Decision

Acceptance Decision

Updated 12 October 2020

Case Number: TUR1/1184(2020)

14 August 2020

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

Noble Foods Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 9 June 2020 that it should be recognised for collective bargaining purposes by Noble Foods Limited (the Employer) in respect of a bargaining unit comprising “All factory operatives working in Butchery, Hob, EV, Matt Chill, Packing, Tray Wash, Despatch and Canteen up to and including line leader grade. Excluding team leaders and managers.” The location of the bargaining unit was given as “Noble Foods Limited, Corringham Road, Gainsborough, Lincolnshire, DN21 1QH.” The application was received by the CAC on 25 June 2020 and the CAC gave both parties notice of receipt of the application on 26 June 2020. The Employer submitted a response to the CAC dated 2 July 2020 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr Robert Lummis and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 9 July 2020. In an e-mail to the Case Manager dated 7 July 2020 the Union requested a stay of the process until 10 July 2020 to allow talks to take place with the Employer regarding voluntary recognition. The Panel Chair agreed to this request and the parties were notified of the stay in a letter from the Case Manager dated 7 July 2020. On 10 July 2020 both parties informed the Case Manager that they had been unable to agree the bargaining unit and would therefore continue with the statutory process. In a letter to the parties dated 14 July 2020 the Case Manager informed them that the stay had been lifted and that the statutory process would resume. The parties were also informed that the acceptance period would be extended until 4 August 2020 in order to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. On 31 July 2020 the acceptance period was further extended until 19 August 2020 for the parties to comment on the report of the membership and support check and for the Panel to consider those comments before arriving at a decision.^{[footnote 1]}

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 its request for recognition to the Employer on 18 May 2020. The Union stated that the Employer had responded to its request in a letter received on 29 May 2020. A copy of the Union’s request and the Employer’s letter of 29 May 2020 were attached to the Union’s application. In its letter the Employer said that it engaged with employees in the Union’s proposed bargaining unit on a collective basis through its “Your Say” forum that was made up of seven employee representatives from the different departments on site. The Employer said that it used this forum to communicate with employees and engage with their representatives on a wide range of matters and that it believed that this method of communication worked well for both its employees and for the business. The Employer said that it engaged regularly with the Union on a more informal basis and that it believed that this voluntary and active engagement was beneficial and something the Employer would be reluctant to see changed. The Employer said that, as a result, it did not think it necessary or beneficial to have a different arrangement with the Union in place but it hoped that its good relationship with the Union could continue on the same productive but informal and voluntary basis.

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 that the total number of workers employed by the Employer was approximately 200, of whom 158 were in the proposed bargaining unit. The Union did not provide a figure for the number of Union members in the proposed bargaining unit. 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 had evidence to support recognition from a majority of the bargaining unit and evidence of union membership and that it was ready to send the numbers to the CAC on a confidential basis.

8) The Union stated that the reason for selecting its proposed bargaining unit was because these areas were the main production areas on the site. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. When asked to confirm the date on which it had copied its application and supporting documents to the Employer, the Union answered “Yes”.

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 18 May 2020. The Employer said that it had responded by saying that it did not believe that it was necessary or beneficial to have any different arrangement with the Union in place but that it would like to continue with what it believed to be a good relationship with the Union on the same productive but informal and voluntary basis. ^{[footnote 2]}

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 25 June 2020. 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 with the proposed bargaining unit. The Employer said that it believed that its Team Leaders and Hygiene and Technical Operatives who worked on the same terms and conditions of employment as those within the Union’s proposed bargaining unit, on the same site, and under the same management, should be included in the bargaining unit. The Employer said that the Team Leaders and Hygiene Operatives did not have any particular distinctive characteristics that would mean that it was not appropriate to include them in the bargaining unit. The Employer said that they were covered by the same budget, and the same considerations were taken into account when setting pay, hours, and holiday entitlement that would apply to them. The Employer said that the managerial duties of Team Leaders were secondary to their main role, which mirrored that of workers in the bargaining unit, and that excluding them would negatively impact cohesion and management of those within the bargaining unit. The Employer said that it wanted to avoid having multiple fragmented bargaining units and consultation methods covering the same matters for two groups of the workforce that were working in the same way as part of one cohesive unit with the same operational goals.

12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer stated “No”.

13) The Employer said that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application and that it believed the number to be 159. The Employer stated that its proposed bargaining unit consisted of 185 workers.

14) The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) The Employer said that Union had not provided an estimate of membership in the proposed bargaining unit and that, as membership fees were not deducted via payroll. it did not know the number of members. The Employer said that it understood from employees who were members that membership within the proposed bargaining unit was around 40.

