Decision

Acceptance Decision

Updated 1 April 2019

Case Number: TUR1/1064(2018)

19 October 2018

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:

Unite the Union

and

Cape Industrial Services

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 17 August 2018 that it should be recognised for collective bargaining by Cape Industrial Services (the Employer) for a bargaining unit comprising “All those employed as manual workers at Sizewell B Nuclear Power Station, up to and including senior supervisors”. The location of the bargaining unit stated in the application was “Sizewell B Power Station, Sizewell, Leiston, Suffolk, IP16 4UR.” The CAC gave both parties notice of receipt of the application on 20 August 2018. The Employer submitted a response dated 24 August 2018 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the Chairman of the CAC established a Panel to deal with the case. The Panel consisted of Mr Charles Wynn-Evans as chair of the Panel and, as Members, Mr Mike Cann and Mr David Coats. 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 3 September 2018. The acceptance period was extended on several occasions in order for the CAC to obtain evidence and submissions from the parties and to carry out a membership and support check, for the parties to comment on that check, to provide time for the Panel to consider all the evidence before arriving at a decision and for the Panel to finalise its written decision. The final extension ends the acceptance period on 22 October 2018.

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.

6) Enclosed with the Union’s application was a copy of the Union’s letter to the General Manager, Mr Simon Roberts, dated 12 June 2018 formally requesting recognition and a copy of the Employer’s response to the Union dated 5 July 2018 in which the Employer formally rejected the request but expressed that it was willing to meet to discuss the matter.

7) The Union stated that in a later letter to the Union dated 10 July 2018 (a copy was not provided with the application), as Mr Simon Roberts had suggested Acas involvement the Union withdrew its previous application to the CAC for the parties to utilise the 20 day negotiation period which ended on 16 August 2018. A meeting took place on the 19th day of that period on 15 August 2018. The Union stated that it had contacted the relevant Acas Adviser on 18 July 2018 to make Acas aware of the situation and had passed on to the Acas Adviser’s contact details on to the Employer. A copy of an exchange of e-mails between the parties dated 18 July 2018 discussing the involvement of Acas was attached to the Union’s application. The Union stated that as the Employer had requested Acas involvement, it had assumed that the Employer would make contact with Acas. However at their meeting, the Employer informed the Union that no contact with Acas had taken place.

8) The Union provided with its application to the CAC a copy of its e-mail to the CAC dated 17 August 2018 (to which a copy of its application and supporting documents were attached) which showed that the Employer was copied in.

9) The Union stated that the Employer employed 10,000 plus workers and that there were 41 workers in the proposed bargaining unit of which 20 were members of the Union. When asked to provide evidence that a majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that it had a petition signed by 100% of the workforce which it would supply to the CAC on request.

10) The Union stated that the Employer agreed with its stated number of workers in the proposed bargaining unit and that the bargaining unit had been agreed with the Employer. The Union stated that its reasons for selecting the proposed bargaining unit were because the workers were employed on a fixed basis. It was inclusive, clearly defined and compatible with effective management which was confirmed by the fact that the Employer had offered a union agreement for this bargaining unit though that agreement would not include bargaining.

11) Finally, the Union stated that it was not aware of any existing recognition agreement that covered any worker in the proposed bargaining unit.

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

12) The Employer completed and returned to the CAC the “Employer’s Response Questionnaire form” dated 24 August 2018. The Employer confirmed that it had received the Union’s formal letter of request dated 12 June 2018 on 26 June 2018. The Employer included a copy of its letter to the Union dated 10 July 2018 as referred to by the Union in its application (see paragraph 7 above). The Employer stated that it was confused by the Union’s three previous applications to the CAC (which were subsequently withdrawn by Union since 5 July 2018), as there were two versions of the Union’s letter of request dated 12 June 2018. One stated the proposed bargaining unit to be “All those employed as manual workers at Sizewell B Nuclear Power Station up to and including senior supervisors” and the other stated, “All those employed as manual workers at Sizewell B Nuclear Power Station”. The Employer averred that the Union’s current application to the CAC should be rejected if it found that the bargaining unit described at paragraph 14 of the Union’s current application was materially different to that referred to in its actual written request to the Employer.

13) The Employer stated that its rejection of the Union’s request was confirmed in writing on 5 July 2018 (a copy was attached) but it asked the Panel to note that in that letter it did specifically confirm that it was willing to enter into discussions/negotiations in order to seek to agree a way forward. As such, the Schedule allowed for a further 20 day period for negotiation which should have followed and commenced on 6 July 2018. However, the Union continued with a second application to the CAC which it then withdrew on 19 July which was replaced with a third application on 20 July 2018 which was then also withdrawn by the Union.

