel to assess whether the tests under paragraph 36 are satisfied. We accept that changes to the composition of the bargaining unit may occur as workers join and depart the company and there would be similar changes in the Union’s membership figures as members come and go. But the Panel needs to have a baseline in order to consider whether or not the tests are satisfied so that it can make a decision and the statutory process can continue to the next stage, if appropriate. It may be that we revisit membership density at a later date, perhaps if the composition of the bargaining unit changes through either agreement or our determination or if we have to decide whether to call for a secret ballot.

46) The level of union membership is 55.56%. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of evidence to the contrary, 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 as entitled to conduct collective bargaining on behalf of the proposed bargaining unit. Even if the 2 people who have left the Employer were both Union members (which is not known) there would still be a substantial majority of Union members - 28 out of 54 (51.85%) within the proposed bargaining unit. At this stage in an application for recognition we are required to make a decision on whether the majority of employees in the bargaining unit are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. In the absence of evidence to dispute the information provided by the Union we accept the Union’s figures for the purposes of determining whether to accept the application. The Panel also notes the Employer’s comments that many employees may not have any idea what is going on and that there was no evidence that they supported (or are likely to support) recognition. However, the Panel has not received, from either the Employer, or any workers within the proposed bargaining unit, any evidence to substantiate this. We do not accept the Employer’s contention that there is something so extraordinary about this particular bargaining unit that majority Union membership does not support a conclusion that the majority of employees falling within this proposed bargaining unit would be likely to support the union as as entitled to conduct collective bargaining in this bargaining unit. If that were the case we would have expected to see substantial evidence that employees, including Union members, thought that the bargaining unit was so inappropriate that they would not wish the Union to be recognised to conduct collective bargaining for them in this bargaining unit. There was no such evidence, only assertion from the Employer.

47) At this stage in the process it is not necessary for the CAC to be satisfied that a majority of employees in the bargaining are actually in support of recognition for collective bargaining in the proposed bargaining unit. Rather it must assess the likelihood that this would be the case were a ballot to be held at the appropriate time under the statutory procedure. This is not a case where the evidence of support is marginal. Union membership is well over 50% which provides strong evidence of the likelihood of support for collective bargaining on behalf of the proposed bargaining unit. The test of actual support comes later by means of a ballot, if appropriate.

48) 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.

12. Decision

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

Panel

Mr James Tayler, Panel Chair

Ms Mary Canavan

Mr David Coats

4 May 2020