Decision

Validity Decision

Updated 12 October 2020

Case Number: TUR1/1184/2020

12 October 2020

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

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) By a decision dated 14 August 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. In an email to the Case Manager dated 14 September 2020 the Employer stated that the Union had agreed to include the Team Leaders and “Hygiene and Technical Ops” in the bargaining unit. In an email to the Case Manager dated 15 September 2020 the Union confirmed that the parties had reached agreement and stated that the bargaining unit at the Employer’s Corringham Road site should be described as “ all factory operatives working in Butchery, Hob, EV, Matt Chill, Packing, Tray Wash, Despatch, Line Leaders, Team leaders, Hygiene and Technical.”

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Union in its request for recognition 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. In a letter dated 15 September 2020 the Case Manager invited the Union to make submissions on the validity tests for consideration by the Panel.

5) In a letter to the Case Manager received on 17 September 2020 the Union 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”.

6) In a letter from the Case Manager dated 18 September 2020 the Employer was invited to respond to the Union’s comments. In an e-mail to the Case Manager dated 22 September 2020 the Employer stated that it did not know the number of union members or the number of employees in favour of recognition; it had not seen any evidence on this. The Employer said that it remained surprised at the level of membership and that it remained concerned that some employees did not understand what they were signing on the petition that had been circulated. ^{[footnote 1]}

3. Membership and support check

7) 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 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 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 a 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 28 September 2020 from the Case Manager to both parties.

8) The information requested was received from both parties on 29 September 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 176 workers in the agreed bargaining unit. The list of members supplied by the Union contained 108 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 97, a membership level of 55.11%.

10) The petition supplied by the Union contained 127 names and signatures, of which 109 were in the agreed bargaining unit, a figure that represents 61.93% of the agreed bargaining unit. Of those 109 signatories, 81 were members of the Union (46.02% of the agreed bargaining unit) and 28 were non-members (15.91% of the agreed 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 www.unitetheunion.org/privacypolicy

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.

11) A report of the result of the membership and support check was circulated to the Panel and the parties on 2 October 2020 and the parties were invited to comment on the results of that check by noon on 6 October 2020.

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

12) In an email to the Case Manager dated 6 October 2020 the Employer said that it did not know the number of employees in favour of recognition and had seen no evidence of this. The Employer said that it remained surprised at the level of membership and had not seen any evidence of this. The Employer said that it remained concerned that some employees did not understand what they were signing on the petition that was circulated. The Employer asked the Case Manager to confirm whether the CAC had received actual evidence of membership.

13) No comments were received from the Union by the stipulated deadline.

5. Considerations

14) 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.

15) 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 issues for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

6. Paragraph 45(a)

16) 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 (described in paragraphs 7-9 above) showed that 55.11% of the workers in the agreed bargaining unit were members of the Union. The Panel notes that the Employer asked the Case Manager to confirm that the CAC had received actual evidence of membership. As stated in paragraph 7 above, the information required to be supplied by each party for the purpose of the membership check was specified in the Case Manager’s letter to the parties dated 28 September 2020 . As stated in paragraph 8 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 notes that the system of membership and support checks employed to assist panels to determine whether tests contained in the Schedule, including the validity tests, 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. In the absence of any such evidence the Panel accepts that the membership check provides a proper representation of the level of union membership within the bargaining unit. 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.

7. Paragraph 45(b)

17) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel 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. For the reasons given in the previous paragraph the level of union membership stands at 55.11%. 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 agreed bargaining unit as to whether they would be likely to favour recognition and that this is particularly the case where individuals take out or maintain their union membership during a recognition campaign. The Employer said that it did not know the number of employees in favour of recognition when commenting on the membership and support check but did not provide any evidence to indicate that any union members did not support recognition and the Panel has no such evidence from any other source. 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 agreed 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.

18) The Panel notes that in this case the Union provided further evidence of support for recognition in the form of a petition which showed that 61.93% of the workers in the agreed bargaining unit supported recognition (see paragraph 10 above). The Panel notes that the dates on the petition ranged between 30 May 2020 and 3 June 2020. The Panel has no evidence before it which suggests that workers who signed the petition at that time are no longer in support of recognition and the Employer did not provide any evidence in support of its concern that some workers who signed the petition did not understand what they were signing. However the Panel prefers, in view of the time that has elapsed since the petition was compiled, to rely on the level of union membership within the agreed bargaining unit as the basis for its conclusion that the test set out in paragraph 45(b) has been met.

8. Decision

19) For the reasons given in paragraphs 15-18 above, the Panel’s decision is that the application is not invalid and that the CAC is proceeding with the application.

Panel

Professor Gillian Morris, Panel Chair

Mr Robert Lummis

Ms Stephanie Marston

12 October 2020

1. See paragraph 10 below for details of this petition. ↩