Decision

Recognition Decision

Updated 4 May 2020

Case Number: TUR1/1120/2019

01 May 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Unite the Union

and

TE Connectivity Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 12 June 2019 that it should be recognised for collective bargaining by TE Connectivity Ltd (the Employer) in relation to a bargaining unit comprising “All Production, Quality Assurance and Maintenance workers up to and including team leaders in the TE Connectivity Ltd, Faraday Road, Dorcan, Swindon, SN3 5HH.” The CAC gave both parties notice of receipt of the application on 17 June 2019. The Employer submitted a response to the CAC dated 5 July 2019 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mr Gerry Veart and Mr Mike Cann. For the purposes of this decision Mr Cann was replaced with Mr Len Aspell. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3) By a decision dated 16 October 2019, the Panel accepted the Union’s application. On 14 January 2020, in an e-mail to the CAC the Employer confirmed that agreement had been reached between the parties as to the appropriate bargaining unit. The bargaining unit sought by the Union was in respect of sites A & H in Swindon, for all production, quality control and maintenance workers up to and including team leaders. The bargaining unit agreed was in respect of sites A & H in Swindon, for all production, quality control and maintenance workers up to and including team leaders (Cell Leader in Employer’s terms). The Employer confirmed that the bargaining unit agreed upon was the same as proposed by the Union in its application to the CAC with clarity agreed on the terms used to identify categories of worker within the agreed bargaining unit.

4) On 15 January 2020, in an e-mail to the CAC, the Union concurred with the Employer that the parties had a very amicable meeting under the auspices of Acas on 19 December 2019 by the end of which the parties had agreed upon the appropriate bargaining unit, namely:

“All production, Quality Control and maintenance workers up to and including team leaders in the TE Connectivity Limited sites “A” & “H”, TE Connectivity Ltd, Faraday Road, Dorcan, Swindon, SN3 5HH.”

5) As the agreed bargaining unit was the same as that proposed by the Union in its application, the Panel moved to the next stage in the statutory process.

2. Issues

6) 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 is fulfilled. The three qualifying conditions are:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) 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;

(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) of the Schedule provides that for these purposes “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.

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

7) By letter to the Union dated 16 January 2020 the CAC asked whether the Union claimed majority membership within the agreed bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union answered by e-mail to the CAC dated 20 January 2020 with the following statement:

“I can confirm that Unite are claiming recognition without a ballot, this is purely on the target of plus 50%. I will also point out that the Unite ballot demonstrates a will from members and non members who would like to see Unite recognised on site”

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

8) On 24 January 2020 the CAC copied the Union’s e-mail to the Employer with an invitation to make submissions on the Union’s claim that it had majority membership within the bargaining unit and on the three qualifying conditions specified in paragraph 22(4) of the Schedule.

9) By its e-mail to the CAC dated 30 January 2020, the Employer submitted that the Union should not be recognised without a ballot. Firstly, because the Union did not have majority membership in the bargaining unit. The membership check conducted by the CAC showed a 47% membership level and therefore a ballot must be held under the provisions in Schedule A1. (This 47% figure was derived from the confidential membership and support check dated 20 August 2019 which was conducted by the CAC case Manager to assist the Panel with its decision on the admissibility of the application, and in which it was established that 47% of the Union’s proposed bargaining unit were Union members.) Secondly and in any event, the Employer contended that a ballot should be held in the interests of good industrial relations. In support of its position, the Employer submitted the following statement from its Swindon’s site Employee Relations Manager:

“Since the application for recognition by Unite, there has been a change of senior management at the Swindon site. This has resulted in greater engagement with employees and we have seen a subsequent shift in the number of employees not wishing for union recognition at site.

Unite held a gate protest at the Swindon site in October 2019. This in fact had the opposite effect as to perhaps what Unite had hoped. There was subsequently large discontent by employees at site, against the union, for what was seen as an overreaction and heavy-handed tactics.

