Decision

Acceptance Decision

Updated 14 January 2020

Case Number: TUR1/1092(2019)

18 July 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:

UNISON

and

Cornerstone Community Care

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 05 March 2019 that it should be recognised for collective bargaining by Cornerstone Community Care (the Employer) for a bargaining unit comprising “All employees with the exception of Relief staff, Seasonal staff, Foster carers, Shared live carers, Fixed term contract staff, Senior Leadership Team (CEO, Leader of Quality, Leader of Cornerstone Foundation, Leader of Strategy Implementation, Leader of Cornerstone Central). For clarity the request for recognition does not include the Cornerstone Foundation”. The location of the bargaining unit was stated in the application as “Various locations across Scotland”. The CAC gave both parties notice of receipt of the application on 6 March 2019. The Employer submitted a response dated 12 March 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 Chairman of the CAC established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller as chair of the Panel and, as Members Mr Alistair Paton and Mr Gerry Veart. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 19 March 2019. The acceptance period was extended on several occasions in order for the CAC to: obtain more information from the parties; carry out a membership and support check and for the parties to comment on that check, to provide time for the Panel to consider all the evidence and for the Panel to finalise its written decision. The final extension ended the acceptance period on 19 July 2019.

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 of the Schedule; and therefore should be accepted.

3. Summary of the Union’s application

5) The Union stated that it had a certificate of independence and confirmed that it had not made a previous application under the Schedule for statutory recognition for workers in the bargaining unit and/or a similar unit. However the Union informed the Panel that UNISON was recognised by the Employer for over 24 years under a pre-existing agreement but that the Employer had withdrawn from that agreement on 28 November 2018 which led to a dispute between the parties. A copy of the previous agreement was attached for the Panel as well as the subsequent exchange of correspondence between the parties relating to the dispute from the Employer’s letter to the Union withdrawing from the agreement dated 28 November 2019 to the Union’s letter to Acas for conciliation assistance dated 8 January 2019.

6) The Union also included with its application, its formal request letter to the Employer dated 25 January 2019 and the Employer’s response to the Union rejecting the request by letter to the Union dated 7 February 2019.

7) The Union stated that the Employer employed approximately 2,100 workers and that there were approximately 1,500 workers in the proposed bargaining unit of which approximately 805 were members of the Union. As evidence that a majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union relied on its membership level and stated that a further 60 workers who were non-Union members had signed pledge cards demanding that the Union be recognised for collective bargaining purposes. Its membership had increased by 200 since its recognition campaigned had started. The Union believed that its membership level together with the non-Union member pledges constituted in excess of 50% of the workers in the proposed bargaining unit.

8) The Union explained that the reasons for selecting the workers in its proposed bargaining unit were because it was compatible with effective management and was reflective of the characteristics of the main body of workers employed by the company. It was also reflective of the previous recognition agreement with the Employer from which it unilaterally withdrew from on 28 November 2019. In that agreement the Union was recognised for all “employees” rather than employees and workers. Other than the terminated agreement, the Union was not aware of any existing recognition agreement that covered any worker in the proposed bargaining unit.

9) Finally the Union confirmed the date on which its application to the CAC and supporting documents was copied to the Employer was 05 March 2019.

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

10) The Employer submitted its completed “Employer’s Response Questionnaire form” to the CAC on 12 March 2019, in which it provided the following information for the Panel.

11) The Employer received the Union’s formal letter of request on 25 January 2019 to which it responded by letter dated 7 February 2019, rejecting the Union’s request, a copy of which was attached for the Panel. When responding to the Union’s request, the Employer did not propose that Acas be requested to assist the parties.

12) The Employer had attempted to involve Acas services prior to the Union’s official request for recognition. It had written to the Union on 12 November 2018 (a copy of the letter was attached for the Panel) informing that after raising concerns about the Union’s confrontational approach on several occasions (in May, August 2017 and October 2019), its relationship with the Union was no longer sustainable. However, as a final attempt to re-build the relationship, it offered to engage with the Union under the auspices of Acas proposing that an urgent meeting took place no later than 16 November 2018. The Employer contacted Acas to facilitate the meeting but in an email to the Employer (an undated copy of the e-mail was attached for the Panel), Acas informed the Employer that when the Union was approached, the Union was of the view that as internal procedures had not reached a “failure to agree” stage, an Acas conciliation meeting was not appropriate at that time. The Union was prepared to meet directly with the Employer to discuss the issue but as Acas understood, that meeting had not taken place.

13) The Employer also attached a copy of its letter to Acas dated 28 November 2019 in which it informed that it would not be attending the meeting arranged with Acas on 29 November 2018. That meeting on the 29 November 2019 was arranged to discuss the “pay dispute”, but as its attempts to engage Acas to assist with the separate dispute in relation to the “working relationship” between the parties, was dismissed by the Union on procedural grounds, the Employer was left with no other option than to withdraw from the voluntary recognition agreement which was to take immediate effect. There was no merit therefore in participating in a meeting about pay. The Employer had reached its decision after careful consideration and to reflect the best interests of its charitable objectives, all of its colleagues and the people it supported.

14) The Employer also attached a copy of its letter to the Union dated 9 January 2019 in which it confirmed that it had received a copy of the e-mail from the Union to Jeanne Freeman MSP, Cabinet Secretary which the Union had attached to a letter to Acas. The letter informed the Union that the Employer saw no merit in meeting unless the meeting was hosted as offered by the Scottish Government and COSLA. The Employer reiterated its position to the Union and for the avoidance of doubt that UNISON was no longer the Employer’s recognised trade union as its decision to withdraw from the voluntary agreement was with immediate effect. In its letter to the Union dated 14 December 2018 (a copy of which was included for the Panel in the Union’s supporting documents to its application), the Employer had stated that it considered that it was neither legally necessary nor appropriate to provide any period of notice of termination of the voluntary recognition agreement in the circumstances. It also reminded the Union in that letter that it did offer to meet the Union under the auspices of Acas to discuss its significant concerns in relation to its working relationship.

