Decision

Acceptance Decision

Updated 23 September 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1204(2020)

23 February 2021

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

East End Foods PLC

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on that it should be recognised for collective bargaining by East End Foods PLC (the Employer) for a bargaining unit comprising the “Hourly paid drivers and hourly paid shop floor warehouse operatives without management responsibilities”. The CAC gave both parties notice of receipt of the application on 17 December 2020. The Employer submitted a response to the CAC dated 21 December 2020 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr David Coats and Mr Nicholas Caton. The Case Manager appointed to support the Panel was Ms Sharmin Khan.

2. Issues

3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and should therefore be accepted.

3. The Union’s application

4) The Union attached a copy of its certificate of independence to its application. The Union stated that its first formal request for recognition was made on 20 August 2020 to which it had no response from the Employer. However, after some talks had taken place, the Union submitted a further formal request on 16 October 2020. The Employer did respond to this request and asked the Union to put its case as to why it should enter into voluntary recognition. A meeting took place on 11 November 2020 but a subsequent meeting arranged for the 21st November 2020 was cancelled. The Union explained that further meetings that the Union had tried to arrange had not been accepted by the Employer. A copy of both request letters was enclosed with the application.

5) According to the Union, there was a total of 200 workers employed by the Employer with 120 of these falling within the proposed bargaining unit. The Union stated that it had 77 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had in its possession a Union membership list and petition in support of recognition which it would provide to the CAC in confidence.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated “Unite believe that this BU covering drivers and hourly paid warehouse, work on production, packaging and two shifts, we have the day staff and the night team. They are managed under the same disciplinary and grievance procedures and have no management responsibilities which include grievance and disciplinary measures. Traditionally we would refer to this group of workers as ‘shop floor workers.’” The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit. The Employer’s response to the Union’s application

8) The Employer stated that it had received the Union’s formal request for recognition on 21 August 2020. When asked what its response was, the Employer Enclosed a copy of its letter to the union dated 26 August 2020.

9) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 16 December 2020. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that it did not agree the bargaining unit now that it had. The Employer explained that the proposed bargaining unit was made up of two distinct categories of staff, drivers and warehouse operatives including production. It did not view drivers as “shop floor” staff. They were skilled class 1 and 2 drivers. It did not agree that it would be appropriate for these employees to comprise of one bargaining unit.

10) The Employer stated that it employed 235 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit, explaining that there were currently 167 workers within the bargaining unit as at 21 December 2020 including the new starters. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer answered that “from general conversations with staff in the proposed bargaining unit we estimate that no more than 30-40 are union members. We ask that the union prove the numbers they have put forward.” When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer answered, “No we are of the opinion that only union members would support recognition based on the above numbers we do not estimate that over 50% would support recognition stop”.

11) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit and that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit.

12) Finally, the Employer confirmed that it had not proposed to the Union that Acas be approached to assist, following receipt its request for recognition. The membership and support check

13) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit including their full names and dates of birth and a copy of a petition in support of recognition. 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 dated 8th of January 2021 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 11 January 2021 and from the Employer on 8 January 2021.

14) The list supplied by the Employer contained the names of 171 workers and the list of members supplied by the Union contained 76 names. The Union also provided a copy of its petition bearing the names, signatures, shift, and contact number of 79 individuals. The earliest date of signature appearing on the petition was 11 September 2020 and the most recent dated signature was 22 September 2020.

15) Each petition sheet was headed:

“We the undersigned employees at East End Foods wish to have Unite the Union as our union of choice for recognition for the purposes of the collective bargaining.”
. And the following statement was printed at the bottom of the form underneath the individual’s details:

“DISCLAIMER: This Petition is for ALL WORKERS of East End Foods.

Any information which might identify you will be kept confidential by Unite the Union and will not be shared with your management. The information you provide on this petition will be used by Unite:- In order to satisfy the legal process to achieve union recognition at East End Foods. The information provided by you will be stored securely and the petition form that you complete will be confidentially destroyed once the information has been added to an electronic system. Electronic records will be retained by Unite for the duration of any organising campaign.

Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy”

16) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 73, a membership level of 43%. The check of the petition showed that it had been signed by 71 workers in the proposed bargaining unit, a figure which represents 42% of the proposed bargaining unit, of which 22 signatories, 13% of the proposed bargaining unit were not members of the Union. A report of the result of the membership and support check was circulated to the Panel and the parties on 1 February 2021 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

4. Parties’ comments on the membership check

17) In comments to the Panel by e-mail to the CAC on 5 February 2021, the Union stated that it believed that it had reached the levels required for both tests set out in paragraph 36 of the Schedule but queried whether some of the job roles listed by the Employer fell within the description of the proposed bargaining unit. The Union also queried whether any of the 171 employees included on the Employer’s list were onsite agency and contractors as these workers would be excluded from the proposed bargaining unit as they were not employees of the Company. In conclusion the Union stated that as evident in the report, even with the Employer’s figure of 171 employees, it believed that it had met all the required tests and therefore its application for recognition should be accepted.

18) The Employer answered the Union’s queries by e-mail to the CAC on 11 February 2021 in which it also raised a query with the Union when mentioning that it had included 8 weekly paid salaried staff on its list, who did get paid at an hourly rate when working overtime, and that it was unsure if these workers came under the description of the Union’s proposed bargaining unit.

19) In final comments to the Panel the Union stated that whilst there was still some dispute over the Employer’s version of the bargaining unit, it still believed that it had reached the levels required by both tests in the Schedule and that discussion regarding the shape of the bargaining unit could take place later in the process should the application be accepted by the CAC.

5. Considerations

20) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

21) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12(2) of the Schedule in that before the end of the second period of 20 working days, following the Employer’s indication of a willingness to negotiate, no agreement was reached by the parties. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

6. Paragraph 36(1)(a)

22) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. Following the results established by the Case Manager’s independent checks of the level of Union membership and support, at 43%, it is clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

7. Paragraph 36(1)(b)

23) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

24) The Panel is mindful that according to paragraph 36(1)(b), its duty is not to determine whether there is currently a majority of workers within the proposed bargaining unit who support recognition but rather to decide whether it is likely that a majority of workers within the proposed bargaining unit would support recognition. It is not a test of actual support. 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. In this case it has been established that the Union has a membership level of 43%. When added to the number of signatures on its petition from non-union members that are in support of recognition, at 13%, the Panel considers that this shows an overall support level of 56%.

25) The issuing of the Case Manager’s report of the membership and support checks prompted an exchange between the parties relating to each other’s understanding of how each role within the proposed bargaining unit were named and there was a degree of doubt from the Employer as to whether a few workers should have been included or not. However, the Panel was satisfied that the number of queries did not amount to a significant impact on the results of the check and therefore did not see a need of a revised check to be conducted. The Panel notes that the Union’s proposed bargaining unit was described as “Hourly paid drivers and hourly paid shop floor warehouse operatives without management responsibilities” in its application and the admissibility tests were applied to the group of the workers the Employer had identified as fitting this description as far as it could.

26) The Panel is also aware that 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 a membership and support check 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 provide a “snap shot” of likely support for the purposes of the admissibility stage of the application process. In addition, 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.

27) 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. For the reasons given above, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

8. Decision

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

Panel

Mrs Lisa Gettins, Panel Chair

Mr Nicholas Caton

Mr David Coats

23 February 2021