Decision

Recognition Decision

Updated 28 July 2020

Case Number: TUR1/1165/2020

27 July 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

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) By a decision dated 24 April 2020, the Panel accepted the Union’s application and, as no agreement was reached on the bargaining unit, subsequently invited both parties to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. Having carefully considered the parties written submissions, by a decision dated 7 July 2020 the Panel decided that the appropriate bargaining unit was that specified by the Union in its application.

2. Issues

4) Paragraph 22 of the Schedule provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations; (ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf; (iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. Union’s claim to majority membership and submission it should be recognised without a ballot

5) In a letter dated 7 July 2020 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in a letter dated 9 July 2020, stated that it wished to rely on the findings of the membership and support check carried out by the CAC on 8 April 2020, in which the level of union membership was 56.78%. It said that it was therefore seeking recognition without a ballot as it did not believe that any of the three qualifying conditions had been met.

4. Summary of the Employer’s response to the Union’s claim and submission it should be recognised without a ballot

6) By e-mail dated 12 July 2020 the Employer stated that it was writing to request a ballot to test the support of the bargaining unit as determined by the Panel. The Employer said that, to assist the Panel, it was writing in anticipation of the Union’s response claiming majority membership. The Employer asked that the Panel did not grant recognition purely on the basis of the membership numbers. The Employer also addressed the qualifying conditions as follows:

(i) Sandvik Osprey had always maintained throughout the initial voluntary discussions and the subsequent CAC process that if the majority of its employees wished for Unite to represent them Sandvik Osprey would recognise Unite for that purpose.

(ii) The members’ support of the Union was called into question following its own petition evidencing that it did not get majority support from its own members, and Sandvik Osprey’s independent survey which confirmed the lack of support for the Union amongst its employees as a whole. (iii) Sandvik Osprey had no visibility and was therefore unsure about the circumstances in which employees had joined the Union or their length of membership. Sandvik Osprey therefore requests a check of Unite’s membership records to see if (i) the list includes “members” who ceased paying dues, and (ii) it includes “members” who did not have to pay dues on joining or at the time of the earlier membership check.

7) The Employer stated that as evidence to support its request, it wished to refer to the data recorded within the Panel’s acceptance decision, dated 24 April 2020, including the “Civica Election Services survey results” dated 9 January 2020, and the Case Managers report on the level of union membership and support within the proposed bargaining unit. The Employer stated that results of the check against the Union’s petition showed that of the 64 names and signatures, 56 were in the proposed bargaining unit (of which 49 (41.53%) were members of the Union and 7 (5.93%) were not). The Employer stated that therefore, 47.46% of the proposed, and subsequently determined, bargaining unit had signed the petition

8) The Employer said that the minority of 47.46% was telling, as the majority of the Union’s members had not signed its petition supporting recognition. The Employer stated that based on those results the Union did not have majority support within the bargaining unit and that support should be tested via a ballot. The Employer believed that the results were particularly noteworthy given that the Union had people 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.

9) The Employer said that it had continuously and consistently stated that if the majority of employees within the bargaining unit wished to be represented by the Union then it would respect and implement this. However, in light of the above independent survey commissioned by Sandvik Osprey and Union’s petition, it was clear that the majority of employees within the bargaining unit did not support the Union. The Employer stated that it therefore asked that a ballot of the Union’s members within the bargaining unit took place.

10) Finally, the Employer stated that it would be happy to participate in a virtual hearing so as to further assist the Panel on this issue.

5. Summary of the Union’s additional comments

11) 0n 14 July 2020 the CAC copied the Employer’s letter of 12 July 2020 to the Union and invited its comments on the points made by the Employer.

12) In a letter to the CAC dated 17 July 2020 the Union stated that as it had earlier demonstrated, it held a majority of 56.78%, which was 8 individuals. The Union stated that it was therefore not a case involving a tiny margin or one where the bandwagon effect needed to be relied upon.

