Decision

Acceptance Decision

Updated 8 April 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1391(2024)

8 April 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:

GMB

and

BCA Logistics Limited

1. Introduction

1)         GMB (the Union) submitted an application to the CAC dated 9 February 2024 that it should be recognised for collective bargaining purposes by BCA Logistics Limited (the Employer) in respect of a bargaining unit comprising “ZHC Experienced Demo Drivers, Contracted Experienced Demo Drivers.” The location of the bargaining unit was given as “BMW Paddock Lane, Thorne DN8 4HT” The application was received by the CAC on 22 February 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 29 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 Sarah Havlin, Panel Chair, and, as Members, Mr Robert Lummis 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 7 March 2024. The acceptance period was extended to 2 April 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 November 2023, and a letter in response was received from the Employer on 30 November 2023 declining the request. The Union attached copies of the letters dated 20 November 2023 and 29 November 2023 to its application. The Union also attached a petition to its application sent to the CAC and the Employer which had the typed names of 36 workers^{[footnote 1]} and their respective postcodes. The petition was expressed as follows:

BCA, give your Drivers the Union Recognition they deserve!

To: Avril Palmer-Baunack. Chief Executive of British Car Auctions Ltd

Recognise GMB Union as the BCA Ltd Drivers Union at BMW Thorne.

Why is this important?

As a result of BCA Ltd winning the contract from DHL Inside Track to transport cars for BMW, the drivers were stripped of their union, GMB, and their ability to collectively negotiate for fair pay, terms, and conditions.

We urge you to sign the petition calling on the BCA Ltd to grant recognition to the GMB Union. By showing your support, you are advocating for better treatment, improved wages, and fair working conditions for Drivers.

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 “No”. The Union stated that, following receipt of the request for recognition, the Union 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 47. The Union stated that there were 47 workers in the proposed bargaining unit and that the number of Union members in the proposed bargaining unit was 26. 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 “petition” The Union said that the reason for selecting its proposed bargaining unit was that “this group of people deliver the BCA Logisitcs contract at BMW in Thorne.” 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.

8)         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 16 February 2024.

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

9)         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 November 2023 and had responded by rejecting the request for recognition. The Employer stated that it had received a copy of the Union’s application form from the Union on 22 February 2024.

10)       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: “No”. The Employer said “we believe the correct bargaining unit should be the whole of the BCA Logistics team engaged at the BMW Thorne plant and that the total number of employees in the bargaining unit should therefore be 72.”

11)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties.

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 “The Union states there are 47 employees in its proposed bargaining unit. This is incorrect. In the Union’s proposed bargaining unit there are 37 employees. We believe the correct bargaining unit has 72 employees.” The Employer said 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, “we disagree. No estimate has been provided by the Union in its application. Further, the Union has not produced any evidence in its application to identify how many of the alleged employees in the proposed bargaining unit it claims are members of its union.”

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 said “we do not agree. The petition produced by the Union with its application showing the alleged support of alleged employees in its proposed bargaining unit is incorrect. Of the 36 individuals named on the Union’s petition only 8 are employees within the Union’s proposed bargaining unit and as such the level of support for recognition is significantly below the required threshold even in the Union’s own proposed bargaining unit. We believe this is further reduced when considering the wider bargaining unit as suggested by us.”

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

15)       In an e mail dated 11 March 2024 the Union said that it would like the Employer to provide proof of the 72 workers and in which departments they worked in, as members of the Union disputed this. The Union said that it currently had 26 members in the proposed bargaining unit and attached a membership list to its e mail.

6. The membership and support check

16)       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 names, dates of birth and job roles (where available). 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 11 March 2024 from the Case Manager to both parties.

17)       The information requested by the CAC was received from the Employer on 14 March 2024 and from the Union on 11 March 2024. For the purposes of the membership and support check the Union did not seek to adduce a petition but sought to rely solely on a list of its paid-up members within the proposed bargaining unit. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

18)       The list supplied by the Employer indicated that there were 40 workers in the Union’s proposed bargaining unit.

19)       The list of members supplied by the Union contained 26 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 23, a membership level of 57.50%.

20)       A report of the result of the membership and support check was circulated to the Panel and the parties on 14 March 2024 and the parties were invited to comment on the results of that check by noon on 20 March 2024.

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

21)       In an e mail dated 20 March 2024 the Employer said:

(i) In the first instance, it remained the Employer’s position that the proposed bargaining unit, and that which had been subject to the membership check was not the correct bargaining unit. The Employer said that the check had therefore been undertaken on an incorrect group “and the results are therefore perverse against what the outcome would be should the correct bargaining unit be subject to a membership check. The correct bargaining unit should be as described in BCAL’s response document dated 29 February 2024.”

