Decision

Whether to Ballot Decision

Updated 3 June 2021

Case Number: TUR1/1191/2020

6 April 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER TO BALLOT

The Parties:

Unite the Union

and

Splunk Services UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application dated 5 August 2020 to the CAC that it should be recognised for collective bargaining purposes by Splunk Services UK Limited (the Employer) in respect of a bargaining unit comprising “UK Employees within the Support Organisation whose job title includes “Support Engineer.”” The location of the bargaining unit was given as “Within the London and Reading offices within the UK.” The application was received by the CAC on 5 August 2020 and the CAC gave both parties notice of receipt of the application on 6 August 2020. The Employer submitted a response to the CAC on 12 August 2020.

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 Rob Lummis and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kate Norgate who was later replaced by Sharmin Khan. The Case Manager for the purposes of this decision was Nigel Cookson.

3) By a decision dated 9 October 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in which to try and reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with written submissions relating to the question of the determination of the appropriate bargaining unit. Owing to the current Covid Global pandemic, the Panel directed that the CAC exchanged those written submissions with an invitation for the parties to provide the Panel with their responsive submissions before the Panel reached a decision on whether it was necessary for the Panel to hold a formal hearing with the parties. On 4 December 2020, the CAC gave both parties notice that a formal hearing would take place by virtual means on 17 December 2020.

4) In a decision promulgated 16 February 2021 the Panel decided that the appropriate bargaining unit was that proposed by the Union in its application and for the avoidance of doubt included those Support Engineers, currently two in number, who provided support for two specific products, SignalFX and VictorOps and who currently reported to line managers in the US.

2. Issues

5) Paragraph 22 of Schedule A1 to the Act (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 are 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.

6) Paragraph 22(5) states that “membership evidence” 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.

7) On 16 February 2021 the Union was asked whether it was claiming majority membership within the bargaining unit and was therefore submitting that it should be granted recognition without a ballot.

3. The Unions’ comments on majority membership and the qualifying conditions

8) In a letter dated 22 February 2021 the Union claimed that it had majority membership of the determined bargaining unit and did not agree a ballot would be appropriate. In support of its claim the Union was willing to supply the CAC on a confidential basis a further up-to-date membership list which would confirm that it had a majority of the workers in membership.

9) The CAC had already accepted that a majority of the workers in the bargaining unit were members of the Union ^{[footnote 1]}. The narrowness of the Union’s majority was not of itself a ground for ordering a ballot; the CAC was not entitled to “impose, in effect, a threshold for recognition without a ballot higher than that stipulated by the legislators”. On this point, the Union relied on the decision in ISTC and Fuller Computer Industries Ltd (TUR1/29/00) which was affirmed on an application for judicial review in Re Fullarton Computer Industries Ltd, [2001] IRLR 752.

10) In the Union’s submission, once majority membership was established, the Union should be awarded recognition without a ballot unless there was good reason to hold otherwise. The Union submitted that none of the three statutory exceptions applied in these circumstances.

11) The Union further submitted that holding a ballot would not be in the interests of good industrial relations. The Union had sought to establish good industrial relations both before and during the CAC process without any success.

12) In the Union’s submission, the practical effect of a ballot would, by its very nature, engender an adversarial situation within the workplace, with the Union and the Employer embroiled in a divisive contest. This was evidenced by the following documents, copies of which were enclosed with the Union’s letter.

13) An email from an individual within the bargaining unit sent to the CAC Case Manager on 11 January 2021 complaining that the Employer was pressuring employees to write to the CAC and request a ballot at every opportunity in team meetings and one-to-ones.

14) A document sent by the Employer to the bargaining unit pressing them to ask the CAC for a ballot which had been marked “Confidential – Internal Splunk only”. This document having been forwarded to the Union by a member in the bargaining unit who was very concerned that the Employer appeared to be running a hostile anti-union campaign amongst the affected workforce and was further attempting to block the Union having sight of the document and being able to respond to any of the Employer’s assertions.