During a further series of regular round-table discussions and town halls, we have heard from employees that they no longer see the need for recognition, together with some employees stating that they will be cancelling their membership.

From these regular meetings there has been a strong feeling from employees that being a member of the union is very different to having the union negotiate on their behalf and it is the latter that they do not consider necessary.

I have absolutely no evidence to suggest that membership levels are 50% or greater, as suggested by Unite, or that they have any kind of momentum or a mandate for collective bargaining. I would suggest that in actual fact the tide has turned and membership levels have, and continue to, decrease.’’

The Employer asserted that support for recognition was a dynamic issue within the bargaining unit and that there was clearly conflicting evidence about support for recognition irrespective of the Union’s claimed membership levels.

10) In conclusion the Employer referred to its meeting with the Union under the auspices of Acas which it described as “constructive and useful”. The Employer felt that this pointed toward a likely reasonable working relationship with the Union if recognition was mandated through an independently conducted ballot. In the language found in the leading authorities on the issue, a ballot would help create a stable and respectful relationship in the future, clear the air between the parties and, if the result ran in the Union’s favour, provide the Union with the necessary legitimacy in its relations with the Employer. The Employer respectfully submitted to the CAC Panel that a ballot must be held.

5. Summary of the Union’s comments on the Employer’s response

11) On 30 January 2020 the CAC copied the Employer’s submissions to the Union and invited it to comment on the Employer’s points. By e-mail dated 4 February 2020, the Union submitted that it had thoroughly checked its membership figures in the bargaining unit and that its membership level was still over 50% which would give a clear mandate that the majority of workers within the bargaining unit wanted collective bargaining and recognition for Unite the Union. The Union disputed the Employer’s claim that the membership figures were decreasing. The Union stated that in fact its membership had increased both inside and outside of the bargaining unit, the latter being more senior roles joining the Union. The Union also stated that it could only assume that the Employer had guessed the level of Union membership as this was knowledge only it had the authority to have.

12) The Union also referred to the petition it had relied on at the admissibility stage of the application process. The petition was run by its members and suggested that 175 workers wanted the Union to be recognised as they had all signed, dated and written down their workplaces. The Union considered that petition was run with total professionalism and no worker had been forced to sign it if they did not want to. The Union stated that it did not hold the same level of confidence regarding the Employer’s petition as it had testimonies from several members and workers who felt unduly pressurised to vote against it. The Union contended that its membership on site remained solid despite the Employer’s campaign. The relevant facts remained that:-

• over 50% of the bargaining unit were Union members and had informed the Union that they wanted recognition - the Union’s membership details confirmed this fact and this had been documented previously;
• the petition run by the Union was very successful and there were 175 signatures from both members and non-members which clearly signified a desire for recognition;
• the Employer’s petition failed to convince that the workers in the bargaining unit did not want the Union to be recognised - in fact, in the Union’s view, it did the complete opposite and confirmed that workers in the bargaining unit wanted the Union to be recognised.

For these reasons the Union maintained its claim that it should be granted recognition without a ballot.

6. The Case Manager’s Membership Check

13) Following the parties’ dispute over the Union’s claim to having majority membership within the bargaining unit, the Panel instructed that the Case Manager carry out an independent check of the level of Union membership in the bargaining unit. In a letter to the parties dated 13 February 2020, the CAC confirmed the arrangements for the membership check. The Union was asked to provide a list of the names, addresses and dates of birth of the paid up Union members in the bargaining unit and the Employer was asked to provide the names, addresses, dates of birth and job titles of the workers in the bargaining unit. The parties were also informed that, in order to preserve confidentiality, their respective lists would not be copied to the other party.

14) The information from the Union was received on 13 February 2020 and from the Employer on 17 February 2020. The Case Manager’s report established there were 238 workers in the bargaining unit of whom 121 were members of the Union, a percentage level of 51%. The Case Manager’s report of the membership check was issued to the Panel and to the parties for comment on 18 February 2020. The parties were also invited to provide their final submissions on whether the qualifying conditions set out in paragraph 22(4) applied in this case (set out in paragraph 6 of this decision).

