Decision

Acceptance Decision

Updated 5 April 2019

Case Number: TUR1/1084(2019)

29 January 2019

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:

URTU

and

Fowler Welch

1. Introduction

1) URTU (the Union) submitted an application to the CAC dated 8 January 2019 that it should be recognised for collective bargaining purposes by Fowler Welch (the Employer) in respect of a bargaining unit comprising “The employees at the above named address contracted as ‘LGV drivers’ ”. The location of the bargaining unit was given as “Fowler Welch Depot, London Road, Teynham, Sittingbourne, ME9 9PR.” The application was received by the CAC on 9 January 2019 and the CAC gave both parties notice of receipt of the application on 9 January 2019. The Employer submitted a response to the CAC dated 16 January 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr Mike Cann and Ms Lesley Mercer. 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 23 January 2019. The acceptance period was extended to 1 February 2019 in order to enable the Panel to consider all of the evidence 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. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a formal request to the Employer on 5 November 2018. The Union stated that the Employer had responded on 15 November 2018 stating that it had rejected the request but was prepared to negotiate. The Union said that its Regional Officer responsible for the members at Teynham had met with the Employer’s HR Director on 6 December 2018 to discuss the matter further and that the parties had failed at that meeting to agree on the merits of Union recognition. The Union stated that the Employer’s HR manager had subsequently responded formally to the request on 16 December 2018, rejecting the Union’s request for recognition. A copy of the Union’s request and of the Employer’s letters of 15 November 2018 and 16 December 2018 was attached to the Union’s application.

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 answered “no”. 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) The Union stated that the total number of workers employed by the Employer was 1500. The Union stated that there were 70 workers in the proposed bargaining unit, of whom 18 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that it had a “schedule of support” signed by 51 employees in the proposed bargaining unit. The Union stated that the signatories to the schedule had requested that it was not copied to the Employer.

8) The Union stated that the reason for selecting its proposed bargaining unit was because URTU was a specialist trade union that organised solely in the road transport/logistics industry and the vast majority of its members were HGV/LGV drivers. In answer to the question whether the 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 which covered any workers in the 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 8 January 2019 “via 1st class recorded delivery”.

4. Summary of the Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 6 November 2018. The Employer said that it had responded to the Union’s request, stating that it did not accept the request but was willing to negotiate.

11) The Employer stated that it had not received a copy of the Union’s application form from the Union, “only from ACAS on 09/01/19”. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree the proposed bargaining unit. The Employer said that the proposed bargaining unit (which the Employer said contained 82, not 70, workers) represented only a proportion of the workforce under the management structure of the depot and would therefore lead to a fragmented approach which would not be compatible with effective management. The Employer said that its provisional view was that the bargaining unit should include all LGV drivers working in and managed from Teynham including Apprentice and Casual LGV Drivers and non-managerial warehouse staff. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that there were 82 workers in the proposed bargaining unit. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that at the meeting with the Union on 6 December 2018 it was offered evidence of the Union’s estimate of membership in the proposed bargaining unit. The Employer stated that no such evidence had been provided and it was, therefore, not in a position to confirm or deny the Union’s estimate.

14) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer asked the Panel to note that it had, over the past weeks, been carrying out staff surveys at the site of the proposed bargaining unit and it was in the process of bringing about substantial changes to improve management and morale. The Employer stated that it considered that this would affect the outcome of any petition, if carried out at the present time. The Employer said that it noted that the Union had stated that it had a “schedule of support” signed by 51 employees in the proposed bargaining unit but that this had not been provided to the Employer. The Employer said that the position advanced by the Union had not been established evidentially and that no reliance should be placed on this. The Employer stated that the Union should be required to substantiate what was so far “a matter of assertion”.

15) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

16) In a covering note to its response to the Union’s application the Employer asked the Panel to extend the deadline for deciding on admissibility. The Employer gave as background to its request the points made in paragraphs 13 and 14 above. The Employer suggested that the Union should be directed to provide the Employer with a statement to explain its schedule of support, along with a redacted copy of the schedule itself and evidence of the circumstances in which it was obtained within seven days. It then requested that the Employer should be permitted to submit a statement in response with supporting evidence to demonstrate that a) it had put in place a programme to address employee concerns, and b) it did not believe that once those were in place, the employees would wish to pursue this application, especially if properly explained to them. The Employer asked that it should be given an extension of four weeks for it to file an amended response (with further supporting evidence) from the date on which it received the information from the Union referred to above, with a further four weeks for the Union to provide a response to its submissions. The Employer also requested that there should be a hearing on admissibility thereafter.

