Decision

Validity Decision

Updated 12 March 2021

Case Number: TUR1/1153(2019)

03 December 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING AGREEMENT ON THE BARGAINING UNIT

The Parties:

Unite the Union

and

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, Ms Fiona Wilson and Mr Nick Caton. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 18 February 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. By e-mails to the Case Manager dated 29 September 2020 the parties confirmed that they had reached agreement and that the bargaining unit should be described as “All Stepan employees at grade F and below (including the ungraded employees) employed at London and Stalybridge.”

2. Issues

4) As the agreed bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In a letter dated 30 September 2020 the Case Manager invited each party to make submissions on this matter for consideration by the Panel.

5) In a letter to the Case Manager dated 5 October 2020 the Employer made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “No there is no existing recognition agreement covering any of the workers within the new bargaining unit.”

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

The Employer was unsure as to whether there was 10% union membership within the new bargaining unit. The Employer said, “I can only think of 7 colleagues who are or I propose could be members. One colleague I am aware of because he has been represented at meetings with the UNITE Area Official. Another three colleagues were represented by this person in their grievance. One other colleague I am aware because he has a personal injury claim against the company with the union’s solicitor. Two other colleagues have generally informed us that they are in the union.”

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

The Employer was unsure as to whether the majority of workers in the new bargaining unit are likely to favour recognition. During the Plant Manager engagement meetings some employees had informed the Plant Manager that they were not members of the Union but had signed a petition ^{[footnote 1]}. Some said that they did not know what they had signed for and had some explained that they had signed the petition because they were promised extra holidays. When the Plant Manager had informed those employees what the negotiated bargaining rights of a union would be, they were not aware that the Union would be negotiating pay on their behalf and they did not want this.

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No there are no competing applications from another union that covers any workers in the new bargaining unit.”

e) Has there been a previous application in respect of the new bargaining unit? “No there has not been a previous application in respect of the new bargaining unit”.

6) In a letter to the Case Manager dated 5 October 2020 the Union made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “I can confirm that the membership levels are above 10% of the identified bargaining unit.”

b) Is there 10% union membership within the new bargaining unit? “I believe that the petition is still relevant and clearly evidences that the majority of workers favour recognition.”

c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “I believe that the petition is still relevant and clearly evidences that the majority of workers favour recognition.”

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “I am not aware”.

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

3. Membership and support check

7) To assist the determination of two of the validity tests specified in the Schedule, namely whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both the parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 14 October 2020 from the Case Manager to both parties.

8) The information requested was received from both parties on 13 October 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 86 workers in the agreed bargaining unit. The list of members supplied by the Union contained 16 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 16, a membership level of 18.60%.

10) The petition supplied by the Union contained 50 names and signatures, of which 43 were in the agreed bargaining unit, a figure that represents 50% of the agreed bargaining unit. Of those 43 signatories, 13 were members of the Union (15.12% of the agreed bargaining unit) and 30 were non-members (34.88% of the agreed bargaining unit). The Union’ 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 with the following four columns for the worker to complete; Print Name; Job Title; Signature; Date.

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

11) A report of the result of the membership and support check was circulated to the Panel and the parties on 2 October 2020 and the parties were invited to comment on the results of that check by noon on 6 October 2020.

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

12) In an email to the Case Manager dated 23 October 2020 it was the Employer’s view that, whilst on the face of it, the Union had demonstrated that at least 10% of the agreed bargaining unit were members of the Union, but it maintained that membership of only 18.6% was not overwhelming. The Employer said that there had been a slight decline in membership since the CAC’s original initial membership check in January 2020. In 10 months, the Union had failed to attract any additional union members and it had lost 1 member. The Employer said that it had no way of verifying whether all claimed members were in fact still contributing members and it therefore asked that the CAC establish whether members were up to date with their subscriptions.

