Decision

Acceptance Decision

Updated 12 March 2021

Case Number: TUR1/1153(2019)

18 February 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

Stepan UK Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 18 December 2019 that it should be recognised for collective bargaining by Stepan UK Ltd (the Employer) for a bargaining unit comprising “All manual shop floor workers employed in the Sulphonation, Organics, Production services and Maintenance departments.” The CAC gave both parties notice of receipt of the application on 19 December 2019. The Employer submitted a response to the CAC which was received on 30 December 2019 and 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 Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mrs Fiona Wilson and Mr Nick Caton. 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 7 January 2020. The acceptance period was extended on two further occasions in order 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 parties’ comments before arriving at its decision. The final extension ends the acceptance period on 18 February 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. The Union’s application

5) The Union attached to its application a copy of the Union’s initial request letter, dated 9 September 2019, formally requesting recognition.

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 Union stated that it had attempted to secure a voluntary recognition agreement, but the Employer had refused. 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) According to the Union, there were approximately 90 workers in total employed by the Employer, 50 of whom were in the proposed bargaining unit. The Union said that there were in excess of the 10% threshold required in membership of the Union. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had evidence but it wished to keep it confidential at this stage.

8) The Union stated that it had selected the proposed bargaining unit because it consisted of shop floor manual workers. In answer to the question of whether the proposed 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 that covered any workers in the proposed 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 18 December 2019.

4. The Employer’s response to the Union’s application

10) In its response to the application the Employer said that it had received the Union’s initial request letter on 9 September 2019. By letter dated 24 September 2019 the Employer responded to the Union’s request, stating that it rejected its application, but that it was willing “to engage and discuss”.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 20 December 2019. When asked, both whether it had agreed the proposed bargaining unit with the Union before receiving a copy of the application form from the Union, and whether it now agrees with the proposed bargaining unit, the Employer stated “No”. The Employer explained that it had a headcount of 120 employees and that there were two locations in the UK, Stalybridge and London. The Employer stated that there were other employees who worked under the same working practices and patterns who it believed should be included in the bargaining unit. 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 stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer stated that it did not agree with the number of workers set out in the Union’s application. The Employer stated that the figure was 75 on the basis that “this includes the employees that have been excluded under the same conditions, terms and management and benefits as the proposed bargaining unit.”

14) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) In answer to the question of whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it believed at least 10% of employees were union members, although this year the number had reduced. At least four members had left the business, 3 of whom were represented by the Union at their meetings. One current employee, who had also been represented by the Union, was absent on long term sick leave, and a further employee was on alternative duties.

16) When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer explained that in September 2019 the Plant Manager held engagement meetings with all employees on site, including those in the proposed bargaining unit. The Employer said that during those meetings a number of employees had informed the Plant Manager that they were not members of the Union, but they had signed a petition. The Employer said that some employees did not know what they had signed for, or that they were promised extra holidays. The Employer stated that, when the Plant Manager had explained what the negotiated rights of a union would be, those employees were not aware that the Union would be negotiating on their behalf and, consequently, a number of employees said that they would be removing their name from the petition. The Employer stated that a colleague had subsequently e-mailed the workplace representative concerning a number of employees, who were requesting to have their names removed from the petition, but he had not received any confirmation that their names had been removed.

17) When asked whether it was aware of any previous application under the Schedule by the Union in respect of the proposed or a similar bargaining unit, the Employer stated that the Union had sent a request letter under Schedule A1 on 5 November 2019. The Employer stated that it requested the services of Acas to facilitate but it received no acknowledgement.

5. Additional comments from the parties

18) On 2 January 2020 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In an e-mail dated 10 January 2020 the Union stated that it had noted the Employer’s contentions relating to the Union’s proposed bargaining unit but it wished to emphasise that the proposed bargaining unit consisted of the staff who had agreed to be considered “as part of collective bargaining.”

19) In response to the Employer’s comments on the effects of a trade union to the performance of the Employer, the Union stated that there was “no formal justification that a trade union would damage performance” and the Union wished to work collaboratively with the Employer. The Union disagreed with the Employer’s assertion that employees would lose their individuality, the Union stating that it would look to fully engage with all staff individually and collectively.

20) The Union stated that it had met the required 10% threshold but it was concerned about the investigation undertaken by the Company. The Union stated that it was disappointed that the Employer had felt it necessary to identify its union members, which could be interpreted negatively.

21) Finally, the Union stated that its original petition was in relation to collective bargaining and consequently included elements such as pay and holidays. The Union maintained that “someone may interpret the Company engagement as coercion, as staff are being asked to review the petition and have chosen to remove their names from it.”

6. The membership and support check

22) 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 membership of the Union 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 the proposed bargaining 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 16 January 2020 from the Case Manager to both parties.

23) The information requested from the Employer was received by the CAC on 17 January 2020. The information requested from the Union was received by the CAC on 20 January 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

24) The list supplied by the Employer indicated that there were 65 workers in the Union’s proposed bargaining unit.

25) The list of members supplied by the Union contained 20 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 17, a membership level of 26.15%.