5. The membership and support check

17) 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 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 that unit (including their full names and dates of birth) and a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 16 January 2019 from the Case Manager to both parties.

18) The information requested from both parties was received by the CAC on 18 January 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 82 workers in the Union’s proposed bargaining unit. Beneath the heading “Job Title” for each individual the Employer stated “LGV Driver”. The list of members supplied by the Union contained 17 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 16, a membership level of 19.51%.

20) The petition supplied by the Union contained 51 names and signatures, of which 42 were in the proposed bargaining unit, a figure that represents 51.22% of the proposed bargaining unit. Of those 42 signatories, 15 were members of the Union (18.29% of the proposed bargaining unit) and 27 were non-members (32.93% of the proposed bargaining unit). The petition consisted of four A4 sheets and was set out as follows:

“Declaration of support for URTU Recognition at: Fowler Welch Depot, London Road, Teynham, Sittingbourne ME9 9PR

In signing this schedule I confirm that: a) I am employed by Fowler Welch at the address above as a HGV Driver, and; b) I am declaring my support for the United Road Transport Union’s request for union recognition at Fowler Welch, Teynham depot.”

Name	Position eg ‘HGV Driver’	Date	Signature

The dates on the petition ranged between 7 October 2018 and 16 October 2018.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 18 January 2019 and the parties were invited to comment on the results of that check and on any other aspect of the admissibility criteria by the close of business on 22 January 2019. The parties were also sent, under the same covering letter from the Case Manager, a copy of the Union’s proof of posting to the Employer on 8 January 2019, and proof of delivery on 9 January 2019, of an item which was said by the Union to contain a copy of its application to the CAC (see paragraph 11 above). This documentation was sent to the Case Manager by the Union on 18 January 2019.

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

22) In a letter to the CAC dated 22 January 2019 the Employer stated that it did not dispute that the level of membership constituted at least 10% of the workers in the proposed bargaining unit. The Employer said that it noted, however, that the membership level was low.

23) The Employer stated that it disputed that the majority of workers constituting the proposed bargaining unit would support recognition. The Employer re-iterated the points it had made in paragraph 14 above, that over the past weeks it had been carrying out a programme of engagement, including staff surveys resulting in substantial changes to improve management and morale, which it considered would affect the likelihood that a majority of the workers would favour recognition of the Union. The Employer stated that it believed that the Union’s petition dating from 7-16 October 2018 was historic and unlikely to be a reliable indication of the current position. The Employer reiterated its application for an extension to the deadline for deciding on admissibility in order to accord it the opportunity to provide more evidence on the likelihood that a majority of the workers in the proposed bargaining unit would be likely to favour recognition. The Employer repeated its suggested potential directions and timetable for this purpose and its request for a hearing set out in paragraph 16 above.

24) In a letter to the CAC dated 23 January 2019 the Union stated that it wished to offer its apologies for not providing its comments within the allotted timeframe. The Union stated that it had “misconstrued” the Case Manager’s voicemail message on 23 January 2019 (sic) “as an instruction to not submit … comments on that date.” The Union said that it had no comments to make other than that it believed that the numbers shown indicated that it had met both the tests set out in paragraph 36 of the Schedule.

7. Considerations

25) 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.

26) 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 37 to 42 of the Schedule. Paragraph 34 of the Schedule states that an application under paragraph 11 or 12 is not admissible unless the union gives to the employer (a) notice of the application, and (b) a copy of the application and any documents supporting it. The Panel notes that in its response to the Union’s application the Employer stated that it did not receive a copy of the Union’s application from the Union, “only from ACAS on 09/01/19.” The Panel found it difficult to understand how Acas could have supplied the documentation to the Employer given that there was no reference from either party to Acas having been involved in the matter prior to or on 9 January 2019. However the Panel did not consider it necessary to probe this further given that the Union provided proof of posting of an item to the Employer on 8 January 2019 and proof of delivery of that item to the Employer on 9 January 2019. The Employer did not contest the validity of this documentation when given the opportunity to comment on the membership and support check or on any other aspect of the admissibility tests. The Panel is therefore satisfied, on the basis of the evidence before it, that the Union gave the Employer a notice of the application and a copy of the application and any documents supporting it in accordance with paragraph 34. 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.