14) The Employer’s letter to the Union dated 10 July 2018 in which it suggested that the parties seek Acas assistance was issued during this period. The Union purported to have contacted Acas but there was no proof of this and the Employer had not received any contact from Acas. The Union’s response to the Employer dated 16 July 2018 stated “I am very happy that this goes ahead, provided that it’s on the understanding that Unite recognition will be granted…” The Employer took this to mean that the Union would only engage with Acas if the Employer accepted its request for recognition and if the Employer did not accept this than the request for Acas assistance was rejected. According to the Employer this was the Union rejecting the Employer’s proposal for Acas assistance meaning that the Union had barred itself from submitting an application to the CAC.

15) When confirming the date on which the application was received, the Employer explained that the initial application was received on 5 July 2018 at 13:27 which was then withdrawn and replaced with a second application of the same date but at 15:32 which was also withdraw and replaced with a third application received on 19 July 2018 at 10:05. This was also withdrawn and replaced with the fourth application, the current application, which was received by the Employer on 17 August 2018 13:37.

16) When asked if the bargaining unit proposed by the Union was agreed before it had received a copy of the application form and if it agreed with the Union’s proposed bargaining unit now, the Employer answered “no”. The Employer stated that the extent of the bargaining unit was unclear as the numbers declared by the Union in its application was inaccurate. A significant number of the workers were only engaged on specific short fixed term contracts to cover particular projects. The Employer also contended that the Union’s level of membership figures were inaccurate too. The proposed bargaining unit contained members of the GMB union and not just members of Unite the Union. The Union had not provided evidence to support its stated level of membership. The Employer confirmed it employed 4,042 workers and it did agree with the Union that there were 41 workers in the proposed bargaining unit.

17) The Employer stated that it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition because there was no evidence as yet provided by the Union that 100% of the workforce supported its application. The Union’s four applications to the CAC were public knowledge amongst the workers and it had been approached by many workers who had expressed concerns and confirmed that they did not and would not support any application for recognition by the Union.

18) Other than the three now withdrawn previous applications, the Employer was not aware of any previous application covering any worker in the proposed bargaining unit or a similar unit or that there was any existing agreement for recognition in force covering workers in the proposed bargaining unit.

5. Summary of the Union’s comments on the Employer’s response

19) On 24 August 2018 the Union provided the Panel with a copy of an e-mail it had sent to the Employer dated 27 June 2018 to which a copy of the Union’s letter of request to the Employer dated 12 June 2018 was attached. The e-mail referred to a conversation between the parties had had the day before the date of that e-mail. The Union stated in the e-mail to the Employer that as the original request letter received by the Employer was undated it should take 27 June 2018 to be taken as the date of the request letter and in the spirit of the process the Union was happy to provide another 10 working days for the Employer to respond, meaning the date the Union would be able to submit the application to the CAC would be the 10 July 2018. The proposed bargaining unit defined in the copy of the letter of request dated 12 June 2018 that was attached to the e-mail was stated as “All those employed as manual workers at Sizewell B Nuclear Power Station up to and including senior supervisors”. The Union stated that this e-mail (dated 27 June 2018 to the Employer) and attachment (dated 12 June 2018) clearly showed that the proposed bargaining unit had been described by the Union throughout was: “All those employed as manual workers at Sizewell B Nuclear Power Station up to and including senior supervisors”.

20) On 12 September 2018 the Union submitted its comments on the Employer’s response to the application and by invitation of the Panel, in particular its comments on the Employer’s views regarding its the response to the Union’s request for recognition and its request for Acas involvement (see paragraph 13 and 14 above). The Union refuted the Employer’s assertion that it was not prepared to use Acas in negotiations. The Employer’s initial response to the Union’s request of 5 July 2018 rejected recognition and made no reference to Acas and so the Union presumed it would move on to the next stage taking the Employer at its word that the “the request is rejected”. The Employer’s first reference to Acas was in the Employer’s letter of 10 July 2018 in which the Employer emphasised that the application was rejected but that the Employer was prepared to involve Acas. The Union’s response was to emphasise that any negotiation should be around the issue of union recognition for Unite and not general industrial relations. The Union provided for the Panel a copy of its e-mail chain with the Employer expressing the Union’s position dated 18 July 2018.

