Decision

Validity Decision

Updated 23 September 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1204(2020)

19 May 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

East End Foods Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 17 December 2020 that it should be recognised for collective bargaining by East End Foods PLC ^{[footnote 1]} (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 and, for the purposes of this decision, Nigel Cookson.

3) By a decision dated 23 February 2021 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. 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. A hearing was held by virtual means on 8 April 2021 and, in a decision promulgated 27 April 2021, the Panel decided that the appropriate bargaining unit in this matter was one comprising “Drivers and Warehouse shop floor operatives without management responsibilities”. For the sake of clarity, this bargaining unit included workers in the following roles: Warehouse Operatives; Production Operatives; Forklift Truck Drivers; Lorry Drivers; Drivers Mates; Machine Operators; Hygiene Operatives; QA Technicians; Production and Rice Mill Supervisors; Materials Specialist and Despatch Assistants and excluded the role of Team Leader or Section Leader.

2. Issues

4) As the determined bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of the Schedule to decide whether the Union’s application is invalid within the terms of paragraph 43 to 50 of the Schedule. The tests set out in paragraph 43 to 50 that the Panel must consider are:

• is there an existing recognition agreement covering any of the workers within the new bargaining unit?

• is there 10% union membership within the new bargaining unit?

• are the majority of the workers in the new bargaining unit likely to favour recognition?

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit?

• has there been a previous application in respect of the new bargaining unit?

Parties’ submissions on the tests set out in paragraph 43 to 50

5) In a letter dated 27 April 2021 the parties were asked for their comments on the tests set out above. In a letter dated 29 April 2021 the Union addressed each test in turn:

• To the Union’s knowledge, there was no existing recognition agreement covering any of the workers within the new bargaining unit.

• Currently there was over 10% membership within the new bargaining unit with membership standing at 91 members.

• The majority of the workers in the new bargaining unit were likely to favour recognition as demonstrated by the Union’s petition. The signatories on this petition were in the new bargaining unit and the Union’s members were also within this unit.

• There was no other union that had a competing application where its proposed bargaining unit covered any workers in the new bargaining unit.

• Finally, no previous application had been submitted in respect of the new bargaining unit.

6) The Union believed that all validity tests under the Schedule were met. It had recently been told by members that around 20 production workers with permanent contracts had been dismissed from 4 April 2021 and called upon the Employer to provide a revised figure for the new bargaining unit.

7) The Employer, in a letter dated 30 April 2021 also addressed the tests that were being applied to the new bargaining unit:-

• To its knowledge there was no existing recognition agreement covering any of the workers within the new bargaining unit

• Based on the numbers previously provided by the Union and based on the fact that the changes to the bargaining unit were not extensive, the Employer thought it likely that there was 10% union membership within the new bargaining unit.

• The Employer did not believe that a majority of the workers in the new bargaining unit were likely to favour recognition. This was because on the last information provided by the Union, there were 73 workers in membership and the Employer understood some had now left. There was currently a total of 182 workers within the bargaining unit and if all union members favoured recognition, there would be a maximum of 39% support. Following recent briefings to all relevant workers the Employer was of the opinion that non-union members were unlikely to vote in favour of recognition. There was also evidence that some members would not vote in favour.

• The Employer was not aware of any competing application from another union where its proposed bargaining unit covered any workers in the new bargaining unit.

• To its knowledge, there had not been a previous application in respect of the new bargaining unit.

3. The membership and support check

8) To assist the determination of two of the admissibility tests specified in the Schedule, namely, whether 10% of the workers in the determined bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership and support for recognition within the new 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 determined bargaining unit as well as a statement showing that a number of workers did not want the Union to be recognised, and that the Union would supply to the Case Manager a list of its paid up members within that unit including their names and dates of birth and a petition in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists, petition and statement would not be copied to the other party. These arrangements were confirmed in a letter dated 5 May 2021 from the Case Manager to both parties. The information from the Union was received by the CAC on 7 May 2021 & 10 May 2021 and the information from the Employer was received on 7 May 2021. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer showed that there were 177 workers in the determined bargaining unit. The list of members supplied by the Union contained 99 names. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 89, a membership level of 50.28%. Five members on the Union’s list were annotated as “Not Paid Up” and two of these members were found to be on the Employer’s list and so were within the determined bargaining unit.