15) A further email sent by the Employer to the bargaining unit on 16 February 2021 which again encouraged employees to ask the CAC for a ballot. A copy of this was provided by the Union.

16) The Union also provided the Employers FAQ document and a copy of its latest email to the bargaining unit with its letter. Given the Union already had a majority in membership a ballot would only intensify this hostility the Employer had been promoting against the Union.

17) The Union submitted that any emails to the CAC requesting a ballot (should they exist) as a result of the distorted information contained within the above correspondence from the Employer were unlikely to be a free and fair expression of the worker’s genuine view, given the inaccuracy of the information and the substantial imbalance of power between a worker and their manager.

18) In summary, the Union’s submission was that it had demonstrated majority membership within the bargaining unit, none of the three statutory exceptions applied and, therefore, the Union should be granted recognition.

4. The check of union membership within the bargaining unit

19) To assist in deciding whether to arrange for a secret ballot under the Schedule, the Panel proposed an independent check of the level of union membership in the determined bargaining unit. The information from the Union was received by the CAC on 24 February 2021 and from the Employer on 25 February 2021. 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 from the Case Manager to both parties dated 24 February 2021.

20) The Employer provided a list of 39 workers in the bargaining unit. The Union provided a list of 23 members. The result of the check was that 20 names on the Union’s list appeared on the Employer’s list; a membership level of 51%. The result of the membership check was served on the Parties on 1 March 2021. In the accompanying letter the parties were referred to the CAC’s letter of 1 October 2020 in which the Case Manager explained that emails had been received from individuals professing to be workers in the bargaining unit and that these emails would be kept on file as they may be relevant at a later stage. The parties were informed that the CAC had received further emails since 1 October 2020 and the Panel Chair had now directed that they be compared, on a confidential basis, against the list of workers and list of Union members as provided by the parties for the check of Union membership within the bargaining unit. The parties were further informed that once these checks had been completed, a report of the findings would be issued.

5. The revised membership check and a check of emails received by the CAC from workers in the determined bargaining unit

21) In an email to the CAC dated 1 March 2021 the Union queried the accuracy of the Case Manager’s report explaining that one of its members used their first and second forenames interchangeably and so may be known to the Employer by a different name to that on the Union’s list. To assist the CAC it provided a more detailed spreadsheet of its members’ details so that this could be verified. The information on the Union’s more detailed list was then compared to the Employer’s list of workers which had been provided on 25 February 2021. The Case Manager conducted two checks. The first was a comparison of the names on the Union’s membership list provided to the CAC on 1 March 2021 with the list of workers in the bargaining unit supplied by the Employer on 25 February 2021 in order to establish the level of Union membership within the bargaining unit; and the second was a comparison of the emails from individuals received by the CAC from October 2020 to date against the list of workers in the bargaining unit supplied by the Employer to the CAC on 25 February 2021 and the Union’s membership list provided to the CAC on 1 March 2021.

22) The second check of membership within the bargaining unit using the Union’s more detailed list established that 21 names on the Union’s list appeared on the Employer’s list; a membership level of 54%. The second check was a comparison of the emails received from individuals claiming to be workers in the bargaining unit. The identities of the authors of these emails were compared against both the Employer’s and the Union’s lists to established firstly, whether they were workers in the bargaining unit and secondly, whether or not they were members of the Union.

23) The results of the check of these emails revealed that a total of 29 emails had been received between October 2020 and the date of the check. Twenty-two of the emails were from individuals whose names appeared on the Employer’s list and so were sent to the CAC by workers in the bargaining unit. Of these 22 emails, five were identified as having been sent by individuals whose names appeared on the Union’s list of members. One member had emailed twice with the second email being a repeat of the points set out in their original email. Out of the four remaining emails, one member had emailed to inform the CAC that they were being continuously told by the Employer to email the CAC and this person thought the CAC should be made aware of the efforts the Employer was making and why the CAC might be receiving such communications. The final three emails from union members stated:

1) “I refer to the Unite’s current application for statutory recognition at my workplace. I have been informed of the results of the CAC membership report. I understand that if Unite has a membership majority, the union could be granted automatic recognition, because it would be assumed that all union members would want recognition. I specifically do not want Union involvement on matters of pay, bonuses and holiday… I would now prefer to have the option to vote for union …as I would like to decide this myself.”

