Decision

Acceptance Decision

Updated 21 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1299/2023

23 February 2023

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

Moog Controls Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 16 January 2023 that it should be recognised for collective bargaining purposes by Moog Controls Limited (the Employer) for a bargaining unit comprising “Directs within Assembly and Test, covering the job roles Assembler Tester, Technician, Technician 2, Senior Technician, Cell Lead, Shift Lead and Production Supervisor employed at Moog Controls Limited, Ashchurch, Tewkesbury, Gloucestershire, GL20 8NA. Directs within Manufacturing, covering the job roles Semi Skilled Assembler/Finisher, Skilled Machinist, Machinist Cell Fitter, Cell lead, Tool Maker, Induction Machinist, Trainer Machinist, Trainer Assembler/Finisher, Semi Skilled Machinist and Machinist CNC employed at Moog Controls Limited, Ashchurch, Tewkesbury, Gloucestershire, GL20 8NA.” The location of the bargaining unit was given as “Moog Controls Limited, Ashchurch, Tewkesbury, Gloucestershire, GL20 8NA.” The application was received by the CAC on 16 January 2023 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 23 January 2023 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mrs Claire Sullivan. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 30 January 2023. The acceptance period was extended to 17 February 2023 to allow the parties to comment on the results of a membership check 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 sent a request for recognition to the Employer on 14 October 2022. A copy of the initial request letter was attached to the application. The Union stated that the Employer responded by way of a letter dated 28 October 2022. A copy of the response was attached to the application. In its response the Employer stated that it was rejecting the Union’s request.

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 480. The Union stated that there were 118 workers in the proposed bargaining unit, of whom 61 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 a petition had been signed by 88% of the workers in the proposed bargaining unit and that information could be provided to support this on a confidential basis as part of the membership and support check.

8) The Union stated that the reason for selecting the proposed bargaining unit was that “the roles were classed as hourly paid technician roles within the company organisation and are a stand-alone grouping.” The Union went on to say that “the company has confirmed the number of employees (118 employees) within the technical roles during a recently issued HR1 form.” The Union said 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 proposed bargaining unit the Union answered, “None”.

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 16 January 2023.

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 request for recognition on 14 October 2022. When asked what its response was, the Employer said that it had rejected the request in a letter dated 28 October 2022. The Employer provided a copy of the letter with its response.

11) The Employer said that it had received a copy of the application form from the Union on 16 January 2023. 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 but that it did agree the proposed bargaining unit, and clarified:

Based on the initial request, the proposed bargaining unit is agreed on the grounds that it covers directs within Assembly and Test and Manufacturing who work at Aircraft Group Moog Controls Ltd.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer stated it believed there to be 133 workers. The Employer stated that the reason the Union had undercounted the number of workers in the proposed bargaining unit was that the Union took the figure of 118 directly from a HR1 form dated 3 October 2022 that was issued by the Employer without having checked that this number was the same as the number of workers within the proposed bargaining unit. The Employer stated that the HR1 form did not cover all directs within Assembly and Test and Manufacturing. The Employer said “the form omitted seven workers who worked in the coils part of the production process (one of a number of task specific cells that is a constituent of the overall production process of Assembly and Test) with the following job titles: Cell Leader (one worker), Skilled Assembler/Finisher (one worker), Semi-skilled Assembler/Finisher (two workers) and Trainer Assembler/Finisher (three workers)”. The Employer went on to say that since the HR1 form was submitted one direct had left and six directs had joined Assembly and Test and Manufacturing all of who would fall within the scope of the proposed bargaining unit. The Employer concluded by saying that three other workers who would fall within the scope of the proposed bargaining unit were not within scope of the collective consultation exercise covered by the HR1 form and had therefore been omitted from it.

14) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said that it did disagree based on evidence it had obtained that membership was lower than the amount estimated by the Union, the absence of any evidence to support the estimate of membership provided by the Union and the error of the Union in relation to the number of members within the proposed bargaining unit which raised the Employer’s concern that the Union had also erred in calculating the number of Union members within the proposed bargaining unit. The Employer also referred to the witness statement of Rosie Simmons dated 23 January 2023 which was attached to the Employer’s response as being further evidence that the Union’s estimate of membership was incorrect. ^{[footnote 1]}

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 said that the evidence it had obtained showed that the majority of workers in the proposed bargaining unit would not be likely to support recognition. It added that the reasons and evidence supporting this could be found in the witness statement of Rosie Simmons. The Employer stated that even if it accepted that Union membership within the proposed bargaining unit was at least 10% a majority of those within the proposed bargaining unit would not be likely to support recognition of the Union and on that basis the application should be rejected on the grounds of inadmissibility.

