Decision

Acceptance Decision

Updated 12 September 2018

Case Number: TUR1/1052/2018

26 June 2018

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

Triumph Aerospace Operations UK Ltd trading as Triumph Integrated Systems, Actuation & Control

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 9 May 2018 that it should be recognised for collective bargaining by Triumph Aerospace Operations UK Ltd trading as Triumph Integrated Systems, Actuation & Control (the Employer) for a bargaining unit comprising “Unit 49 Electronics, Unit 49a, workers in test, workers in up locks, workers in stores, workers in final view, workers in freefall actuator, workers in Boeing, workers in HPRV, workers in Priority Valve, workers in Door jacks, workers in finishing, workers in Rotaries and workers in EHSV. We do not consider as part of the bargaining unit any employees that are employed on a salary contract”. The application was received by the CAC on 16 May 2018 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC dated 23 May 2018 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 Rohan Pirani, Chair of the Panel, and, as Members, Mr Mike Regan and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 31 May 2018. The acceptance period was extended to 18 June 2018 and then to 26 June 2018 in order to allow time for the Panel to obtain more information, a membership and support check to be carried out, the parties to comment on the results of the check and for the Panel to consider these comments before arriving at a decision.

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) In its application the Union confirmed that it had sent its formal request for recognition to the Employer on 27 March 2018. A copy of their request letter was attached to the application. The Union stated that following receipt of the request letter the Employer proposed that ACAS assist which they agreed to. Contact with ACAS commenced on 12 April 2018 and concluded on 2 May 2018 and the Union enclosed correspondence between the parties as evidence.

6) According to the Union there are 110 workers employed by the Employer, of whom 75 are in the proposed bargaining unit. Out of the 75 workers in the proposed bargaining unit the Union stated that 46 were members 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 stated that this would be available to the CAC case worker and would include membership details and supporting statements.

7) The Union stated that the reason for selecting the proposed bargaining unit was because the bargaining unit would consist of all hourly paid employees.

8) The Union stated that the bargaining unit had not been agreed with the Employer and it was not aware of any other existing recognition agreement which covered any of the workers in the proposed bargaining unit. The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 9 May 2018.

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

9) The Employer referred to the Union’s previous application which was withdrawn by the Union. For the purposes of this decision we have considered only those aspects of the response relevant to the application.

10) The Employer confirmed that the Union’s request setting out their proposed bargaining unit was made to them by letter dated 27 March 2018. The Employer stated that in a letter dated 9 April 2018 they rejected the Union’s request but confirmed that they were willing to negotiate and proposed that ACAS be asked to assist. The Employer followed this up with a further letter dated 23 April 2018. Copies of both letters were attached to the Employer’s response form.

11) The Employer stated that it had received a copy of the application form from the Union on 16 May 2018.

12) The Employer did not agree with the proposed bargaining unit, their main concern being that the proposed bargaining unit was unclear and consequently they were unable to distinguish between the workers who fell within the proposed unit and those who did not.

13) When asked ‘did you propose that ACAS be requested to assist’ the Employer stated ‘yes’ and explained that a telephone call with ACAS took place on 1 April 2018 in which they proposed a membership ballot be held. In order to discuss that further, a face-to-face meeting was held on 26 April 2018 and a follow-up telephone conversation on 2 May 2018. Despite their best efforts parties were unable to reach an agreement and ACAS confirmed on 9 May 2018 that it was concluding conciliation and no ballot was held.

14) The Employer indicated that they employed 379 workers and that it disagreed with the number of workers in the Union’s proposed bargaining unit as the description was said to be unclear. The Employer stated that they had attempted to work out how the Union may have arrived at a figure of 75 but were simply unable to see any way their Deeside workforce could be divided so as to arrive at that number.

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

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that as the bargaining unit was not clear they were unable to ascertain who fell within the proposed bargaining unit and therefore estimate union membership with any degree of clarity.