13) With regard to the first condition, the Union said that the Employer had maintained that it ‘…has always maintained throughout the initial voluntary discussions and the subsequent CAC process that if the majority of its employees wish for Unite to represent them Sandvik Osprey would recognise Unite for that purpose.’ The Union said that it welcomed the positive and public commitment and it hoped that it would be “a bedrock of good industrial relations in the future.” The Union said that it was however just a statement, and not a submission, and it therefore had difficulty understanding how it applied to paragraph 22(4)(a), as no positive position was advanced.

14) The Union said that the Employer had offered no evidence and made no submissions that a ballot would be in the interests of good industrial relations. The Union stated that it wished to rely upon an observation set out at paragraph [1242] in Harvey on Industrial Relations and Employment Law,

‘… a ballot means further delay, and, especially if the employer is refusing to admit the obvious, that the majority of the workers want collective bargaining, then delay of itself is likely to sour industrial relations (NUJ and AOL (UK) Ltd (TUR1/424/05, 25 May 2005),CAC). Moreover, campaigning in the run-up to a ballot will tend to polarise views, stoke up feelings, and further worsen industrial relations. The CAC will therefore begin from the premise that a union which has majority membership should be awarded recognition without a ballot unless there is good reason to hold otherwise’.

15) The Union further stated that given the Employer’s “positive statement” as quoted in paragraph 13 above, it wanted to build on this base for good industrial relations, and it would not wish to jeopardise this in any way.

16) In response to the Employer’s comments on the second condition, the Union said that the Employer’s view was largely based on the opinion poll which was commissioned on 12 December 2019. However, the Union stated that the evidence of opposition, in whatever form, must come, directly or indirectly, from the disaffected members and it was not enough for the Employer to argue that the evidence demonstrates that a significant number of union members were not in favour of collective bargaining, if the members themselves chose not to voice any objections. It was the Union’s view that the poll data was therefore irrelevant as Paragraph 22(4)(b) of Schedule A1 requires evidence ‘from a significant number of union members within the bargaining unit that they do not want the union… .’ The poll did not discriminate between members and non-members and since the numbers within the bargaining unit were such that all, none or some of the members could theoretically object, the poll could not shed light on which analysis was correct.

17) The Union stated that the Employer’s argument related mainly to whether a majority of employees in the bargaining unit favour recognition, and not whether a majority of members do. The Union said that it therefore mis-focused its submission on the wrong test.

18) The Union further stated that the Employer had argued for a new membership and support check on the basis that possible changes since then might make it unreliable, since it was carried out on 8 April 2020. The Union said that despite this, the Employer appeared to have complete faith in the validity of the poll conducted in December 2019 but offered no explanation for this inconsistency.

19) The Union maintained that the same problem applied to the Employer’s observations concerning its petition, since the acceptance decision notes that the signatures were dated between 22 October 2019 and 16 January 2020. The Union said that, in any event, the Employer’s submission rests on the false contradiction, which assumes that since 47.46% had signed the petition in favour of recognition, 52.54% must be against. It also seeks to distract from the maths, namely, that 49 of the 67 members in the bargaining unit signed it, and that was therefore a significant majority of 73.1%

20) Finally, in response to the Employer’s comments on the third condition, the Union stated that the Employer appeared to have no evidence of its own and it had therefore invited the CAC to “pick up its tackle-box and go on a fishing expedition.” The Union stated that it believed it was a “half-hearted submission” that did not make a relevant allegation. The Union believed that this fell short of what of was required under this condition.

21) The Union concluded asking that the Panel declare recognition without a ballot, without delay.

6. Summary of the Employer’s additional comments

22) On 20 July 2020 the Union’s letter of 15 July 2020 was copied to the Employer and its final comments were invited. By e-mail to the CAC dated 21 July 2020 the Employer stated that it continued to rely on the points in its e-mail of 12 July 2020 but would make clarificatory points in light of the union’s submissions.

23) The Employer said that the request for a ballot was not “mere speculation” that not all members support union recognition. The findings of fact at paragraphs 23 and 24 of the CAC’s acceptance decision set out facts, not speculation. The Employer said that based on those facts the factual assertion was that only 49 of the 67 members in the bargaining unit signed the petition in favour of recognising the union, and (ii) the union was not able to persuade a majority of its members in the bargaining unit to sign the petition.