15) The Employer had not agreed with the Union’s proposed bargaining unit before the Union’s application to the CAC neither did it agree with it now. The Employer disagreed with the Union’s proposed bargaining unit on several grounds and are listed briefly here but are matters considered by the Panel only at the next stage of the application process should an application be accepted. The Employer stated that it disagreed with the proposed bargaining unit because: it was reduced to that which was defined in the previous voluntary agreement; it arbitrarily excluded over 500 workers; it was not compatible with effective management and created fragmentation, it excluded the Cornerstone Foundation workers who were employed by the same legal entity, it contradicted Scotland’s 2016 Fair Employer Framework and because 91% of respondents to an internal survey supported all employees to be included if the union recognition was adopted.

16) The Employer confirmed that the number of workers in the proposed bargaining unit was 1,584 as of 12 March 2019.

The Employer challenged the Union’s level of membership in the proposed bargaining unit. It was aware of workers who had cancelled their membership due to the recent unacceptable behaviour of the Union, some of whom had reported that they were still receiving mail from the Union. The Employer was concerned that these workers were included in the membership figure declared by the Union in the application. It did not believe that the 805 figure still represented Union members who still payed their Union dues. Only 240 employees currently paid their dues to the Union through the company pay roll. The Employer also challenged the validity of the 200 new members claimed by the Union. The Union’s campaign included an enticement of a potential payment of £4,000 in its “UNISON Scotland Newsletter” dated 18 January 2019 in which it said:

“…to ensure you are included in any inducement claim that UNISON needs to raise against Cornerstone. As you can see, this is worth £4,000 to every member”

17) The Employer also challenged the validity of the pledge cards relied on by the Union and informed that it could provide evidence on a confidential basis to the CAC that some of the workers were put under pressure by the Union to sign the Union’s pledge cards.

18) When asked if it considered that a majority of the workers in the proposed bargaining unit would be likely to support recognition the Employer answered that in a recent employee survey which asked, “Do you want UNISON to represent you on collective bargaining on pay, hours of work, and holidays?”, 78% of the respondents said “NO” of whom some were Union members. The Employer informed that the survey was still “live”.

19) When asked whether it was aware of any previous application covering any worker in the proposed bargaining unit or a similar unit, and whether it had received any other application for recognition in respect of any workers in the proposed bargaining unit, the Employer answered “Not applicable” to both questions.

20) Finally the Employer confirmed it had received a copy of the Union’s application to the CAC on 5 March 2019.

5. Summary of the Union’s further comments

21) By invitation of the Panel, the Union submitted its comments on the Employer’s response by letter dated 21 March 2019. The Union was surprised at the Employer’s claim that it employed a total of 2,141 workers, 200 more staff than the Employer’s yearly average over the last two years according to the most recent company accounts. The Union expected some increase in the summer months due to seasonal staff on relief and fixed contracts but not in the month of March. The Union expressed its concern that agency staff had been included in the Employer’s figure.

22) The Employer’s arguments disputing the Union’s level of membership were not evidenced or based on any facts. In response to the Employer’s challenge to the validity of the Union’s pledge cards, the Union confirmed that the pledge cards that would be submitted to the CAC were from existing employees though it did have hundreds of cards signed by fellow trade unionists, service users and their families. The Union rejected the Employer’s claim that the Union’s signatures were obtained under duress. Conversely, the Union argued that it was staff who had been subject to intense pressure and scrutiny from the Employer embarking on a campaign to produce a counter survey supporting the Employers anti-union position. The Union stated that the cards were clear in their intent and the issue of collective bargaining was not alien to the workers who had received vast amounts of communications on the topic from both the Union and the Employer.

23) The Union contested the Employer’s survey given in its view the power and influence an Employer would have, particularly amongst the many low paid women members of staff who would rely on their employment as the sole source of income. The Union was willing to provide the Panel with evidence of disciplinary cases where the Union had to rely on the use of s.146 TULRA defence against detriment for taking part in trade union activities. The Union would also contend that threats of detriment had been extended into producing the survey results; evidence of which could be supplied to the Panel at request. This would include evidence that the leadership team instructed managers to interview all staff to complete the survey under the supervision of their manager.

6. Summary of the Employer’s further comments

24) On 27 March the Employer submitted a reply to the Union’s comments on response to the application. The Employer confirmed for the Panel that the figure it had provided for the number of workers employed was accurate and that no worker had been double counted. The figure did not include any agency staff. The company accounts referred to by the Union were annual accounts which were 12 and 24 months old respectively. The Employer clarified that for the purpose of the company accounts, it used an ‘averaging’ method. In 2018/19 it had seen business growth and as a result the number of people it employed has risen this year.

25) For the Panel’s information the Employer stated that in UNISON’s community service group annual report 2019 the net increase in membership at Cornerstone was 148, not 200 as previously advised by the Union. The Employer also stated that it could provide written evidence from workers who had confirmed that they had felt under pressure from Union to sign the pledge cards.

26) With regard to the Union’s comments in respect of its survey, the Employer stated that its survey asked open, not leading, questions. The Employer encouraged all workers to respond with their views as the Employer felt strongly that it should be the affected workers who decided whether they wanted the Union to be recognised for the purposes of collective bargaining or not. For the avoidance of doubt, the Employer denied that it had subjected any of its workers to any detriment by reason of their membership of any trade union or for taking part in the activities of a trade union at an appropriate time.

