Decision

Acceptance Decision

Updated 14 January 2020

Case Number: TUR1/1141(2019)

06 December 2019

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

Lear Corporation (UK) Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 25 October 2019 that it should be recognised for collective bargaining purposes by Lear Corporation (UK) Limited (the Employer) in respect of a bargaining unit comprising “All hourly paid shop floor workers, maintenance and Team Leaders based at the Sunderland JIT and Foam Facilities”, the Union adding “(As per joint statement and the stipulation within the agreement that was being discussed).” The location of the bargaining unit was given as “Lear Corporation (UK) Limited, Sunderland, Phoenix Way, Houghton Spring, DH4 5SA.” The application was received by the CAC on 30 October 2019 and the CAC gave both parties notice of receipt of the application on 30 October 2019. The Employer submitted a response to the CAC dated 6 November 2019 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 Kenny Miller, Panel Chair, and, as Members, Mrs Maureen Shaw and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 13 November 2019. The acceptance period was extended on two further occasions to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 6 December 2019

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 sent a request letter to the Employer on 4 October 2019. The Union stated that prior to sending its request to the Employer, by e-mail dated 16 May 2019, it had approached the Employer “to enter dialogue.” The Union said that it had “offered up a membership verification via Acas”. The Union stated that Cliff Powell had responded on behalf of the Employer to inform the Union that “this would not be necessary – citing costs as a reason why.” The Union said that meetings had taken place on 11 July and 13 August “following agreement in principle to recognition.” The Union stated that talks had broken down and that the Employer was “refusing to enter into dialogue.” The Union said that it subsequently submitted its request letter to the CAC as it had received no response from the Employer. A copy of the Union’s request letter was attached to the Union’s application.

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 “No”. 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 “500 inclusive of Management and 126 agency workers.” The Union stated that there were 335 workers in the proposed bargaining unit, of whom 212 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 referred to a petition “in support of Unite recognition agreement and collective bargaining”, which consisted of 344 signatures.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it covered the bargaining unit previously agreed with the Employer following informal discussions before talks had broken down. The Union stated that this was due to the commonality of terms and conditions. The Union further stated that these groups of workers included all hourly paid workers but excluded management. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

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 25 October 2019.

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 initially received the Union’s written request for recognition by e-mail on 2 October 2019, followed by a letter on 25 October 2019, and a further modified letter due to “an administrative error” received on 29 October 2019. The Employer stated that it did not plan to recognise the Union. The Employer further stated that it was not currently in contact with the Union “following a sexist comment made by one of their representatives during a disciplinary meeting at the Sunderland plant on 2 October 2019.”

11) The Employer stated that, following an attempted delivery on 28 October 2019, it had received a copy of the Union’s application form from the Union by e-mail on 7 November, “due to the Employer contact being based in Coventry.” The Employer stated that it was trying to identify the date on which it was signed for in Sunderland. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. When asked “Do you agree with the proposed bargaining unit?” the Employer answered “Yes”.

12) When asked whether following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer stated that “My colleague in Sunderland is doing this” and it would forward their details.

13) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that the figure was 379 and that “the numbers vary as and when we undertake Agency to Perm.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

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 from discussions with the workforce and the Works Council, management believed the numbers were “exaggerated”.

15) 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 “Feedback from the Works Council and other employees.”

16) 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, the Employer answered “September 2008.” Finally, the Employer stated that it had not received any other applications in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties

17) On 30 May 2019 the CAC copied the Employer’s response to the application to the Union and its comments were invited. The Union responded by e-mail on 10 November 2019. The Union stated that it had sent a “follow up” to its original request letter as it had noted that the date of 4 October 2019 had been “inadvertently omitted.” The Union stated that it could confirm that it had not received any response, in writing or otherwise, from the Employer. The Union stated that it had noted the Employer’s remarks as to why it was not currently in communication with the Union in Sunderland, and stated that it “refutes” the allegation “as no evidence had thus far been provided to collaborate such a claim.” The Union said that it did not understand why the Employer believed this was a valid reason for not corresponding with the Union about its application for recognition. The Union stated that the Employer continued to recognise Unite at their Midlands site.

18) The Union stated that it noted the Employer had confirmed its agreement of the proposed bargaining unit as set out in its application.

19) The Union further stated that during its attempts to reach a voluntary agreement the Union had offered “a membership verification utilizing ACAS” but it was “given the impression” by Cliff Powell that this would not be necessary. The Union further stated that “The impression he gave to us was that the employer believed that we had sufficient membership numbers to satisfy the requirements for automatic recognition and therefore negating a possible CAC application.”

20) The Union stated that it believed the numbers it had quoted in its application were as accurate as possible with the limited information at its disposal. The Union said that it would request verification as to the breakdown of the figure of 379 as quoted by the Employer. The Union stated that it would request the make-up of employees in the bargaining unit, for example, on the number of permanent employees and agency workers.

6. The membership and support check

21) 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, 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 its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 12 November 2019 from the Case Manager to both parties.

