Decision

Acceptance Decision

Updated 28 July 2020

Case Number: TUR1/1165(2020)

24 April 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

Sandvik Osprey Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 10 March 2020 that it should be recognised for collective bargaining purposes by Sandvik Osprey Limited (the Employer) in respect of a bargaining unit comprising “All Hourly Paid Production Workers and Maintenance Engineers, employed at; Red Jackets Works, Milland Road, Neath, SA11 1NJ.” The application was received by the CAC on 12 March 2020 and the CAC gave both parties notice of receipt of the application on 13 March 2020. The Employer submitted a response to the CAC dated 25 March 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 Kenneth Miller, Panel Chair, and, as Members, Mr Nick Caton and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 26 March 2020. The acceptance period was extended on two further occasions to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 24 April 2020.

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) The Union had sent its formal request letter to the Employer on 5 February 2020. By letter dated 14 February 2020 the Employer declined the Union’s request. A copy of the Union’s request, and the Employer’s response to the Union’s request were attached to the Union’s application.

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 Employer stated “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 170. The Union stated that there were 122 workers in the proposed bargaining unit, of whom 68 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 said that membership details could be provided to the CAC on request, along with a petition in support of recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it consists of all hourly paid Production Workers and Maintenance Engineers. 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 which covered any workers in the bargaining unit.

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 10 March 2020.

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 5 February 2020. The Employer said that by letter dated 14 February 2020, it had declined the Union’s request. A copy of the Employer’s letter to the Union was attached to the Employer’s response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 16 March 2020. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the bargaining unit. The Employer stated that no employees were hourly paid. There were only weekly paid or monthly paid employees. The Employer stated that it believed the segregation made no sense for the purpose of bargaining on pay because its annual salary reviews were determined by its parent company on a country level, and not on a site level. The Employer further explained why it believed the Union’s proposed bargaining unit was not appropriate. However, this is an issue that will, if necessary, be considered by the Panel at a later stage of the statutory recognition process.

12) The Employer said that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer explained that it had previously been in contact with Acas following an earlier request for voluntary recognition from the Union in July 2019, but it had not contacted them since the Union’s more recent request in February 2020.

13) The Employer stated that there were 118 weekly paid workers in the proposed bargaining unit. When asked whether there was existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “No.”

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it did not hold records on whether its employees were members of a union and therefore it was unable to provide its own data on membership numbers. The Employer said that its view on union recognition was that, if it had evidence that the majority of its employees were in favour of recognition, it would comply with this. The Employer said that this was also communicated to employees via both verbal and written communication. The Employer stated that it had requested this information from the union on several occasions since July 2019, but the Union had failed to provide it. Subsequently, the Employer decided to conduct an independently verified survey in order to ascertain the views of its workers. On 12 December 2019 the Employer appointed Civica Election Services Ltd to carry out an independent secure online survey in which employees were asked to answer ‘YES’ or ‘NO’ to the following question: Do you want Sandvik Osprey to recognise Unite the Union to conduct collective bargaining relating to pay, hours and holidays? The Employer stated that employees were actively encouraged to participate via a letter and by verbal communication in meetings. The Employer also attached to its response a copy of its written communication sent to those employees on 12 December 2019. The Employer stated that the results were released on 9 January 2020 and showed that 35.7% (60) of Osprey employees responded, with 23.3% (14) voting ‘YES’ and 76.7% (46) voting ‘NO’. The Employer stated that it believed the results of the survey indicated that the appetite and interest in this subject in general was low, and that the majority of the employees who had responded, were not in favour of recognition. The Employer said that it believed the information also indicated that there may be as few as 14 union members and, in the Employer’s view, it stands to reason that the members would have voted ‘yes’, knowing that it may have recognised the Union on a voluntary basis. The Employer stated that it therefore disputes the Union’s claim that of 68 members.

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 stated that its comments, as set out in paragraph 14 above, also applied here. The Employer said that the survey indicated that the majority of those who responded, were not in favour of union recognition. The Employer stated that this was the only information it had as the union had not provided any evidence to the contrary, such as the results of their petition, despite repeated and documented requests from Osprey. The Employer said that it could therefore only reasonably rely on the results of its own survey. The Employer said that its further concern was that the petition had been carried out by the Union outside its company gates over the last few months, and that it was conducted in a questionable manner. The Employer said that one employee had reported to the Employer that they felt unduly harassed and pressured to sign the petition and that they were followed down the street when they declined. The Employer stated that in response to this, it had sent an e-mail to the Union “to ask it to desist in such behaviour”. A copy of the Employer’s e-mail sent to the Union was also attached to its response.

16) Finally, 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, and whether it had received any other applications in respect of workers in the proposed bargaining unit, the Employer answered “No”.

5. Additional comments from the parties

17) On 25 March 2020 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In a letter to the CAC dated 30 March 2020 the Union stated that its reference to ‘hourly paid’ within its proposed bargaining unit reflected those employees who were recognised as paid according to an hourly rate of pay, albeit that they were receiving their actual pay on a weekly basis.

