Decision

Recognition Decision

Updated 10 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1304/2023

7 July 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Unite the Union

and

Comic Enterprises Limited

1. Introduction

1) Union the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 13 February 2023 that it should be recognised for collective bargaining purposes by Comic Enterprises Limited (the Employer) in respect of a bargaining unit comprising “All of the workers employed by Comic Enterprises Ltd at The Glee Club Cardiff excluding the Venue Manager”. The location of the bargaining unit was given as “The Glee Club, Mermaid Quay, Cardiff, CF10 5BZ.” The application was received by the CAC on 13 February 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 20 February 2023 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr David Cadger who was replaced by Mr Robert Lummis and Mr Paul Moloney. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By its written decision dated 22 March 2023 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. In a decision dated 25 May 2023 the Panel decided that the appropriate bargaining unit was that proposed by the Union in its application as amended during this hearing, namely: “All of the workers employed by Comic Enterprises Ltd at The Glee Club Cardiff excluding the Venue Manager”.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the unions, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations.

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf.

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission that it should be recognised without a ballot

5) In a letter dated 25 May 2023 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in a letter dated 31 May 2023, stated that it did not agree that a ballot was appropriate. The Employer has indicated, through the membership and support check, that there were 42 workers in the Union’s bargaining unit and the Case Manager’s report dated 22 March 2023 indicated there were 20 members in the bargaining unit. As of the date of this letter, the Union had 22 members in the bargaining unit. The Union was happy to comply with any verification required in relation to its membership.

6) The Union then went on to explain that it had doubts about the accuracy of the figures provided by the Employer in terms of the numbers of workers in the bargaining unit and that numbers had been inflated in an effort to undermine the Union’s position in relation to this application.

7) The Union submitted that the narrowness of its majority was not of itself a ground for ordering a ballot; the CAC was not entitled to ‘impose, in effect, a threshold for recognition without a ballot higher than that stipulated by the legislators’. On this point, the Union relied on the decision in ISTC and Fuller Computer Industries Ltd (TUR1/29/00) which was affirmed on an application for judicial review in Re Fullarton Computer Industries Ltd, [2001] IRLR 752.

8) In the Union’s submission, once majority membership was established, the Union should be awarded recognition without a ballot unless there was good reason to hold otherwise. The Union submitted that none of the three statutory exceptions applied in these circumstances.

In particular, the Union submitted that holding a ballot would not be in the interests of good industrial relations. The Union had sought to establish good industrial relations both before and during the CAC process without any success.

9) In the Union’s submission, the practical effect of a ballot would by its very nature engender an adversarial situation within the workplace, with the Union and the Employer embroiled in a divisive contest.

10) In summary, the Union’s submission was that it had demonstrated majority membership within the bargaining unit, none of the three statutory exceptions applied and, therefore, the Union should be granted recognition.

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

11) On 1 June 2023 the CAC copied the Union’s letter to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

12) In a letter dated 12 June 2023 the Employer submitted that the majority of the workers in the bargaining unit were not members of the Union and therefore the CAC must arrange for the holding of a ballot; and if it was found that the majority of workers in the bargaining unit were members of the Union (which was not accepted), then the CAC should find that at least two of the three qualifying conditions were fulfilled, and should therefore arrange for a ballot to be held.

13) The Union’s allegations in respect of the integrity of the data supplied to the CAC demonstrated the adversarial way in which it was already acting, which ran contrary to its submission that it had sought to establish good industrial relations; and that a ballot situation would engender an adversarial situation which would be divisive – the Union had already created that situation.

14) As at the date of this letter, there were 42 workers in the bargaining unit and the change in numbers since its earlier submissions did not represent a “discrepancy” as claimed by the Union but genuine changes within the workforce.

15) Whilst the Employer accepted that, on the face of it, the Union would have majority membership based upon its purported membership numbers, the Employer did not accept that they were accurate in light of recent changes in the workforce. In light of this, the CAC could not be satisfied that the majority of the workers in the bargaining unit were members. As such, a membership check was required.

16) Whilst the Employer did not accept that the majority of workers in the bargaining unit were members, if the CAC found otherwise, then the Employer submitted that the CAC should order a ballot in any event because: it was in the interests of good industrial relations to do so; and there was credible evidence from a significant number of members from within the bargaining unit that they did not want the Union to conduct collective bargaining on their behalf.

17) The Employer stated that it had been reported that a number of the Union’s members had been ‘going along’ with this process (i.e. showing support for it to the Union and other workers) because they felt intimidated by a very active Union member (who was in a management position and had recently left following his resignation). The Employer was happy to provide their name to the CAC on a confidential basis so a check could be undertaken.

