Decision

Acceptance Decision

Updated 26 March 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1386(2024)

6 March 2024

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:

Community

and

Euro Car Parts

1. Introduction

1)         Community (the Union) submitted an application to the CAC dated 30 January 2024 that it should be recognised for collective bargaining purposes by Euro Car Parts (the Employer) in respect of a bargaining unit comprising “salaried warehouse operatives directly employed by Euro Car Parts at the Tamworth T1 and T2 site.” The location of the bargaining unit was given as “Euro Car Parts T1 and T2, Birch Coppice Business Park, Danny Morson Way, Dordon, Tamworth, B78 1SE.” The application was received by the CAC on 30 January 2024 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 6 February 2024 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Roger Roberts and Mr Ian Hanson. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         The CAC Panel has extended the acceptance period in this case. The initial period expired on 31 January 2024. The acceptance period was extended to 15 February 2024 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the 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. Summary of the Union’s application

5)         In its application to the CAC the Union stated that it had sent a request to the Employer on 20 December 2023, and that the Employer had responded requesting that the Union provide the Employer “with information showing their membership names and petition signatures.” The Union said it responded by offering the Employer a 20-day extension “to engage in meaningful talks to discuss voluntary recognition.” The Union went on to say, “after a brief series of exchanges no headway could be found hence the CAC application.” The Union attached copies of the emails exchanged to its 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 said that it had made a previous application to the CAC in March 2021 which was rejected “due to there being 38% of the bargaining unit supporting the application.” The Union went on to say that “during that process Community had 170 members and 123 members verified in the bargaining unit by Acas.”

7)         The Union stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties and the Union had agreed however, no Acas mediation took place as the Union wanted the focus of the talks to be around voluntary recognition and the Employer wanted Acas to verify the Union’s membership and petition numbers. The Union added “since this happens as part of the CAC process Community withdrew and informed the company that these details would be provided as part of the CAC application.”

8)         The Union stated that the total number of workers employed by the Employer was 1000. The Union stated that there were 650 workers in the proposed bargaining unit and that the number of Union members in the proposed bargaining unit was 167. When asked to provide evidence that the majority of workers in the bargaining unit were likely to support recognition for collective bargaining the Union said “our workplace petition has 386 signatures at the time of writing, this figure removes people who are not in the proposed bargaining unit duplicates. It is worth noting that this number and the membership numbers are increasing.” The Union did not state the reason for selecting its proposed bargaining unit. 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 said it had copied its application and supporting documents to the Employer on 30 January 2024.

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 had received the Union’s written request under Schedule A1 for recognition on 20 December 2023 and had responded on 5 January 2024. The Employer enclosed a copy of the content of this response. The Employer said: “Given the previous decision of the CAC and ECP’s experience with Community’s previous evidence to show majority support within the Bargaining Unit – ECP reasonably requested further information. Information has never been provided to ECP’s satisfaction to show the majority support within the proposed bargaining unit for recognition.” The Employer stated that it had received a copy of the Union’s application form from the Union on 30 January 2024.

11)       In response to the question on whether the Employer had agreed the bargaining unit with the Union before receiving a copy of the application form from the Union the Employer said: “To avoid any confusion and future ambiguity ECP would suggest that the Bargaining Unit should be defined as ‘the Salaried Warehouse Operatives at a grading below First Line Manager directly employed by Euro Car Parts Limited at T1 and T2 within the Central Distribution Centre.’ It is agreed that agency staff will not be included.”

12)       The Employer stated that, following receipt of the Union’s request, it had proposed that Acas should be requested to assist the parties. The Employer said “we suggested that ACAS be involved to confirm the accuracy of Community’s petition (given ECP’s previous experience of the online petition which was wildly inaccurate – one employee having signed it 16 times. On Community’s previous application when all the duplications had been removed, they had only managed to attract signatures from 23.86% of the workforce.” The Employer went on to say that there had been no contact with Acas as the Union had rejected the suggestion to involve Acas and submitted an application to the CAC “before any credible evidence was shared or tested as to majority support in the Bargaining Unit. We were keen to understand whether there was majority support within the bargaining unit for recognition. Community did not engage with that process.”

13)       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 it believed the number to be 730 which included “the salaried warehouse operatives employed by ECP in T1 and T2 (excluding as per the definition HGV drivers, agency staff and managers).” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, it had no way of validating the suggested union membership in the proposed bargaining unit. The Employer went on to say “we understand Community have confirmed it is 168. We would request that the membership number is validated as part of the application process. ECP accept if validated this level of membership meets the 10% threshold but falls some way short of demonstrating that a majority of employees in the Bargaining Unit would support recognition being only a 22% membership.”