21) The Union contended that on the contrary it went out of its way to involve Acas. Attached to the e-mail to the Employer on 18 July 2018 was the e-mail the Union had sent to the Acas Adviser on the same date requesting assistance and providing the Employer’s contact details. In the e-mail exchange with the Employer that day, rather than the Employer utilising the opportunity to involve Acas the Employer complained that the Union had sent the Employer’s contact details to Acas which in the Union’s view was standard practice. Therefore although the Employer stated in its letter of 10 July that “we also suggest we seek ACAS assistance in resolving this matter”, the Union was confident that no one at the Company had made an effort to contact Acas despite the Union having put the Employer in touch with Acas.

22) The Union reiterated that the meeting was scheduled on the 19th day of the 20 day negotiation period and that it was immediately made clear to the Union at that meeting that there was no intention of discussing recognising the Union for collective bargaining. The Union had already made clear to the Employer that the matters to be discussed were solely about union recognition (copy of Union’s e-mail to the Employer dated 16 and 18 July). The Employer had been delaying the process under the Schedule by arranging meetings irrespective of the content of those meetings.

23) In later correspondence to the CAC dated 27 September 2018 the Employer refuted the Union’s comments stating that the Union was only prepared to speak with the Employer if it was agreed in advance that the Union would be fully recognised. The Employer asserted that it had suggested partial recognition, but this was rejected by the Union with a blanket refusal to discuss matters further. No further meetings were requested by the Union.

24) The Employer also stated that it could be seen from the correspondence provided to the Panel by the Union that Acas would make contact with the Employer which Acas did not do and this was why it was unable to engage with Acas. The Union had also missed the point that the complaint from the Employer to the Union was that the Union did not as a courtesy ask for consent from the Employer before passing on contact details to Acas. The complaint was not against a particular Acas officer or a refusal to engage with Acas.

6. Membership and Support Check

25) 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 and the level of support from workers within the proposed bargaining unit who had signed the Union’s petition.

26) 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 as outlined in the Union’s application to the CAC namely: “All those employed as manual workers at Sizewell B Nuclear Power Station up to and including senior supervisors” 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 a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party. These arrangements were confirmed in the CAC’s letter to the parties dated 20 September 2018.

27) The Case Manager’s report of the results of the membership and support check dated 24 September 2018 was circulated to the Panel and to the parties for comments on the same date. The Panel was satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Summary of the results established by the Case Manager’s membership and support checks

28) The membership check established that there were 49 workers in the proposed bargaining unit of which 18 were members of the Union; a membership level of 36.73%.

29) The Case Manager reported that the statement at the top of the Union’s petition was as follows:

“Unite the Union for Cape Employees in EDF (Sizewell B)

PETITION FOR UNION RECOGNITION June 2018

We the undersigned employees of Cape Industrial Services request that Cape recognises our trade union, Unite for the purposes of collective bargaining.

THIS PETITION WILL NOT BE SHOWN TO CAPE MANAGEMENT – IT WILL BE PRESENTED TO ACAS OR THE CAC AND THEY WILL VERIFY THE NUMBERS, NOT THE NAMES.”

Beneath the statement signatories were asked to provide their name, job title, date and phone/email details. There were 33 signatures on the Union’s petition, 16 of which were dated 8 June 2018 and the others were undated. The petition also had a date stamp as received on 12 June 2018.

30) The results of the comparison of the Union’s petition with the number of workers in the proposed bargaining unit established that a total of 31 workers in the proposed bargaining unit had indicated that they wanted the Union to be recognised of which 18 were Union members (36.73%) and 13 were non-Union members (26.53%).

8. Summary of the Union’s comments on the results of the membership and support checks

31) By e-mail to the CAC dated 25 September 2018 the Union stated that it observed that the size of the bargaining unit had increased from 41 workers to 49 workers. The Union also informed the Panel that its membership had grown by 7 since the membership and support check had been carried out. The Union stated that its membership continued to grow as was proven by the joining dates on the membership list provided to the CAC. In any event the membership and support check showed that there was clear majority support for recognition.

9. Summary of the Employer’s comments on the results of the membership and support checks

32) By letter to the CAC dated 27 September 2018 the Employer confirmed to the Panel that it accepted that at least 10% of the workers in the proposed bargaining unit were members of the Union.

33) The Employer also accepted that from the information provided to the CAC by the Union, a majority of the workers in the bargaining unit appeared likely to favour recognition of the bargaining unit. However, it did not agree that the information provided by the Union to the CAC was correct and/or accurately reflected the current membership position or the opinion of the workers within that unit. As the information provided by the Union was from 8 June 2018 and therefore the information provided was 4 months old.