18) The Union responded to the Employer’s comments concerning the appropriateness of the bargaining unit. However, as stated in paragraph 11 above, this is an issue that will, if necessary, be considered by the Panel at a later stage of the statutory recognition process.

19) In regard to the difference in the numbers quoted by the parties, the Union invited the CAC to conduct a membership and support Check to assist the panel to determine the level of support. The Union further stated that it believed the Employer’s survey did not reflect the current circumstances of union support. The Union stated that during the survey, union members were actively encouraged not to engage in the process.

20) Finally, the Union stated its “total refutation of the alleged ‘undue harassment’ of an employee by a Unite employee or representative.”

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 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 31 March 2020 from the Case Manager to both parties.

22) The information requested from both parties was received by the CAC on 3 April 2020. 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 118 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 71 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 67, a membership level of 56.78%.

24) The petition supplied by the Union contained 64 names and signatures, of which 56 were in the proposed bargaining unit, a figure that represents 47.46% of the proposed bargaining unit. Of those 56 signatories, 49 were members of the Union (41.53% of the proposed bargaining unit) and 7 were non-members (5.93% of the proposed bargaining unit). . The petition consisted of 6 A4 sheets and at the top of each page it stated:

“Unite the Union Recognition Petition”

“We the undersigned workers who are employed by Sandvik Osprey at Red Jacket Works, Milland Road, Neath, SA11 1NJ, ask that Unite the Union are to be the recognised union that represents us for collective bargaining purposes.”

Beneath which was a table of four columns for the worker to complete as follows:

PRINT NAME	JOB TITLE	SIGNATURE	DATE

25) The signatures on four sheets of the petition were dated between 22 October 2019 and 16 January 2020. The signatures on two sheets of the petition were not dated. In an accompanying e-mail the Union confirmed that “these sheets relate to the period of Monday 7th & Monday 10th February 2020.”

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 8 April 2020 and the parties were invited to comment on the results of that check, by noon on 14 April 2020.

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

27) In a letter to the CAC dated 14 April 2020, the Employer stated that clearly, more than 10% of the workers in the proposed bargaining unit were paid up members of the Union, and therefore it did not dispute that the first test was met.

28) The Employer stated that in regard to the check of the Union’s petition, signed by 47.46% of workers in the proposed bargaining unit, it did not believe the union had demonstrated that a majority of the workers constituting the relevant bargaining unit would to be likely to support recognition of the union as entitled to conduct collective bargaining. The Employer stated that it was in no doubt that the union had the opportunity to reach everyone who may have wanted to sign its petition. The Union had people posted outside the company gates on several days over a number of weeks, at the times when employees were arriving at work or leaving work at shift handover.

29) The Employer said that it had always made it extremely clear that if it had evidence that a majority of the workforce wanted it to recognise a union then it would do so, but it had received no evidence to support that this was the case. The Employer stated that it had attempted to ascertain this evidence itself. The Employer reiterated the background and detail of the independent survey, as reported in paragraph 14 above. The Employer said that it made little sense that the Union had encouraged its members not to respond to that survey, because if a majority of the workers had voted ‘yes’ to union recognition at that time, it would have agreed to enter into voluntary discussion with the Union. The Employer stated that this was made clear to both the employees and the Union.

30) The Employer further stated that it could not be sure that some of those who signed the petition had not do so under duress. The Employer re-iterated its point that, as stated in paragraph 15 above, it had received a report of undue pressure being put on employees to sign the petition.

31) No comments were received from the Union.

8. Considerations

32) 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.

33) 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.

9. Paragraph 36(1)(a)

34) 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.

35) The Panel is satisfied that the check conducted by the Case Manager (described in paragraphs 21 - 23 above), which showed that 56.78% of the workers in the proposed bargaining unit were members of the Union and which the Employer did not contest, was conducted properly and impartially and in accordance with the arrangements agreed 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.

10. 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.

37) As well as establishing that 56.78% of the workers in the proposed 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 56 of the 64 petition signatories were identifiable as workers within the bargaining unit, a support level of 47.46. Of those there were 49 union members (41.53%) and 7 non-members in the bargaining unit (5.93%). The Panel notes the Employer’s comments in which it reported on the independent survey which was conducted in order to gauge support for collective bargaining. However, the Panel considers that the Employer’s comments did not undermine the reliability of the petition as an indicator of the views of those workers. The level of union membership in the proposed bargaining which was not challenged by the employer and is excess of 50% is, in the Panel’s opinion, and experience, a relevant indicator as to support for union recognition. Given the level of union membership and support demonstrated by the petition, and in full consideration of the evidence made available, the Panel decides that the majority of the workers would be likely to favour recognition of the Union for the purposes of collective bargaining. The Panel is therefore satisfied that the test required by paragraph 36(1)(b) of the Schedule has been met.

11. Decision

38) For the reasons given in paragraphs 33 - 37 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mr Nick Caton

Mr Paul Noon OBE

24 April 2020