Decision

Acceptance Decision

Updated 24 October 2018

Case Number: TUR1/1038/2018

13 April 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

Eddie Stobart Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 5 March 2018 that it should be recognised for collective bargaining purposes by Eddie Stobart Limited (the Employer) for a bargaining unit described as: “All LGV Drivers employed at the 3 locations listed”. The listed locations were:

Eddie Stobart Lillyhall, Branthwaite Road, Lillyhall Industrial Estate, Workington, CA14 4ED Eddie Stobart Carlisle Truckstop, Kingstown Trading Estate, Carlisle, CA3 0JR

Eddie Stobart Penrith Truckstop, Penrith Industrial Estate, Penrith, Cumbria, CA11 9EH” ^{[footnote 1]}

The application was received by the CAC on 5 March 2018 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 12 March 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 CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Ms Virginia Branney and Mr Tom Keeney. The Case Manager initially appointed to support the Panel was Sharmin Khan who was subsequently replaced by Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 19 March 2018. The acceptance period was extended to 6 April 2018 to allow time for the Panel to obtain more information from the parties and to consider all the evidence. The acceptance period was further extended until 13 April 2018 to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider these comments before arriving at a decision.

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; and therefore should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had made a request for recognition to the Employer on 15 February 2018 and the Employer had responded on 26 February 2018. A copy of the Union’s request and the Employer’s response was attached to the application. In its response to the Union’s request the Employer stated that it had noted the contents of the Union’s letter making it aware of the Union’s proposed application. The Employer stated that it did not agree with the basis of the Union’s proposed application and looked forward to explaining its position via the CAC process.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered ‘N/A’. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 4100. The Union stated that there were 140 workers in the proposed bargaining unit, of whom 65 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that it would provide this information to the CAC on a confidential basis.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it was compatible with effective management. The Union stated that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘N/A’.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 5 March 2018.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 16 February 2018. The Employer stated that it had responded to the Union on 26 February 2018. The Employer attached a copy of its letter of 26 February 2018 to its response to the Union’s application.

11) The Employer confirmed that it had received a copy of the Union’s application form on 5 March 2018. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that the proposed bargaining unit (a) fundamentally conflicted with current arrangements already in place, a national agreement covering all drivers sharing common terms and conditions, a total of 1921; (b) created a small and fragmented bargaining unit which was directly contrary to the guidelines set out in the legislation; and (c) was incompatible with effective management and contrary to current operational practices. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that there were 173 workers in the proposed bargaining unit.

13) The Employer stated that there was an existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer attached a copy of this agreement to its response. The agreement was headed:

Driver Representative Recognition Agreement

Between

Eddie Stobart Logistics (The Company)

And

Driver Representatives

On behalf of LGV Drivers as named in Appendix A (The Workforce)

The Employer stated that the date of the agreement was 30 September 2014. The Employer stated that the parties to the agreement were ESL and their elected Drivers Representatives. The Employer stated that the agreement had been in effect since 1992, was revised in 2014 and continued to apply with full collective bargaining on pay, hours and holidays conducted every year.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that it could not comment as no details had been provided to back up the Union’s claim. When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer stated that existing forum arrangements covered far more than hours, pay and holidays and were more effective than those proposed by the Union.

15) The Employer answered ‘NA’ when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

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

16) On 19 March 2018 the Case Manager wrote to the Union inviting it to comment on the Employer’s response, in particular on the Employer’s statement that there was an existing agreement for recognition in force. In a letter dated 20 March 2018 the Union stated that its information was that there were 140 employees in the bargaining unit and it requested that the Case Manager carried out a confidential membership check. The Union stated that paragraph 35 of the Schedule provides that an application is not admissible if the CAC is satisfied that there is already in force a recognition agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any worker within the relevant bargaining unit. The Union submitted that the Driver Representative Recognition Agreement was not a recognition agreement under which a union was recognised because no union was party to the agreement. The Union stated that a trade union is defined in section 1 of the Act

as an organisation (whether temporary or permanent)

(a) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employer’s associations….

and section 2 provides that the Certification Officer shall keep a list of trade unions.