17) As to whether a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer said that they were unable to understand with any certainty the shape and scope of the bargaining unit and therefore reserved their ability to provide further analysis of this issue as and when there was clarity to the Union’s proposal. In any event, the Employer did not consider that any proposed bargaining unit at Deeside would have majority support for recognition.

18) In the Employer’s opinion there is a very important distinction to be made between an employee choosing union membership and that person, separately, supporting union recognition and collective bargaining rights. The Employer stated that they understood that a pillar of the Union’s recent membership campaign onsite was to promote the availability of legal advice and other potential benefits for union members. The Employer makes the point that these benefits are in no way dependent on workplace recognition and are available to any union members. They were aware that some of their staff had become union members specifically, they were told, for access to legal advice but did not positively support trade union recognition in respect of their own terms and working arrangements. That alone indicated that membership per se should not be equated with support for recognition in this case.

19) The Employer stated that they had certain additional information which they believed was also relevant to the determination of these issues which, given the sensitivity of the information and in view of their duties to their employees, they would be happy to discuss with the CAC on a confidential basis.

20) The Employer advised that they have their own Employee Forum which is focussed on site specific issues and concerns but could also take in the wider company context as relevant. The Employee Forum is made up of employees who have put themselves forward and been chosen by their colleagues to represent staff in discussions with management. The Employee Forum is flexible and able to, and does, discuss a broad range of matters including maters including, for example, pay, holiday and hours.

21) As to whether they were aware of any previous applications made under Schedule A1 for statutory recognition made by this Union in respect of this bargaining unit or a similar bargaining unit the Employer referred to two previous applications which were both withdrawn by the Union at acceptance stage.

22) It was also clarified that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

5. Union’s comments on Employer’s response

23) The Union responded to the Employer’s response. According to the Union, during a telephone conference with the ACAS officer on 2 May, the Employer reneged on the spirit of the meeting of the 26 April and reintroduced a previously held belief that the bargaining group was not within the scope of what they believed their employees wanted.

24) The Union also found difficulty with the part of the response in which the Employer says they were unsure of the bargaining group because this is said to contrast with the position advanced during the meeting on 26 April 2018, facilitated by Acas.

25) The Union stated that their bargaining unit was a distinguished group of workers as they are manual workers, on hourly paid overtime rates, distinguished by deductions based on hourly rates for lateness and or sickness. They do not consider as part of the bargaining unit any employees who are employed on a salary contract. Accordingly, the Union submits that their position is sufficiently clear and precise for the purposes of the application process.

26) The Union explained that they had not declared intent to recognise any other group of worker on the other sites owned and operated by the Employer as those sites already had recognition agreements.

27) The Union stated that they had acted in good faith in conciliation with the Employer through ACAS. According to the union, the Employer’s change of position has created uncertainty and distress for their members and employees at Deeside.

6. The Membership Check

28) 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 union membership within the proposed bargaining unit. 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 that unit (including their full name and date of birth) and a copy of their petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 5 June 2018 from the Case Manager to both parties. The information from the Union and Employer was received by the CAC on 12 June 2018. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

29) The Union’s petition consisting of 50 names/signatories was set out as follows with dates ranging from 7/6/18 to 11/6/18.

7. Unite the Union Recognition Petition

We the undersigned workers who are employed by Triumph Integrated Systems, Actuation & Control at Deeside, ask that Unite the Union be the recognised union that represents us for collective bargaining purposes.

SIGNATURE	PRINT	DEPARTMENT OF JOB ROLE	DATE

30) The list supplied by the Employer indicated that there were 78 workers in the proposed bargaining unit. The list of members supplied by the Union contained 46 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 43, a membership level of 55.13%. The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 49 workers (1 name/signature not appearing on the Employer’s list) had indicated that they wanted the Union to be recognised which corresponded to 62.82% of the bargaining unit. 39 of the 49 were union members (50%) and 10 were non-members (12.82%).