27) The Employer stated the Union’s allegations that the leadership team instructed managers to interview all staff to complete the survey under the supervision of their manager was false. Managers were however briefed on the CAC application and were encouraged to brief all their workers on the Union’s application including giving them an opportunity to express their views. The employer was happy to share with the CAC all internal communications on this matter. The Employer had not sent any letters to workers’ home addresses. However it continued to receive responses to the staff survey. As of 20 March 2019: 79% of workers did not want the Union to represent them in collective bargaining on pay, holidays and hours of work and 21% did. 73% of workers felt that Union recognition should be decided by a majority of Cornerstone colleagues and 27% did not. 88% of workers said that if Union recognition was adopted, it should include ALL colleagues and 12% disagreed.

7. Membership and Support Check

28) 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.

29) It was agreed with both 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 as outlined in the Union’s application to the CAC and its petition signed by workers not in support of recognition and that the Union would supply to the Case Manager a list of its paid up members, providing their names, addresses and dates of birth (where possible) and its petition signed by workers in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petitions would not be copied to the other party. These arrangements were confirmed in the CAC’s letter to the parties dated 3 April 2019.

30) The Case Manager’s report of the results of the membership and support check dated 31 May 2019, attached at appendix 1 of this decision, was issued to the Panel and to the parties for comments on 3 June 2019. The Panel was satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

8. The Union’s comments

31) In its letter to the CAC dated 12 June 2019, the Union noted that 146 of its Union members did not appear on the Employer’s list of workers for the Case Manager’s check. However, according to its records, all the Union members on the list the Union supplied to the CAC for the checks were paid up members employed by Cornerstone and part of the proposed bargaining unit. While it had no evidence to challenge the accuracy of the Employer’s list, the Union drew the Panel’s attention to the fact that over a third of the responses to the Employer’s survey had also failed to appear on the Employer’s list. If nothing else, this demonstrated the difficulty in maintaining accurate and up to date records within a social care workforce.

32) The Union contended it was faced with industrial and equality issues and that the Panel ought to consider that organising mainly low paid female workers who delivered care in the community was particularly difficult in the context of the recognition process. Recruiting and maintaining membership was difficult and time consuming with this particular set of workers as they rarely, if ever, met with each other. Much of the job was carried out in the private homes of supported service users where the Union had little or no access to the workers.

33) In addition to these difficulties, the Union had lodged early conciliation claims with Acas to address hostilities of the Employer with Union members who openly supported the Union, and Union stewards were often being disciplined on “trumped up” performance issues. Settlement agreements were increasingly becoming the only solution available to these workers. The Union contended that the Employer had also denied the Union access to staff at their place of work. As supporting evidence the Union provided a copy of a short e-mail exchange between the parties dated 15 January 2019 in which the Employer approached the Union about workers being accessed at service users’ residents.

34) In terms of the results of the membership and support check, the Union noted that the number of workers in the proposed bargaining unit was 1,606 and that the panel had the evidence of the views of 877 of these workers who were either Union members or had completed the Union pledge cards or the Employer’s survey. The Union had calculated that at least 81.41% had responded positively in favour of collective bargaining, either through Union membership or positive comment on a Union pledge card or on the Employer’s survey.

35) The Union asked the Panel to assume that Union membership in this case was an indicator of a worker wishing to be covered by collective bargaining, as part of the Union’s principal aims and objectives to improve the pay and conditions of its members through joint negotiating machinery. This was written into the Union’s rule book by which its members were bound. Union membership itself was currently in an upward trajectory at Cornerstone since the Employer had ended the voluntary recognition agreement. 212 workers from Cornerstone had joined the Union in 2019 and recruitment was ongoing. This was a clear indication of a growing trend for workers wanting to be covered by collective bargaining despite the actions of the Employer.

36) In the context of the entire bargaining unit the 81.41% figure reduced to at least 44.46%, but if these numbers were reflected in a ballot, it would still pass the statutory test of achieving a majority result in the ballot with a 40+% support in favour of union recognition. The Union considered that this was evidence sufficient to meet the test at paragraph 36(1)(b) which was based on whether a majority of the workers were likely to support recognition of the Union for the purposes of collective bargaining not actual support.

37) The Union also pointed out that despite the influence and direct access that the Employer had to all the workers in the proposed bargaining unit, only 131 out of 1,606 responded to the staff survey rejecting collective bargaining. The Union concluded that more than 4 out of every 5 workers were in favour of collective bargaining.

38) Furthermore a significant proportion of worker had not yet had an opportunity to indicate support for recognition one way or another. The views of 729 workers were relatively unknown to the Panel. The Union asked the Panel to infer from the data that if there was clear support for Union recognition from the 877 visible staff within the bargaining unit, then it was reasonable to infer that even a fraction of that level of support from the remaining 729 staff would see a comfortable majority in support of collective bargaining and in the context that the Union did not have full access to whole bargaining unit.

39) In conclusion, the Union had at least 10% membership of the workforce and so satisfied the test of paragraph 36(1)(a) and the evidence supplied demonstrated that a majority of the bargaining unit would likely be in favour of collective bargaining in light and therefore on the balance of probabilities, the Panel could infer from the facts that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union in terms of paragraph 36(1)(b).

9. The Employer’s comments

40) In its letter to the CAC dated 7 June 2019, the Employer submitted its comments in respect of the membership and support check report. The Union stated that it took the findings of the report at face value and accepted that the Union had met the 10% test set out at paragraph 36(1)(a). However, it did note that the level of Union membership achieved by the Union was considerably lower than it had expected considering the Union’s recruitment drive since November 2018 and a high profile campaign on social media and via personalised letters to home addresses, in January 2019. The Union had also issued case forms to workers to complete to be able to inform them of benefits from compensatory payments in the event the Union lodged inducement claims at an employment tribunal. In its view, any increase in Union membership could be attributed to these campaign messages, and was not therefore indicative of support for Union recognition.