18) Another known Union member had said “I know some of the staff are saying why bother carrying on with the union now that everything is fixed” which referred to the Employer’s response to a grievance that was submitted in 2022 relating to a number of matters, including equipment that wasn’t working, and the decision to close the venue on the day of the Queen’s death. Again, the name of the individual who made this statement could be supplied to the CAC on a confidential basis.

19) In addition, in discussions with the Chief Operating Officer at least four workers confirmed that they did not understand what collective bargaining meant. They seemed to believe that the Union’s rights would give it the ability to force changes to wider terms and conditions, workplace practices not touching on pay, hours and holidays, and to force operational changes (such as which comedy acts were booked). Again, names of the relevant workers could be provided to the CAC on a confidential basis.

20) The Employer had informed the Union that some workers had expressed a desire not to have the Union bargain on their behalf, but that had not been accepted by the Union, with it stating that all of its members want it to bargain for them. If that is true, it was clearly the case that some workers felt unable to openly express themselves to the Union for fear of retaliation, and hence the need for them to be able to express themselves in secret where they were guaranteed anonymity.

21) In the circumstances, the CAC cannot be satisfied that all members want the Union to collectively bargain on their behalf, and that there were a significant number that did not (taking account of the purported borderline majority that the Union claims it had, based on its purported membership data).

22) The Union submitted that a ballot would engender an adversarial situation, with the Union and the Employer embroiled in a divisive contest which would be detrimental to good industrial relations. It provided no evidence of this, and it was mere speculation. On the contrary, not having a ballot would be detrimental to good industrial relations for the reasons given. If nothing more, workers who feared being targeted if they went against active Union members would never have their voices heard which would create disharmony amongst the workforce and poor industrial relations.

23) A ballot of the workers would be conducted in accordance with the relevant code of practice, and any campaigning by the parties would be regulated by the terms of that code and the law. It would not be adversarial or divisive as the Union stated. It would be lawful and responsible, with an aim of ensuring that workers were properly informed of what recognition meant.

24) In light of the above, the Employer believed that the Union did not have appropriate support for collective bargaining. Unless and until the workers confirmed this was what they wanted, in full knowledge of what collective bargaining was and what recognition meant, and in a way that they felt they could openly express their views in an anonymous way without fear of retaliation, the Employer would not accept the Union had a mandate for collective bargaining.

25) If it was found that the Union had majority membership, the Employer accepted that a borderline result was not grounds in of itself to award a ballot. However, it still remained a factor that CAC should take into consideration when deciding if one of the qualifying conditions had been met. On the Union’s figures, only one member needed to be against recognition for the percentage to fall below the 50%+ threshold which was certainly reasonable grounds on which to conclude the relevant qualifying conditions were fulfilled.

26) Notwithstanding the position set out above, if a secret ballot of the workers confirmed that the Union did have a mandate, the Employer would accept this. However, without that worker confirmation and (freely given and properly informed) endorsement, the Employer would never accept the Union’s assertion that it had a mandate for the reasons outlined above.

5. The check of union membership

27) In order to decide whether or not the Union had majority membership in the determined bargaining unit the Panel proposed an independent check of the level of union membership within the unit. The information from the Union and Employer was received on 21 June 2023. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 16 June 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

28) The Union provided a list of 22 union members and the Employer provided a list of 42 workers. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 22, a membership level of 52.38%.

29) A report of the result of the membership check was circulated to the Panel and the parties on 21 June 2023 and the Employer was invited to comment on the qualifying conditions set out in paragraph 22 by the close of business on 28 June 2023.

6. Employer’s final submissions

30) In an email dated 28 June 2023 the Employer repeated submissions it made previously adding that it had no trust in the Union and would not accept its assertion that it had a mandate. The Employer then referred to examples of what it called ‘misinformation’ being circulated by the Union, all of which had compounded the Employer’s position. This took the form of a Twitter post with a link which invited members of the public to sign a petition with a view to “Stop Union Busting at Glee Comedy Club” which tarnished the Employer’s reputation in a very public and confrontational way. Given the nature of these social media postings the Employer believed there had now been a fundamental loss of any trust in the Union. The Employer submitted that a ballot would help reset the relationship and offer a foundation to go forwards with clarity. The Employer repeated that it would not accept that the Union had a mandate for collective bargaining unless it was endorsed by the workers.

31) In summary, the Employer submitted that a ballot would mitigate against the loss of trust between it and the Union by clearing the air and resetting relations such that all parties could move forward in a constructive and collaborative manner if staff voted in favour or recognition; and allow staff to make a fully informed decision on recognition which was supported by an objective (and secret) ballot process distinct from the emotive and highly-charged Union posturing that had seen in recent weeks.