10) The petition supplied by the Union contained 76 names and signatures, of which 69 were in the determined bargaining unit, a figure that represented 38.98% of the determined bargaining unit. Of these 69 signatories, 54 were members of the Union (30.51% of the determined bargaining unit) and 15 were non-members (8.47% of the determined bargaining unit). The petition consisted of 76 individual A4 sheets, which were set out as follows:

“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.”

The following statement was printed at the bottom of the form:

“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”

The earliest signature on the petition was dated 11 September 2020 and the lattermost signature was dated 22 September 2020.

11) As well as its list of workers in the determined bargaining unit, the Employer also provided a statement from workers. This statement, which was signed by six individuals, took the form of a single A4 sheet and read as follows:

“We wish to tell you that we have been pressured into joining the union over the last few months even though we don’t want to. Some of us have told union members we have joined the union, but we haven’t, and some of us have joined the union as we were worried about the situation if we had said NO.

We do not want the union and don’t know what to do.”

12) A check of the signatures on this statement against the Employer’s list of workers, the Union’s list of members and the Union’s petition revealed that of the six that had signed the statement, two were members of the Union and four were non-members representing a total of 1.13% and 2.26% of the determined bargaining unit respectively. Further, the two Union members that had signed the statement had also signed the Union’s petition, has had two of the four non-members.

13) A report of the result of the membership check was circulated to the Panel and the parties on 10 May 2021 and the parties were invited to comment on the results of the checks.

4. Parties’ comments on the check of membership and support

14) In a letter dated 11 May 2021 the Union stated that the report established that there was over 10% membership within the new bargaining unit as required by paragraph 45 of the Schedule. The Union noted that there were 10 names listed as not appearing on the Employer’s list and the Union believed some of these may be due to incorrect spellings when being input on to its database.

15) As for whether the majority of the workers in the new bargaining unit were likely to favour recognition the Union sated that the previous check of its petition had demonstrated that the majority of workers would be likely to favour recognition ^{[footnote 2]}. Those that had signed the petition were still members of the new bargaining unit as were the Union’s members.

16) As demonstrated in the membership report produced by the Case Manager on 10 May 2021, Union membership exceeded 50% and continued to grow regularly. The Union also believed there were a number of workers who had not yet joined the Union because of the fear factor and also the financial implications that Covid-19 had brought upon a lot of families. With this in mind the Union believed recognition was widely supported by a majority of the workforce.

17) In a letter dated 13 May 2021 the Employer submitted the report revealed that there were 50.28% of Union members within the determined bargaining unit and therefore the first part of the validity test and whether there was 10% union membership within the new bargaining, was satisfied.

18) In respect of the second part of the test and whether the majority of the workers in the new bargaining unit were likely to favour recognition, the Employer had the following comments to make:-

i. There were 89 members in the bargaining unit however, two of these had not paid their subscriptions. This was likely to be an indication that the Union did not have their full support and that they would not vote in favour of recognition. If all the other union members did vote in favour, this would total 87 workers which was 49.15% of the bargaining unit and less than a majority.

ii. Additionally, a further two workers who were union members had sought the advice of HR as they felt pressurised in to joining and did not want recognition and have signed a statement to this effect. If all the other union members did vote in favour, which the Employer thought unlikely, this would total 85 workers which was 48% of the bargaining unit and less than a majority.

iii. The Union’s petition was signed some 8 months ago and the Employer was therefore of the opinion that this did not make it credible evidence on the subject of whether these workers were likely to vote in favour of recognition now. This was borne out by the fact that four of the signatories had very recently signed a statement of workers to say that they felt pressurised in to joining the Union/signing the petition. This, in the Employer’s view, was likely to be an indication of how other workers felt. The Union has had the opportunity to present a more up to date petition reflecting current views but had chosen not to.