The Union stated that the Driver Representatives did not constitute a union: there was no organisation of workers and no defined purposes, constitution, membership subscriptions, rules; property, funds or Certification Officer registration. The Union further submitted that the election procedure, set out in the Drivers Representative Recognition Agreement, had not been followed for a number of years and the Employer had imposed a pay increase without any ballot of the drivers. The Union also stated that Clause 11.1 of the agreement provided that Driver Representatives may terminate their role by giving three months’ notice in writing to their operations manager, which, the Union submitted, illustrated the extent to which the Driver Representatives were under the control of the Employer. The Union submitted that, for all those reasons, the Driver Representative Recognition Agreement did not give the workers any meaningful ability to regulate their relations with the Employer and accordingly, paragraph 35 did not apply.

17) The Union stated that, as of 22 March 2018, 48 Union members and 45 non- members had signed petition cards confirming that they wanted the Employer to recognise the Union for collective bargaining. The Union requested that the Case Manager carried out a confidential petition check. The Union also submitted that acceptance of the recognition application was likely to generate additional support for the Union. The Union stated that some workers may want collective bargaining but be unwilling to express their support at this stage, particularly in circumstances where the employer was opposed to recognition. The Union alleged that the Employer had never granted voluntary recognition to a union and had actively discouraged drivers from joining and supporting the Union. The Union invited the Panel, drawing on its industrial experience, to take cognisance of the ‘bandwagon’ effect.

6. Summary of a further letter from the Employer and the Panel’s response to that letter

18) In a letter to the Case Manager dated 21 March 2018 the Employer requested the opportunity to respond to any information provided by the Union in its comments on the Employer’s response prior to any decision being made on whether the application was admissible. The Employer suggested that the CAC needed further information before being able to accept the application. The Employer said that the issues included whether the majority of the bargaining unit were likely to support recognition and the fact that there was an existing agreement. The Employer stated that unless the application was to be rejected it would want an opportunity to make representation as to those issues and suggested that the most appropriate forum would be at an oral hearing. The Employer also emphasised that should it become appropriate it would wish to make representations on why the proposed bargaining unit was not compatible with effective management.

19) In a letter to the Employer dated 29 March 2018 the Case Manager stated that the Panel had directed that the Employer would have the opportunity to comment both on the outcome of the membership and support check (see paragraphs 20 – 23 below) and, at the same time, on any other aspect of the Union’s letter of 20 March 2018. The Case Manager confirmed that she had previously informed the Employer that whether an oral hearing was to be held was at the discretion of the Panel and depended upon whether the Panel considered that it had sufficient evidence to decide whether the validity and admissibility tests had been met on the basis of the information received from the parties after the membership and support check had been issued.

7. The membership and support check

20) 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 of a petition compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, addresses, and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and addresses of paid up members within that unit, a copy of a petition signed by workers in favour of recognition, and a copy of their pledge cards. 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 a letter dated 29 March 2018 from the Case Manager to both parties.

21) The information from the Employer was received by the CAC on 4 April 2018 and from the Union on 5 April 2018. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The list supplied by the Employer indicated that there were 174 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 66 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 59, a membership level of 33.91%.

23) 104 pledge cards were supplied by the Union. 97 of these cards were signed by workers in the proposed bargaining unit, a figure that represents 55.75% of the proposed bargaining unit. Of those 97 signatories, 53 were members of the Union (30.46% of the proposed bargaining unit) and 44 were non-members (25.29% of the proposed bargaining unit). The pledge cards had the Union’s logo at the top and were set out as follows:

Unite the Union

DO YOU SUPPORT UNITE THE UNION?

I, the undersigned, being an employee of Eddie Stobart Logistics request that the company recognise Unite the Union for collective bargaining purposes for all LGV Drivers based at Carlisle, Penrith and Lillyhall depots. We wish the Union to act for us in respect of any negotiation on pay, hours and holidays.

Please note that this petition is STRICTLY confidential and will only be made available to the Central Arbitration Committee (CAC) or ACAS.

NAME	DEPOT	JOB	DATE

PLEASE MAKE SURE THAT YOU COMPLETE THIS SO THAT IT CAN BE EASILY READ AND RETURN IT TO THE UNITE OFFICE

The pledge cards were dated between 2 February 2018 and 4 April 2018.

24) A report of the result of the membership and support check was circulated to the Panel and the parties on 5 April 2018 and the parties were invited to comment on the results by 10 April 2018.

8. Summary of the parties’ comments following the membership and support check

25) In a letter to the CAC dated 10 April 2018 the Union stated that it was clear from the Case Manager’s report of the membership and support check that the tests set out in paragraph 36 of the Schedule had been met. The Union stated that it had received a further three pledge cards since submitting the pledge cards for the purpose of the Case Manager’s check.

