Acceptance Decision
Updated 13 December 2023
Applies to England, Scotland and Wales
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Case Number: TUR1/1375(2023)
13 December 2023
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
Sears Seating Europe
1. Introduction
1) GMB (the Union) submitted an application to the CAC dated 13 November 2023 that it should be recognised for collective bargaining purposes by Sears Seating Europe (the Employer) in respect of a bargaining unit comprising “non-supervisory hourly paid Production and Warehouse Operatives within Unit 42. 72 in total.” The location of the bargaining unit was given as “Unit 42 Rassau Industrial Estate Ebbw Vale NP23 5SD.” The application was received by the CAC on 13 November 2023 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 17 November 2023 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 Richard Fulham and Ms Joanna Brown. 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 27 November 2023. The acceptance period was extended until 15 December 2023 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 made a request for recognition to the Employer on 25 September 2023. The Union said that the Employer responded to the request on 28 September 2023 stating: “thank you for your letter dated 25th September formally requesting on behalf of the GMB, recognition for collective bargaining with the “Bargaining Unit” Hourly Paid Employees (nonsupervisory, production and warehouse, 86 employees in total employed by Sears Manufacturing Company). Having once again considered your formal request, Sears Manufacturing Company at this time cannot see the benefit of entering into such an agreement with the GMB and therefore respectfully rejects your request.” A copy of the Union’s letter of 25 September 2023 was attached to the application. The Union also attached letters to the Employer dated 6 July 2023 and 11 September 2023.
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, “yes but this was withdrawn. Application was made on 10 October 2023 and withdrawn on 9 November 2023.” 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 86. The Union stated that there were 72 workers in the proposed bargaining unit and that 50 of those were members of the Union. The Union said that the Employer did not agree the number of workers in the proposed bargaining unit. The Union went on to say that it would be happy to provide evidence of membership to a third party on a confidential basis for a check to take place.
8) The Union stated that the reason for selecting its proposed bargaining unit was that it was based on the demographics of the manufacturing 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 stated that it had copied its application and supporting documents to the Employer but did not provide a date on which this had taken place.[footnote 1]
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 formal written request for recognition on 14 November 2023, however prior to that it had received letters from the Union dated 6 July 2023, 11 September 2023 and 25 September 2023. The Employer said that it responded to the 14 November 2023 letter on 17 November 2023 refusing the Union’s request. The Employer attached a copy of its letter dated 17 November 2023.
11) The Employer stated that it had received a copy of the Union’s application form from the Union on 14 November 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. In answer to the question on whether the Employer agreed the proposed bargaining unit the Employer said “No. GMB numbers and Sears numbers do not match.”
12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. 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 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, “GMB state 86 employed but 72 in bargaining unit. Sears employs 130 people of which 86 are classed as Hourly Paid Production and Warehouse. Sears believe that Team Leaders may be excluded however they are hourly paid employees as defined by the Bargaining unit.” In an e mail dated 20 November 2023 the Employer clarified that if the hourly paid Team Leaders were included, then the size of the bargaining unit would increase to 86. The Employer went on to say “we have Production Supervisors on site which are salaried Staff. The role of the hourly paid Team Leaders is to coordinate activities on their respective lines and to be a first point of contact for production problems within their lines. They do not Supervise personnel.”
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 “the GMB have never visited our facility or held a vote in support of their claims.” 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 replied, “application made in July-Sept 2023 but due to administrative error by the GMB it was rejected.”[footnote 2] The Employer also stated that it consented to its contact details being provided to Acas.
5. The Union’s comments on the Employer’s response
15) In an email to the CAC dated 20 November 2023 the Union said that it had resubmitted its application for statutory recognition on 14 November 2023, copying the Employer into the correspondence submitted to the CAC. The Union said that the Employer responded by way of a letter dated 17 November 2023, again rejecting the Union’s offer to enter into discussions around a voluntary agreement. The Union said that due to the Employer declining the offer of meetings to discuss recognition the Union had to rely on the intelligence received from its members. The Union went on to say “the GMB accept that the numbers claimed in the Bargaining Unit does not match the Company’s claims. Following recent communication with our member activists who gave us the number of 72 hourly paid employees, they took this figure from Company communications and the number of cards at the clocking machine. Further investigations have determined that there are several long-term sick employees whose cards have been taken away who are not included. The likelihood is they are due to finish work very soon. The hourly paid team leaders were also not included within the 72 figure. On revision, combined our members have conceded that the figure of 86 would be correct. The GMB will therefore accept the hourly paid team leaders as part of the Bargaining Unit and are content to work to the 86 total as identified by the employer. The GMB have met with members off site as our initial offer of meetings have been rejected by the Company.” The Union re iterated the offer to engage in face to face to face meetings with the Employer to discuss voluntary recognition and said it would also be agreeable to using the services of Acas to support any dialogue and facilitate the meetings.
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 and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 21 November 2023 from the Case Manager to both parties.
17) The information requested from the Union was received by the CAC on 21 November 2023 and from the Employer on 23 November 2023. 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 85 workers in the Union’s proposed bargaining unit.
19) The list of members supplied by the Union contained 50 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 48 a membership level of 56.47%.
20) A report of the result of the membership and support check was circulated to the Panel and the parties on 27 November 2023 and the parties were invited to comment on the results of that check by noon on 30 November 2023.
7. Summary of the Employer’s comments following the membership and support check
21) In an e mail dated 30 November 2023 the Employer said “the Union states it has 50 members. From discussion here our belief is that the membership may be lower than that. Of course, I completely understand that all information is taken in good faith, and I am sure the GMB have provided the information in good faith. Since to my knowledge a ballot has not taken place to verify the actual percentage in favour of recognition from the bargaining unit. I would therefore recommend that to be fair to all parties a ballot should take place to validate any claims.”
8. Summary of the Union’s comments following the membership and support check
22) In an e mail dated 28 November 2023 the Union said that it was happy with the content of the report. The Union made no further comments.
9. Considerations
23) 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.
24) 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. The Panel did consider whether the application was made in accordance with paragraph 11 as the Union, in the definition of its proposed bargaining unit in its request included reference to the number of workers it believed at that time fell within its bargaining unit, which was 70. In its application the Union again referenced the number it believed to fall within the proposed bargaining unit, and this had risen to 72. The Panel is of the view that although the number changed between request and application, it did not amount to a change in the actual definition of the proposed bargaining unit and so is satisfied that the application was made in accordance with paragraph 11. By way of a general observation the Panel would say that including numbers within the description of a bargaining unit is something that is best avoided given that numbers within bargaining units do fluctuate.
25) The Panel is further 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 56.47% 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 56.47%. 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.
31) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.
10. Decision
32) For the reasons given in paragraphs 23-31 above, the Panel’s decision is that the application is accepted by the CAC.
Panel
Mrs Lisa Gettins Panel Chair.
Mr Richard Fulham
Ms Joanna Brown
13 December 2023