13) With regard to the second test at paragraph 45(b) the Employer said that it was strongly of the view that the majority of the workers constituting the bargaining unit would not be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the workers in the bargaining unit. The Employer considered that membership was in decline and had reduced from 17 members to 16 members since the last membership check, despite the agreed bargaining unit being substantially larger than the proposed bargaining unit and the Union having 10 months within which to seek additional support from employees. The Employer explained that, despite the intervening pandemic and national/local lockdowns, it had remained open and fully operational 24/7, with only 4 people furloughed on health shielding grounds. As such, there had been ample opportunity for the Union to have increased its membership, and the Employer believed that the fact that membership was in decline was telling. The Employer also believed that there may be many reasons other than representation for collective bargaining as to why an individual may pay to be a member of a union. For example, advice and benefits may be an incentive, and therefore membership itself was not a reliable indicator of support for recognition. The Employer said that, even if that were the case, membership levels were well below a level that indicated majority support.

14) The Employer maintained that the petition relied upon by the Union was not reliable for a number of reasons and, for the reasons it had already raised following the initial check, it should be disregarded by the CAC. The dates on the petition ranged between 6 May 2019 and 28 May 2019. The Employer argued that this was nearly 18 months ago it was therefore not a reliable indicator of the current views of the workers in the agreed bargaining unit. The Employer said that it was notable that petitions submitted for the purpose of ascertaining support for an information and consultation forum under the Information and Consultation Regulations 2004 should not be older than 6 months in order to be relied upon as a valid request under the regulations. The Employer said that whilst it acknowledged that the Union’s application was made under the Schedule, it believed that the CAC should still take account of the date of signatures and the time that had lapsed, as it would do when assessing a request under the 2004 regulations.

15) The Employer maintained that in view of the age of the petition it was likely that it contained signatures of employees who may have changed their view about recognition. The Employer explained that, in its response to the initial check, it had explained that following a series of engagement meetings held by the Plant Manager in September 2019 with all employees on site, some employees had informed the Plant Manager that they were not members of the union but had signed a petition. Some employees did not understand what they had signed up to and were not aware that collective bargaining would result in the Union negotiating pay on their behalf. A number of employees said that they did not want pay negotiated on their behalf and said that they would be removing their name from the petition. The Employer attached to its comments e-mails from 3 individuals, which it stated confirmed that they wished to have their signatures removed from the petition. The Employer said that it was unclear as to whether the names of those individuals remained on the petition, but it invited the CAC to carry out a further check to determine this. The Employer believed that of the names that remained on the petition, it reduced the percentage of support to 46.5%.

16) The Employer explained further that following recent briefings and meetings to update employees on the position regarding the Union’s application there had been overwhelming feedback that colleagues do not wish the Union to be recognised for collective bargaining purposes. The Employer said that whilst it had not asked for individual evidence of this, this was the message that was received, and it therefore believed that the figures in support of the petition were unreliable.

17) Furthermore, the Employer maintained that there was no indication of what “collective bargaining on pay, hours and holidays” actually meant and those individuals who were unfamiliar with trade unions and collective processes would not necessarily understand this.

18) The Employer said that the precise wording of paragraph 45(b) was also important as the CAC must decide whether the members of the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining “on behalf of the bargaining unit”. Pursuant to paragraph 43(2)(b), “the bargaining unit” for the purposes of paragraph 45(b) is the agreed bargaining unit. The Employer argued that the agreed bargaining unit was agreed at the end of September 2020, 16 months after the petition and when a different bargaining unit was considered by the Union. As such, those employees who had signed the petition in May 2019 could not have been indicating support for recognition of the Union as entitled to conduct collective bargaining on behalf of this agreed bargaining unit as this was only agreed in September 2020.

19) The petition also failed to take account of the views of the support functions and chemists (amongst others) in the agreed bargaining unit. The Employer said that its company values enshrine an ethos of “one team” in which it respectfully communicated viewpoints openly and honestly whilst listening with intent to understand diverse perspectives and treating all employees equally.

20) The onus of establishing whether there was a majority likely to support recognition was with the Union. The Employer believed that in light of its comments, the Union had not discharged this burden.

21) The Employer believed that the CAC therefore could not reach the conclusion that a majority would be likely to favour recognition of the Union to conduct collective bargaining in respect of this particular proposed bargaining unit as required by paragraph 45(b) of the Schedule.