22) The information requested from the Employer was received by the CAC on 13 November 2019. The information requested from the Union was received by the CAC on 15 November 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

23) The list supplied by the Employer indicated that there were 366 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Production Operator – 236

• Advanced Operator – 22

• Materials Handler – 33

• Process Technician – 4

• Materials Team Leader – 7

• Quality Technician – 14

• Maintenance Technician – 13

• Apprentice – 3

• Production Team Leader – 18

• HSE Officers – 2

• Maintenance Team Leader – 1

• Lead Material Handler – 6

• Technician – 2

• CI Technician – 2

• CI and TPM Technician – 1

• Production Trainer – 2

• CI and TPM Technician - 1

24) In an accompanying e-mail the Employer confirmed that the list it provided was “100% accurate and has been taken as an extract from PeopleSoft, our HR Management system.” The Employer also clarified that “none of these listed are agency workers who are not for obvious reasons on PeopleSoft.”

25) The list of members supplied by the Union contained 226 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 201, a membership level of 54.92%.

26) The petition supplied by the Union contained 344 names and signatures, of which 192 were in the proposed bargaining unit, a figure that represents 52.46% of the proposed bargaining unit. Of those 192 signatories, 155 were members of the Union (42.35% of the proposed bargaining unit) and 37 were non-members (10.11% of the proposed bargaining unit). The petition consisted of 30 A4 sheets each headed with the Unite the Union logo and was set out as follows:

Workers United @ LEAR Corporation Unit 2 Sunderland

“We, the undersigned are production workers whom work in Unit 2 at Lear Corporation in Sunderland.

We express our desire to have Unite the union recognised for collective bargaining and representation purposes. I am not being placed under duress of any kind to sign this petition and have taken part of our free will.

YOU DO NOT NEED TO BE A UNITE MEMBER IN ORDER TO SIGN THIS.”

Beneath which was a table of four columns for the worker to complete as follows:

Name	Are you a member?	Signature	Telephone Number

At the bottom of each page it stated “By leaving your telephone number you have given permission for Unite to contact you to update you on this campaign. Unite the Union can confirm your contact details will only be used by us Unite the union and not shared with third party members”

27) In an accompanying e-mail the Union confirmed that the petition was started on 15 May 2019 and “is still ‘live’ as of today”.

28) A report of the result of the membership and support check was circulated to the Panel and the parties on 21 November 2019 and the parties were invited to comment on the results of that check by noon on 26 November 2019.

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

29) In an e-mail to the CAC, dated 26 November 2019, the Union had questioned whether “both Unit 2 and Unit 11 employees had been listed by the employer?” so as to ensure that all Unite members included in the previously accepted bargaining unit had been checked.

30) The Union stated it believed its petition demonstrated that that a majority of the workforce wished for the Union to have recognition for collective bargaining and representation purposes.

31) The Union had also stated that it believed the threshold for automatic recognition had been verified and met and further explained why it did not believe that a ballot was appropriate or necessary. However, this is an issue that will be considered by the Panel at a later stage of the statutory recognition process.

32) In an e-mail to the CAC, dated 26 November 2019, the Employer stated that in its view, the Union’s petition was not a reliable indicator of the current desire of its employees. The Employer stated that it understood the petition was started more than six months ago, on 15 May 2019. Since that time, Lear management in Sunderland had held a number of meetings with its Works Council, which the Employer stated, was the elected employee representative body. The Employer said that issues that had been discussed included banked hours, shift patterns, comparative rates or pay, and employee engagement. In addition, the company had rolled out an employee survey as part of the global “Together We Win programme.”

33) The Employer stated that management believed the Union had offered reduced membership fees to encourage employees to join the Union and a number of employees had since left the Union on the basis that their Direct Debit was for the full fee payment. The Employer stated that it therefore questioned the accuracy of the Union’s membership figures and noted that “a number of those said to be members did not sign the petition.”

34) The Employer stated that the figures provided appeared to indicate that there may be differing views over the proposed union recognition and whether the employees had a “desire” for collective bargaining or representation, as the petition had made references to both.

8. Considerations

35) 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.

36) 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 to 35 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

37) 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.

38) The membership check conducted by the Case Manager (described in paragraphs 21 - 25 above) showed that 54.92% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 22 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.

10. Paragraph 36(1)(b)

39) 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. For the reasons given in paragraph 38 above the Panel has concluded that the level of union membership within the bargaining unit stands at 54.92%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case.

40) On the basis of the level of union membership alone the Panel would have been prepared to conclude, for the reasons set out in paragraph 29 above that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. In this case the Panel also notes that the support check conducted by the Case Manager showed that 52.46% of workers in the proposed bargaining unit (192 out of 366 workers) had signed a petition in favour of recognition (see paragraphs 26 - 27 above). Of those who had signed the petition 155 were Union members (42.35% of the proposed bargaining unit) and 37 were non-members (10.11% of the proposed bargaining unit).

41) On the basis of the evidence before it the Panel has decided, 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.

11. Decision

42) For the reasons given in paragraphs 36 - 41 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Mrs Maureen Shaw

Mr Gerry Veart

06 December 2019