Decision

Acceptance Decision

Updated 10 February 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1229(2021)

10 February 2022

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

Bruichladdich Distillery Company Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC on 17 September 2021 that it should be recognised for collective bargaining by Bruichladdich Distillery Company Limited (the Employer) for a bargaining unit comprising of “workers in the departments of the following: Bottling hall and Bottling hall office, Production, Distillery, Warehouse and Shop”. The location of the bargaining unit was given as Bruichladdich Distillery Company Limited, The Bruichladdich Distillery, Bruichladdich, Islay, Argyll, PA49 7UN. The CAC gave both parties notice of receipt of the application on 17 September 2021. The Employer submitted a response to the CAC dated 23 September 2021 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 Chair established a Panel to deal with the case. The Panel consisted of Mrs. Sarah Havlin, Panel Chair, and, as Members, Miss. Kerry Holden and Mr. Matt Smith OBE who was replaced by Mr. Paul Noon OBE for the purpose of this decision. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 1 October 2021. The Union requested a stay in proceedings on 28 September 2021 which was granted until 29 December 2021 to allow time for the parties to meet to discuss voluntary recognition. To allow for this the acceptance period was extended to 11 January 2021. An email was received on 29 December 2021 from the Union requesting a further extension to the stay. The CAC Panel extended the stay until 14 January and the acceptance period was extended to 28 January 2022. The Union and Employer emailed the CAC on 14 January stating that no voluntary agreement had been reached between the parties. Subsequently time was further extended by the Panel to 11 February 2022 to allow for the parties to comment on the results of the membership check and for the Panel to consider said 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 the Union stated that it had written to the Employer with a formal request for recognition on 12 July 2021. A copy of the Union’s letter dated 12 July 2021 was enclosed with the application. Following receipt of the Union’s request the Employer responded on 26 July 2021 suggesting that both parties should meet to discuss the request without having Acas involved at this early stage.

6) The Union stated that the total number of workers employed by the Employer was approximately 98 and that approximately 50 fell within the proposed bargaining unit. The Union stated that there are 19 union members within the proposed bargaining unit. 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 it could provide evidence that 40% of the employees would support recognition. The Union stated that most of the membership had joined in the last 18 months. The Union further stated that it had met with members of the workforce who believed their colleagues would support union recognition.

7) The Union stated that the reason for selecting the proposed bargaining unit was that this was where the majority of its members were focused, and the Union believed it formed a natural bargaining unit.

8) The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question as to whether there was an existing recognition agreement of which it was aware, the Union stated that there was no existing recognition agreement.

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 17 September 2021.

10) Finally, the Union stated there had not been any previous applications in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

11) The Employer stated that it had received the Union’s formal request for recognition on 13 July 2021 via a letter from the Union dated 12 July 2021 sent by email. In response the Employer stated that it had written to the Union on 27 July2021, stating it did not accept the Union’s request for recognition, but that the Employer was willing to meet with representatives of the Union to discuss the request.

12) The Employer confirmed it had received a copy of the Union’s application and supporting documentation on 17 September 2021 by email.

13) The Employer stated that it did not agree with the bargaining unit as proposed by the Union as it was unclear which roles and levels of worker were included and those which were excluded. The Employer stated the Union had expressly stated that it had selected its bargaining unit as “this is where the majority of GMB membership is focused”. The Employer stated that was not, however, a relevant criterion for the applicable legislation. The Employer also noted from the application that the Union was “open to discussion with the employer regarding the bargaining unit.” The Employer had written to the Union on 17 September 2021 to offer another meeting, under the auspices of Acas, in order to discuss the bargaining unit in more detail and to explore whether its scope could be agreed. The meeting had yet to take place, as the Employer believed the Union had pre-emptively applied to the CAC without waiting for its response to the Union’s proposal to engage with Acas for assistance. The Employer considered that the Union’s application to the CAC was premature.