2) “ I refer to the Unite’s current application for statutory recognition at my workplace. I have been informed of the results of the CAC membership report. And I understand that if Unite has a membership majority, the union could be granted recognition, because it would be assumed that all union members would want recognition. As this is a democracy I would prefer to be balloted on the issue of collective bargaining, as you cannot assume that all members of the union want it being the union recognized. and also that employees that are not in the union may want the union to be recognized.”

3) “…The only reason I wrote you was to mention that despite I am enrolled in the union, I would like to NOT have the union in (all major matters have been resolved)…”

24) The 17 further emails were established to have been sent by individuals in the bargaining unit who were not members of the Union. Out of the 17, two individuals had emailed the CAC twice with the second email in each case simply repeating the views already expressed. Of the 15 emails left, 14 expressed the view that a ballot should be held and the final email was not clear as to whether the author supported recognition of the Union or not. The result of the further membership check and check of the emails received by the CAC was served on the parties on 5 March 2021. The parties were invited to comment on both reports and the paragraph 22(4) qualifying conditions. The Union was also given the opportunity of commenting on the Employer’s letter of 8 January 2021 (in which it requested the opportunity to make representations before any decision in respect of a ballot was made) and the Employer was given the opportunity of commenting on the Union’s letter of 22 February 2021 referred to above.

6. The Employer’s comments on the Case Manager’s report

25) In a letter dated 10 March 2021 the Employer asked for clarification on some aspects of the Case Manager’s report. The report stated that there were two emails categorised as being from workers appearing on the Employer’s list who were Union members and had requested a ballot to be held. However, the Employer submitted that the reported text of one of the emails appeared to be a clear statement that the individual did not want union recognition. This would suggest that it should be in the category of Union members who had expressed the view that they were not in support of recognition of the Union rather than of members wanting a ballot to be held.

26) The Employer also took exception to the way in which the report had categorised an email as being from a worker who was “… pressured to inform the CAC of a request not to recognise the Union”. [sic] The text of the email referred to was set out in the report but it did not refer to the individual being “pressured”. If this was the CAC’s characterisation of the email rather than a direct quote then the Employer did not accept this characterisation and would want to make representations to the Panel.

27) The Employer also wanted to draw to the Panel’s attention that it was in the process of filling a vacancy within the bargaining unit and would write shortly with details of the new appointment so that this could be reflected in the membership check.

28) In a further letter dated 12 March 2021 the Employer stated that the vacancy it referred to in its letter of 10 March 2021 had now been filled. An additional employee had been appointed to the role Senior Technical Support Engineer (Technical Team Lead) commencing 15 March 2021. In addition, the Employer had been advised by one of the employees within the bargaining unit that they had now cancelled their Union membership with immediate effect.

29) Finally, the Employer in a letter dated 15 March, stated that its primary position was that, given the recent changes to the bargaining unit, the CAC could not be satisfied that the majority of workers constituting the bargaining unit were members of the Union and as such a ballot must be ordered pursuant to paragraph 23. However, if the CAC concluded that the majority of workers constituting the bargaining unit were union members, two of the qualifying conditions set out in paragraph 22(4) of Schedule A1 were satisfied, namely: (a) a ballot should be held in the interests of good industrial relations; and (b) there is credible evidence 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. If either one of these conditions was satisfied, then a ballot must be ordered, pursuant to paragraph 22(2).

