Decision

Acceptance Decision

Updated 28 February 2019

Case Number: TUR1/1077(2018)

20 December 2018

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:

RMT

and

West Coast Motors

1. Introduction

1) RMT (the Union) submitted an application dated 13 November 2018 to the CAC that it should be recognised for collective bargaining purposes by West Coast Motors (the Employer) in respect of a bargaining unit comprising “Directly Employed Drivers, excluding Shunters, Agency, and Self Employed Drivers.” The location of the bargaining unit was given as “West Coast Motors, Oban Depot, Glengallan Road, Oban, PA34 4HH.” The application was received by the CAC on 14 November 2018 and the CAC gave both parties notice of receipt of the application on 15 November 2018. The Employer submitted a response to the CAC on 21 November 2018 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 Kenneth Miller, Panel Chair, and, as Members, Mrs Maureen Shaw and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 28 November 2018. The acceptance period was extended on two further occasions in order to enable the CAC to carry out a membership and support check, for the parties to comment on that check, to provide time for the Panel to consider all the evidence before arriving at a decision and for the Panel to finalise its written decision. The final extension ends the acceptance period on 21 December 2018.

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 for recognition to the Employer on 23 July 2018. A copy of that letter was attached to its application. The Union stated that the Employer had rejected its request, by letter dated 6 August 2018. A copy of that letter in which the Employer had further stated that “We are prepared to enter into negotiation with you regarding this matter”, was also attached to the Union’s application.

6) 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) 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 “13 August 2018”. The Union explained that this application was withdrawn prior to acceptance to allow talks to take place between the parties at the RMTs Glasgow office on 26 September 2018. The Union stated that the Employer reiterated its position that “it would not recognise the Union for collective bargaining and that it did not think the Oban Depot was a bargaining unit.”

8) The Union stated that the total number of workers employed by the Employer was “500+”. The Union stated that there were 23 workers in the proposed bargaining unit, of whom 15 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 “two confidential petitions from our proposed bargaining unit.” The Union stated that the first petition was signed in July 2018, at the start of its campaign for collective bargaining. The second petition was signed late October 2018, due to staff turnover, with 15 of those signatures reaffirming their support for collective bargaining. The Union further stated that since the start of its campaign for recognition for the purposes of collective bargaining it had seen membership within the bargaining unit grow from 3 to the current level.

9) The Union stated that the reason for selecting its proposed bargaining unit was because “Drivers at the Oban Depot approached RMT about collective bargaining for their grade at that depot.”

10) The Union stated that the bargaining unit had not been agreed with the Employer and that it was not aware of any other existing recognition agreement which covered any of the workers in the proposed bargaining unit.

11) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 13 November 2018.

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

12) The Employer stated that it had declined the Union’s formal request for recognition. The Employer confirmed that it had received a copy of the first application, which was then withdrawn, on 24 July 2018. The Employer stated that it received a copy of the second application on 15 November 2018. The Employer stated that following receipt of the Union’s request it did not propose that Acas be requested to assist.

13) The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. The Employer explained that a meeting was held with the Union on 26 September 2018 “to discuss a voluntary working relationship”. The Employer stated that the Union were holding a local meeting with their members “and the intention was for us to enter into voluntary discussions regarding any matters.” The Employer said that “This was followed up by us in an e-mail to Gordon Martin on 24 October 2018.” A copy of that e-mail was attached to its response. The Employer stated that it had not received any further communications, except those from the CAC.

14) The Employer did not agree with the proposed bargaining unit, stating that despite meetings, the Union had no knowledge or understanding of its business. The proposed bargaining unit forms only part of the Oban Depot driving team who in turn are part of a wider grouping within the business. The job title and location referenced by the Union was operationally and economically interdependent on other depot locations and could not be considered in isolation.

15) The Employer stated that the total number of workers it employed in the UK was 515, (seasonally adjusted from 594). 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 and said that the Oban Depot driving team consisted of 32 Drivers. The Employer stated that the collective grouping of driving staff that was defined by the operational and economic relationship in its business was 145 (seasonally adjusted).

16) When asked to give reasons for disagreeing with the Union’s estimate of its membership in the proposed bargaining unit, the Employer stated that it remained of the view that it had no knowledge of the total number of RMT members within the Oban Depot. The Employer stated that it was aware of at least 4-5 members of staff “who openly claim to be RMT members” that had left or were in the process of leaving the business. The Employer said that it had also noted that the Union’s latest application “references the same number of members (15) as the previous application”. The Employer maintained that that this figure was not correct either now, or in Union’s previous application.

17) The Employer was asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition. To this the Employer responded that it remained of the view that the Union’s application for recognition “was part of a campaign they were undertaking and had nothing to do with positive engagement with our business.” The Employer stated that “recent depot meetings with all of its staff supports this view.” The Employer further stated that “this can be evidenced in the fact that no one was prepared to take on the role of shop steward nor have made any request for the RMT to support them in any discussions with us.”

18) When asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, the answered “TUR1/1063/2018”.

