Decision

Validity Decision

Updated 3 March 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1424(2024)

20 February 2025

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

Oscar Mayer Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 30 August 2024 that it should be recognised for collective bargaining by Oscar Mayer Limited (the Employer) for a bargaining unit comprising, “All workers including engineers in the following departments up to and including supervisors. Cold store, Dry Goods, Engineering, High Risk Assembly, High Risk Packing, Hygiene, Low Risk Kitchens, Low Risk Packing, Material Control, QA, Warehouse employed by Oscar Mayer located Ash Road South, Wrexham Industrial Estate, Wrexham, Wales LL13 9GU”. The CAC gave the parties notice of receipt of the application on 30 August 2024.  The Employer submitted a response to the application on 5 September 2024.

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 Derek Devereux and Mr Ian Hanson.  Mrs Sarah Havlin was later replaced by Mr Stuart Robertson.  The Case Manager appointed to support the Panel was Kate Norgate.

3)         By a decision dated 22 October 2024 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.  By e-mails to the Case Manager dated 10 January 2025 the parties confirmed that they had reached agreement and that the bargaining unit should be described as “All hourly paid workers in the following departments: Cold Store, Dry Goods, High Risk Assembly, High Risk Packing, Hygiene, Low Risk Kitchens, Low Risk Packing, Material Control, QA, Warehouse, Health and Safety, and People and Development employed by Oscar Mayer, located at Ash Road South, Wrexham Industrial Estate, Wrexham, Wales LL13 9UG.”

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.  In a letter dated 10 January 2025 the Case Manager invited each party to make submissions on this matter for consideration by the Panel.  

5)         In a letter to the Case Manager dated 5 January 2025 the Employer 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, there is no recognition agreement in place covering any of the workers within the Bargaining Unit.”

b) Is there 10% union membership within the new bargaining unit?

“According to the Employer’s records there were 910 workers within the bargaining unit.   The Employer referred to a document enclosed with its comments in which it had provided a “breakdown by department and role”.   Since the last check was carried out by the CAC there had been a significant turnover of staff at the Company’s Wrexham site.  In total, 134 employees had left the Company, and 149 new employees had commenced employment with the Company.   Although the Employer did not have access to the specific membership information provided to the CAC by the Union, it considered that it had reasonable grounds to believe that some leavers and/or new starters were members of the Union.”

c) Are the majority of the workers in the new bargaining unit likely to favour recognition?

“The Employer contended that support for the Union was diminishing.  According to the Union’s own data, union membership had reduced from 574 (as per the independent scrutineer’s report dated 20 November 2024) to 533 (as at 9 January 2025, according to the Union’s notice of industrial action). Moreover, now that engineers and supervisors were not included in the bargaining unit, this figure reduced further, to circa 506 although this was based on the Union’s own figures

The independent scrutineer’s report from 20 November 2024 showed that only 439 votes were cast in the Union’s November ballot for industrial action (against 574 who were entitled to vote). Based on these votes alone (noting again that membership levels were higher at the time and had decreased since, which means that the number of votes cast may be even less) and considering the current bargaining unit headcount (which stands at 910), a majority would not be reached for those workers in the bargaining unit.

The number of striking employees had also decreased over time, which showed reasonable indication of the number of members who support recognition.”  

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit?

“The Company is not aware of any competing application from another union which proposes a bargaining unit concerning any workers in the Bargaining Unit.”

e) Has there been a previous application in respect of the new bargaining unit?

“The Company is not aware of any other application in respect of the Bargaining Unit.”

6.         In a letter to the Case Manager dated 15 January 2025 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, Unite the Union is confident union membership exceeds 55%.”

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, I am not aware”.

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

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.  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 17 January 2025 from the Case Manager to both parties.  

8)         The information requested from the Union was received by the CAC on 22 January 2025.  However, this information was sent in a format that the Case Manager was unable to access.  It was therefore resubmitted in a different format on 23 January 2025.  The information requested from the Employer was received by the CAC on 22 January 2025.  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 910 workers in the agreed bargaining unit.  The list of members supplied by the Union contained 521 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 492, a membership level of 54.07%.  

10)       In addition the Union provided a copy of a petition obtained by it. The Union’s petition comprised of 990 A4 sheets (2 sheets per signatory) and contained 495 names/signatures.  In its covering e-mail the Union explained that on 14 January 2025 it sent out a text and/or email depending on the contact details that it held for its members employed at Oscar Mayer Wrexham.  The Union said that within that text or email, “we asked members who were still in support of Unite gaining recognition for collective bargaining purposes to sign a more up to date petition to the one conducted last year by clicking the link contained. We also informed members that they could share this link with fellow colleagues who may not have received the text or email.”  The Union said that it had also informed its members that there was a paper version available, if that was their preferred method.