30) The updated membership check report dated 8 March 2021 suggested a membership density of 54%. However, there had been two key changes to the composition of the bargaining unit since 1 March 2021. First, a role had been vacant since 27 July 2020 had been filled. Second, the Employer had been informed that a worker in the bargaining unit had cancelled their Union membership as they were opposed to recognition. On this basis, there were currently 40 workers within the bargaining unit and 20 of these are Union members. This means that 50% of the bargaining unit are Union members, which was not a majority.

31) The Employer considered that a ballot would be in the interests of good industrial relations for four main reasons: (i) widespread and active support for a ballot within the bargaining unit; (ii) based on membership numbers and letters to the CAC, union membership levels did not indicate majority support for union recognition; (iii) union membership and any early support for recognition was driven by concerns over the introduction of new rota arrangements in order to provide 24/7 global coverage, which had now been resolved; and (iv) there was some evidence that some employees may not be familiar with what recognition would involve and a ballot campaign would ensure that all employees were able to make an informed decision.

32) A total of nineteen workers out of 40 in the bargaining unit (47.5%) (based on the Employer’s figures) had written directly to the CAC either to request a ballot or to express their opposition to union recognition which necessarily entailed holding a ballot. These included three union members. These letters had been sent directly to the CAC on a confidential basis and validated by the CAC and represented the most credible evidence available. Such a high level of engagement in advance of a ballot was very unusual and indicated the strength of feeling within the bargaining unit in favour of a ballot. To impose recognition without a ballot in the face of such overwhelming desire for a ballot would lead to a loss of confidence in the recognition process and a feeling of disenfranchisement on the part of a large part of the bargaining unit especially given the lack of, or at best wafer thin, majority membership. It would undermine the credibility and legitimacy of Union representation; lead to ongoing disagreement between employees about the fairness of the process and the existence of any popular mandate for the Union thereby damaging relations between employees within the bargaining unit; and be extremely damaging for long term industrial relations.

33) Although the Employer acknowledged that the narrowness of the Union’s majority was not of itself a ground for ordering a ballot, it was undoubtedly a relevant factor to take into account in assessing the significance of other evidence. The policy behind the statutory scheme was that majority union membership could lead to automatic recognition on the basis that union membership would often be indicative of support for recognition. However, in this case three members clearly supported a ballot and this was more than any union majority. There was also credible evidence that at least two union members did not support recognition and this was also more than any union majority and meant that union membership density did not support the view that there was a majority in favour of recognition. In these circumstances it was clearly in the interests of good industrial relations to hold a ballot and test support for Union recognition.

34) There was evidence in the emails submitted to the CAC that there may be some misunderstanding of the implications of recognition. A ballot would therefore be in the interests of good industrial relations in that a ballot campaign would enable workers to hear from both sides and be fully informed of the implications of recognition.

35) If a ballot was held, the Code of Practice would apply and the ballot would be supervised by the CAC to ensure responsible campaigning by both parties and avoid any unfair practices on either side. It was in the nature of ballots that partisan views were expressed but this did not mean they were not consistent with good industrial relations - they were an important tool of workplace democracy. Even if the ballot did lead to short-term heightened tension, that would be a worthwhile and necessary price to pay for long term good industrial relations. The overall balance of good industrial relations clearly favoured a ballot.

36) The Employer strongly denied that it had “pressured” workers to write to the CAC. It had simply made workers aware of the implications of majority union membership and that it could lead to recognition without a ballot. It had also made workers aware that they had the option to write to the CAC if they wanted to request a ballot or oppose recognition. This was perfectly proper conduct for an employer, to enable the workers to understand the implications of the recognition application and how they could make their voice heard. All communications had been accurate and balanced and sought only to make workers aware of the option of writing to the CAC, not to ask them to do so.

37) It was acknowledged that the written communications relating to the recognition process had generally been marked “Confidential - Internal Splunk”. This was standard for internal communications relating to HR and other matters which were not intended for external publication. There had been no attempt to prevent workers from putting the Employer’ points or any questions of their own to the Union.

38) The email/FAQs sent by the Employer, as with all communications to the bargaining unit relating to recognition, could be seen to be entirely appropriate and fully uphold the principles of the Code of Practice (even though they did not apply before a ballot).