26) An Appendix to the Case Manager’s report of the membership and support check gave a list of the Reporting Units covered by the Employer’s list of workers together with the number of workers in each Unit. The Union commented that the final entry, described as ‘Manufacturing Lillyhall’, did not appear to be a driver role. The Union also commented that five of the Reporting Units (a total of 26 roles) included the word ‘Casual’ in the description.

The Union said that it understood that there were some agency drivers working at the three locations within the bargaining unit and questioned whether these drivers had been incorrectly included in the Employer’s list; had they been, this would potentially explain the discrepancy between the Union’s estimate of the number of workers in the bargaining unit and the Employer’s figure. Finally the Union questioned whether some drivers who were employed at Motherwell had been included by the Employer in error.

27) In a letter to the Case Manager dated 10 April 2018 the Employer contended that it could not safely be assumed that there was evidence that the majority of the bargaining unit would favour recognition. The Employer stated that the membership check showed a Union membership level of only 33.91% and the ‘bandwagon’ effect would not stretch to over 16%. In addition the Employer said that it had evidence that the actual membership level was now lower because drivers at the relevant locations had informed it that they were leaving the Union due to concerns that a small group were forcing their agenda onto them. The Employer said that these drivers had recently stopped paying their membership dues or had informed the Union of their intention to do so. The Employer said that key managers had reviewed the current situation with a representative sample of known Union members and the feedback was that these members had joined the Union because of the benefits available to them (primarily legal and financial support) and to support them if they had ‘trouble’ with their employer (ie discipline). The Employer said that the majority within the driver groups it had talked to had said that they did not join the Union in order for the Union to represent or negotiate on behalf of drivers. The Employer said that a number of drivers had now left the Union because they were not happy with the level of support given and felt that an agenda existed to get the Union bargaining rights rather than to represent members’ best interests. The Employer said that feedback from non-unionised employees had indicated that, on nights, drivers had been persistently requested to join the Union and had signed up to ‘stop the constant pressure’ and that one driver had been pushed into joining the Union following a disciplinary hearing when feeling emotional after the event. The Employer stated that the Union had initially claimed 66 members but a number were no longer paying and seven were out of scope, thus evidencing the Union numbers were highly subjective, inaccurate and declining.

28) The Employer submitted that the figure of 55.75% significantly overstated the true level of support for recognition and that the pledge cards could not be relied upon as evidence of support. The Employer said that it had held a number of open forums and discussions with drivers, and was now confident that the Union’s claim that the drivers based at Carlisle, Penrith and Lillyhall wanted the Union to represent them was not the true view of a majority of the drivers based at these sites. The Employer stated that it had been informed that the Union had been placing undue pressure on members and non-members to return the pledge cards. The Employer alleged that drivers had been repeatedly put under pressure to sign pledge cards; some drivers had been asked to sign a pledge card in front of a group of drivers, therefore being put under peer pressure, and that pledge cards had been given to union members not within the proposed bargaining unit. The Employer said that it was plain that a number of union members had refused to sign the cards despite the propaganda and constant pressure to be a member, and this constituted good evidence that even union members did not want recognition. The Employer also stated that it saw no evidence of support cards being handed out or provided to non-members and as such there was no evidence to suggest that the cards were valid, accurate and representative. The Employer gave examples of feedback from non-unionised employees, which included feeling that the Union was ‘all for themselves’; was a ‘money making organisation and not really interested in drivers’ interests’; and the allegation that a small number of active union members were ‘mis-representing and pressuring people to join and get involved in the current CAC process’.

29) The Employer stated that the petition/support cards remained confidential and as such should be given lesser weight than an open petition as the support they purported to evidence could not be properly tested. Furthermore, the cards were not required to be signed and as such could have been completed by anyone with knowledge of the workers within the bargaining unit which were small sites where the workers were known to each other. Of particular concern in this context was that some seven cards were made by persons not based at the three sites. The Employer stated that drivers were only asked whether they favoured collective bargaining with the Union; they were not asked to choose between the existing arrangements (which the Employer said went much further than statutory recognition) or limited recognition of the Union and, as such, drivers would not have made a fully informed choice. The Employer said that feedback from non-unionised employees had been that they believed the existing arrangements worked and the existing and well proven recognition arrangement gave more comprehensive bargaining rights than those proposed by the Union.

