Decision

Acceptance Decision

Updated 29 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1247(2021)

1 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:

Unite the Union

and

John Jempson & Sons Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 21 December 2021 that it should be recognised for collective bargaining by John Jempson & Sons Ltd (the Employer) for a bargaining unit comprising the “LGV Drivers based out of Slade Yard and BG Robersbridge”. The location of the bargaining unit was given as John Jempson & Sons Ltd, Slade Yard, 67 Winchelsea Road, Rye, East Sussex, TN31 7DG. The CAC gave both parties notice of receipt of the application on 22 December 2021. The Employer submitted a response to the CAC dated 6 January 2022 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 Mr. Tariq Sadiq, Panel Chair, and, as Members, Mr. Len Aspell and Ms. Stephanie Marston. 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 7 January 2022. The acceptance period was extended to 21 January 2022 and subsequently to 4 February 2022 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report and 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 said that it had written to the Employer with a formal request for recognition on 9 November 2021. The Union attached a copy of the Employer’s response dated 23 November 2021. A copy of the Union’s letter of 9 November 2021 was also enclosed with the application.

6) The Union stated that the total number of workers employed by the Employer was 60 and that all 60 fell within the proposed bargaining unit. The Union stated that it had 36 members within the proposed bargaining unit. 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 said that it would supply this information on request.

7) The Union stated that the reason for selecting the proposed bargaining unit was because all of the drivers wanted recognition.

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 which it was aware of, the Union answered “N/A”.

9) The Union confirmed it held a current certificate of Independence. The Union stated that it had copied its application and supporting documents to the Employer on 21 November 2021.

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

10) The Employer stated that it had received the Union’s formal request for recognition by email on 9 November 2021. When asked what its response was, the Employer stated it had sent a formal reply to the Union in a letter dated 23 November 2021 stating that, after an internal review, the Employer did not wish to voluntarily recognise the Union, in part due to the means, methods and tactics employed to gain support from the workforce.

11) The Employer confirmed it had received a copy of the Union’s application and supporting documentation on 21 December 2021 by email.

12) The Employer stated that it did not agree with the bargaining unit as proposed by the Union and confirmed there had been no formal or informal communication between the Union representatives and the Employer in respect of the bargaining unit. The Employer also stated it did not have any Union involvement or recognition since its initial exchange of emails and letters, preceding this application process.

13) The Employer confirmed that the number of workers it employed was 118. In answer to the question as to whether it disagreed with the number of workers in the proposed bargaining unit, the Employer said that number of workers given in the Union’s application appeared to be a general estimate of the number of drivers within the bargaining unit. The Employer also stated that the number given by the Union in its application was incorrect, albeit only slightly, as it actually had a total of 58 drivers employed across the two stated locations.

14) As to whether the Employer disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it had been provided with absolutely no information whatsoever, other than the numbers given in the Union’s application. The Employer stated that it had spoken to the drivers at the time (having had very limited opportunity due to the Christmas shutdown) and it could not verify the level or membership being claimed, or indeed a level of support in line with the Union’s stated belief. The Employer stated it would undertake over the next two weeks, an anonymous questionnaire across the workforce, to accurately ascertain the level of both Union membership and subsequently the level of support for this recognition across the entire workforce.

15) The Employer when considering if a majority of the workers in the bargaining unit were likely to support recognition stated it currently had not been able to gather any physical evidence of support as it had spoken to many of the drivers in the weeks since the initial request for recognition was received. The Employer had not received feedback from the drivers that the support for Union recognition was as strong as the Union’s application would infer.

16) The Employer confirmed that it was not aware of any other recognition agreement in place covering any of the workers in the proposed bargaining unit. As to whether it was aware of any previous application made under the Schedule by the Union in respect of this or a similar bargaining unit, the Employer stated, “none to the best of its knowledge”.

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 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 would not be copied to the other party and that agreement was confirmed in a letter dated 10 January 2022 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 12 January 2022 and from the Employer on 14 January 2022.

18) The list supplied by the Employer contained the names of 58 workers and the list of members supplied by the Union contained 35 names.

19) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 34, a membership level of 58.62%. A report of the result of the membership check was circulated to the Panel and the parties on 14 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. Parties’ comments on the membership check

20) In an e-mail to the CAC, dated 20 January 2022, the Union stated that it acknowledged receipt of the report and it was satisfied that membership density was well in excess of 50% therefore it was confident that the criteria to grant recognition was met.

21) In a letter to the CAC dated 21 January 2022 the Employer acknowledged that the test set out under paragraph 36(1)(a) of the Schedule regarding the number of members in the proposed bargaining unit was met. However, the Employer did not believe that paragraph 36(1)(b) of the Schedule was met as the Employer believed that, based on its own polling of staff, a majority of the workers constituting the relevant bargaining unit were not in favour of Union recognition regardless of their membership status.

7. Considerations

22) 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.

23) 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(2) of the Schedule in that before the end of the first period the Employer informed the Union that the Employer did not accept the request without indicating a willingness to negotiate. 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. 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)

24) The membership check conducted by the Case Manager showed that 58.62% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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)

25) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. For the purposes of this check the Union relies solely on its membership and it remains confident that union density is well in excess of 50% and it is further confident that the criteria to grant recognition is over whelming in support of Union recognition. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. The membership check conducted by the Case Manager shows that 58.62% of the workers in the proposed bargaining unit were members of the Union. Although the Employer refers to its own survey of the workers attitude to recognition of the Union for collective bargaining purposes, no such evidence was provided to the CAC in order that it may be verified.

26) 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

27) For the reasons given in paragraphs 23 - 26 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Len Aspell

Ms Stephanie Marston

1 February 2022