41) The Employer, did not accept that the Union had met the test set in paragraph 36(1)(b) of the Schedule. The CAC’s report showed there were 674 Union members in the proposed bargaining unit which equated to 41.96%. This figure was actually 670, or 41.72%, once adjusted by deducting the 4 Union members who had cancelled their Union membership subscriptions. 41.72% fell substantially short of a 51% majority. The Employer calculated that the Union would have to recruit over 130 new members to reach a majority membership of the proposed bargaining unit. The union had failed to recruit this level of additional Union members since the voluntary agreement was terminated, despite its efforts in: an intensive recruitment drive on social media; encouraging Union members to distribute membership forms to colleagues; a high profile adversarial media campaign against Cornerstone alleging unfounded breach of union rights; political lobbying to put pressure on Cornerstone to adopt Union recognition again; a campaign to lure new members with a potential £4k pay-out if they joined by 31 January 2019 (which was then extended to mid-February 2019) in order to qualify to submit inducement claims and receive compensation. As evidence of this campaign, the Employer provided the Panel with a screen shot of the Union’s notification for these matters to its members on a social network (Appendix A of the Employer’s submissions).

42) The Employer contended that in contrast, to the Union’s campaign, a higher proportion of the workers in the proposed bargaining unit completed feedback forms for the Employer’s survey, a majority of which indicated they did not support union recognition with the Union only achieving a low response rate of 58, or 3.6% to its distribution of pledge cards and this was despite the readily available supply and freepost facility to return them. Other calculations the Employer relied on in support of its case included:

• Only 3 union members submitted a postcard

• only 25 out of 674 union members (1.74%) said ‘yes’ in the employer Feedback Form

• only 55 non-members signed the union’s postcard (3.42%).

• put another way 1,551 workers (or 96.4%) did not sign a postcard which it felt was a more significant statistic and more credibly demonstrated minimal/minority support for union recognition.

• 9.77% signified ‘NO’ to Union recognition on the employer Feedback Form of which 22 were Union members.

43) The Employer informed the Panel that it had received multiple anecdotal comments from colleagues, leading it to estimate that an even higher number of union members would vote ‘NO’ in a ballot.

44) The Employer estimated that, at best, only 40.39% of workers in the proposed bargaining unit would be likely to favour recognition of the union. This meant that 59.61% did not favour union recognition. The Employer claimed that this figure could be significantly higher. The 40.39% figure was based on 42% Union membership of which it was known that at least 22 members would vote ‘no’ to any collective bargaining arrangement. By removing the 22 members who stated they would vote ‘no’ (1.36%) and those that reportedly cancelled membership but still appeared on the Union’s list (0.25%), a net figure of 40.39% was left. Non-union members in the proposed bargaining unit made up 58%. Adding to this figure the 22 members who stated on feedback forms that they would vote ‘NO’ (1.36%) yielded a net percentage of 59.36% opposed to union recognition.

45) In conclusion the Employer disputed the presumption that every Union member might favour union recognition. This was an untested presumption, and the union has provided no supporting evidence or proof substantiating its assumption. People joined and left trade unions for varied reasons. 22 of the feedback forms from its survey were examples of Union members who would vote ‘No’ in favour of Union recognition which the Employer believed to be just a snap shot of the actual number. The only tangible evidence submitted by the Union were the pledge cards of which only 3 union members had signed and only 55 non-members had signed. The Employer strongly disputed the inference that Union members or non-union Members supported or wanted union recognition. The Employer believed that at this stage of the process, the burden of responsibility lay with the Union to provide reliable proof that a majority of workers were likely to support recognition and its view the Union had failed to make this case and the findings of the CAC report supported its view. As such the Employer urged the panel to look at the evidence of the active steps taken by workers in the proposed bargaining unit as indicators of their motives and opinions, as well as the Union’s sustained efforts to persuade workers to support its cause, rather than extrapolate assumptions of support. The Employer believed there was no legal basis for the application to be accepted, as paragraph 36(1)(b) required the CAC to be satisfied that 50% or more of the workforce would be likely to favour union recognition. Accordingly, the Employer urged the CAC to reject the application as inadmissible.

46) On 12 June the CAC cross copied between the parties their respective comments on the membership and support check with an invitation from the Panel to make their final comments on the report for consideration.

10. Employer’s final comments

47) In its letter dated 17 June 2019, the Employer confirmed that all the names of workers that were supplied to CAC were current employees of Cornerstone, and in the union’s proposed bargaining unit. Its records were entirely reliable. This was information based on the Employee records which had to be accurate for payroll purposes. The Employer took issue with the Union’s claim that its payroll records were unreliable because “over a third of the responses to the employer survey failed to show up on the Employer list”. The fact was that all Feedback Forms were completed by existing Cornerstone workers and as these workers had taken the time to complete the survey they were all provided for the Case Manager’s membership and support check, irrespective of whether they were in the proposed bargaining unit or not.

48) The Employer contended that the Union had produced no evidence to substantiate the allegations that any employee of Cornerstone had been disciplined because they supported the Union or for carrying out trade union work. The Employer categorically refuted this. There was only one (not several as stated by the Union), disciplinary investigation of a union steward after which no formal action was taken. The issue was to do with a conflict of interest matter that arose because the steward had only recently been trained in GDPR when taking on their first case.

49) The Employer was aware of only one conciliation claim to Acas by the Union but this was to do with an allegation of discrimination regarding a grievance from an employee not a union steward. The Union’s reason for involving Acas was stated as being because the grievance process was taking too long to conclude but the employee itself had requested a delay. The grievance was investigated internally following the Employer’s grievance procedure and was not upheld.