16) The Employer stated that the petition was conducted last Summer and in the absence of any corroborative evidence to support the claimed level of support within the petition the Employer was keen to try and understand the views of the workers within the proposed bargaining unit across a range of issues. The Employer stated that to do this it held a number of group listening sessions where over 300 workers were spoken to in addition to one to one sessions. The Employer stated that it was concerned that pressure had been applied to sign the petition and provided redacted quotes from workers in the proposed bargaining unit. The Employer stated that these workers had specifically spoken about the petition and the lack of support for the application and the Union conducting collective bargaining on behalf of the workers. The Employer further stated that some workers did not understand what was being signed or were signing it for reasons other than collective bargaining. The Employer added that given the petition was conducted last Summer at a time when consultations were ongoing regarding potential changes in the workplace, even if the petition provided meaningful evidence of support for collective bargaining last Summer it did not provide any evidence of the views of the workers within the proposed bargaining unit now. The Employer concluded by saying that it would be happy to provide the CAC with the unredacted quotes on a confidential basis.

17) 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 “N/A”. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer again responded “N/A”.

5. The Union’s comments on the Employer’s response

18) The Union stated that it had not included the categories of workers that the Employer felt should have also been included in the proposed bargaining unit because workers on site had said that “Coils” did not fall under either Assembly and Test or Manufacturing but were classed as a separate entity called Special Products by the Employer. The Union stated that “Coils” was not included in the Assembly and Test ladder process regarding a recent pay rise at the end of last year. The Union stated that despite this it had no issue with this group being included as part of the agreed bargaining unit. In relation to the roles of Bridging Shift Supervisor and Night Shift Supervisor the Union said that such roles no longer existed as both individuals who filled those roles had stepped down from those positions and were now shift leads. The positions were never filled and therefore had potentially been double counted by the Employer. The Union went on to comment “regarding three other workers who would fall within Collective Bargaining but were not included within the HR1 form, there doesn’t appear to be details of the job roles that they do or the reason for them being left out of the HR1 so I cannot confirm if they should be included or not.” The Union stated that it was at a clear disadvantage when establishing the bargaining unit when compared to the Employer and any divergence in the exact make-up of the bargaining unit should not be viewed as there being insufficient support for recognition.

19) In terms of pressure on workers to sign the petition, the Union stated that it had not received complaints direct from members or non-members as to this pressure, nor were any complaints received from the Employer. The Union said that only when the formal application had been submitted was it presented with claims of pressure and complaints, which the Union submitted had not been supported by any complaints to the Union or requests from individuals to remove their support from the petition and for collective bargaining. The Union added that the only complaints received by members was regarding the behaviour of an individual within Manufacturing who had threatened those wishing to join the Union. The Union went on to say that members had claimed that this individual was telling them that there would be repercussions for joining and was attempting to make a list of all Union members. The Union stated that this was raised with the Employer via e mail on 27 October 2022 and the Union had made the Employer aware that an Employer could not discriminate against people on the grounds of being a Trade Union member, nor should an Employer be making lists of Union members to be used for this purpose. The Union stated that the Employer responded on 28 October 2022 stating “we have spoken with the individual in question, who advised he had not threatened any employee or suggested there would be repercussions on joining the union. The company believe he acted in good faith in putting out his own document in a similar manner to the Unite petition as he didn’t believe the support was at the level Unite suggests”. The Employer added that once the individual was made aware that the petition and Trade Union membership was confidential, the individual immediately stopped. The Union stated that no complaints were raised by the Employer regarding any pressuring of workers to sign a petition supporting Trade Union recognition.

20) The Union said that as stated in the application, it was fully prepared to provide the CAC a membership list and petition for an independent check. The Union said it would not however provide copies of the petition to the Employer as the petition was confidential. The Union said that it did send a blank petition form to the Employer making the Employer aware of the wording. The Union concluded by saying that support for collective bargaining remained high within the proposed bargaining unit from both members and non-members and Trade Union membership at the site had increased since the turn of the year. The Union stated that whilst it accepted that any enlarged bargaining unit would drop membership below 50% of the bargaining unit, the Union would still remain comfortably above the 10% required to trigger the application and not far from 50% with the membership. The Union stated that taken with the petition it had provided the Employer with sufficient evidence of support for Union recognition within the bargaining unit at Moog Controls Limited.