(ii) The Employer said that it had concerns as to the accuracy and veracity of the list of members provided to the CAC by the Union. The Employer said that despite not having had sight of the list it had undertaken a comparison of the original list of members the Union alleged to be in the proposed bargaining unit which had been provided with the Union’s initial application. The Employer said that when compared to the list of 40 individuals supplied to the CAC by the Employer, only 8 names were shown to be in common. The Employer said that “this was not the 23 names in common as appears to be the finding of the CAC’s comparison (noting the further error by the Union claiming 26 members).” The Employer went on to say that “this indicates to us that a new list has been provided by the Union which must be substantially different to the original list of members provided by the Union in its previous application. This raises doubts and concerns as to the accuracy and veracity of the list now provided to and used by the CAC for the Check.” The Employer said that as no explanation had been provided for this material difference the list could not be relied on at face value and required further scrutiny before any decision on the outcome of the check could be made.

(iii)            The Employer stated that having undertaken an informal “sounding out” of the workers within the Union’s proposed bargaining unit, and despite “the alleged membership numbers provided in the list” it was the Employer’s understanding that there may not be majority support for the Union’s recognition for the purpose of collective bargaining from the workers within the proposed bargaining unit. The Employer said that the opinions of the workers were “closely split” on the point and were the bargaining unit size to be increased in line with the Employer’s proposal any support would be further decreased.

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

22)       In an e mail dated 22 March 2024 the Union stated that more than 10% of the workers constituting the proposed bargaining unit were members. The Union went on to say that meetings had taken place in which “all members” had stated that they wanted the Employer to recognise the Union.

9. The Panels comments on the membership and support check

23)       In light of the concerns raised by the Employer in relation to the membership and support check undertaken the Panel felt it would be better to address these concerns at this stage before going on to determine whether or not to accept the Union’s application. The Panel has addressed each of the three points made by the Employer in turn:

(i) The reference by the Employer to the ‘correct’ bargaining unit is erroneous in the context of the Schedule and the requirements of the acceptance test. The bargaining unit which is used by the CAC as the primary measure in assessing the acceptance of the application is the proposed bargaining unit, which is the unit as proposed and described by the Union in the application. As per the provisions of the Schedule, the Employer has the opportunity to advance arguments as to whether the proposed bargaining unit is an ‘appropriate’ bargaining unit if and when an application is accepted by the CAC, and proceeds to the next stage of the process. The check, as conducted by the CAC, is a cross referencing of the number of names appearing on the Union’s list and the total number of workers which fall into the proposed bargaining unit as described by the Union, which is provided by way of the Employer’s list. This approach allows the CAC to assess the two relevant measures required at this stage in order to consider if the two limbs of the acceptance test can be met. Those two measures are (i) the total number of workers falling into the description of the proposed bargaining unit (provided by the Employer) and (ii) the total number of Union members and claimed support within the overall total of workers (provided by the Union). Therefore, it is not accepted that the results of the CAC check, which was carried out for the purpose of the acceptance test, are ‘perverse’.

(ii) The status of an individual as a member of a trade union is special category information and must be treated in strictest confidence and with absolute caution. It is therefore a requirement that the CAC, and indeed the Employer, must take the declarations made by the Union as to its claimed levels of membership/support largely on trust at this stage of the process. The Schedule provides balance within the process by way of a remedy for the Employer in the case that a Union has over estimated or miscalculated its level of support. This will arise in the event of an application which is either withdrawn or is unsuccessful after it has been accepted by the CAC, when an automatic statutory 3-year prohibition will apply to the Union. This prevents a Union from applying for recognition for the same or similar bargaining unit for that period. It is therefore strongly in the interests of the Union to ensure that its application is grounded on accurate information as to membership levels which will withstand further testing which can arise at the later stages of an application, for example if the matter is the subject of a recognition ballot. The CAC is not therefore required to test the ‘veracity’ of the Union’s claimed support. The Union must understand that it is providing the information to the CAC about its membership numbers in the proposed bargaining at its own risk, should such names and numbers ultimately prove to be based on error or miscalculation, resulting in a failed application and the application of the statutory 3-year ban. 

(iii) The CAC is not required to test the opinion of individual workers nor is it appropriate to directly approach individual workers and ask them about their status as trade union members or how they feel about recognition of the Union. The CAC works on the principle that, in the absence of evidence to the contrary, membership of a Union is a strong indicator of a likelihood of support for recognition of that Union. This is not a test of certainty. The appropriate method to understand, with certainty, the support for recognition of a Union, on the part of all workers, is at the final stage of the statutory recognition process, when the CAC will consider if there is information available which requires the issue of recognition to be put to a secret ballot. The Employer will have the opportunity, at that stage, to put forward any argument and evidence which would support the calling of a secret ballot. This argument by Employer’s is therefore not relevant at this stage of the process, however the Employer may wish to raise such arguments later in the process, at the appropriate stage. 

10. Considerations

24)       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. 

25)       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)

26)       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. 

27)       The membership check conducted by the Case Manager (described in paragraphs 16 to 20 above) showed that 57.50% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

28)       For the reasons set out in paragraph 27 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)

29)       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.

30)       For the reasons given in paragraph 27 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 57.50%. 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.

11. Decision

31)       For the reasons given in paragraphs 24-30 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Robert Lummis

Mr Ian Hanson

8 April 2024

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1. The Petition attached to the Union’s application was undated and did not make clear whether it was open to be signed by non-members as well as members. ↩