14) The Employer confirmed that it employed a total of 98 workers. When asked whether it disagreed with the number of workers in the proposed bargaining unit, the Employer said it did not agree with the proposed bargaining unit. The Employer stated that the total number of workers in the Union’s bargaining unit was 69 and the Employer had not seen any evidence of the Union’s membership or support.

15) When asked whether the Employer considered that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated it had engaged in many employee discussions, both individually and by way of ingroup sessions. It had become apparent to the Employer through these discussions that not all Union members were in favour of Union recognition at Bruichladdich. Furthermore, through these discussions, it was the view of the Employer that the non-union members did not favour union recognition. The Employer further stated that it had not seen any evidence of the Union’s petition for support and that the Union was relying on membership growth over an 18-month period. Notwithstanding this growth, at its new peak, the Union had only achieved 27% density of the bargaining unit. This confirmed the Employers belief that the majority, 73% of employees in the bargaining unit, had not joined the Union and were not in favour of recognition. The Employer stated it was worth noting that there are several legacy union members within these numbers. The Employer believed that union membership was not a reliable indicator of support for recognition, and that several existing union members had told the Employer that they would not support union recognition.

16) The Employer, when asked if it was aware of any recognition agreement in place, stated “not applicable”. Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer again answered, “not applicable”.

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. It was agreed with the parties that the Employer would supply to the Case Manager with 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 a petition in support of recognition. 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 18 January 2022 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 1 February 2022 and from the Employer on 31 January 2022. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer contained the names of 66 workers and the list of members supplied by the Union contained 14 names.

19) The list supplied by the Employer indicated that there were 66 workers in the Union’s proposed bargaining unit. The following job titles were listed: Assistant Distillery Manager; Bottling Hall Assistant Manager; Bottling Hall Manager; Bottling Hall Operator; Bottling Hall Supervisor; Bulk Supply Warehouse Operator; CEO - Whisky Business Unit & Operations Director; Customer Service & Bulk Stock Administrator; Dry Goods Warehouseman; Electrical Maintenance Technician; Engineer; Executive PA; Exports Co-ordinator; Forager; Head Bottling Hall Supervisor; Head Distiller; Head of Warehouse Operations; Hospitality Team Leader; Housekeeper; Operations Manager; Private Cask Administrator; Private Client Manager; Production Director; Professional Forager; Quality & Compliance Manager; Quality Control Supervisor; Senior Supply Chain Co-Ordinator; Shift Operator; Supply Chain & Customer Service Manager; Tanker Driver/Warehouseman; Tour Guide & Distillery Ambassador; VC Office Administrator; Visitor Centre Manager; Visitor Centre Office Manager and Warehouse Operator. All 66 workers were included in the check.

20) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 14, a membership level of 21.21%. The check of the petition showed that it had been signed by 5 workers in the proposed bargaining unit, a figure which represents 7.58% of the proposed bargaining unit. All five petition signatories were non-members.

21) From 19 January 2022 until noon on 24 January 2022, the time when the check of membership and support was conducted, the CAC Case Manager received 52 emails from workers based at Bruichladdich Distillery. All of the emails stated that the author did not support recognition of the Union. Thirty emails were from workers that were on the Employer’s list of those workers in the proposed bargaining Unit and twenty-two emails were from workers that were not on the Employer’s list and so outside of the proposed bargaining unit. The emails received from workers in the bargaining unit were checked against the lists provided by both parties and were then anonymised and annexed to the membership and support report.

22) The result of the check of the emails from workers within the bargaining unit established that 45.45% of the workers had emailed the CAC to state that they did not support recognition of the Union. One person that had sent an email was also listed as a signatory on the Union’s petition and no Union members had sent an email to the CAC expressing a view on recognition.