22) Finally, the Employer said that it considered that, prior to making any decision regarding the validity of the application, the CAC should test the petition figures again and make enquiries with the Union to ensure that claimed members were fully paid-up.

23) No comments were received from the Union.

24) On 30 October 2020 the Employer’s comments were copied to the Union and its comments invited. In an e-mail to the Case Manager dated 4 November 2020 the Union stated that it was extremely disappointed at the repeated obstacles that the Employer was creating to prevent recognition.

25) The Union said that it was in agreement with the report that confirmed there was 18.6% union membership in the agreed bargaining unit and that 50% of workers in the agreed bargaining unit had signed the Union’s petition (made up of 15.2% union members and 34.88% non-members).

26) The Union confirmed that all members on the list were fully up to date with subscriptions. There had been a slight decline in membership due to members leaving employment with Stepan, and not due to them leaving Unite. This year had been a difficult time for everyone, and recruitment remained a vital part of this process but there had been limited opportunities to engage meaningfully. The Union further explained that “My former colleague initiated this process in December after extended ‘talks’ with the employer where he was told the Union would never be allowed in Stepan. He retired in December and I took over in January 2020 with the intention of engaging with the site to increase membership by organising recruitment days and promoting the learning courses available. Unfortunately, the arrival of Covid derailed any plans from 16 March 2020 when social contact was discouraged and from 23 March 2020 when full lockdown was initiated. I was not classed as an essential worker so was unable to visit the site. To cite 10 months is unreasonable and disingenuous and has to be taken in to consideration by the Panel.”

27) In relation to the point that paragraph 45(b) provides that the CAC may only find the Union’s application to be valid if “a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the union…as entitled to conduct collective bargaining on behalf of the bargaining unit”, the Union said that this had already been confirmed by the report and it therefore did not wish to challenge this point.

28) The Union said that it was strongly of the view that the majority of the workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, and that this had already been evidenced by the petition signed by 50 members of staff in Stalybridge. The Employer provided evidence of 3 members of staff who had requested to be removed from the petition. The Union said that it did not dispute this, but 47 of the agreed bargaining unit had signed the petition and this was clearly a majority. The Union therefore refuted the Employer’s stance on this point.

29) The Union said that membership was not in decline, and despite negative messaging and anti-union propaganda, membership had remained consistent. It was the Union’s view that, once it had a recognised presence on site, membership would increase, and it hoped to engage meaningfully with management.

30) The Union explained that that two petitions were undertaken and a significant number of staff had signed as the title and narrative of the purpose of the petition were clear. The Union said that a return of 50 signatures and an extended timeframe due to a worldwide pandemic should not deflect from the initial demand and support for recognition within Stepan.

31) In response to the 3 e-mails, the Employer said that 3 members of staff had asked to be removed from the petition and “Skell” had confirmed this to the Plant Manager but questioned what was the context to this confirmation and what pressure was placed on individuals? The purpose of the questionnaire was clear and there was no ambiguity. Staff understood that collective bargaining was the aim and that it would include a number of terms and conditions, including pay and holidays. The Union considered that 3 constitutes a number of employees in the same way that a reduction of 1 was not a decline in membership.

32) Finally, the Union said that it was disappointed that the Employer felt it appropriate to state that employees were misled. This was unnecessary and not in the spirit of the agreement that it would like to reach. The Employer’s response was based on conjecture and hearsay. Membership would increase and many potential members were awaiting confirmation of recognition before they joined the Union. Many had seen behaviours that have resulted negatively for them. There was support for recognition and/or collective bargaining and the members of the relevant bargaining unit were in favour of recognition of the Union as entitled to conduct collective bargaining on their behalf.

33) In a further e-mail to the CAC dated 6 November 2020 the Union stated that it had been provided with 3 statements from employees at Stepan in which they had expressed their support for recognition in the workplace. The Union said that it was however unable to confirm whether those individuals would be happy with the content being shared with their Employer as they were fearful of repercussions for them personally as the content may be misinterpreted by management. The Union asked whether a confidentiality check could be undertaken.

5. Considerations

34) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it.

35) The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

6. Paragraph 45(a)

36) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10 per cent of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 7 to 9 above) showed that 18.06% of the workers in the agreed bargaining unit were members of the Union. As stated in paragraph 8 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 45(a) of the Schedule.