39) Finally, the Employer noted that the Union submitted that any emails to the CAC requesting a ballot resulted from “distorted information” and were unlikely to be a free and fair expression of the worker’s genuine view. The Employer strongly disputed this. The workers were not pressured to send the emails and freely choose to do so and the workers had complete freedom to express their views as was illustrated by the different language, views and concerns expressed.

40) Overall, the Employer considers that there are compelling reasons why a ballot was in the interests of good industrial relations and if the Union was confident that its membership levels represented majority support for recognition, it had no reason to oppose a ballot.

41) The Employer then turned to the second qualifying condition, that there was “credible evidence 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”. For this condition to be satisfied, there must be evidence that union members within the bargaining unit did not want the Union to conduct collective bargaining. That evidence must be (i) credible; (ii) received from the union members; and (iii) received from a “significant” number of the union members. The membership report provided such evidence. It identified one email from a union member as having been sent from a union member and expressing that they were not in support of recognition. However, one of the emails which had been categorised in the membership report as a union member who had requested a ballot also expressed clear opposition to recognition of the union. That email stated:

“I specifically do not want Union involvement on matters of pay, bonuses and holiday … I would now prefer to have the option to vote for the union … as I would like to decide this myself”.

42) The statement that the author did not want Union involvement on pay, bonuses and holiday was a clear indication that they did not want the union to conduct collective bargaining on their behalf. Therefore there was evidence that two union members did not want the Union to conduct collective bargaining on their behalf. As required by paragraph 22(4)(b), this evidence was credible in that the emails had been sent directly to the CAC on a confidential basis and validated by the CAC and represented the most credible evidence. The emails were received from the union members and had been validated by the membership check as coming from union members and in this case, there were two objectors. Although the number was relatively small in absolute terms, it could be observed that it was a small bargaining unit (40 - or 39 based on the membership report). More importantly, without these members the Union did not have a majority. If the two objectors were deducted from the number of union members, there was not majority support. Therefore the number of objections was significant.

43) In addition, the Employer noted that if there was any doubt as to the effectiveness of the cancellation of the union membership of the individual referred to earlier, their email would undoubtedly be credible evidence of a union member not wanting the union to conduct collective bargaining on their behalf.

7. The Union’s comments on the Case Manager’s report

44) In a letter dated 15 March 2021 the Union submitted that that none of the three tests under which a ballot may be held where a majority of the bargaining unit were union members had been met.

45) The Union noted that there was a union member within the 8 March 2021 membership check that had stated “I specifically do not want Union involvement on matters of pay, bonuses and holiday… I would now prefer to have the option to vote for the union …as I would like to decide this myself”. The Union further noted that this member had not expressed opposition to recognition and had not opposed union involvement in collective bargaining over hours. It should be noted that the wider context in which this email had been sent was one in which the Union had recently successfully challenged the Employer over its proposal to change workers’ hours which had been a key reason why members had joined the Union. Furthermore, this member had expressly stated that they would like to decide the issue of support for recognition themselves, from which it was understood that they had not yet made that decision.

46) The Union was therefore supportive of the Case Manager’s view that the email was supportive of a ballot but was not evidence that the member did not want the Union to conduct collective bargaining on their behalf, as was required by the test within Paragraph 22(4)(b) of the Schedule.

47) The Union noted that following the membership check, the Employer added a new role to the bargaining unit of “Senior Technical Support Engineer (Technical Team Lead)” commencing 15 March 2021 which was the deadline for submissions on the question of a ballot. The Union submitted that some context was required to illustrate the extent to which the Employer was gerrymandering employee titles in order to avoid automatic recognition in this matter.

48) The Panel had already conducted substantial investigation into the appropriateness of the bargaining unit proposed by the Union and concluded that that bargaining unit was indeed appropriate. This followed several submissions from both parties and a hearing in which weighty consideration was given to the functions undertaken by those workers included within the Union’s proposed bargaining unit, i.e. those with “Support Engineer” within their job title.