23) A report of the result of the membership check was circulated to the Panel and the parties on 26 January 2022 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

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

24) In an e-mail to the CAC, dated 1 February 2022, the Union argued that the Employer had included in its list workers from outside the Union’s proposed bargaining unit namely: Assistant Distillery Manager; Bottling Hall Assistant Manager; Bottling Hall Manager; CEO - Whisky Business Unit & Operations Director; Exports Co-ordinator; Head Distiller; Head of Warehouse Operations; Hospitality Team Leader; Operations Manager; Production Director; Professional Forager; Quality & Compliance Manager; Senior Supply Chain Co-Ordinator; Supply Chain & Customer Service Manager and VC Office Administrator.

25) The Union’s proposed bargaining unit included only those workers that received a bonus of 5%. This bonus was based on the performance of the company, and in the words of the Employer, ‘rarely not given’. The decision to pay the bonus was made collectively and it was not awarded on an individual basis. The workers in the proposed bargaining unit were also those eligible for an ‘Overtime Payment’ for any hours worked over their contracted hours, which then instigated a payment to recognise these hours.

26) The Employer’s bargaining unit included staff who were on a fundamentally different bonus structure which was valued at a maximum of 7% and was based on an individual’s targets throughout the business year. During Acas discussions, the Union continually argued that the bargaining unit should consist of approximately 48 staff, of which the Union had support of 19 staff, purely based in Islay and did not involve staff based in Glasgow. The Employer confirmed these numbers as accurate during these talks.

27) The Union was clear that it believed the bargaining unit should consist of 48 workers as outlined above. Therefore, the resultant checks by the CAC were inaccurate in giving an indication of whether ‘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.’ If the bargaining unit was as outlined by the Union, the proportion of union members would be 29.17% and the proportion of workers in the bargaining unit who have signed the petition would be 10.42%. This would give a total of 40% support for the Union when rounded up.

28) As for the emails received from workers in the bargaining unit, the Union argued that the directive from the Employer to write to the CAC elicited 22 responses from workers that were not even in the bargaining unit. The Union was unsure why the Employer had asked workers outside its preferred bargaining unit to write to the CAC. The Union submitted that the higher proportion of responses came from workers outside the Employer’s proposed bargaining unit and from the Employer’s annual accounts, where it had 99 employees, 54 in Production, 22 in Brand and Marketing and 23 in Administration.

29) It was the view of the Union that the CAC’s report was unclear as to how many of the 30 emails that the Employer asked staff to send to the CAC fell within the bargaining unit as defined by the Union. It could be as little as 12 which would mean 25% of workers had indicated they were not in favour which did not show a majority not being in favour.

30) In conclusion, the Union stated that it had a clear 40% of the workforce in favour of recognition and it would be an injustice to not allow democracy to prevail through a vote of the bargaining unit. The Union would not expect the CAC to create a barrier to allowing this application to move to the next stage of the process and allowing the workers to have an unambiguous secret ballot without any coercive influence.

31) In an e-mail to the CAC dated 1 February 2022 the Employer stated that the test in paragraph 36(1)(a) of the Schedule had been met. The Employer agreed that the Union satisfied this test as the CAC’s membership report showed the Union’s membership density in its proposed bargaining unit was 21.21%, which was above the 10% threshold. As for the test in paragraph 36(1)(B) the Employer strongly submitted that the Union had failed to provide sufficient evidence to meet this test and its application was accordingly not admissible. The Employer also stated that a membership density of 21.21% (14 union members) was a small minority of the proposed bargaining unit and it should be noted that in its application for recognition submitted on 17 September 2021, the Union stated it had 19 members in its proposed bargaining unit, however, the CAC’s report showed that membership had dropped by a quarter to 14 members. The Employer argued that this is evidence of declining support for unionisation.

32) In addition, the Employer noted that the Union’s petition only contained 5 names out of 66 workers in its proposed bargaining unit. This only comprised 7.58% of the proposed bargaining unit and was evidence that only a tiny minority of workers supported union recognition. The Union had failed to evidence that there would be majority support of non-union members in its proposed bargaining unit.