30) The Employer contended that the Driver Representative Recognition Agreement (see paragraph 13 above) precluded that Union’s application being accepted under paragraph 35 of the Act. The Employer contended that the agreement constituted a ‘collective agreement’ for the purposes of the Act; afforded extensive negotiation rights over pay, holiday, working rotas, hours of work, workforce agreements and contracts; and thereby provided collective bargaining rights for matters set out within s178 of the 1992 Act. The Employer denied the allegations by the Union that the election procedure had not been adhered to and the pay award had been imposed but contended that this was irrelevant in any event. The Employer stated that, within the meaning of paragraph 35, a recognition agreement is “in force” as soon as it is made and all that is required is that it has not been terminated, suspended, repudiated or abandoned (R (on the application of NUJ) v CAC [2005] EWCA Civ 1309, [2006] IRLR 53, CA), which it had not been. The Employer agreed that the definition of a trade union was an organisation which consists wholly or mainly of workers of one of more descriptions and whose principal purpose includes the regulation of relations between workers of that description and employers or employers’ associations. However the Employer said that previous CAC case law had established that the Union did not need to be independent nor did absence from the Certification Officer’s list preclude an organisation being a trade union within the meaning of section 1. The Employer said that the CAC had found in Butler Butler Bros (Walsall) Ltd and the National Union of Footwear, Leather and Allied Trades (CAC Award 80/121) that it was sufficient to meet once a year for there to be “an organisation”. The Employer contended that the Driver Representatives was a forum which was an organisation of the LGV Contracted Drivers with meetings, facilities and the issuing of minutes being provided for under the Driver Representative Recognition Agreement and with representatives acting independently of the Employer. The Employer said that the purpose of the organisation was clearly set out under the Driver Representative Recognition Agreement which provided not only for negotiation but also for consultation and collaboration which clearly fell within the wider remit of ‘industrial relations’.

31) The Employer concluded by stating that if the Panel was not minded to reject the application, it requested that a hearing was convened in order for the Panel to understand the evidence and the issues in full and to make a reasoned decision. The Employer said that this would also allow it an opportunity to substantiate the points it had made about the petition/support cards.

9. Considerations

32) 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.

33) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33, 34 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the application is inadmissible under paragraph 35 and whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

10. Paragraph 35

34) Under paragraph 35 of the Schedule an application is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit. The Employer submitted that Driver Representative Recognition Agreement (“DDRA”) falls within the terms of paragraph 35 and that the Union’s application is thereby rendered inadmissible. The Union submitted that the DDRA does not fall within paragraph 35 because there is no union party to the agreement and the agreement does not provide for recognition of a union.

35) Section 178 of the Act defines a ‘collective agreement’, so far as is material in this context, as ‘any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations ….’. Section 1 of the Act defines a ‘trade union’, so far as is material in this context, as an organisation (whether temporary or permanent) –

(a) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers’ associations …

36) The DDRA provides for the election by specified LGV Contracted Drivers of Driver Representatives to represent their relevant constituency in negotiations relating to pay; holiday entitlements and allocation; working rotas; hours of work; workforce agreements; and contracts. The DDRA also provides for consultation and collaboration with Driver Representatives on specified matters. The DDRA recommends an overall requirement of one Driver Representative for every 50 drivers, plus or minus 10%; this will be managed by the General Manager for each Business Unit. Driver Representatives must be voted in by the workforce based in their respective constituencies. In order to be eligible to stand candidates must be currently employed by the Employer; have completed a minimum of 12 months’ service; be employed within the constituency they wish to represent (unless driver numbers dictate otherwise) and be willing and able to take an active role, attending all meetings unless absent from work or on annual leave. The standard term of office is three years but a Driver Representative can stand for re-election without any limit on the number of terms. Driver Representatives may terminate their role by giving three months’ notice in writing to their operations manager although the agreement recommends that they will not give notice to stand down during pay negotiations other than in exceptional circumstances. Driver Representatives may be required to relinquish their role in specific circumstances including a vote of no confidence by their constituency.

37) The Panel has considered carefully the provisions of the DDRA and is satisfied that it does not fall within the terms of paragraph 35. Driver Representatives represent the workforce in pay negotiations and other meetings with the Employer in their capacity as elected individuals representing a specified constituency; there is no ‘organisation’ of workers in existence of which they are a part and the DDRA does not, as a consequence, provide for recognition of a ‘union’. This is sufficient for the Panel to determine that paragraph 35 does not render the Union’s application inadmissible. In addition the Panel notes that the DDRA was signed on 30 September 2014 by individual Driver Representatives rather than by or on behalf of any ‘organisation’ of workers. It does not, therefore, fall within the definition of a ‘collective agreement’ for the purposes of paragraph 35. The Panel has therefore concluded that the application is not rendered inadmissible by paragraph 35 of the Schedule.