49) On 27 July 2020 the Employer advertised “Technical Team Lead” positions to its workforce via email. The role was clearly distinct from the bargaining unit of Support Engineers (the advertisement referred to one of the primary functions of the role being “mentoring Support Engineers”) and it did not include “Support Engineer” within its job title. A copy of the job description was provided by the Union and it did not refer to the role being a “Support Engineer”. On 22 December 2020, three working days following the CAC bargaining unit hearing, the Employer announced that six workers had been appointed to the role. Again, no reference was made to these workers being “Support Engineers” or having these words included within the job title. The Union therefore understood that workers undertaking the “Technical Team Lead” role were not included within the bargaining unit as determined by the CAC.

50) At 17:46 on 8 March 2021, the Employer advertised a “second Technical Team Lead based in the UK”. The advertisement once again differentiated between the role and that of Support Engineer by referring to the Technical Team Lead role mentoring TSEs, and not alleging that the Technical Team Lead role was another Support Engineer role. The role was subsequently filled. However, the Employer then started referring for the first time to the Technical Team Lead positions as “Senior Technical Support Engineer”. Indeed on 15 March 2020, the deadline for submissions by the parties on the question of a ballot, the Employer issued a new organisational chart to its workforce (copy provided) in which the Technical Team Lead was relabelled as “Senior Technical Support Engineer”.

51) The Union submitted that the Employer’s recruitment to this position and its subsequent relabelling immediately prior to the deadline for submissions on the question of the ballot was arranged in order to dilute union membership of the bargaining unit following receipt by the parties of the CAC’s latest membership check, in which the Employer would have seen that the Union continued to enjoy majority density within the bargaining unit. The Union received the membership check at 16:45 on 8 March 2021, an hour prior to the Employer advertising the second Technical Team Lead role.

52) The recent relabelling exercise by the Employer leads the Union to believe that the Technical Team Lead appointed last year had also been included by the Employer in the list of names falling within the bargaining unit provided by the Employer to the CAC. If the Union was correct, then that Technical Team Lead position should be excluded from the membership check, and that the total number of workers within the bargaining unit was 38.

53) The Union made the general submission that it did not believe it reasonable for the Employer to manipulate job titles and require endless new membership checks following this.

54) The Union submitted that the credibility of the emails sent to the CAC was seriously undermined by the undue pressure placed on its workers to write these emails. A total of 11 emails had been sent to workers within the bargaining unit encouraging them to write to the CAC to request a ballot. Copies of all these emails were provided by the Union. Several were headed “INTERNAL ONLY – DO NOT FORWARD” and the Union believed that this was aimed at preventing the emails from being seen by the Union and, by extension, the CAC.

55) One email sent on 13 November 2020 included a list of “Frequently Asked Questions – Union Recognition” (copy provided) which included a number of falsehoods, including the Employer stating that recognition would entail “a narrow bargaining agenda of topics which don’t need to be fixed because pay, hours and holidays are already highly competitive and agreeable to the majority of Splunk employees”. The reader was led to believe that recognition would lead to a fixed, narrow agenda of bargaining topics when, aside from the core elements of pay, hours and holidays, the extent of bargaining was in the gift of the Employer to decide. The Employer also stated that representation would be via a single union steward, when, like the number of bargaining topics, the number of reps would be determined through negotiation with the Employer and, should the parties fail to reach agreement, would require a minimum of three representatives from the trade union side in accordance with the Trade Union Recognition (Method of Collective Bargaining) Order 2000.

56) The Union asserted that the Employer had moved far beyond informing employees of the option to write to the CAC requesting a ballot, signposting them with the necessary information of who to write to, or even reminding them of this. Emails of 27 January 2021, 16 February 2021 and 23 February 2021 made clear the expectation: “If you haven’t done so already, please consider writing to the CAC to ask for a ballot so your voice may be heard”/ “If you haven’t emailed the CAC and want your opinion to count then email the CAC in the next 24 hours”/“If this is important to you, then we would encourage you to write to the CAC and ask for a ballot now”.