24) The Employer said that the option for the CAC to obtain further details from the union about its terms of membership allowed the CAC to ensure that unions could not gain recognition without a ballot on the basis of membership figures that were inflated, by methods such as “free” (no requirement to pay union dues) membership offers with the incentive of other union related benefits such as free legal advice and reduced rate mortgages (as set out https://unitetheunion.org/why-join/member-offers-and-benefits/member-offers/# ) and /or inflating the figures by not removing from the membership list, those members who had left the union by ceasing to pay dues that were owed, whether or not by also explicitly resigning in writing. The Employer maintained that the request for such clarification was not a “fishing expedition” as the union had asserted, and it was a reasonable request to raise in light of the union’s inability to persuade some of those who they relied on as “members” to sign their petition. The Employer said that its e-mail had referred to this issue but the union’s reply did not contain any assurance or evidence that such methods had not been used – thereby increasing the inference that the union’s membership list may not be a true reflection of which workers were members because they actually support the union and want it to collectively bargain on their behalf. The Employer stated that in the circumstances, the CAC should not be satisfied that a majority of the bargaining unit are members of the union such as to mandate automatic recognition without a ballot, because it did not have the evidence under Paragraph 22(4)(c) but it did have the evidence from the union’s petition that a majority of workers in the bargaining unit – so far as is discernible from that petition – do not support union recognition.

25) The Employer stated “given that the statute requires a threshold for recognition with a ballot, which is not met if the union’s petition is the best evidence of support in the absence of a ballot, is not met, it would be “Wednesbury unreasonable” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) for the CAC to order recognition without a ballot.”

26) Finally, the Employer said that a failure to explicitly reject other points in the union’s submission should not be taken as acceptance thereof, and it had simply focused on the material points.

7. Considerations

27) The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

28) The membership check issued by the Case Manager on 8 April 2020, as recorded in more detail in paragraphs 21 -23 of the acceptance decision dated 24 April 2020, showed that 56.78% of the workers in the bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and is satisfied that a majority of the workers in the bargaining unit are members of the Union.

29) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. In this case neither party has submitted cogent evidence that holding a secret ballot would be in the interests of good industrial relations. The Panel notes the Employer’s claim that throughout the initial voluntary discussions and subsequent CAC process it had maintained that if the majority of its employees wished for Unite to represent them, Sandvik Osprey would recognise Unite for that purpose. However, the Panel is not persuaded that reliance on the Employer’s desire to test whether or not a majority of workers in the bargaining unit support collective bargaining is a compelling reason to hold a ballot. Beyond the expression of this desire the Employer has provided no concrete evidence to support its submission that a ballot should be held in the interests of good industrial relation. The Panel is therefore satisfied that this condition does not apply.

30) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. As evidence to satisfy this condition, the Employer relied upon the findings of its “Civica Election Services Survey”, as recorded in paragraph 14 of the Panel’s acceptance decision dated 24 April 2020 and its somewhat speculative analysis of those workers who signed or did not sign the union’s petition. However, nothing that the Employer has submitted addresses the central test in paragraph 22(4)(b) which requires credible evidence from a significant number of union member that they do not want collective bargaining on their behalf. No such evidence has been provided and, at best, the Employer has sought to rely on its particular speculation as to why some union members did not sign the petition. The Panel is therefore satisfied that this condition does not apply.

31) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. The Employer’s argument concerning the terms of membership and the motivation of joining the Union is also speculative and it is not for the Panel to engage in such speculation. People join a union for many reasons, looking at the full package of what the union has to offer, and the Panel has not been presented with any evidence to indicate the motivation for joining the Union is overwhelmingly for reasons other than collective bargaining. Moreover, this qualifying condition requires the production of membership evidence and no such evidence has been provided. The Panel is satisfied that this condition does not apply.

8. Declaration of recognition

32) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All Hourly Paid Production Workers and Maintenance Engineers, employed at; Red Jackets Works, Milland Road, Neath, SA11 1NJ”.

Panel

Professor Kenneth Miller, Panel Chair

Mr Nick Caton

Mr Paul Noon OBE

27 July 2020