15)       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 said “There was a previous application by Community for recognition in respect of this Bargaining Unit. That was determined under Case Number: TUR1/1208(2021) and a decision dated 26 March 2021. The application failed as Community was not able to demonstrate that it had the majority of support within the Bargaining Unit. ECP finds itself in the same position again.” The Employer said it was aware that the Union had carried out a petition but that the Employer had not been provided with an opportunity to validate that petition “and to ensure that the same mistakes have not been repeated e.g., that people outside the bargaining unit have signed and/or that people have signed it on multiple occasions. The inaccuracy of the process when it was run on the last occasion has caused us natural concern.” The Employer said that the Union had not provided the Employer with satisfactory evidence that the majority of workers in the proposed bargaining unit would be likely to support recognition. The Employer continued by saying “the membership levels do not approach a majority and we have not had sight of or the opportunity to verify the data from Community’s petition, we have an excellent relationship with our workforce and there has been no pressure internally for union recognition or other collective bargaining apparatus, although we have initiated various measures for communication and consultation on our own initiative. These include our Colleague Representative Group, Engagement Weeks, Listening Groups with key Directors, our Colleague Engagement Survey and our Action Planning groups that address the ideas which come from those Survey results. The workforce has functioned well without a recognised union and Euro Car Parts has well developed HR policies and practices to allow employees to raise concerns and ensure they are addressed.”

5. The Union’s comments on the Employer’s response

16)       In an e mail dated 7 February 2024 the Union said It would agree to the definition of the bargaining unit outlined in the Employer’s response document. The Union said that it had rejected Acas involvement as it believed “that this was being used to stall the process, a validity check is undertaken at the CAC stage (as was pointed out in the emails included with the original submission) therefore it makes sense to undertake that part of the process through the CAC.” The Union said that it would be happy to provide evidence of support to the CAC for the purposes of a membership and support check. The Union went on to say “the petition has been collated in paper copies and we have removed a handful of duplicate signatures on this petition.  It is worth noting that the 22% of workers in the bargaining unit have language barrier issues, in many cases have been members of Community for over 8 years and we are unable to campaign through traditional means such as workplace leafletting as the workplace is on private property and we are removed if caught doing so -we have not been able to physically hand out literature for almost 8 years.” The Union said that it did not believe the Employer had a strong relationship with the workers and stated “our membership strength and longevity would highlight that point, also the engagement measures listed were introduced in advance of our previous application - in Community’s opinion – as an attempt to diffuse the strength of feeling for union recognition.  Almost 3 years later that strength of feeling is still there, therefore I would suggest they are not effective means of employee engagement.”

6. 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 a petition supplied 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, dates of birth and job roles (where available) as well as 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. These arrangements were confirmed in a letter dated 7 February 2024 from the Case Manager to both parties.

18)       The information requested by the CAC was received from the Employer on 15 February 2024 and from the Union on 12 February 2024. The Panel is satisfied that the checks were 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 741 workers in the Union’s proposed bargaining unit.

20)       The list of members supplied by the Union contained 162 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 133, a membership level of 17.95%.

21)       The petition supplied by the Union contained 404 names, of which 338 were in the proposed bargaining unit, a figure that represented 45.61% of the proposed bargaining unit. Of those 338 names, 69 were members of the Union (9.31% of the proposed bargaining unit) and 269 were non-members (36.30% of the proposed bargaining unit). The petition was submitted on A4 sheets, and was set out as follows:

7. Union Recognition Petition

As you are aware Community have been building our membership at Euro Car Parts in Tamworth for the last 8 years, we are the Union on site and many of you will know our representatives from their work helping members.

We are now at a point where we are looking to make an application for Union recognition – this means if we are successful, you can have recognised trained union reps on site and negotiate your terms and conditions.

To do this we need your support – you are the Union. We have to get as many signatures on this petition from members and non – members as possible, literally every signature from a worker in the warehouse at Euro Car Parts helps. So, once you have signed the petition yourself, please ask your colleagues to sign it to.

22)      A report of the result of the membership and support check was circulated to the Panel and the parties on 15 February 2024 and the parties were invited to comment on the results of that check by close of business on 1 March 2024.

8. Summary of the Employer’s comments following the membership and support check

23)       In a letter dated 27 February 2024 the Employer accepted that the Union had at least a 10% membership in the proposed bargaining unit. The Employer went on to say that it did not believe that the Union had satisfied the second test in that the Union had not shown that “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 Employer said that the CAC should not accept the Union’s application for the following reasons:

• “The Union’s direct membership in the bargaining unit only represents 17.95% of the workforce. It should be noted that this was the same level of membership as in 2021 (18%), when Community previously applied for statutory recognition. This demonstrates that they have failed to grow their membership in percentage terms at all in 3 years despite suggesting they had done so. This reinforces the evidence based on our own working groups that there does not appear to be any demand for recognition from the workforce generally.

• Of the 133 Union members which were common to both the Union and Employer’s lists of names within the proposed bargaining unit, it is perhaps telling that only 69 (51% of Union members) appear to have signed the Union’s petition (which was open for signature for a substantial period of 2 months and was extensively publicised by the union and their members). There was no barrier and no opposition or resistance from the Company that would have prevented people signing. Despite that it is clear a significant number of the Union’s own members have failed to sign the petition.

• Of the 338 signatories common to both the petition and membership lists, 69 were members of the Union (9.31% of the bargaining unit) and 269 were non members (36.3% of the bargaining unit). We submit that this still falls significantly short of demonstrating a majority are in support of recognition.