50) The Employer categorically denied that the Union was denied access to the work place. Referring the Panel to a copy of a letter dated 23rd January 2019 from the Employer to the Union the Employer stated that it pointed out the inappropriateness of the Union turning up unannounced at the private homes of service users. The Employer offered access to the staff at any of its offices however.

51) The Employer stated that unlike the Union’s confrontational behaviour, its approach had been fair, collaborative and constructive before and since de-recognition, and enclosed examples of its internal communications relating to its relations with the Union and also provided the Panel with a long list of Union activities it did not feel was professional including such things as breaches of confidentiality by posting internal Company matters online and discussing commercial matters with other third sector organisations, misrepresenting facts and misleading comments in newsletters and on posts in social media and basically running a very aggressive campaign.

52) Based on the information compiled by the CAC, at best, only 40.39% of workers in the proposed bargaining unit would be likely to favour recognition of the union. According to the Employer, this meant that at least 59.61% did not favour union recognition. It did not understand how the Union conclusion that ‘more than 4 out of every 5 are in favour of collective bargaining’.

53) The Union’s claim that 212 new members showed an upward trajectory of staff joining Unison was easily explained by the Union’s recruitment campaign to include new members in potential litigation with a pay-out of £4,000, the extract from the Union’s newsletter read:

“….. to ensure you are included in any inducement claim that Unison needs to raise against Cornerstone. As you can see this is worth £4,000 to every member.”

Source: Unison Scotland Newsletter (18 January 2019)

This was not an indication of membership growth for collective bargaining but rather an undisguised attempt to ‘entice’ workers to complete union membership and Case Forms. This undermined any claim that membership growth was linked to collective bargaining.

54) The Employer’s closing argument was that there was no legal basis for the application to be accepted, as in its view, paragraph 36(1)(b) required the CAC to be satisfied that 50% or more of the workforce would be likely to favour union recognition and urged the Panel to reject the application.

11. Union’s final comments

55) In its letter to the CAC dated 19 June 2019, the Union submitted that the Panel could infer from the nature of the workforce, and the industrial context of the application, that sufficient numbers of non-Union members were in favour of trade union recognition for the following reasons:

56) The workforce was not only primarily low paid women but were part-time workers too. The combination of low pay and low hours placed many workers in ‘in-work poverty’ so trade union membership was considered unaffordable by some. Nevertheless, they still supported trade union recognition as this was the means by which their terms and conditions could be improved.

57) The care industry had high staff turnover due to the low wages and unsociable hours. Some workers did not see themselves remaining in employment long enough to join a trade union. Again, they nevertheless supported trade union recognition as a means to improve pay and conditions.

58) The Union considered that the numbers reported by the CAC were indicative of majority support for trade union recognition, given the barriers to trade union membership and recruitment that had been put in place by the Employer since it withdrew from the voluntary recognition agreement. As evidenced by the e-mail from the Employer to the Union in the previous submission to the Panel. Union stewards had all trade union facilities withdrawn and so were prevented from recruiting and representing members as they had done previously. They had been denied paid time to attend disciplinary hearings (e-mail attached). Social media campaigns were only able to reach those employees who were already engaged. The Union felt that the Employer made it impossible for the Union to contact all Cornerstone staff. Under the previous recognition agreement, new employees were provided with union application forms in their joining packs. This facility had now been withdrawn.

59) The Union’s campaign and petition was delivered against a background of anti-trade union communication from the Employer discouraging its workers from supporting the Union, and without Union Officers having the same access to employees. In such a hostile environment, 55 employees completing and returning a pledge card was a significant indicator of underlying support for union recognition. In contrast, the Employer could only evidence 131 employees in total who opposed collective bargaining. If the majority had opposed collective bargaining the Union would have expected that the employer’s campaign would have evidenced that.

60) Despite being denied access to the bargaining unit and being derecognised by the Employer the Union continued to recruit new members, significantly more than 200 members since November 2018. The net figure was due to the high turn-over of staff employed by Cornerstone. For example, the Union’s recruitment figures for 2019 showed that 96 members left the Union because they were leaving Cornerstone to work elsewhere. Despite the Employer’s campaign to remove the Union from the workplace, UNISON’s membership levels had increased and were at an all-time high. The Union contended it was therefore probable that membership would increase if the Union was given access.

61) The Union’s closing argument was to ask the panel to find, on the evidence as a whole, that a majority of the workers constituting the proposed bargaining unit will be likely to favour recognition of the union and to admit the application.

12. Considerations

62) In the submissions of both parties to the CAC there have been claim and counterclaim setting out their respective views on each other’s conduct with the workers in the proposed bargaining unit. Much of this has been with regard to each sides’ perspectives on how reasonable or unreasonable the manner in which the opposing campaigns have been conducted. The Panel is unable to address the parties’ complaints in this regard as there are no specific provisions in the Schedule at this stage of the statutory application process that enables the Panel to address these issues explicitly ^{[footnote 1]}. The Panel, has therefore based its decision on the evidence before it and primarily the membership and support check carried out by the Case Manager.

63) 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.

64) The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. The Panel is also 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.

65) 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.

13. Paragraph 36(1)(a)

66) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether or not members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The check of Union membership in the proposed bargaining unit as conducted by the Case Manager as reported on 31 May 2019 established that Union membership stood at 42%. The Panel does not consider that it has any reason not to accept the information reflected in the membership check and is therefore satisfied that this test is met.

14. Paragraph 36(1)(b)

67) 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.