31) A report of the result of the membership and support check was circulated to the Panel and the parties on 13 June 2018. The parties were invited to comment on the results and to bear in mind the two admissibility tests set out in paragraph 36 (1)(a) and paragraph 36 (1)(b) in so doing. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties. The parties’ comments on the result of the membership check

32) The Union in a letter dated 14 June highlighted that the level of union membership showed a density in the proposed bargaining unit of 55.13%. They also referred the Panel to the proportion of workers who had signed the petition and invited the Panel to agree that the figure indicated the likely percentage of those likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the proposed bargaining unit.

33) The Employer in a letter dated 18 June 2018 stated that they had been unaware of the Union’s petition and did not know who undertook it or the basis upon which employees were asked to sign. They did not know how much time their employees were given to consider or whether they were allowed the option of an anonymous response. The Employer therefore says they are unable to comment on the veracity or persuasiveness of the data for the purposes of paragraph 36(1)(b) of the Schedule.

34) The Employer also stated “pursuant to paragraph 34(b) of the Schedule an application by the Union is not admissible unless the Union gives to us the Employer ‘a copy of … any documents supporting it’. By Unite and Kingspan Ltd (TUR1/813/12, 23 July 2012), CAC, the Union should provide the petition if it intends to share the same in full with the Panel and the employer in support of its application. The Union has chosen to only refer to the petition but not share it and as such seek only to rely on the evidence disclosed rather than the full petition.”

35) The Employer said that they had not seen the Union’s petition but understood from the CAC’s letter that the petition asked for signatures from workers “who were employed by Triumph Integrated Systems, Actuation & Control at Deeside” whereas their employees in the proposed bargaining unit were employed by a differently named entity, namely Triumph Aerospace Operations UK Ltd (which uses a trading name of Triumph Integrated Systems, Actuation & Control). The Employer stated that they would leave it to the Panel to consider the impact on the persuasiveness of the signatures and the fact that they were obtained on this incorrect basis.

36) Finally, the Employer said they would welcome the opportunity to provide further information for the Panel’s consideration if the application proceeds to further stages. In particular, the Employer says they have points to make in respect of the appropriate bargaining unit and the necessity of a ballot.

8. Considerations

37) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

38) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. Furthermore, 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 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

39) 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.

40) The membership check conducted by the Case Manager showed that 55.13% of the workers in the proposed bargaining unit were members of the Union which was not challenged by the Employer. As stated in paragraph 28 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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 36(1)(a) of the Schedule.

10. Paragraph 36(1)(b)

41) The Case Manager’s check of the Union’s petition against the list of 78 workers provided by the Employer indicated that 49 of the 50 petition signatories were identifiable as workers within the bargaining unit, a support level of 62.82%. The signatories were composed of 39 union members (50%) and 10 non-members in the bargaining unit (12.82%). At this stage we do not need to be satisfied that a majority in the proposed bargaining unit actually does support recognition of the union, rather that a majority would be likely to do so. In considering this we note the level of membership and petition support, including the fact that some support comes from those not in membership of the Union. The Panel notes the Employer’s comments about not having known or seen sight of the Union’s petition. If a petition is to be relied on as evidence it should be referred to. However, it should only be attached to the application form if it is intended to be shared in full with the Panel and the Employer, otherwise it can be asked for on a confidential basis for the purpose of the membership and support check. To the extent that it is relevant, we also note that the CAC Panel in Unite and Kingspan Ltd TUR1/813/2012 commented that the CAC does not specify that the Union should provide any supporting documents for the purposes of addressing questions 11 or 12 on the application form and it was satisfied that the application, in that case, should not be rendered inadmissible by the absence of any such documents.

42) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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, as required by paragraph 36(1)(b) of the Schedule.

11. Decision

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

Panel

Mr Rohan Pirani, Chair of the Panel

Mr Mike Regan

Ms Fiona Wilson

26 June 2018