Decision

Validity Decision

Updated 21 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1299(2023)

19 April 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT ON THE BARGAINING UNIT

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) By a decision dated 23 February 2023 the Panel accepted the Union’s application. Following this decision, the parties then reached agreement on the appropriate bargaining unit. The agreed bargaining unit was described as “Directs within Assembly and Test and Manufacturing who work at Aircraft Group Moog Controls Limited. The bargaining unit includes the following categories of workers: Assembler Tester, Bridging Shift Leader, Cell Lead, Certified Training Lead, Induction Assembler/Finisher, Induction Machinist, Nightshift Supervisor, Production Supervisor, RUR Technician, Senior Technician, Shift Leader, Skilled Assembler/Finisher, L1Skilled Assembler/Finisher, L2 Skilled Machinist, Level 1 Skilled Machinist, Technician 2, Technician A&T, Trainer Assembler/Finisher and Trainer Machinist.”

2. Issues

4) As the agreed bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule.

3. Membership and support check

5) To assist the determination of two of the validity tests specified in the Schedule, namely whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(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 45(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit and 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of the petition signed by workers in favour of recognition. It was explicitly agreed with both the 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 30 March 2023 from the Case Manager to both parties.

6) The information from the Employer was received by the CAC on 4 April 2023 and from the Union on 30 March 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The list supplied by the Employer indicated that there were 134 workers in the agreed bargaining unit. The list of members supplied by the Union contained 61 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 58, a membership level of 43.28%.

8) The Union also provided a petition which contained 107 names/signatures. The petition consisted of nine A4 sheets, and carried the following proposition:

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:

Each signatory to the petition was asked to provide their name, signature, job title and date.

9) The check of the Union’s petition showed that it had been signed by 96 workers in the agreed bargaining unit, a figure which represents 71.64% of the agreed bargaining unit. Of those 96 signatories, 51 were members of the Union (38.05% of the agreed bargaining unit) and 45 were non-members (33.58% of the agreed bargaining unit).

10) A report of the result of the membership and support check was circulated to the Panel and the parties on 4 April 2023. In a letter dated 4 April 2023 the Case Manager invited each party comment on the result of the check. The parties were also invited to make their submissions on the validity tests for consideration by the Panel.

4. Union’s comments on the validity tests

11) In a letter to the Case Manager dated 5 April 2023 the Union said it believed support for collective bargaining remained high within the bargaining unit from both Union members and non-members at the site despite the Employer “holding mass meetings around the subject”, The Union said that as a result of those meetings two people wrote asking for their names to be removed from the petition which was why two of the names were unreadable. The Union stated that it had not looked to add any more signatories to the petition since the original application was made despite the bargaining unit growing in number since then. The Union went on to say that whilst it accepted the membership level was below 50% of the bargaining unit, the union remained comfortably above the 10% required and not far from 50% with the membership. The Union said that this was sufficient evidence of support for union recognition within the bargaining unit. The Union added that it was still open to coming to a voluntary agreement with the employer.

12) The Union also made the following comments on the validity tests:

(a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “No.”

(b) Is there 10% union membership within the new bargaining unit? “Yes.”

(c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “Yes.”

(d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No.”

(e) Has there been a previous application in respect of the new bargaining unit? “No.”

5. Employer’s comments on the validity tests

13) In an e-mail to the Case Manager dated 6 April 2023 the Employer stated that based on the second membership and support check 61 out of the 134 workers (43.28%) within the bargaining unit were members of the Union. The Employer stated that it accepted this evidence and accordingly, agreed that members of the Union constituted at least 10% of the workers in the bargaining unit. In relation to whether a majority of the workers constituting the relevant 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 said that it remained the Employer’s position that this test was not satisfied. The Employer went on to say that this was based on “(i) the absence of credible evidence from Unite that the Majority Test is satisfied; and (ii) the existence of evidence from Moog showing that the Majority Test is not satisfied.” The Employer said that it did not wish to repeat the submissions previously made but asked the Panel to read again the witness statement of Rosie Simmons dated 23 January 2023 when considering the validity tests.

14) By way of summary and further submissions the Employer stated that the only evidence submitted by the Union in support of the satisfaction of the majority test remained the petition. The Employer added that in light of the fact that the petition was signed from 6 September 2022 up to 23 September 2022, it was even more out of date and accordingly provided no evidence relevant to the current support for collective bargaining. The Employer said that since the beginning of October 2022, it had engaged in an extensive consultative process about shift changes, which was close to finalisation. It said that the consultation had been an overall success and had assuaged concerns that workers within the bargaining unit may have had at the time they signed the petition. The Employer went on to say that it remained the case that less than 50% of workers were members of the Union and that the percentage of union members constituting the bargaining unit had decreased since the initial membership and support check was carried out. The Employer said that the fall in membership was of itself probative of the fact that the majority test was not satisfied and probative of the fact that the petition could not be relied upon as evidence of current support for collective bargaining.

15) The Employer made reference to the Panel’s acceptance decision dated 23 February 2023 and that from paragraph 31 onwards no reference was made to the explicit concerns raised about the unreliability of the petition as evidence that the majority test had not been satisfied The Employer said that the failure to address this explicitly was especially concerning given that the only evidence submitted by the Union in support of the satisfaction of the majority test was the Petition. The Employer went on to say “the CAC gave weight (at paragraph 37) that 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. This disregarded the evidence set out in the witness statement of Rosie Simmons which explicitly referred to the misgivings of workers who had signed the Petition.” The Employer added that it had recently become aware that certain workers within the bargaining unit had contacted the Union to request that their names be removed from the petition and it was not clear whether this reality had been communicated by the Union to the CAC. The Employer concluded by saying that based on the above, the majority test was not satisfied and, therefore, that the validity tests were not wholly satisfied.

6. Considerations

16) 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 the parties and all the other evidence before it.

17) The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

7. Paragraph 45(a)

18) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (see paragraphs 5 to 9 above) showed that 43.28% of the workers in the agreed bargaining unit were members of the Union. As stated in paragraph 6 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 agreed bargaining unit as required by paragraph 45(a) of the Schedule.

8. Paragraph 45(b)

19) Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the support check conducted by the Case Manager (see paragraphs 5 to 9 above) showed that 71.64% of the workers in the agreed bargaining unit (96 out of 134 workers) had signed a petition in support of recognition of the Union. Of those who had signed the petition, 51 were union members and 45 were non-members. The Panel notes the Employer’s submission that the petition was conducted some time ago and that the Employer had evidence to suggest that those who had signed the petition were no longer supportive of the Union. The Panel also notes that by the Union’s own admission the names of those on the petition who had subsequently wished to withdraw support had been crossed out. However, the Panel also notes that the Employer did not provide any evidence from individual workers to indicate that the remaining signatories had changed their minds about whether they favoured recognition of the Union.

20) The Panel, at this stage, is testing the likelihood of majority support and the evidence, to support the position that the Union have established a likelihood of majority support for collective bargaining within the bargaining unit. On the basis of the evidence before it, and in the absence of any evidence to the contrary, the level of union membership and the fact that 45 non-members signed the Union’s petition in favour of recognition, taken together constitutes sufficient evidence for the Panel to conclude 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 as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 45(b) of the Schedule.

9. Decision

21) For the reasons given in paragraphs 16 - 20 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Kieran Grimshaw

Mrs Claire Sullivan

19 April 2023