33) The Employer also submitted that one of the employees who apparently had signed the Union’s petition also emailed the CAC to voice opposition to recognition. The Employer stated that this should accordingly, be discounted from the total number of workers in the petition. This would mean that at its highest, an additional 4 non-members allegedly supporting recognition (in addition to the 14 union members) would only amount to 27.27% of the proposed bargaining unit and this equated to a minority of 3 in 10 of workers who might support union recognition.

34) Finally, the Employer noted that no union members had signed the petition and that this was significant, as the Employer’s workplace discussions with workers in the proposed bargaining unit called into question whether the CAC should assume that all union members would necessarily support collective bargaining and union recognition. A worker may choose to join a trade union for any number of personal reasons (e.g. advocacy, legal representation, accompaniment at disciplinary and grievance hearings and discounted benefits) and membership alone did not necessarily indicate a desire for the union to take part in collective bargaining.

35) The Employer made further observations on the membership report including that the Union had not explained how or when the petition signatures were obtained. The Employer believed that the emails from workers voicing opposition to union recognition and collective bargaining was overwhelming evidence that a majority of the workers would not be likely to favour union recognition. Indeed, with 45.45% of the workers opposing recognition there was objective evidence for the CAC that almost a majority did not favour recognition.

36) In closing, the Employer invited the Panel to reject the Union’s application as it had failed to provide sufficient evidence to support a finding that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Union. The Employer stated that this application accordingly failed to meet the validity and admissibility criteria as required by paragraph 36 of the Schedule A1 and should not be accepted.

7. Considerations

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

38) 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 and that it was made in accordance with paragraph 12(2) of the Schedule in that before the end of the second period of 20 working days, following the Employer’s indication of a willingness to negotiate, no agreement was reached by the parties. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

39) The membership check conducted by the Case Manager showed that 21.21% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 to 22 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.

9. Paragraph 36(1)(b)

40) 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.

41) The Panel notes the absolute numbers and percentages in support of union recognition set out in paragraph 19 to 22. It is acknowledged that the figures do not present an overwhelming case in support of recognition with the number of union members being relatively low. However, the Panel is of the view that those workers who have joined the Union would be likely to favour recognition of the Union for collective bargaining purposes (21.21%). It is further accepted that it is reasonable to conclude that those non-members who had signed the Union’s petition in favour of recognition (7.58%) would also be likely to favour union recognition. This gives a total percentage of 28.79% of workers in the proposed bargaining unit who are viewed by the Panel as being likely to be in favour of recognition. The Panel, whilst acknowledging that the figure of union members plus non-member support does not achieve an arithmetical majority, would remind the parties that the statutory test is one of likelihood and not absolute levels of support. The Union argued that the Employer had included workers in its list that were not in the proposed bargaining unit and that if these were excluded from the comparison, support for the union would be higher. However, based on the Union’s own figures this proportion of the proposed bargaining unit would be 40% and there is no evidence as to where any further support for recognition could be found.

10. Decision

42) It is the issue of the test in Paragraph 36(1)(b) which presents a real challenge to the Union’s application in terms of acceptance. The Union’s own submission contains the very clear statement that support is limited to 40% of workers in the proposed bargaining unit who would likely be in favour of union recognition. The test under paragraph 36(1) (b) is very clear that the Panel must be satisfied 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. It is the view of the panel that, based on the present evidence from the Union, the Panel cannot reasonably decide that such a majority of workers would be likely to favour recognition of the union. The evidence is limited to 40% of the required support for recognition and there is no evidence available on which to make a finding that there is likely to be further support beyond this proportion of the workers. The support claimed by the Union is not a majority of the workers constituting the proposed bargaining unit nor is there sufficient evidence to suggest that numbers would be closer to 50%. Accordingly, the requirements of the test under paragraph 36(1) have not been met and the application is not accepted for this reason.

Panel

Mrs Sarah Havlin, Panel Chair

Miss Kerry Holden

Mr Paul Noon OBE

10 February 2022