Decision

Acceptance Decision

Updated 20 September 2018

Case Number: TUR1/1057(2018)

17 July 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:

UNISON

and

Abbey Healthcare

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 21 June 2018 that it should be recognised for collective bargaining purposes by Abbey Healthcare (the Employer) in respect of a bargaining unit comprising “All Abbey Healthcare employees , including home manager, working in the residential care home of Farnworth Care Home, Church St, Bolton BL4 8AG.” The location of the bargaining unit was given as “Farnworth Care Home, Church St, Bolton BL4 8AG.” The application was received by the CAC on 21 June 2018 and the CAC gave both parties notice of receipt of the application on 22 June 2018. The Employer submitted a response to the CAC dated 28 June 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 Gillian Morris, Panel Chair, and, as Members, Mr David Crowe and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 July 2018. The acceptance period was extended to 20 July 2018 in order to allow time for the parties to comment on the results of a membership and support check and 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 to the CAC the Union stated that it had sent a formal request to the Employer on 6 June 2018. A copy of this request was attached to the application. The Union stated that it had received no response from the Employer.

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 “no”. 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, according to the Employer’s Annual Report, was 101. The Union stated that there were 101 workers in the proposed bargaining unit, of whom 46 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 46 workers in that unit were already members and that more were joining. The Union also stated that 80 staff had signed a petition supporting recognition of the Union for collective bargaining and attached a copy of the “redacted petition” to its application.

8) The Union stated that the reason for selecting its proposed bargaining unit was because the business unit was compatible with effective management. It also stated that this care home was the sole home owned by the Employer. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union stated “no response”. 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 on 21 June 2018.

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 the Union’s written request for recognition had been received by its Regional Operations Director on 6 June 2018. The Employer said that the Regional Operations Director had received a further e-mail from the Union’s Regional Organiser on 19 June 2018 and it believed a copy had also been sent to its head office. The Employer stated that it had responded to the Union’s request by e-mail on 20 June 2018 stating that it did not wish to enter into a voluntary agreement. The Employer attached a copy of this e-mail.

11) The Employer confirmed that it had received a copy of the Union’s application form on 25 June 2018. 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 but underlined “yes” when asked if it did agree it. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

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 that there were 116 workers in the proposed bargaining unit and that this figure was confirmed by its payroll department. The Employer attached to its response a spreadsheet listing employee ID numbers and roles. The Employer stated that there 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 that it would estimate that membership was lower than the Union had stated as large numbers of staff had expressed their dissatisfaction with the tactics used by the Union. 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 stated that staff had become extremely unhappy with the harassment, tactics, and lack of regard for the privacy of its residents, staff and visitors. The Employer attached a copy of a complaint which it had submitted to the Union’s regional office on 21 June 2018 regarding the activities of the Union at Farnworth Care Home. In this letter the Employer alleged that visitors to the home had been accosted by Union representatives and that Union representatives had entered its premises on several occasions uninvited despite the Employer having made clear that they were not allowed entry unless expressly agreed with the home manager or other member of the senior operations team. The Employer listed a catalogue of events which it said had occurred on 17 June 2018 and which it found unacceptable. The Employer said that there was no record of Union representatives having signed the visitors record book for the purposes of fire regulations. The Employer said that staff were free to join a union but soliciting membership on its premises and disrupting staff while they were working and entering the home without permission was not acceptable.

14) In additional notes for consideration by the Panel the Employer stated that it had had multiple complaints from staff about the way that Union representatives had approached and bothered them on their way into work and that staff were receiving multiple text messages and telephone calls about which they were extremely uncomfortable. The Employer attached a copy of two text messages sent by the Union to staff ^{[footnote 1]} together with a flyer encouraging them to sign the Union’s petition and to join the Union. The Employer alleged that other flyers of which it did not have copies as staff had thrown them away had also been distributed by the Union. The Employer said that these flyers were very provocative and designed to cause a breakdown in relations and trust between the Employer and its staff and that staff had been incited to take strike action, which had caused them anguish. The Employer stated that it believed that many staff had signed the Union’s petition so that the Union would allow them to go about their daily business.

15) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. 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 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 2 July 2018 from the Case Manager to both parties.

17) The information was received from both parties on 4 July 2018. The Panel is satisfied that this check was 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 115 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 47 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 42, a membership level of 36.52%.

19) The petition supplied by the Union contained 81 names and signatures, of which 68 were in the proposed bargaining unit, a figure that represents 59.13% of the proposed bargaining unit. Of those 68 signatories, 36 were members of the Union (31.30% of the proposed bargaining unit) and 32 were non-members (27.83% of the proposed bargaining unit). The petition consisted of nine A4 sheets and was set out as follows:

“Petition

We the undersigned do not accept the present proposals to change our contracts of employment. We wish to retain our present contracted hours of work and present pay.

Further we seek that our union, UNISON, be recognised for collective bargaining on this issue and all other matters, including, pay, hours and holidays.

NAME	SIGNATURE	JOB	WORKPLACE	TEL NO/EMAIL

General Data Protection Notice: The above authorise the information on this petition to be used by UNISON for bargaining, union membership and recognition purposes

Please return to UNISON, Arena Point, 1 Hunts Bank, Manchester M3 1UN.”

20) The Union stated that the signatures on the petition were collected over a two week period between 28 May and 8 June 2018. The Union explained in its covering e-mail that “two members of the public and two staff from Kenyan Lodge workplace signed as well”. The Union said that these signatures had been crossed out by the Union.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 5 July 2018 and the parties were invited to comment on the results of that check and on any other aspect of the admissibility criteria by 10 July 2018.