68) At this stage the Panel has a duty to determine whether there is currently a majority of workers within the proposed bargaining unit who are likely to support recognition. The test is not of current actual support.. The Schedule allows for the testing of actual support of recognition of the Union if the application meets the requirements of the holding of a ballot at a later stage of the statutory application process.

69) The Union has shown a membership density of 42% plus evidence of a small percentage of non-Union member support from its own petition, (3%) and then a small percentage of non-Union members who signed the Employer’s petition in support of recognition, (1%), meaning an overall support level of 44% in the proposed bargaining unit. The Employer has asserted to the Panel that we should not assume in this case that the Union membership is an indicator of support for collective bargaining, considering the turn out for completing its survey versus the number of Union pledge cards returned. However the Employer’s survey is not evidence enough to convince the Panel of this and fails to take account of the fact that around 42% of the workers in the proposed bargaining unit are union members.. If the numerical calculations alone were to be taken into account in this regard the Employer’s petition has only been able to show evidence of the views of 12% of the proposed bargaining unit with only around 10% of the workers in the bargaining unit indicating a NO preference for collective bargaining. The Panel cannot take either parties’ anecdotal reports as evidence. Indeed, in the view of the Panel there is insufficient evidence to require us to conclude that this is a case that contradicts its extensive experience in industrial relations, that being that membership of a trade union is indicative of support for that union to be recognised by its employer for the purposes of collective bargaining on the worker’s behalf.

70) There has been much speculation by both parties as regards the preferences of the workers in the proposed bargaining unit. In the end, the Panel is required to reach a decision on the basis of the evidence provided at the time it is required. We are satisfied that the membership check conducted by the Case Manager was carried out in a fair and impartial manner. It goes into considerable detail as regards the level of union membership and the outcomes of the union pledge cards and employer survey. The check provides hard evidence of the status and views of a large number of workers in the proposed bargaining unit. There are clearly workers who are opposed to union recognition and nearly 10% have indicated that fact in the Employer’s survey. Equally, however, in one way or another around 44% have expressed a preference for union involvement either through union membership or by signing a union pledge card or completing the Employer survey. We do not know the intentions of the remaining members of the proposed bargaining unit (over 40%). On balance, the Panel believes that it is reasonable to assume that some percentage of that number are likely to favour union recognition and it is a far smaller leap to achieve a majority for recognition than the opposite. Ultimately, our task is a matter of judgment not science. Given that the statutory test is based on likelihood the Panel is of the view that once all the speculative comment is stripped away the evidence provided in the Membership and Support Check supports our conclusion that this is a case where the Union’s application should be accepted by the CAC.

71) The Panel has reviewed carefully the evidence submitted by both parties and the figures produced by the Case Manager in the membership check report of 31 May 2019. The level of membership and non-Union member support in the proposed bargaining unit at the time of the membership check was 44%. The Panel considers that this level of support is sufficient to suggest to the Panel that a majority of the proposed bargaining unit is likely to be in favour of recognition of the Union for the purposes of collective bargaining. The Panel is therefore satisfied that the requirement under paragraph 36(1)(b) of the schedule is met.

15. Decision

72) The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of the Schedule. The Panel also considers that both requirements of paragraph 36 are met. The application is therefore accepted by the CAC.

Panel

Professor Kenny Miller - Panel Chair

Mr Alistair Paton

Mr Gerry Veart

18 July 2019  

16. APPENDIX 1

TUR1/1092(2019)

UNISON and Cornerstone Community Care

1) To assist in the application of the admissibility tests in Schedule A1 to the 1992 Act, the Panel proposed independent checks of the level of Union membership in the proposed bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. The Panel also asked for an independent check of the number of workers who had signed the Employer’s petition and provided their views on recognition of the Union. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petitions, would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 3 April 2019. The parties were asked to provide their most up to date information by 12 April 2019 and this was received by the CAC on time.

17. Union’s information

2) The Union provided a spreadsheet with the details of 820 individuals. In its covering e-mail to the CAC the Union stated that the spreadsheet contained the details of paid up Union members it believed were in the proposed bargaining unit. This included the names of 32 relief staff who the Union understood may have recently been offered permanent contracts by the Employer and could potentially be on the Employer’s list of workers in the proposed bargaining unit. The spread sheet contained two separate sheets (tabs): the first sheet was named “Members in BU” and was headed “UNISON Members in Cornerstone BU – Total 788” and the second sheet was named “Relief staff” and was headed “Cornerstone Members Listed As Relief Total – 32”. The information provided for all 820 individuals included: membership number; name; address; date of birth, work place and in addition, a “Y” entered in a column headed “Subs Paid”.

3) The Union’s petition was made up of 77 post cards which the Union had submitted both by e-mail to the CAC as a PDF (scanned) copy and by posting the original post cards to the CAC office.

4) The statement on the left hand side of the post card read:

“Union busting is disgusting! I support trade union recognition for UNISON, and ask Cornerstone to overturn their decision to derecognise my union.”

Under which was a space for individuals to write their name, signature and work place. The hash tag “#CornerstoneUnionBusting” was printed underneath the individual’s signature.

5) The address on the right hand side of the post card read:

“To Ian Fitzpatrick, UNSION, Scotland, FREEPOST, NW48614, West Campbell Street Glasgow, G2 6RX”.

6) Under which the statement read:

“No-one at Cornerstone and only Ian Fitzpatrick at UNISON will have sight of this postcard. This postcard will indicate support for UNISON to independent Scottish Bodies in our fight for recognition in Cornerstone.”

7) Along the bottom of the post card were the contact details needed to join the Union: “Join online at joinunison.org or call free on 0800 171 2193”

8) Some of the post cards had a Royal Mail dated post mark stamped on them. The earliest date stamp was 24 January 2019 and the most recent date stamp was 25 March 2019.