7. Paragraph 45(b)

37) Under paragraph 45(b) an application is invalid unless the CAC decides that a majority of the workers constituting the bargaining unit determined by the CAC would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. In reaching its conclusion in relation to this test the Panel has taken into account the parties’ representations and the following particular points, reminding itself and the parties that the test at this stage is the assessment of likely as opposed to actual support for recognition.

38) The support check conducted by the Case Manager, described in paragraph 10 above, showed that 50% of workers in the agreed bargaining unit (43 out of 86 workers) had signed a petition in favour of recognition. Whilst members of the Union represented 18.60% of the agreed bargaining unit, of those who had signed the petition 13 were Union members (15.12% of the agreed bargaining unit) and 30 were non-members (34.88% of the agreed bargaining unit).

39) The Panel considered carefully the Employer’s submission in effect that the petition was “stale” and that workers’ views may have changed since they had signed the petition The Panel is not satisfied that it has been presented with sufficient evidence to demonstrate that the level of support disclosed by the petition within the agreed, albeit extended, bargaining unit, no longer subsists. There is no evidence demonstrating a significant turnover of employees affecting the constituency from which the petition was sought or a reduction in the level of support for recognition from the workers within the originally proposed bargaining unit who have now been subsumed within the agreed bargaining unit. Nor has evidence been produced demonstrating a lack of support for trade union recognition from those within the agreed bargaining unit, whether or not they fell within the originally proposed bargaining unit.

40) The Panel considered the resubmission by the Employer of 3 e-mails from workers, which it had also relied upon during the acceptance stage, requesting that their names be removed from the petition. 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. Other than the 3 e-mails submitted by the Employer, the Panel has seen no evidence to the contrary that the views of the workers have changed.

41) Dealing with other specific submission made by the parties:–

• the Union’s contention that a majority of employees supported the petition even if the three employees who withdrew their support are discounted is not accurate. Discounting those individuals takes the level of support disclosed by the petition from 50 to 47 i.e. from 50 per cent to 46.5 per cent not from 50 to 47.

• The Panel has not taken into account the Employer’s assertion that there is overwhelming feedback that colleagues do not wish the Union to be recognised in the absence of any evidence in support of that assertion.

• The Panel considers the argument that there has been a decline in union membership to be of minimal import as the reduction in membership has been of only 1 employee.

• The Panel does not accept that the wording of the petition was sufficiently ambiguous as to make it unreliable as an indicator of support for recognition not least as the petition expressly referenced pay hours and holidays, being the subject matter of statutory trade union recognition.

• Whilst the statutory test must be applied to the bargaining unit has now agreed and the petition was conducted in relation to the previously proposed bargaining unit, all the workers in the originally proposed bargaining unit were subsumed within the expanded agreed bargaining unit and the Panel accepts that the petition therefor remains relevant to support for recognition in that revised agreed bargaining unit.

• It is evident to the Panel that in view of the Covid pandemic and the current Government restrictions, the Union has had difficulties communicating with its members and major difficulties in respect of non-members. This can be taken to account for the lack of additional evidence of support for recognition within the bargaining unit since the petition. In any event the statutory test must be applied by reference to the evidence before the Panel as to the level of likely support for recognition.

42) On the basis of its acceptance of the continued relevance and cogency of the petition, the Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (18.60%), as would non-union members who signed the petition (34.88%), giving a total of 53.48% support for recognition on the basis of the petition. The Panel has consequently concluded that, despite the passage of time, the petition, taken together with the current level of membership of the Union within the agreed bargaining unit, demonstrates that the majority of the workers constituting the bargaining unit, even as subsequently revised by agreement between the parties, would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

43) 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 45(b) is therefore met.

8. Decision

44) For the reasons given in paragraphs 35-42 above, the Panel’s decision is that the application is not invalid and that the CAC is proceeding with the application.

Panel

Mr Charles Wynn-Evans, Deputy Chairman of the CAC

Ms Fiona Wilson

Mr Nick Caton

03 December 2020

1. See paragraph 10 below for details of this petition. ↩