7. Summary of the Employer’s comments on the membership check report

15) By e-mail to the CAC dated 18 February 2020 the Employer re-iterated its case for a ballot to be held in the interests of good industrial relations and added that the Union had a minimal majority membership in the bargaining unit. In its view, this level may well fluctuate as a result of manning requirements. The Employer contended that the bargaining unit ‘population’ would continue to be dynamic to reflect manning requirement. The Employer took the view that support for Union recognition was a dynamic issue within the bargaining unit. It remained the case that there was a conflicting view, and arguably evidence, as to whether there was support for recognition irrespective of the Union’s claimed level of membership.

8. Summary of the Union’s comments on the membership check report

16) By e-mail to the CAC dated 24 February 2020 the Union submitted that the membership check resulted in a 51% majority of Union members within the bargaining unit and respectfully asked the Panel to grant recognition without a ballot on the basis of three points:

• The Union’s petition was a fundamental result which overwhelmingly supported that a majority of workers within the bargaining unit wanted the Union on site;

• the Employer’s failed petition clearly identified that the employees were not supportive of and in fact the Employer’s petition worked in favour of supporting the Union’s position; and

• the membership check entailed both the Employer and the Union submitting their respective figures and the result of that check was that a majority were Union members and therefore the test had been satisfied without the need for a ballot.

17) The parties’ comments were cross copied and, by its letter dated 6 March 2020, the CAC invited the parties to submit their responding comments and final submissions for the Panel’s consideration.

9. Summary of the Union’s final submissions to the Panel

18) The Union made its final submission to the CAC by e-mail on 9 March 2020, responding to each specific point made by the Employer as follows.

19) The Union argued that the Employer’s point that “the Union had a minimal majority membership in the bargaining unit” only verified that there was in fact a majority of Unite the Union members in the bargaining unit and that the statutory test had been met.

20) The Union agreed with the Employer that “The Bargaining Unit ‘population’ will continue to be dynamic to reflect manning requirements”. However, the department in which there had been a reduction in the number of employees was a department in which the Union had no members at all.

21) The Union disagreed with the Employer that “A ballot should be held in the interests of good industrial relations in any event.” The Union asserted that the industrial relations between the Union and the Employer were already good. The Union had recognition in the Techno side of the Employer’s business in Swindon and therefore a relationship already existed.

22) With the regard to the Employer’s point that there had been greater engagement with employees and a subsequent shift in the number of employees not wishing for Union recognition since a change of senior management at the Employer’s Swindon site, the Union responded that this was the result of the Union continually pressurising the Employer due to the bullying and harassment that had been experienced by its members. Furthermore, there was no evidence that there was a shift of employees not wishing for recognition of the Union. The Union’s petition was fundamental to this point as it did reflect the views of the employees in the bargaining unit.

23) The Union stated that the Union’s gate protest at the Swindon site in October 2019 to which the Employer had referred was in its view received with mixed feelings. However, the Union did not agree with the Employer’s reference to “heavy handed tactics”. The Union explained that the protest was designed purely to support the Union’s members on site and give them a voice.

24) The Union contested the Employer’s statement that “During a further series of regular round-table discussions and town halls, we have heard from employees that they no longer see the need for recognition, together with some employees stating that they will be cancelling their membership”. The Union stated that this statement was factually incorrect as, since the town hall meetings, its membership had dramatically gone up. This may not have been reflected in the bargaining unit but it certainly had been reflected in the Union’s overall membership at the Employer.

25) The Union contended that there was no evidence to support the Employer’s statement that “From these regular meetings there has been a strong feeling from employees that being a member of the union is very different to having the union negotiate on their behalf and it is the latter that they do not consider necessary.” The Union reiterated that its petition demonstrated the wishes and intentions of the employees and its Union members.