7. Union’s final submissions

32) The Employer’s submissions were copied to the Union and its comments invited. In a letter dated 5 July 2023 the Union stated that the main test in relation to the decision as to whether to call a ballot on recognition or not was the level of union membership in the bargaining unit. The best evidence available demonstrated that a majority of the workers in the bargaining unit were Union members. To reiterate the point made previously, the narrowness of the Union’s majority was not of itself a ground for ordering a ballot; the CAC was not entitled to ‘impose, in effect, a threshold for recognition without a ballot higher than that stipulated by the legislators’. On this point, the Union relied on the decision in ISTC and Fuller Computer Industries Ltd (TUR1/29/00) which was affirmed on an application for judicial review in Re Fullarton Computer Industries Ltd, [2001] IRLR 752.

33) The Union further submitted that none of the three statutory exceptions applied in these circumstances. In particular, the Union submitted that holding a ballot would not be in the interests of good industrial relations. The Union had sought to establish good industrial relations both before and during the CAC process without any success. The Employer had sought to undermine the Union’s position by holding union-busting meetings with staff seeking to dissuade workers from being part of the Union as well as overzealous application of disciplinary processes against known union members. The Employer had also failed in part to engage appropriately with the CAC process, for example bringing new proposals to the bargaining unit hearing that it had not previously discussed with the Union or put forward through the CAC or Acas.

34) In the Union’s submission, the practical effect of a ballot would by its very nature engender an adversarial situation within the workplace, with the Union and the Employer embroiled in a divisive contest.

35) There was no credible evidence from union members (or the Employer) that they did not wish the Union to conduct collective bargaining on their behalf. Neither was there suggestion of any circumstances in which workers joined the Union or length of membership that could lead to any doubt that about the members’ wish that the Union conduct collective bargaining on their behalf.

36) In summary, the Union’s submission was that it had demonstrated majority membership within the bargaining unit, none of the three statutory exceptions applied and, therefore, the Union should be granted recognition.

8. Considerations

37) The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

38) The membership and support check conducted on 21 June 2023 had shown the Employer listing a total of 42 workers and the Union had provided a spreadsheet listing 22 union members. The number of union members in the proposed bargaining unit was 22, a membership level of 52.38%. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

39) The Panel has carefully considered the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

40) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. In this case the Employer has submitted that good industrial relations are best served by the holding of a ballot. However, not only was a ballot in the interests of good industrial relations but only a ballot would persuade the Employer that the Union had a mandate from the workers and that, should the Union be successful in the ballot, it would help clear the atmosphere of mutual hostility and mistrust that overshadows the parties’ current relationship. Unless the CAC orders a ballot, so the Employer has stated, indeed on more than one occasion, it will not accept that the Union has a mandate to represent the bargaining unit. This is not helpful. It was Parliament that decreed that if the union has majority membership in the bargaining unit, then the union is entitled to a declaration of recognition without a ballot unless one or more of three qualifying conditions apply. Indeed, in the absence of one or more of the qualifying conditions being satisfied, the CAC must declare the Union recognised (Emphasis added).

41) The rhetorical question that the Panel would ask is whether or not the holding of a ballot would improve this relationship or would it actually exacerbate matters as the parties entrench their positions in the campaigning that will take place in the run-up to a ballot, the outcome of which will be the polarising of views, feelings being ramped up on either side and it all resulting in a further worsening of industrial relations.

42) Having considered the parties’ submissions and the detailed accusations and counter-accusations as to who did what and when, we are not persuaded that a ballot would do anything whatsoever to improve relations between the parties. Rather, a ballot would mean that there would be further delay which would lead to more tension, friction and hostility between the parties. We can see no good reason to order a ballot in the interests of good industrial relations and accordingly find that this condition does not apply.

Paragraph 22(4) (b)

43) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the Union to conduct collective bargaining on their behalf. Whilst the Employer has submitted that this condition has been met it is only on the strength of third hand reported conversations with members allegedly disillusioned with the Union rather than any cogent or tangible evidence that has been received by the CAC. Such evidence amounts to no more than hearsay and it is not sufficient for the Panel to consider this condition met. No members have informed the CAC that they do not wish the Union to be recognised. The Employer accepted that the size of the Union’s majority was not grounds upon which a ballot should be awarded but then asked the Panel to do just that. However, the Panel takes the view that the narrowness of the Union’s majority is not a ground for ordering a ballot when set against the hearsay evidence relied upon by the Employer. As the CAC has received no credible evidence from a significant number of the union members within the bargaining unit that they do not want the Union to conduct collective bargaining on their behalf the Panel is satisfied that this condition does not apply.

Paragraph 22(4) (c)

44) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

9. Declaration of recognition

45) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All of the workers employed by Comic Enterprises Ltd at The Glee Club Cardiff excluding the Venue Manager”.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Robert Lummis

Mr Paul Moloney

7 July 2023