18. Employer’s information

9) The Employer provided a spreadsheet with the details of 1,606 workers. The spreadsheet file name was “Cornerstone Workers in Proposed Bargaining Unit 12 April 19” and included one sheet (tab) named “proposed bargaining unit”. The information provided for each individual included their name, address, date of birth and job title. A full list of the job titles and the number of workers in each category of worker appearing on the Employer’s list of workers in the proposed bargaining unit is provided at appendix 1 of this report.

10) The Employer’s petition was made up of 301 A4 sized feedback forms, of which 1 worker had submitted their views to the Employer by e-mail without completing the Employer’s official feedback form. The Employer submitted its petition both by e-mail to the CAC as a PDF (scanned) copy and by posting the original forms to the CAC office.

11) Each feedback form had the Cornerstone logo in the top right hand corner of the page and was headed “Feedback Form” followed by a statement which read:

“We want you to have your say and provide feedback on the issue of union recognition: Please complete the questions below and return in the pre-paid envelope by Friday 22 February 2019”

12) There were 4 questions asked on the feedback form of which only the following related to the admissibility tests required at this stage of the application process. Only the answers provided to this question were included in the Case Managers checks:

“1. Do you want Unison to represent you in collective bargaining on pay, hours of work and holidays? Yes □ No □”

13) Underneath the list of questions an “Any other comments” box was provided followed by a space for workers to provide their details as follows:

“Please enter your name and date. Please note, your answers will be confidential and will not be disclosed to Unison.

Name:__________ Date:_______

Thank you for sharing your views.”

14) The earliest date of signature on the Employer’s petition was 12 February 2019 and the most recent date was 10 April 2019.

15) The Employer also provided by e-mail to the CAC a PDF (scanned) copy of 3 e-mails it had received from workers as evidence of workers who felt under pressure from the Union to sign the Union’s petition. The Case Manager’s checks established that only one of these e-mails named a worker whose post card was included in the Union’s petition evidence. However this e-mail was not received by the Employer from the worker directly. The e-mail was from an employee stating that they had been approached by this named worker to request that their post card was not taken into consideration as they were forced into signing it. This e-mail was included in the Case Manager’s checks - see paragraph 20(j) below.

16) The Employer provided to the CAC a PDF (scanned) copy of a further 8 e-mails from workers as evidence of workers who had cancelled their Union membership. The Case Manager’s checks established that 1 of these e-mails was from a worker who was not in the proposed bargaining unit and 5 were in the proposed bargaining unit but were not on the Union’s membership list. The remaining 2 e-mails were from workers who were included on the Union’s membership list, of which one had also indicated non-support of recognition of the union on the Employer’s petition. These 2 e-mails were included in the Case Manager’s checks – see paragraphs 19(f) and (g) below.

17) Given that some content of the emails, and the majority of the comments made on the feedback forms, even if the names of the authors and email addresses were redacted, could lead to the identification of the worker concerned, the comments have not been provided in this report. The majority and main thrust of the comments were the workers’ complaints about the behaviour of either the Union or the Employer depending on whether they were in favour or not in favour of recognition of the Union and are not relevant to the Panel’s considerations in relation to the admissibility tests. Therefore only the comments expressed in 2 of the feedback forms have been included in the Case Manager’s checks as they referred to cancellation of Union membership – see paragraphs 19(f) and (g) below.

19. Case Manager’s checks

18) The following checks of the information provided by both parties were undertaken:

• A comparison of the names appearing on the Union’s membership list with the list of workers in the proposed bargaining unit supplied by the Employer – table at paragraph 19 below.

• A comparison of the names/signatures appearing on the Union’s petition with the list of workers in the proposed bargaining unit supplied by the Employer and with Union’s membership list - table at paragraph 20 below.

• A comparison of the names/signatures on the Employer’s petition with the list of workers in the proposed bargaining unit supplied by the Employer, the Union’s membership list and the Union’s petition - table at paragraph 21 below.

• A comparison of the e-mails received by the Employer with the list of workers in the proposed bargaining unit supplied by the Employer, the Union’s petition and the Employer’s petition.- table at paragraphs 19 and 20 below.

19) Result of the check of the level of union membership in the Union’s proposed bargaining unit

a) Number of workers on the list provided by the Employer: 1,606

b) Number of Union members on the list provided by the Union: 820

c) Number of Union members not appearing on the Employer’s list: 146

d) Number of names common to both lists i.e. no. of Union members in the proposed bargaining unit: 674

e) Proportion of Union members in the proposed bargaining unit: 42%

f) Number of Union members who have submitted an e-mail or a feedback form to the Employer that their membership is cancelled : 4

g) Proportion of Union members in the proposed bargaining unit who have submitted an e-mail or a feedback form to the Employer that their membership is cancelled: 0.25%

20) Result of the check of the Union’s petition against the number of workers in the Union’s proposed bargaining unit

a) Number of workers on the list provided by the Employer: 1,606

b) Number of names/signatures on the Union’s petition: 77

c) Number of names/signatures on the Union’s petition that were duplicates: 1

d) Number of names/signatures on the Union’s petition not appearing on Employer’s list: 18

e) Number of names/signatures common to both lists i.e. no. of workers in the proposed bargaining unit who have signed the Union’s petition: 58

f) Proportion of workers in the proposed bargaining unit who have signed the Union’s petition: 3.6%

g) Number of petition names/signatories who are union members (whom did not submit an e-mail or feedback form to the Employer that their membership was cancelled): 3

h) Proportion of workers in the proposed bargaining unit who have signed the Union’s petition and are Union members: 0.2%

i) Number of petition names/signatories who are non-Union members: 55

Proportion of workers in the proposed bargaining unit who have signed the Union’s petition and are non- Union members: 3.42%

j) Number of petition/names signatories who are non-Union members and who the Employer has reported requested the Employer to remove their name/signature: 1

k) Proportion of workers in the bargaining unit who have signed the Union’s petition, who are a non-Union members and who the Employer has reported requested the Employer to remove their name/signature: 0.06%