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

22) In an e-mail to the CAC dated 6 July 2018 the Employer stated that it did not disagree with the figures shown in the membership and support check but that it had grave concerns about how the support and membership was gained. The Employer referred to the material it had attached to its response to the Union’s application in which it had highlighted some of the harassing and intimidating ways in which the Union had acted towards its staff which the Employer believed had contributed to pressurising staff to sign the Union’s petition. The Employer also referred to the letter of complaint which it had sent to the Union’s regional office (see paragraph 13 above). The Employer stated that it did not believe that the reported figures were a fair or accurate representation of support and that the feedback it had received from staff highlighted pressure put on them and harassment from the Union to sign the petition and to join the Union.

23) The Employer said that that the petition was compiled over a two week period four weeks ago. The Employer said that since then it had met with its staff, listened to their concerns, consulted with them and made the decision that it was not going to make the proposed changes to their breaks. The Employer said that it had demonstrated to its staff that it was a fair employer and that communication was a two way process. The Employer requested that a new petition be put to the staff to test support. The Employer asked that this petition should state clearly that the Employer was not moving forward with the proposed changes to breaks and that it had listened, and responded. to its staff. The Employer also asked that the new petition was not compiled in a way where staff felt intimidated or pressurised to sign and that it believed that the 32 non-members who signed the Union’s petition may have felt intimidated or pressurised. The Employer said that if the Union was so assured of the support it had that it would not object to this course of action

24) In an e-mail to the CAC dated 9 July 2018 the Union stated that it believed that it had met the tests set out in paragraph 36 of the Schedule. The Union stated that it was unsure of the accuracy of the Employer’s payroll staffing number of 116 employees as the most recent Annual Report identified only 101 salaried staff ^{[footnote 2]}. The Union stated that the Employer’s response to the Union’s application made several unsubstantiated allegations regarding the Union’s recruitment practices. The Union stated that it had responded to the Employer’s complaint to its regional office of 20 June 2018 the same day by e-mail and noted that this response had not been included in the documentation sent by the Employer to the CAC. The Union attached a copy of this e-mail, in which it had stated that it would investigate the complaint that some Union organisers had entered the care home without signing in and acknowledged that all visitors should sign in. The Union had also addressed the issues of voluntary recognition; proposed pay cuts at the home; and the Union’s proposed industrial action ballot which the Union said would be lawful and conducted according to the relevant legislation.

25) The Union said that it would be interesting to see evidence of the Employer’s assertion that large numbers of staff had expressed dissatisfaction with its recruitment initiatives. The Union said that the numbers of staff who were proactively becoming members disproved this stance. The Union referred to the copy of the Union’s text messages and flyer attached by the Employer to its response to the Union’s application and said that these were standard methods of ensuring that staff had access to the Union and the opportunity to seek further information to make an informed decision about joining. The Union said that the issue regarding strike action appeared to have been exaggerated by the Employer. The Union said that the situation had been brought to its attention by concerned staff members and the dispute was in relation to proposals to impose pay cuts unilaterally without undertaking meaningful consultation with staff. The Union said that its standard processes and practices were followed, and in the absence of any opportunity for substantive discussions with the Employer the Union had explored the possibility of undertaking a formal industrial action ballot. The Union stated that the issue had now been resolved following a decision by the Employer to withdraw the pay cut proposals.

7. Considerations

26) 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.

27) 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. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

28) 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.

29) The membership check conducted by the Case Manager (described in paragraphs 16 - 18 above) showed that 36.52% 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. 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.

30) The Panel notes the Employer’s contention that staff were put under pressure and harassed by the Union to join the Union but has not received, from either the Employer or any workers within the proposed bargaining unit, any form of documentary evidence from individuals the Employer alleged to have been subjected to such pressure and/or harassment to substantiate these allegations. For the avoidance of doubt, the Panel does not consider that the text messages or flyer attached by the Employer to its response to the Union’s application of themselves constitute undue pressure or harassment.

9. Paragraph 36(1)(b)

31) 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.

32) The Panel observes that the support check conducted by the Case Manager showed that 59.13% of the workers in the proposed bargaining unit (68 out of 115 workers) had signed a petition in favour of recognition of the Union (see paragraphs 16-20 above). Of those who had signed the petition 36 were Union members (31.30% of the proposed bargaining unit) and 32 were non-members (27.83% of the proposed bargaining unit). The Panel notes the Employer’s contentions that staff were put under pressure and harassed by the Union to sign the petition. The Panel reiterates the comments it made in paragraph 30 above in relation to union recruitment practices; it has received no documentary evidence to support these allegations and is content, therefore, to rely upon the figures given in the Case Manager’s report.

33) The Panel notes the Employer’s request that a new petition be presented to staff to test support for recognition in the light of the Employer’s decision not to proceed with proposed changes to their breaks. The Panel notes that the Schedule requires the admissibility of an application for recognition to be determined within a short statutory period. The Panel determines whether the statutory tests have been met on the basis of the evidence before it at the time. The Panel has received no documentary evidence to support the Employer’s contention that staff who signed the petition would now take a different view. On the basis of the evidence before it, the Panel has decided, 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.

10. Decision

34) For the reasons given above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Crowe

Mr Gerry Veart

17 July 2018

1. A message sent on 20 June 2018 read “Hi Important staff union meeting at St Gregory’s club this Friday 22nd 7.00 to 8.30 pm. No Pay cuts. Action ballot, Union Recognition application. Open to all”. A message sent on 22 June 2018 read “Congratulations we’ve WON Abbey Health Care won’t be increasing unpaid breaks or cutting pay. Come and join us at St Gregory’s tonight between 7pm and 8.30pm for a celebratory drink. UNISON”. ↩

2. The information submitted by the Employer for the purposes of the membership and support check listed 115 workers in the proposed bargaining unit: see paragraph 18 above. ↩