57) The CAC membership check referred to an email from a member who set out in detail the actions that the Employer had taken to pressure workers to write to the CAC opposing recognition or calling for a ballot. This pressure had been applied through repeated emails from the Employer to the workforce, and at group meetings and individual meetings which workers were required by management to attend.

58) The Union was aware that since publication of the latest membership check, the CAC had received a further email dated 10 March 2021 from a worker within the bargaining unit which provided evidence of the repeated and extreme pressure they have been placed under to confirm to the Employer whether they had written to the CAC. The worker clearly had reasonable concerns about the repercussions on their employment if they did not write to the CAC to support a ballot, which in turn prevented the Union from going into the full detail of what that worker had reported.

59) The Union had obtained and provided for the CAC, a copy of an Employer generated template letter for individuals to send to the CAC. The template was provided to a member by their line manager and when compared to the emails that the CAC had included within its report, the majority of those emails were either identical to or closely followed that template. Many contained the same grammatical error contained within the Employer’s template “I refer to the Unite’s current application…”.

60) Furthermore, the Employer had sought to keep a tally of exactly who had written to the CAC, and taken steps to individually pressure workers to do this where they had not confirmed they had written to the CAC already. This was evidenced not only by the two emails from concerned workers, but also by the Employer’s own emails to its workforce.

61) Union members within the bargaining unit had also raised concerns with the Union that the Employer could potentially determine whether or not they had written to the CAC because the Employer’s Acceptable Use Policy covering usage of its email system permitted the Employer to monitor email metadata in situations such as the defence of a legal claim. Whilst email metadata did not reveal the content of emails, it did confirm whether or not an individual had corresponded via their work email address with a particular party (such as the CAC case manager), or more crucially in this case if they had not.

62) Bearing in mind the uneven power balance between an employer and its workers, the Union contended that the Employer had applied undue pressure which cast serious doubt on the credibility of whether the representations made to the CAC were genuinely held by the sender.

63) It was further contended that despite that pressure, and at the time of this submission, there were 20 members within the 38-strong bargaining unit (52.6%). The CAC membership check dated 8 March 2021 noted that one email had been received from a union member within the bargaining unit which expressly stated that the member was not in support of recognition of the Union. The Union did not know if this email was received from the only member to have recently left the Union. Even if it was not, the Union submitted that one member could not constitute a “significant number”, particularly given that discounting this member still left 50% of the 38-strong bargaining unit in membership of the Union and who had not expressed the view that they were not in support of recognition.

64) As outlined above, there was strong evidence that the Employer had subjected its workforce to unwanted pressure in its campaign to stop Union recognition. The Union submitted that within this context, a ballot could not be in the interests of good industrial relations and would result in a continuation of the Employer’s activities, both overt and concealed, to pressure workers into opposing trade union recognition should a ballot be held.

65) The Union further submitted that the Employer’s actions in pressuring its workers during the stages of the CAC statutory recognition process that had taken place to date, would, if repeated during the balloting stage, constitute unfair practices under the statutory code of practice for recognition ballots.

66) In summary, the Union reiterated that it had demonstrated majority membership within the bargaining unit and that none of the three statutory exceptions applied, and therefore, it should be granted recognition.

8. The Schedule

67) The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

9. Majority membership

68) The Panel, under paragraph 22(1)(b) of the Schedule, has to be satisfied that a majority of workers constituting the bargaining unit are members of the Union.

69) As a starting point, it has been established that the Union has achieved 54% membership within the bargaining unit. It is the view of the Panel that the total number of employees in the bargaining unit for the purpose of the determination required by the CAC is 39. The Panel does not accept that further members can be added into the bargaining unit ad infinitum. The assessment is one to made based on a fixed point in time and it would be unmanageable to continue membership and support checks to verify new employees.