21) Result of the comparison of the names/signatures on the Employer’s petition appearing on the list of workers in the proposed bargaining unit, the Union’s membership list and the Union’s petition.

a) Number of workers in the proposed bargaining unit on the list provided by the Employer: 1,606

b) Number of names/signatures on the Employer’s petition: 301
(row c + d + e + f )

c) Number of names/signatures on the Employer’s petition that were unreadable, duplicates or a feedback form from a worker wishing to remain anonymous: 49

d) Number of names/signatures on the Employer’s petition, who did not appear on the Employer’s list and are not in the proposed bargaining unit: 53

e) Number of names/signatures on the Employer’s petition in the proposed bargaining unit who were “undecided” about support for recognition for the Union: 2

f) Number of names/signatures on the Employer’s petition who marked “Yes” for support for recognition of the Union, in the proposed bargaining unit: 40

The above as a proportion of the proposed bargaining unit: 2.49% (row g+h)

g) Number of names/signatures on the Employer’s petition who marked “YES” for support for recognition of the Union, who did not sign the Union’s petition and who are Union members, in the proposed bargaining unit: 25

The above as a proportion of the proposed bargaining unit: 1.56%

h) Number of names/signatures on the Employer’s petition marked “YES” for support for recognition of the Union, who have did not sign the Union’s petition and who are not Union members, in the proposed bargaining unit: 15

The above as a proportion of the proposed bargaining unit: 0.93%

i) Number of names/signatures on the Employer’s petition who marked “NO” for support for recognition of the Union, in the proposed bargaining unit: 157

The above as a proportion of the proposed bargaining unit: 9.77% (row j+k+l+m)

j) Number of names/signatures on the Employer’s petition who marked “NO” for support for recognition of the Union, who did not sign the Union’s petition and who are not Union members, in the proposed bargaining unit: 131

The above as a proportion of the proposed bargaining unit: 8.16%

k) Number of names/signatures on the Employer’s petition who marked “NO” for support for recognition of the Union, but did sign the Union’s petition and who are not Union members, in the proposed bargaining unit: 1

The above as a proportion of the proposed bargaining unit: 0.06%

l) Number of names signatures on the Employer’s petition who marked “NO” for support for recognition of the Union, who did not sign the Union’s petition and who are Union members, in the proposed bargaining unit: 22

The above as a proportion of the proposed bargaining unit: 1.36%

m) Number of names/signatures on the Employer’s petition who marked “NO” for support for recognition of the Union, but did sign the Union’s petition and who are Union members, in the proposed bargaining unit: 3

The above as a proportion of the proposed bargaining unit: 0.19%

Sharmin Khan Case Manager

31 May 2019

APPENDIX 1

Job Titles on Employer’s List of Workers in Proposed Bargaining Unit

JOB TITLE	NUMBER OF WORKERS ON LIST
Accountant	1
Administration Assistant	3
Advice and Support Co-ordinator	2
Assessor/ Trainer	3
Assistant Accountant	2
Branch Administrator	11
Branch Co-ordinator	4
Branch Leader	10
Business Services Manager	1
Cafe Enterprise Manager	1
Care Management Co-ordinator	1
Caretaker	1
Chief Finance Officer	1
Coach	7
Cornerstone Central Lead (Finance)	1
Cornerstone Central Lead (HR)	1
Cornerstone Central Lead (IT)	1
Cornerstone Central Lead (Marketing & Communications)	1
Domestic	1
Domestic Assistant	3
E-Learning Facilitator	1
Family Placement Assessor	3
Family Placement Co-ordinator	1
Family Placement Lead	1
Family Placement Worker	1
Finance Assistant	2
Graphic Designer	1
HR Advisor	1
HR Assistant	2
ISF Co-ordinator	1
ISF Finance Assistant	1
IT Support Analyst	3
Kitchen Assistant	2
Leadership Team Co-ordinator	1
Leadership Team Support (Resources)	1
Learning & Development Co-ordinator	2
Local Care and Support Team Member	3
Marketing & Communications Co-ordinator	1
Mentor	3
Monitoring & Reporting Advisor (People)	1
PA to Chief Executive	1
Payroll Assistant	3
Peripatetic Support Assistant	1
Production Supervisor	1
Project Leader	1
Project Manager	1
Project Worker	1
Project Worker (Growing Together)	2
Quality Improvement Advisor	1
Quality Improvement Co-ordinator	1
Quality Improvement Lead	1
Recruitment Co-ordinator	3
Regional Assessor/Trainer	3
Regional Receptionist	1
Scheduling/People Planner Assistant	2
Scheme Manager	9
Self-Directed Support Leader	1
Self-Directed Support Service Advisor	7
Senior Administration Assistant	2
Senior Finance Assistant - Purchase Ledger	2
Senior Finance Assistant (Treasury)	1
Service Manager	39
Supervising Social Worker	1
Support Assistant	174
Support Worker	794
Support Worker Waking Nights	16
Team Leader	90
Team Member	341
Team Member [Waking Night]	7
Technical Support Analyst	1
Technology Enabled Care Responder	2
Trainer	2
Training Academy Lead	1
Waking Night Support Assistant	4
Workforce Coordinator	1
TOTAL	1,606

-END-

1. Specific provisions are set out in paragraph 27 of the Schedule which allows either party to make a formal complaint about the other party engaging in unfair practices leading up to and during a ballot should an application reach that stage of the statutory process. ↩