• All the above assumes (which we do not accept) that the petition was accurate and conducted in a way to make sure the results were accurate. We have not been able to test that but on the last occasion when the Union ran an online petition it was beset with inaccuracies (including one person who has signed the petition on multiple occasions). We have concerns relating to the veracity of the Union’s information on this occasion. For instance, there are 66 names which appear on the Union’s list which do not appear on the Company’s list and the Employer has no way of understanding who these purported 66 individuals actually are or in what circumstances they were induced to sign. Equally, whilst we do not seek to criticise the Union there are no personal identifiers in their list which means it would be easy, for example for a colleague to add the name of another colleague to that list without their knowledge.

• Even with that potential for inaccuracy and the length of time the petition was open the Union have failed to demonstrate a majority of the proposed bargaining unit in favour of recognition. We would therefore submit that the Panel cannot determine on the balance or probabilities that the majority of workers in the proposed bargaining unit would be likely to favour recognition of the union to conduct collective bargaining on their behalf as required by paragraph 36(1).”

9. Summary of the Union’s comments following the membership and support check

24)       In an e mail dated 15 February 2024 the Union stated that it did not dispute the Employer’s list of workers or those 29 members that did not appear on the Employer’s list. The Union said that it was expecting some reduction in numbers given that members all paid by direct debit, and the Union were therefore reliant on members updating them when they changed Employer. The Union said that notwithstanding the reduction in numbers the percentage of members in the bargaining unit remained strong “and the membership density is slightly improved when calculating against the declared workforce size of 730, I note that this number has increased to 741 by the time of submission from the company – our position is that the actual bargaining unit numbers are closer to 530 as this is the figure that is reported as ‘core worker numbers’ in the company’s ‘Your Voice Matters’ meetings.”

25)       The Union said that the petition numbers were “very strong” and supported the desire for recognition. The Union went on to say “it is worth noting the following points in relation to the petitioning process:

• Community have had a consistent membership for over 8 years, this has not diminished despite the union not being recognised by the company, this highlights the desire for Community to be recognised on site.

• Community has no access to the workforce, we only physically see members when we are representing individual members through disciplinary or grievance measures, to maintain this level of support in these circumstances again highlights the desire of the workforce for union recognition.

• Community officials cannot ‘leaflet’ or pass literature out on site.  The ECP sites are on private land and Community are banned from doing so, this has been the case for 8 years.

• There are significant language barriers amongst the workers in the bargaining unit, explaining what union recognition means is very difficult.  To achieve this level of support with these difficulties highlights a strong level of support.

• Community have met with 3 CEOs at Euro Car Parts (Ben Baldwin, Chris Davey, and Tony Shearer) across the 8 years that we have been active and have made repeated attempts to work in partnership with the company.  In our most recent meeting Mr Shearer was explicitly clear that he did not want to formalise a partnership with Community, the union has always been the willing party when addressing how to constructively work together for the good of the workforce.

• It is worth noting that during the previous CAC application process the workforce were promised in town hall meetings and newsletters that they would get a vote on whether they supported recognition by Ben Baldwin.  This vote has never taken place, our members are still aggrieved that they were never given a chance to participate in the democratic process that they were promised by their employer.”

26)       The Union said that the task of building Union awareness, membership and support had been extremely difficult, however, despite this there was “literally hundreds of people who are supportive of Community being recognised.  They have been supportive for the best part of a decade and their will has not diminished, for the employer to continue to ignore the clear and reasonable desire of hundreds of people in their employment on a matter such as this is against the laws of natural justice and fundamentally procedurally unfair.” The Union concluded by saying that it was surprised to see that there were 66 discounted signatures from the petition, and that “the Union’s expectation was that this number was a robust number however I have no way of challenging this figure.” The Union continued by saying that it would like to make the point that “there were signatures confiscated by nightshift managers when the petition was circulating therefore our number is higher than submitted.  The workers in question were understandably apprehensive to sign a second time as the actions of ECP management led them to believe they would get in trouble for doing so. I believe that the figures make a compelling case supporting Community’s application. “

10. Considerations

27)       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. 

28)       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 11. 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 paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

29)       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. 

30)       The membership check conducted by the Case Manager (described in paragraphs 17 to 22 above) showed that 17.95% 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.

31)       For the reasons set out in paragraph 30 above the Panel has 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.

Paragraph 36(1)(b)

32)       Under paragraph 36(1) 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.

33)       For the reasons given in paragraph 30 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 17.95%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

34)       The Union carried out a petition of those workers in the proposed bargaining unit. As described in paragraph 21 above, 45.61% of the proposed bargaining unit signed the petition. The Employer submitted that it did not believe the petition provided by the Union accurately represented the support of the workers. The Panel has not received any statements from those workers in the proposed bargaining unit who had signed the petition stating that they wished to withdraw their support or that they felt pressurised to sign the petition.

35)       On the basis of the evidence before it, the Panel has decided that Union membership of 17.5% when taken with the percentage of non-members signing the petition (36.30%) shows 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

36)       For the reasons given in paragraphs 27-35 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Roger Roberts

Mr Ian Hanson

6 March 2023