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 agreed 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 bargaining unit and of the Union’s petition. 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. It was agreed that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available), and a copy of the petition. 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 27 January 2023 from the Case Manager to both parties.

22) The information requested was received by the CAC from the Union and the Employer on 2 February 2023. 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 133 workers in the Union’s proposed bargaining unit.

24) The list of members supplied by the Union contained 74 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 60, a membership level of 45.11%.

25) The Union provided a petition which contained 109 names, 97 of which were in the proposed bargaining unit, a figure that represented 72.93% of the proposed bargaining unit. Of those 97 names, 56 were members of the Union (42.11% of the proposed bargaining unit) and 41 were non-members (30.83% of the proposed bargaining unit). The petition was submitted on nine A4 sheets of paper. The petition contained signatures dating from 6 September 2023 up to and including 23 September 2023, and was set out as follows:

PETITION IN SUPPORT OF UNION RECOGNITION

MOOG CONTROLS LIMITED

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues.

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

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 6 February 2023 and the parties were invited to comment on the results by noon on 9 January 2023.

7. Summary of the Employer’s comments following the membership check

27) In an email to the Case Manager dated 9 February 2023 the Employer stated that based on the membership and support check it accepted that 60 out of the 133 workers (45.11%) within the proposed bargaining unit were members of the Union. The Employer therefore agreed that members of the Union constituted at least 10 per cent of the workers in the proposed bargaining unit.

28) The Employer then went on to address 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. The Employer stated that this test was not satisfied, based on:

“(i) the absence of credible evidence that the Majority Test is satisfied; and

(ii) the existence of evidence showing that the Majority Test is not satisfied.”

The Employer asked the Panel to refer to the witness statement of Rosie Simmons dated 23 January 2023, Moog’s UK HR Director, when considering this issue.

29) The Employer submitted that there was no credible evidence that the majority test was satisfied. It stated that the only evidence submitted by the Union was the petition referred to in the membership and support check. The Employer went on to say that the petition did not provide any credible evidence for the following reasons:

“1) The Petition provides no evidence of the current intentions of the workers within the bargaining unit (the “Workers”) in respect of Unite conducting collective bargaining. This is because, as noted in paragraph 5 of the M&S Check, all those who signed the Petition did so from 6 September 2022 up to 23 September 2022, more than four months ago. As well as this delay making the Petition inherently unreliable as evidence about current support for collective bargaining, in addition, since September 2022, there have been developments within Moog which have had a significant impact on Workers and which are highly relevant to levels of support for collective bargaining. Specifically workers were asked to sign the Petition at a time of peak uncertainty about an announcement that Moog had made about implementing changes to shift patterns that would impact the Workers. In particular, there was a misplaced concern (encouraged by Unite) that Moog would implement such changes without any consultation or otherwise accounting for the views of Workers. This was likely to have been the single most significant factor causing Workers to support the Petition. However, in fact, and contrary to the concerns of Workers, starting at the beginning of October 2022, Moog has engaged in an extensive consultative process about shift changes. This consultation has assuaged the concerns of Workers that Moog would not consult about shift changes. Accordingly, the most significant factor that caused Workers to sign the Petition in September 2022 no longer exists. This means that the Petition does not provide relevant or reliable evidence about current levels of support for collective bargaining which in turn means it cannot be relied upon to show that the Majority Test has been satisfied.

2) The fact that less than 50 per cent. of Workers are members of Unite is also demonstrative of the lack of credible evidence that the Majority Test is satisfied. This is especially so for the reasons stated in paragraph 25 of the Witness Statement of Rosie Simmons, which states: ‘The lack of likely majority support for collective bargaining within the Proposed Bargaining Unit is further evidenced by the failure for Unite membership to reach 50 per cent. within the Proposed Bargaining Unit. This is especially probative in the light of a recent drive for membership by Unite, which included the distribution by Unite of posters containing quick response (QR) codes in order to facilitate ease of joining of Unite. It is natural to assume that anyone in favour of recognition would have joined Unite as part of this membership drive in order to demonstrate their support for recognition. However, the fact that membership of Unite remains at below 50 per cent. within the Proposed Bargaining Unit is positive evidence that less than 50 per cent. of workers within the Proposed Bargaining Unit would be likely to favour recognition.’