11. Paragraph 36(1)(a)

38) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit.

39) The membership check conducted by the Case Manager (described in paragraphs 20-22 above) showed that 33.91% of the workers were members of the Union. As stated in paragraph 21 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule. The Panel notes the Employer’s submission that the actual membership level is lower than that shown by the check. The Panel is content to rely for the purposes of this decision on the information provided by both parties in determining the level of union membership within the bargaining unit.

12. Paragraph 36(1)(b)

40) 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.

41) The Panel notes that the support check conducted by the Case Manager showed that 55.75% of the workers in the proposed bargaining unit (97 out of 174 workers) had signed a petition in favour of recognition of the Union (see paragraphs 20-23 above). Of those who had signed the pledge cards 53 were Union members (30.46% of the proposed bargaining unit) and 44 were non-members (25.29% of the proposed bargaining unit). The Panel notes the Employer’s concern that pledge cards were given to union members not within the bargaining unit. However the Case Manager’s check was made by comparing names on the pledge cards with the list of workers in the proposed bargaining unit supplied by the Employer. The Panel is satisfied that this comparison provides a safeguard against the inclusion of pledge cards completed by workers who do not fall within the proposed bargaining unit. The Panel does not consider it relevant that the Employer did not witness pledge cards being provided to non-members. It is not uncommon for unions to collect evidence of support without this being witnessed by employers and it is routine for those completing petitions or pledge cards to be assured that their names will not be disclosed to the employer. The Panel also notes the Employer’s contentions that drivers were repeatedly put under pressure to sign pledge cards and subjected to peer pressure to do so. However the Panel has not received, from either the Employer or any workers within the proposed bargaining unit, any form of documentary evidence from individuals the Employer alleged to have been subjected to such pressure to substantiate these allegations. The Panel notes the Employer’s contention that pledge cards could have been completed by anyone with knowledge of the workers within the bargaining unit. The Panel notes that the system of membership and support checks employed to determine whether the admissibility tests in paragraph 36 are satisfied relies on the good faith and honesty of both parties in supplying information. The Panel has received no evidence which leads it to suspect that either party has not acted honestly and in good faith in relation to this application. The Panel understands that the Employer considers that its existing arrangements offer more extensive negotiating rights than statutory recognition of the Union would afford but does not consider that the Union had any obligation to offer workers in the bargaining unit an explicit choice between the two when collecting documentary support for recognition.

42) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, that 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, as required by paragraph 36(1)(b) of the Schedule.

13. Concluding observations

43) The Panel notes the Employer’s submission that if the Panel was not minded to reject the application it should convene a hearing in order for it to understand the evidence and the issues in full. The Panel reminds the parties that the Schedule sets a tight timetable for a decision as to whether an application should be accepted, although provision is made for an extension where the Panel is satisfied that this is justified. Hearings are held at the discretion of the Panel and the Panel does not consider that a hearing is required in this case.

44) The Union contented that the election procedure in the DDRA had not been followed for a number of years and that the Employer had imposed a pay increase without any ballot of the drivers. The Employer denied these allegations. The Panel has not sought further evidence on these matters and makes no finding on them. They have played no part in its decision.

45) The Union questioned whether some of the workers who appeared on the list provided by the Employer for the purposes of the membership and support check had been included in error (see paragraph 26 above). Given that the Panel was satisfied, on the balance of probabilities, that the statutory tests had been met on the basis of the list provided by the Employer it did not find it necessary to inquire further into this matter at this stage. However the Panel notes that the bargaining unit has not been agreed between the parties and that whether specified categories of worker should or should not be included would be a matter for discussion between them. In the event that the parties are unable to reach agreement and the Panel is required to determine whether the bargaining unit proposed by the Union is appropriate or, if not, to determine a bargaining unit which is appropriate the Panel would expect to seek further clarification from the parties as to which workers properly fall within a given bargaining unit at that stage.

14. Decision

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

Panel

Professor Gillian Morris, Panel Chair

Ms Virginia Branney

Mr Tom Keeney

13 April 2018

1. In its application the Union gave a different address for the Penrith site. The address given above was given by the Employer in its response to the application and accepted as correct by the Union in its letter of 20 March 2018. ↩