8. Paragraph 36(1)(a)

27) 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.

28) The membership check conducted by the Case Manager (described in paragraphs 17 - 19 above) showed that 19.51% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 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 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

29) 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 bargaining unit.

30) The Panel observes that the support check conducted by the Case Manager showed that 51.22% of the workers in the proposed bargaining unit (42 out of 82 workers) had signed a petition in favour of recognition of the Union (see paragraphs 17-20 above). Of those who had signed the petition 15 were Union members (18.29% of the proposed bargaining unit) and 27 were non-members (32.93% of the proposed bargaining unit). The Panel notes the Employer’s comments in its response to the Union’s application, reiterated in its response to the check, that it had over the past weeks being carrying out a programme of engagement which it considered would affect the likelihood that a majority of workers would favour recognition of the Union., including staff surveys resulting in substantial changes to improve management and morale, The Employer submitted that as a result of this programme the Union’s petition of 7-16 October 2018 was “historic” and unlikely to be a reliable indication of the current position. However the Panel has received no documentary evidence to support the Employer’s contention that workers who signed the petition would now take a different view. The Panel is content, therefore, to rely upon the figures given in the Case Manager’s report. The Panel notes that the Union’s petition asked workers to confirm that they were employed by the Employer as an HGV (our italics) Driver (see paragraph 20 above). However the list of 82 workers supplied by the Employer, beneath the heading “Job Title”, for each individual stated “LGV Driver” (see paragraph 19 above). The Employer did not comment on this difference in terminology in its comments on the Case Manager’s membership and support check and the Panel is satisfied that the comparison of the list of workers supplied by the Employer with the names and signatures on the Union’s petition constitutes sufficient reassurance that the 42 names common to both lists are those of workers within the Union’s proposed bargaining unit.

31) The Panel notes the Employer’s request for an extension to the acceptance period in order to accord it the opportunity to provide more evidence on the likelihood that a majority of the workers constituting the proposed bargaining unit would favour recognition. The Panel notes that the Schedule requires the admissibility of an application for recognition to be determined within a short statutory period. The Panel determines whether the statutory tests have been met on the basis of the evidence before it at that time. The third sentence of the letter sent to the Employer by the CAC on 9 January 2019 inviting the Employer to respond to the Union’s application states “If you wish to challenge any information given in the application, please provide any available evidence to support your position” (our italics). The Employer was given a further opportunity when commenting on the membership and support check to provide evidence supporting its assertion that workers who signed the Union’s petition would now take a different view. The Panel is satisfied that the Employer has had an adequate opportunity to present any evidence to support its assertion that the Union’s petition is unlikely to be a reliable indication of the current position.

32) The Panel notes the Employer’s request for an oral hearing. Whether or not a hearing is required is at the discretion of the Panel. For the reasons given in paragraph 30 above the Panel is content in this case to rely on the figures in the Case Manager’s report and has not received any further evidence which leads it to consider that a hearing is required to assist it to decide whether the Union’s application is admissible.

33) On the basis of the evidence before it, the Panel has decided, on the balance of probabilities, that 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.

10. Concluding observation

34) The Panel notes that the Employer does not consider that the Union’s proposed bargaining unit is appropriate. In the event that the parties are unable to reach an agreement as to what the appropriate bargaining unit is, the Panel will be required to decide whether the Union’s proposed bargaining unit is appropriate and, if it decides that it is not appropriate, to decide a bargaining unit which is appropriate. The parties will have the opportunity to make detailed submissions to the CAC on this matter should it fall to the CAC to determine the issue

11. Decision

35) For the reasons given in paragraphs 26-33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Mike Cann

Ms Lesley Mercer

29 January 2019