iv. In the alternative, the Employer argued that the it was clear that the Union approached both members and non-union members and a considerable number of workers signed its petition. The Union had therefore been pro-active in canvassing support whereas conversely, the statement of workers was signed only by those who felt sufficiently aggrieved to raise the matter with HR. It was clear therefore, that as of September 2020, only 38.98% of the determined bargaining unit supported recognition, which was less than a majority. A significant number of Union members (35) did not sign the petition and only 15 non-union members did sign in favour.

v. The statement of workers contained four names who also appeared on the Union’s petition. The fact that the statement of workers was signed much more recently, on 27 April 2021, was an indication that these four workers would no longer vote in favour of recognition. There were 69 names on the petition of workers who were in the bargaining unit minus the four workers above which indicated that only 65 workers, representing 37%, supported recognition.

19) For the above reasons the Employer was firmly of the belief that the second part of the validity test had not been established and the majority of the workers in the new bargaining unit were unlikely to favour recognition.

5. Considerations

20) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision, the Panel has considered carefully the submissions of both parties. On the evidence before it, the Panel is satisfied that there is no competing application from another union; that there has been no previous application in respect of the determined bargaining unit; and that there is no existing recognition agreement covering any of the workers within the determined bargaining unit. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

6. Paragraph 45(a)

21) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10% of the workers in the determined bargaining unit. The membership check conducted by the Case Manager showed that 50.28% of the workers in the new bargaining unit were members of the Union. As stated above, the Panel is satisfied that the checks were conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel considers that, even allowing for the two members whose subscriptions are in arrears, members of the Union constitute at least 10% of the workers in the determined bargaining unit as required by paragraph 45(a) of the Schedule.

7. Paragraph 45(b)

22) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. The comparison undertaken by the Case Manager of the various strands of information provided by the parties has established that, on the face of it, Union membership amounts to 50.28% of the workers in the determined bargaining. In addition, 15 non-members, amounting to 8.47% of the determined bargaining unit, have signed the Union’s petition in support of recognition. The Union could therefore point to some 59% of workers being in favour of it being recognised for collective bargaining purposes. On the other hand, the Employer has submitted that to get a true reflection of support for the Union a number of workers should be removed from any calculations. First, the two members identified in the Case Manager’s report as being in arrears should be excluded which would see the density of union members fall to 49.15% of the bargaining unit. Second, if the two members that had signed the Employer’s statement saying that they “did not want the union”, were likewise removed, the density would fall further to 48%. Whichever of these figures you took, the Employer argued that it was not a majority. Third, if those workers that had signed the Union’s petition but had more recently also signed the Employer’s statement were likewise discounted, then the Union’s petition would show only 37% as supporting recognition. This, the Employer argued, was not a majority either.

23) In considering the arguments put forward, the Panel would remind the parties that this is a test of hypothetical support and not one where the Union is called upon to demonstrate that it has the support of an actual mathematical majority. This test is more a question as to whether or not a case has a reasonable prospect of success. The Panel appointed to determine this matter considers that, even after making allowance for those workers highlighted by the Employer above, the level of Union membership coupled with the results of the Union’s petition, especially the level of non-member support, is sufficient for us to be satisfied that the Union has been able to demonstrate that the majority of the workers in the determined bargaining unit would be likely to support recognition of the Union. The Panel has certainly not received any evidence in this case that would contradict such a finding.

24) The Panel has therefore decided that on the evidence it has before it, on the balance of probabilities, a majority of the workers in the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 45(b) of the Schedule.

8. Decision

25) For the reasons given in paragraphs 18 to 20 above, the Panel’s decision is that the application is not invalid and that the CAC will proceed with the application.

Panel

Mrs Lisa Gettins, Panel Chair

Mr David Coats

Mr Nicholas Caton

19 May 2021

1. In an email to the CAC dated 14 May 2021 the Employer stated that East End Foods was no longer a PLC and had not been so for some time and that it should be amended to ‘Limited’. The Panel has noted this correction and has instructed the Case Manager to amend the CAC’s records accordingly. ↩

2. Here the Union is referring to the check carried out on 1 February 2021 as set out in paras 13-16 of the Panel’s decision to accept the application dated 23 February 2021. ↩