34) The Employer stated that it was aware that the Union had lost a number of members since the 8 June 2018 to the GMB Union and that some of the workers had withdrawn their support for the Union’s application for recognition. Some workers had stated that they did not know what it was they were signing and now that they knew they would have not signed it. The Employer contended that this reduction of support was sufficient enough to reduce the level of support to under the required 10% membership and 50% of the total bargaining unit. The Employer requested that these numbers were re-assessed before the Panel determined the admissibility of the application.

10. Union’s comments on the Employer’s comments

35) By e-mail to the CAC dated 1 October 2018, the Union presented its comments on the Employer’s response to the membership and support check report for the Panel. The Union refuted the Employer’s point that its membership was out of date explaining that its membership database was updated in real time and was therefore accurate at the time of writing. The Union also stated that, contrary to the Employer’s belief that since the 8 June 2018 the Union had lost a number of members, it had checked its membership that morning (1st October) and it showed that Unite membership had in fact increased by eight people since that date. The Union offered to supply the updated membership list to the CAC which would include joining dates provided it was on a confidential basis. The Union pointed out that the Employer had no access to the Union’s membership system so it could not say where the Employer was obtaining its information from. The Union could only assume that Managers were being instructed to interrogate the workforce as to their union membership. Under these circumstances, which in its view could amount to unfair practices, it was unsurprising to the Union that workers were reticent about disclosing private information. The Union stated that the delay that the Employer seemed to be concerned about was largely due to the Employer’s constant stalling of the process.

36) In respect of the Employer’s assertion that workers were “not aware of what they were signing”, the Union stated that it had unequivocally and personally explained to the entire workforce, in a meeting at considerable length what the process would involve. The meeting included the opportunity for the workforce to ask questions, and several of the workforce did ask questions. The Union also kept workers updated through phone calls. For these reasons the Union remained dubious of the veracity of the Employer’s information.

11. 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 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.

39) 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.

12. Paragraph 36(1)(a)

40) 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 24 September 2018 established that Union membership stood at 36.73% and the Union on the 1 October 2018 declared in its submission to the Panel that Union membership had increased 8. The Panel does not consider that it has any reason not to accept the information reflected in the membership and support check and is therefore satisfied that this test is met.

13. Paragraph 36(1)(b)

41) 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.

42) At this stage the Panel is mindful that its duty is not to determine whether there is currently a majority of workers within the proposed bargaining unit who support recognition but rather it is whether it is likely that a majority of workers within the proposed bargaining unit would support recognition. The test is not of actual support but likely support. In the Panel’s industrial relations experience it is not unprecedented or unlikely for workers to be reluctant openly to express support for union recognition if it is perceived by a worker that its employer has expressed that it is against recognition. Equally the Panel accepts that some workers may sign a petition produced by the Union without fully appreciating at the time the full meaning of union recognition. Whilst the Panel can accept that it is possible that a relatively small number of employees may have not known in detail what the signing of the Union’s petition meant, the Panel considers the statement printed on the petition was sufficiently clear. In addition the Union has also submitted that it had communicated to some degree the purposes of recognition of the union through a meeting with the workers at which workers were also able to ask questions, a submission which the Panel does not consider that it has any basis not to accept on the basis of the evidence before it. There has been no evidence provided in this case that there were workers within the bargaining unit who were not in support of recognition of the Union. Whilst the Union has also submitted that it can offer evidence confidentially, to demonstrate a rise in its membership level in contrast to the Employer’s belief that membership has declined no such evidence has been provided and so the Panel has not taken that submission into account. In the Panel’s experience being a member of a union can in itself be an indicator of support for that union to be recognised by its employer for the purposes of collective bargaining on the worker’s behalf. There may be some movement in the level of membership and support and some varying in the size of the bargaining unit in the period after the membership and support checks for the purposes of a statutory recognition process have been conducted but the Panel is required to reach a decision on the basis of the evidence provided at the time it is required and uses the membership and support check to get a “snap shot” of likely support for the purposes of the admissibility stage of the application process.

43) The Panel has reviewed carefully the evidence submitted by both parties and the figures produced by the Case Manager in the membership and support check report of 24 September 2018. The level of membership in the proposed bargaining unit at the time of the membership and support check was 36.73%. The proportion of workers in the proposed bargaining unit who signed the Union’s petition and who are not union members is 26.53%. This strongly suggests an overall support level of 63.26% and therefore 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.

14. Decision

44) 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

Mr Charles Wynn-Evans - Panel Chair

Mr Mike Cann

Mr David Coats

19 October 2018