26) The petition supplied by the Union contained 50 names and signatures, of which 41 were in the proposed bargaining unit, a figure that represents 63.08% of the proposed bargaining unit. Of those 41 signatories, 14 were members of the Union (21.54% of the proposed bargaining unit) and 27 were non-members (41.54% of the proposed bargaining unit). The petition consisted of 2 A4 sheets and at the top of each page it stated:

“Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:”

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

PRINT NAME	JOB TITLE	SIGNATURE	DATE

27) The signatures on the petition were dated between 6 and 28 May 2019.

28) A report of the result of the membership and support check was circulated to the Panel and the parties on 23 January 2020 and the parties were invited to comment on the results of that check, including any evidence to support those comments, by noon on 28 January 2020.

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

29) In a letter to the CAC dated 28 January 2020, the Employer stated that there was no dispute concerning the number of Union members in the proposed bargaining unit and it therefore accepted that the 10% threshold was met.

30) The Employer maintained that the majority of the workers constituting the proposed bargaining unit were not likely to favour recognition of the Union to conduct collective bargaining on their behalf because the proposed bargaining unit was not compatible with effective management. 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.

31) The Employer further stated that, since the period during which the petition was signed, it had “personal knowledge” that of the 5 colleagues, who had left the business at least 4 colleagues had requested that their names were removed from the Union’s petition. The Employer believed the figures within the report did not therefore “accurately reflect the current situation.” The Employer stated that those names could be provided on a confidential basis, if required.

32) The Employer said that during Plant Manager engagement meetings colleagues had explained that they did not realise that they were supporting a union to negotiate their pay and that “they were promised extra holidays if they signed a petition.”

33) The Employer stated that between September and November 2019 those individuals had also requested that their names be removed from the petition as they claimed that they were “mis-sold the purpose of the petition.” The Employer stated that it had noted that the report showed that only one signature on the petition was crossed out. The Employer believed that this was further proof that the wishes of those individuals had not been granted. The Employer believed that the number of employees, who had asked for their name to be removed from the petition, was enough “to bring the numbers who support the recognition as the minority.”

34) The Union did not provide any comments on the membership check.

8. Report of a check of e-mails from workers received by the Employer

35) In view of the Employer’s comments on the membership and support check, the Panel directed that the Case Manager conduct a check of the e-mails referred to by the Employer.

36) On 5 February 2020 the Employer submitted to the Case Manager copies of 3 e-mails from workers, of which 1 was dated 8 November 2019 addressed to the Plant Manager who had then forwarded the e-mail to the HR Manager and the remaining 2 e-mails were dated 5 February 2020 and were sent directly to the HR Manager. The e-mails stated:

a) “Please remove my name from any union list/petition concerning employees at Stepan Europe.”

b) “I have requested my name to be removed from the list relating to a union being allowed on site at Stepan Stalybridge.”

c) “Just to let you know sent e-mail to have my name removed from petition.”

37) The Case Manager carried out a comparison of the names on the e-mails against the Union’s membership list and petition and the Employer’s list of workers in the proposed bargaining unit (provided to the Case Manager for the previous membership and support check).

38) According to the Case Manager’s further report, the number of e-mails from workers appearing on the Employer’s list was 3 (4.61% of the proposed bargaining unit). All 3 e-mails supplied by the Employer also appeared on the Union’s petition and were non-members, a figure that represents 4.61% of the proposed bargaining unit

39) A report of the result of the e-mails was circulated to the Panel and the parties on 7 February 2020 and the Union was invited to comment on the results of that check, by the close of business on 11 February 2020.

9. Further comments received from the Union

40) By e-mail dated 11 February 2020 the Union stated that it was “happy to accept the employer’s responses.” The Union further stated that based on the petition and the current level of union membership, it believed all the necessary criteria had been met.

10. Considerations

41) In deciding whether to accept the application the Panel must determine whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

42) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

11. Paragraph 36(1)(a)

43) 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. The membership check conducted by the Case Manager (described in paragraphs 22 - 25 above) showed that 26.15% of the workers in the proposed bargaining unit were members of the Union, which the Employer did not contest. As stated in paragraph 23 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 satisfied that the 10% threshold has been satisfied.

12. Paragraph 36(1)(b)

44) 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 proposed bargaining unit. The support check conducted by the Case Manager, described in paragraphs 26 and 27 above, showed that 63.08% of workers in the proposed bargaining unit (41 out of 65 workers) had signed a petition in favour of recognition. Of those who had signed the petition 14 were Union members (21.54% of the proposed bargaining unit) and 27 were non-members (41.54% of the proposed bargaining unit). The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (26.15%), as would non-union members who signed the petition (41.54%); giving a total of 67.69%. The Panel notes the result of the check of the e-mails received by the Employer (described in paragraph 38 above) which showed that 4.61% of the workers in the proposed bargaining unit who signed the Union’s petition and who were non-members, had requested that their names be removed from the Union’s petition. However, it is the Panel’s view that the number of workers recanting from the petition does not affect the overall assessment of the level of support for recognition of the Union.

45) For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

13. Decision

46) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Charles Wynn-Evans, Deputy Chairman of the CAC

Mrs Fiona Wilson

Mr Nick Caton

18 February 2020