11)       Each page was headed with the Unite the Union logo and for each signatory it was set out in 4 languages: English, Polish, Bulgarian and Romanian.  The English text read as follows:

“Petition in Support of Union Recognition

Oscar Mayer Wrexham, Ash Road South, Wrexham Industrial Estate, Wrexham January 2025

Unite the Union is asking your employer to recognise it for collective bargaining.  We need to evidence that support for recognition is still valid from the petition we conducted last year to show the Central Arbitration Committee that workers within the bargaining unit favour our application.  If you want your employer to recognise Unite for collective bargaining, please sign in support of 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.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours, holidays and any other item that all parties agree to refer.

First Name

Last Name

Job Title

Signature

Today’s Date

Information about data processing for CAC Petitions

This petition collects the name, job title and signature that you provide, and it records your IP address and the time and date you complete the petition. If relevant, the form may ask for your workplace and/or department.

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. Information collected on the petition will also be used by Unite for workplace mapping.

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

The signature dates on the petition ranged between 13 January 2025 and 21 January 2025.

12)       The check of the Union’s petition showed that it had been signed by 434 workers in the agreed bargaining unit, a figure which represents 47.69% of the agreed bargaining unit.  Of the 434 signatories, 424 were members of the Union (46.59% of the agreed bargaining unit) and 10 were non-members (1.10% of the agreed bargaining unit). 

13)       A report of the result of the membership and support check was circulated to the Panel and the parties on 29 January 2025 and the parties were invited to comment on the results of that check by noon on 4 February 2025. 

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

14)       In an email to the Case Manager dated 4 February 2025 the Employer said that the membership check had demonstrated that the proportion of workers in the agreed bargaining unit who had signed the petition and were union members (46.59%) was less than the majority threshold.

15)       It was the Employer’s view that given the efforts by the Union to demonstrate support for recognition, it was not safe to assume that the disparity between members supporting recognition (46.59%) and members generally within the bargaining unit (54%) was a result of a member’s failure to respond to the petition.

16)       The Employer said that it had also observed the following:

• Union membership within the bargaining unit had dropped by 58 people (10.5%) within 6 months, or circa 10 people per month. Applying this logic going forward, the Union would have less than 50% membership in the bargaining unit in three months’ time.

• The membership level currently stands at only a very small majority (54%) based on the findings of the report.

• The percentage of union members in the bargaining unit had fallen by 8.7% in 6 months.

• The percentage of people within the bargaining unit who signed the union’s petition had also fallen to 47.69% from the previous 50.57% (a 2.9% drop) equivalent to 9 fewer people. More people had decided that they do not agree with the ballot than do.

• “We understand that employees had to sign up for union membership for a guaranteed period of time which may explain why the membership percentage is higher than those who signed the petition, as members may currently be unable to cancel their membership. It is understood that those who wished to strike were told to sign up for three months to get strike pay and also to be part of a “legal claim” (in relation to the change of terms exercise that the Company had to undertake). This therefore leads us to believe that they have signed up as members for a very specific reason/perceived benefit, as opposed to there being a desire for the union to conduct collective bargaining on their behalf in general.”

17)       The Employer maintained that it could not therefore “safely be concluded that the majority of those in the bargaining unit would be likely to favour recognition.”

18)       Finally, the Employer said that in the event that the CAC determined that the validity tests are met, it wished to clarify that a ballot should held as at least one of the qualifying conditions set out in paragraph 22(4) of the Schedule applied.  The Employer also made further submissions in support of this view.

19)       In an e-mail to the Case Manager dated 4 February 2025 the Union stated that having reviewed the validity check, it was satisfied that the level of union membership within the agreed bargaining unit met the CAC criteria to proceed to the next stage without the need for a ballot.

5. Considerations

20)       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. 

21)       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. 

Paragraph 45(a)

22)       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 to 9 above) showed that 54.07% of the workers in the agreed bargaining unit were members of the Union.  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 has therefore decided that, in the absence of any cogent evidence to contrary, 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. 

Paragraph 45(b)

23)       Under paragraph 45(b) an application 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.  In reaching its conclusion in relation to this test the Panel reminds itself and the parties that the test at this stage is the assessment of likely as opposed to actual support for recognition.

24)       As well as establishing that 54.07% of the workers in the agreed bargaining unit were union members, the Case Manager’s check of the Union’s petition against the list of workers provided by the Employer indicated that 434 of the 495 petition signatories were identifiable as workers within the agreed bargaining unit, a support level of 47.69%. Of those there were 424 union members (46.59%) and 10 non-members in the bargaining unit (1.10%). The Panel considered carefully the Employer’s comments. However, the Panel is not satisfied that it has been presented with sufficient evidence to undermine the reliability of the petition and demonstrate a lack of support for trade union recognition from those within the agreed bargaining unit. 

25)       For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers in the agreed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 45(b) is therefore met.

26)       Finally. the Panel notes the Employer’s submissions as to whether a ballot should be held in this case. These submissions are not relevant at this stage of the application.  Should they be relevant at the next stage, the Union will be invited to comment, and the Employer will be invited to make full submissions that one or more of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

6. Decision 

27)       For the reasons given in paragraphs 21- 25 above, the Panel’s decision is that the application is not invalid and that the CAC is proceeding with the application.

Panel

Mr Stuart Robertson, Panel Chair

Mr Derek Devereux

Mr Ian Hanson

20 February 2025