19) Finally, the Employer stated that it was not aware of any existing recognition agreement in place covering any of the workers in the proposed bargaining unit.

5. Union’s comments on the Employer’s response to the application

20) On 18 October 2018 the CAC copied the Employer’s response to the application to the Union and its comments invited. No comments on the Employer’s response were received from the Union.

6. The membership and support check

21) 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 27 November 2018 from the Case Manager to both parties.

22) The information requested from the both parties was received by the CAC on 30 November 2018. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

23) The list supplied by the Employer indicated that there were 31 workers in the Union’s proposed bargaining unit. All of the workers on the Employer’s spreadsheet were described as “PCV Driver”.

24) The list of members supplied by the Union contained 16 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 13, a membership level of 41.94%.

25) The petition supplied by the Union contained 15 names and signatures, of which 9 were in the proposed bargaining unit, a figure that represents 29.03% of the proposed bargaining unit. Of those 9 signatories, 8 were members of the Union (25.81% of the proposed bargaining unit) and 1 was a non-member (3.22% of the proposed bargaining unit).

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 4 December 2018 and the parties were invited to comment on the results by noon on 6 December 2018.

7. The parties’ comments following the membership and support check

27) By e-mail dated 5 December 2018 the Employer stated that whilst the Union appeared to have met the first part of the test set out in paragraph 36 of the Schedule, it had not met the second test. The Employer considered that this demonstrated that that there was “no desire from the majority of our Oban driving team for the RMT to represent them for the purpose of collective bargaining.” The Employer stated that it believed it was limited to a small minority of individuals who came into its business as RMT members earlier this year and coerced others into joining. Those individuals joined for the driver care benefits that were available with RMT membership and not for the purpose of creating a separate bargaining unit. The Employer stated that, as outlined in previous communications, the Oban Depot driving team was not representative of a bargaining unit. The drivers and work content interwork with other depot locations across the business, and therefore it could not be treated in isolation.

28) The Employer explained that it met with the Union “in good faith” and had confirmed that it would be happy to work together informally, and for the Union to bring any matters raised by its employees, their members, to its attention if the employees had not already done so. The Employer stated that the Union had made no further attempts to communicate with the Employer, other than to make a second approach to the CAC. The Employer stated that “despite 2 petitions running for 5 months and a defined bargaining unit that has been deliberately kept small to improve any chance of gaining a majority in favour of the application, the RMT does not have a majority nor a mandate from our staff for this application to proceed further.”

29) In its letter of 5 December 2018 the Union informed the CAC that, due to a clerical error, it had provided a sheet from its November petition and a sheet from an earlier July petition. The Union stated that this explained the duplicate signatures and slightly different wording of the petitions. The Union stated that it should have provided two sheets from its most recent petition in November. The Union asked the Panel to consider ordering a second check with the current petition. The Union stated that it believed this would show “a substantial increase in RMT members in the proposed bargaining unit.”

30) The Union further stated that it wished to dispute the number of drivers that the company had claimed were in the proposed bargaining unit. The Union stated that it had discussed the figure with its members at the Oban Depot and, according to the current roster, this figure was less, and could be as low as 22. The Union stated that its members believe that the company “are either adding Drivers who are being brought over form Mull and being paid overtime to cover vacancies and/or using other employees who are not primarily included in the proposed bargaining unit as Drivers to boost numbers.”

31) In view of the Union’s comments the Panel asked the Case Manager to request a copy of the Union’s complete petition so that a further check could be carried out. The parties were notified by telephone call from the Case Manager on 7 December 2018.

8. The revised membership and support check

32) On 10 December 2018, at the request of the Panel, the Union provided a petition, which contained 24 signatures. The petition consisted of 3 A4 sheets. The wording on those sheets differed slightly;

2 sheets were headed “Second Petition” and “Confidential” and were set out as follows:

“PETITION FOR RECOGNITION OF THE RMT FOR THE PURPOSES OF COLLECTIVE BARGAINING

WE THE UNDERSIGNED DRIVERS EMPLOYED BY WESTCOAST MOTORS AT THEIR OBAN DEPOT, GLENGALLON ROAD, OBAN, PA34 4HH

ASK THAT THE NATIONAL UNION OF RAIL MARITIME AND TRANSPORT WORKERS BE RECOGNISED BY OUR EMPLOYER FOR THE PURPOSE OF COLLECTIVE BARGAINING”

And 1 sheet was headed “Confidential”, and stated the following:

“PETITION FOR RECOGNITION OF THE RMT FOR THE PURPOSES OF COLLECTIVE BARGAINING

WE THE UNDERSIGNED EMPLOYED BY WESTCOAST MOTORS AT THEIR OBAN DEPOT,

ASK THAT THE NATIONAL UNION OF RAIL MARITIME AND TRANSPORT WORKERS BE RECOGNISED BY OUR EMPLOYER FOR THE PURPOSE OF COLLECTIVE BARGAINING”

On all 3 sheets each signatory was asked to sign and print their name, provide their job title and the date. Beneath this it stated

“THIS PETITION WILL NOT BE DISCLOSED TO YOUR EMPLOYER AND WILL ONLY BE SEEN BY RMT OFFICIALS, CAC MEMBERS AND ACAS.”