16) 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 it understood that the Union had asked members of its proposed bargaining unit to sign a petition. The Employer said that it believed that not all those who signed understood the purpose of the petition and that they may not support collective bargaining. The Employer said that it did not believe that the petition was genuinely indicative of support for recognition. The Employer said that it would like to understand the actual number of members within the Union’s proposed bargaining unit and/or its proposed bargaining unit, and the number of employees who genuinely supported recognition. The Employer reiterated the statement set out in paragraph 5 above that it had an active forum with employee representatives from different departments on site to discuss various matters including any concerns and suggestions and generally to share information. The Employer said that it had used, and would use, this forum to discuss any changes to hours of work, working practices and holidays should the need arise. The Employer said that it also had a separate but similar active forum with different representatives to discuss health and safety matters on site.

17) The Employer stated “N/A” when asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and, whether it had received any other applications in respect of any workers in the proposed bargaining unit.

5. The membership and support check

18) To assist in 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 dates of birth) and a copy of a petition signed by workers in favour of recognition. 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 16 July 2020 from the Case Manager to both parties.

19) The information requested was received from both parties on 30 July 2020. ^{[footnote 3]} The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 157 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 102 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 99, a membership level of 63.06%.

21) The petition supplied by the Union contained 127 names and signatures, of which 119 were in the proposed bargaining unit, a figure that represents 75.8% of the proposed bargaining unit. Of those 119 signatories, 86 were members of the Union (54.78% of the proposed bargaining unit) and 33 were non-members (21.02% of the proposed bargaining unit). The petition consisted of seven A4 sheets, which were set out as follows:

PETITION IN SUPPORT OF RECOGNITION

Noble Foods Ltd Corringham Road Site Gainsborough DN21 1QH

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 Privacy Policy

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

PRINT NAME	JOB TITLE	SIGNATURE	DATE

The dates on the petition ranged between 30 May 2020 and 3 June 2020.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 31 July 2020 and the parties were invited to comment on the results of that check by close of business on 10 August 2020.

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

23) In a letter to the CAC dated 7 July 2020 (sic) ^{[footnote 4]} the Employer said that it was very surprised that there were 99 fee- paying members of the Union given that employees were on a low income and given the feedback it had received from its employees. The Employer also said that it had been told that a number of its employees who had signed the petition circulated by the Union had commented that they did not understand it. The Employer confirmed that it still disputed the Union’s proposed bargaining unit for the reasons set out in paragraph 11 above.

24) The Union did not provide any comments on the report.

7. Considerations

25) 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 material to the matters it is required to decide in reaching its decision.

26) 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.

8. Paragraph 36(1)(a)

27) 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 18-20 above) showed that 63.06% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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.

9. Paragraph 36(1)(b)

28) 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 27 above the level of union membership within the bargaining unit stands at 63.06%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case; indeed, the support check conducted by the Case Manager (see paragraphs 18-19 and 21 above) showed that 86 members of the Union (54.78% of the proposed bargaining unit) had signed the petition in favour of recognition of the Union.

29) The Panel would have been prepared to decide, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit on the basis of the level of union membership alone. In this case the Union provided further evidence of support for recognition in the form of the petition which showed that 75.8% of the workers in the proposed bargaining unit supported recognition. The Employer said that it had been told that a number of its employees who had signed the petition had commented that they did not understand it. However the Employer provided no evidence to support this contention and the Panel has no evidence from any other source which would suggest that the petition represents anything other than the views of the signatories to it.

30) 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.

10. Concluding observation

31) The Panel notes that the Employer does not consider that the Union’s proposed bargaining unit is appropriate. In the event that the parties are unable to reach an agreement as to what the appropriate bargaining unit is, the Panel will be required to decide whether the Union’s proposed bargaining unit is appropriate and, if it decides that it is not appropriate, to decide a bargaining unit which is appropriate. The parties will have the opportunity to make detailed submissions to the CAC on this matter should it fall to the CAC to determine the issue.

11. Decision

32) For the reasons given in paragraphs 26-30 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair,

Mr Robert Lummis,

Ms Stephanie Marston

14 August 2020

1. See note 3 below for the reason why the further extension was necessary. ↩

2. In its response to the Union’s application the Employer said that it had attached a copy of its letter responding to the Union’s request but this was not, in fact, attached. For the avoidance of doubt the failure to attach this letter is not material to, and has played no part in, the Panel’s decision. ↩

3. Information requested from the Union was initially received by the CAC on 17 July 2020 and from the Employer on 20 July 2020. In the email accompanying its list the Employer stated that it had also included workers in “Hygiene and Technical” as agreed by the parties during talks with Acas following the Union’s application to the CAC. The Case Manager informed the Union that, as this remained an application under paragraph 11(2) given that the parties had not agreed the bargaining unit, the admissibility tests needed to be applied to the bargaining unit proposed in the Union’s request for recognition (ie. without “Hygiene and Technical”); alternatively the Union would need to submit a fresh request to the Employer. In an email to the Case Manager dated 29 July 2020 the Union confirmed that it wished to proceed with the current application. Both parties were therefore asked on 30 July 2020 to provide a revised list for the purposes of the check which did not include workers in “Hygiene and Technical”. ↩

4. This should presumably have read 7 August 2020. ↩