26) With regard to the meeting the parties attended held by Acas, the Union stated that it was largely amicable because there was already a reasonable working relationship with the Union based on the recognition that already existed on the Employer’s Techno site in Swindon. The Union contended that there was no reason that recognition at site H and A would not work equally as well and there was therefore no need for a ballot.

27) The Union disagreed with the Employer’s statement “I have absolutely no evidence to suggest that UNITE have any kind of momentum or a mandate for collective bargaining.” The Union argued that its mandate was “clear” in that the Union had majority membership within the bargaining unit and there was factual evidence in the form of the petition that was run by the Union which indicated that a majority of employees in the bargaining unit wanted the Union recognised.

28) In conclusion, the Union repeated its point that the Union was already recognised by the Employer in relation to its Techno business. This had been the case for at least 10 years without any issues or disputes. The Union also stated that it was also worth pointing out to the Panel that the Union and the Employer had successfully negotiated on pay and conditions using the exact same management and HR who were responsible at both sites H and A at the Dorcan facility. The relationship had already been forged and was amicable. The Union could not see why this would not be the case if the Union was awarded recognition at sites H & A. In summary, based on there being a majority of Union members within the bargaining unit, its petition and the existing recognition agreement that was in place in another area of the Employer’s business with the Union, the Union saw no need for a ballot.

10. Summary of the Employer’s final submissions to the Panel

29) The Employer made its final submission to the CAC by e-mail on 11 March 2020. The Employer stated that it had held a number of Town Hall events with employees within the bargaining unit, where it had specifically communicated over the Union’s recognition request. In these meetings, employees had questioned the difference between union membership and union recognition for collective bargaining purposes. Employees had stated their wish for union membership, to provide support to the workforce should they find they need it on an individual basis and in fact the business supported this approach. However, employees also stated that, whilst they may be members, they did not approve of, or want, the Union to be negotiating on their behalf over pay, hours and holidays. Following the Union gate protest last year, employees had also stated that they did not approve of such heavy handed tactics and therefore, again, did not want the Union recognised for collective bargaining purposes.

30) The Employer contended that a ballot would be the only clear way forward to allow this issue to be determined. The Union maintained a 51% membership and the Employer suggested that, given what the Employer had heard at the Town Halls, the support for recognition for collective bargaining purposes was far below that. In its view it would only be right and fair, and, in the interests of good employee relations in relation to the Union and the Employer working together in the future, for a ballot to be called. The Employer stated that it maintained its view as previously submitted to the Panel and in this regard respectfully submitted to the Panel again that a ballot must be held in this case.

11. Considerations

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

32) In this case the membership check issued by the Case Manager on 18 February 2020 showed that 51% of the workers in the bargaining unit were members of the Union. The Employer accepted the results of the CAC’s membership check but argued that it represented a small majority. The Panel is satisfied that this check was conducted properly and impartially and in the absence of evidence to the contrary, the Panel is satisfied that a majority of the workers in the bargaining unit are members of the Union, even though this requirement was met by a relatively narrow margin.

33) Before reaching its decision on whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule apply in this case, the Panel has considered carefully the submissions and any evidence of both parties in this regard.

34) The qualifying condition for a ballot to be held pursuant to paragraph 22(4)(c) of the Schedule is that there is membership evidence that is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. Paragraph 22(5) of the Schedule goes further and 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.

No such evidence has been produced in this case and the Panel has therefore concluded that this condition for a ballot to be ordered has not been satisfied.

35) The qualifying condition for a ballot to be held pursuant to paragraph 22(4)(b) of the Schedule is that there is evidence, which the CAC considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf.