3) Unite has not provided any evidence about current levels of support for collective bargaining. Evidence showing the Majority Test is not satisfied Moog has adduced evidence to show that the Majority Test would not be satisfied. This is set out in detail in the Witness Statement of Rosie Simmons. In particular, paragraphs 18 to 22 and Schedule 2, which derives from group listening session involving over 300 workers including those within the relevant bargaining unit as well one-to-one sessions with Workers. In summary this evidence shows the following: a. Workers were placed under considerable undue pressure by certain colleagues to sign the Petition and accordingly, many who signed the Petition are not actually in favour of collective bargaining; b. The act of signing the Petition was not done on a confidential basis. The evidence shows that that lack of confidentiality caused workers to sign the Petition, despite not agreeing to what they signed and only as a result of the public pressure placed on them to sign it; c. Workers did not understand or appreciate what they were signing and only signed the Petition to make those who were asking them to sign it to stop pestering them rather than to show their support for collective bargaining; d. Explicit evidence that Workers who were members of Unite did not favour collective bargaining; i.e. A preference for worker representation to be through an Employee Council, similar to that already in successful operation at Moog’s site in Wolverhampton. This is something now in the process of being established at Moog’s site in Tewkesbury, which is where all the Workers are located; f. Workers who signed the Petition would like to retract their signatures and would not sign again if asked; and g. Workers who have stated they do not need a union, including previous Unite members who have now cancelled their membership.”

8. Summary of the Union’s comments following the membership check

30) The Union stated that the findings within the report clearly satisfied both tests based on a membership density of 45.11% and support standing at 72.93%. The Union listed other points it wished the Panel to consider namely:

• Not all members on the Unite list contain job titles, so they were included as we are not aware of all employees within the potential bargaining group since the employer has requested it to be expanded.

• Not all employees within the expanded bargaining group would have been approached due to the belief that they were not part of the identified bargaining group at that time.

• The Unite members who did not sign were not in the workplace at the time for various reasons when the petition was circulated.

• Not all non-members were approached within the original identified collective bargaining group due to them not being in the workplace at that time for various reasons when the petition was circulated.

• Other employees outside of the potential collective bargaining group asked if they could sign it in support of having a Trade Union on site, despite knowing that they would not be covered under the terms of collective bargaining.

• No claims were raised directly to Unite by either the company or individuals about employees feeling pressured to sign this petition at the time despite the company being aware of the petition being circulated.

The Union also made clear that it was still prepared to work with the employer to come to a voluntary recognition agreement.

9. Considerations

31) 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.

32) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its email dated 28 October 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

33) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule.

34) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

35) 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. The membership check conducted by the Case Manager (described in paragraphs 21-26 above) showed that 45.11% 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.

Paragraph 36(1)(b)

36) 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. The Panel notes that the support check conducted by the Case Manager showed that 72.93% of the workers in the proposed bargaining unit had signed a petition in favour of recognition of the Union (see paragraph 25 above). Of those who had signed the petition 56 were Union members (42.11% of the proposed bargaining unit) and 41 were non-members (30.83% of the proposed unit).

37) The Panel notes the Employer’s concerns that some workers who had signed the petition had indicated to the Employer in one to one and group sessions that they were  placed under considerable pressure to sign the petition and accordingly, many who signed the petition did not understand or appreciate what they were signing for or were not actually in favour of collective bargaining. The Panel also notes the Employer’s submission that workers who had signed the petition wanted to retract their signatures and would not sign again if asked. The fact that meetings took place and redacted comments by some individuals were recorded does not negate support for the Union. There is a lack of tangible evidence to counter the support demonstrated by the petition. None of the signatories has approached either the Employer or the Union and indicated in writing that they wished to complain or that they wished to retract their signatures and corresponding support for the Union.

38) The Panel, at this stage, is testing the likelihood of majority support and the evidence, at present, is sufficient to support the position that the Union have established a likelihood of majority support for collective bargaining within the bargaining unit.

39) 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.

10. Decision

40) For the reasons given in paragraphs 31-39 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Kieran Grimshaw

Ms Claire Sullivan

23 February 2023

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1. The response from the Employer dated 23 January together with the supporting statement was provided to the Union on 24 January 2023 for comment. ↩