70) The Union argues, based on the principle in Re Fullarton Computer Industries Ltd, [2001] IRLR 752 that recognition automatically follows. Further, it contends, that the narrowness of that majority should not be factor in determining a need for a ballot, because it is not for the CAC to erect an even higher burden than that which is imposed by legislation. The Panel accepts this as being a sound argument based on established legal principle and it is true to say that the Panel must issue a declaration if it is accepted that the Union has achieved more than 50% membership within the bargaining unit.

71) However, as per the principles established in the Fullarton case, the Panel must also be satisfied that the Union majority in membership within the bargaining unit translates into a majority for recognition and therefore majority membership is not automatic when any of the three qualifying conditions under the Schedule have been met.

10. Consideration of Qualification to Automatic Recognition

72) The Panel has given thorough consideration to each of the qualifying conditions laid down in paragraph 22(4) of the Schedule and the detailed submissions made by the Union and the Employer.

73) The Employer has produced a range of arguments and evidence in relation to the activation of the qualifying conditions. The most convincing evidence, in the view of the Panel, relates to establishing that the second qualifying condition has been met, in that a significant number of members within the bargaining unit have informed the CAC that they do not want the Union to conduct collective bargaining.

74) In determining this point, it is important for the Panel to distinguish between members who have contacted the CAC expressing a wish for a ballot to take place and those members who have written to the CAC informing the CAC that they do not support the Union for recognition to conduct collective bargaining.

75) In the membership support report of 8 March 2021 it is noted that there are two key representations from members as follows:

“…The only reason I wrote you was to mention that despite I am enrolled in the union, I would like to NOT have the union in (all major matters have been resolved)…”

This submission is direct and explicit in outlining the member’s position objecting to recognition of the Union conducting collective bargaining.

76) The second submission may be interpreted as being more ambiguous as to intention as to whether it is a representation against union recognition or a request for a ballot to be held. Indeed it was a key point argued by the Employer that this representation has been wrongly categorised in the case worker’s report:

I refer to the Unite’s current application for statutory recognition at my workplace.

I have been informed of the results of the CAC membership report. I understand that if Unite has a membership majority, the union could be granted automatic recognition, because it would be assumed that all union members would want recognition.

I specifically do not want Union involvement on matters of pay, bonuses and holiday… I would now prefer to have the option to vote for union …as I would like to decide this myself.”(underlining added for emphasis)

77) Statutory recognition for collective bargaining is legally described as including ‘pay, hours and holidays and any other matters agreed by the parties. The Panel is of the view that the standard to be applied to interpreting this member’s meaning of ‘pay bonuses and holidays’ should not be a strict test of legal accuracy in terms of the description used. The Panel is satisfied that this member’s meaning in this phrase is very close to the accepted definition of collective bargaining and this member is viewed by the Panel as expressing an objection to the Union conducting collective bargaining as well as a further opinion that a ballot should take place. This member’s representation is therefore accepted by the Panel as informing the CAC of an objection to recognition of the Union.

78) This evidence is therefore sufficient to indicate that two members within the bargaining unit do not wish for the Union to conduct collective bargaining. This thereby reduces the number of members within the bargaining unit who support recognition of the Union from 21 out of 39 to 19 out of 39.

79) Turning to whether this is a significant number of members, it is the view of the Panel that this relatively small number is highly significant because this reduces the members who can be said to be in favour of recognition to less than 50%.

11. Decision

80) For the reasons given above, the Panel’s decision is that a ballot should take place. The Panel now gives notice, pursuant to paragraph 22(3) of the Schedule, that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit will be asked whether they want the Union to conduct collective bargaining on their behalf. The Panel will seek the views of the parties on the form of ballot they feel is most appropriate.

Panel

Mrs Sarah Havlin - Panel Chair

Mr Rob Lummis

Mr Paul Noon OBE

6 April 2021

1. The membership check conducted on 18 September 2020 by the Case Manager established that the membership level within the bargaining unit was 51.22%. ↩