36) In this case the Employer argued that membership was decreasing. However, the CAC’s membership check established that this was not the case and had in fact increased to 51% from 47% over the period since the CAC’s initial membership check at the admissibility stage of the application process. In support of its case the Employer was able to produce a statement made by the Employee Relations Manager who referred to increased engagement with employees through which employees had expressed not wanting recognition of the Union and even cancelling membership. However, no detail was provided as to the number of employees expressing these views and whether they were Union members nor was any additional or independent documentary or other evidence - whether by way of emails, statements or otherwise - provided in support of this statement or demonstrating that the views in question were held by a significant number of Union members within the bargaining unit. In the absence, therefore, of more specific and direct evidence in support of the Employer’s contentions in this regard, the Panel is not satisfied that the Employer has established that any such views are held by a significant number of Union members within the bargaining unit.

37) Reference was made to the petition on which the Union relied on at the acceptance stage of the application it being suggested that there may have been from workers who were confused about the meaning of being a member of a Union for the purposes of having the Union represent them in collective bargaining unit or for other reasons. The Panel does not consider that this petition is of assistance or relevance to its decision at this stage of the process given the specific test which it is required to apply in relation to paragraph 22(4)(b) of the Schedule. Evidence has not been produced – whether in the form of a petition or statements or otherwise - supporting a conclusion that there is credible and a significant number of members of the Union within the bargaining unit who do not want the Union to be recognised for the purposes of collective bargaining on its behalf. The Panel is therefore satisfied that this condition under paragraph 22(4)(b) of the Schedule is not satisfied in this case.

38) The remaining situation in which a ballot is to be held pursuant to paragraph 22(4)(a) of the Schedule is where the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by both parties in this regard and is not satisfied that a ballot should be held in the interests of good industrial relations.

39) In reaching this conclusion, the Panel recognises and has considered carefully the fact that the Union only has majority membership within the bargaining unit by a relatively narrow majority. In the Panel’s view, that is not of itself sufficient reason for a ballot to be ordered as the Panel must focus on the statutory test of whether a ballot should be ordered in the interest of good industrial relations. On the basis of the submissions it received, and taking into account its industrial expertise, the Panel is not satisfied that the Employer has demonstrated that the circumstances are such that a ballot should be held.

40) Dealing with certain specific points, the Employer’s assertion that there has been “subsequently large discontent by employees at site, against the union, for what was seen as an overreaction and heavy-handed tactics” in relation to a gate protest has not been supported by cogent and detailed evidence. Whilst it appears to be common ground that manning in the bargaining unit is dynamic the level of Union membership has increased rather than decreased – from 47% to 51% - over the period of this statutory recognition process and the Panel does not consider that evidence has been produced demonstrating the level of Union support has fluctuated or is likely to fluctuate such that a ballot is needed to establish a stable and robust mandate for recognition. Likewise, the Employer has not produced detailed evidence in support of its contention that it had “heard from employees that they no longer see the need for recognition, together with some employees stating that they will be cancelling their membership” such that a ballot is need to resolve the true level of support for the Union amongst its members or otherwise. In addition, the Employer has not provided evidence in support of the contention that “since the application for recognition by Unite, there has been a change of senior management at the Swindon site. This has resulted in greater engagement with employees and we have seen a subsequent shift in the number of employees not wishing for union recognition at site. The Employer has indicated that it considers that it will have a likely reasonable working relationship with the Union if recognition is mandated through an independently conducted ballot but has not satisfied the Panel that its working relationship with the Union – with whom it already has recognition arrangements elsewhere in its business - will not be capable of working appropriately in the absence of a ballot. Whilst the Employer has registered its concerns about automatic recognition being awarded, it has not satisfied the Panel that its concerns are grounded in actual industrial relations issues, as opposed to its own views about the merits of trade union recognition, or that any such issues could or should be resolved by a ballot. The Panel is not satisfied that there are industrial relations issues that need to or will be addressed or resolved by a ballot being conducted.

12. Declaration of recognition

41) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising:

All production, Quality Control and maintenance workers up to and including team leaders in the TE Connectivity Limited sites “A” & “H”, TE Connectivity Ltd, Faraday Road, Dorcan, Swindon, SN3 5HH.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Len Aspell

Mr Gerry Veart

01 May 2020