33) The dates on the petition ranged between 1 July and 26 October 2018.

34) The revised check of the full petition supplied by the Union contained 24 names and signatures, of which 14 were in the proposed bargaining unit, a figure that represents 45.16% of the proposed bargaining unit. Of those 24 signatories, 12 were members of the Union (38.71% of the proposed bargaining unit) and 2 were non-members (6.45% of the proposed bargaining unit).

35) A report of the result of the revised check was circulated to the Panel and the parties on 11 December 2018 and the parties were invited to comment on the results of that check by noon on 13 December 2018.

9. The parties’ comments following the revised membership and support check

36) In a letter dated 12 December 2018 the Union stated that it wished to re-iterate its point, as stated in paragraph 30 above, that the number of drivers that the company had claimed were in the proposed bargaining unit had been inflated. The Union stated that taking this into consideration, it believed it had met the admissibility criteria.

37) By e-mail of 13 December 2018 the Employer stated that it had “very serious concerns about the legitimacy of the latest petition numbers submitted by the RMT.” The Employer stated that it was very difficult not to conclude that “the numbers had been manipulated with the intention of achieving a required majority for the application to proceed.” The Employer referred to the Union’s letter of 5 December 2018 in which the Employer said that the Union had stated “their initial petition error was due to a July list being submitted instead of two from November.” The Employer stated that this was given as the Union’s explanation for duplicate signatures “yet in the new petition the number of duplicates has doubled.” The Employer stated that the first petitions lodged by the Union were dated 1 July – 21 October, and the second set of petitions were dated 1 July – 26 October. The Employer considered that this contradicts the Union’s statement that the petitions were gathered in November.

38) The Employer further stated that to increase the number of signatories by a net five names over the weekend was “simply not credible”, especially if the dates on the petition were factual and the petition ended on 26 October 2018. It was the Employer’s view that if the Union had made a “legitimate clerical error” with their original petition, the correct version should have been submitted on Friday 7 December as requested, and not three days later on the 10 December. The Employer also questioned “how it is possible to make a clerical error on such documents”, stating that “signatories are either recorded or they are not within a defined timeframe. The dates on the petitions do not match their communications to the CAC of petitions achieved in November.”

39) The Employer said that the Union’s claim that the 31 drivers needed to operate their Oban services was incorrect and continued to demonstrate that the Union “fundamentally do not understand our business.” The Employer explained that its depots relied on each other economically, operationally and technically to cover the full work of the company, provide continuous service and security of employment over a full year, and to provide end to end service to its customers between depots. The Employer maintained that a circle could not be drawn around one site as that “has no bearing on how our company inherently operates.”

40) The Employer further stated that “The RMT’s behaviour throughout this obvious membership drive has been incohesive, first submitting an application then withdrawing it, then submitting a petition and withdrawing that, only to produce a further petition which does not match their own explanation of events and timescales.”

41) Finally, the Employer stated that the latest figures continued to demonstrate that a majority of the workers were not in favour of a formal recognition agreement. The Employer further stated that, for the second time, the Union had failed to meet the test set out in paragraph 36(1)(b) of the Schedule and its application had no basis on which to be allowed to proceed.

10. Considerations

42) 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.

43) 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 37 to 42 of the Schedule.

11. Paragraph 36(1)(a)

44) 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.

45) The membership check conducted by the Case Manager (described in paragraphs 21-24 above) showed that 41.94% of the workers were members of the Union. As stated in paragraph 22 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.

12. Paragraph 36(1)(b)

46) 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.

47) The Panel notes that the revised support check conducted by the Case Manager (described in paragraphs 32 - 34 above) showed that 45.16% of the workers in the proposed bargaining unit (14 out of 31 workers) had signed a petition in favour of recognition of the Union. Of those who had signed the petition 12 were Union members (38.71% of the proposed bargaining unit) and 2 were non-members (6.45% of the proposed bargaining unit). The Panel notes the Employer’s claim that it had “very serious concerns about the legitimacy of the latest petition numbers submitted by the RMT”. However, the Panel has received no documentary evidence to support this claim and is content, therefore, to rely upon the figures given in the Case Manager’s revised report. The Panel also notes the Employer’s comments concerning the number of duplicates in the full petition. However, those duplicated names have not been taken into account in assessing the proportion of those that have signed the petition.

48) At this initial stage of the statutory process the assessment that the Panel must make is one of likely support rather than a strict arithmetical measure – one of theoretical rather than concrete support - and it is the Panel’s experience of industrial relations that leads it to conclude that support is likely to increase as the application progresses.

49) On the basis of the evidence before it, the Panel has decided that, 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.

13. Decision

50) For the reasons given in paragraphs 43 - 50 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mrs Maureen Shaw

Mr Matt Smith OBE

20 December 2018