Decision

Recognition Decision

Updated 29 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1247(2021)

29 April 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

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 Robertsbridge”. 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, Ms. Stephanie Marston and Mr. Len Aspell. Upon his retirement from the CAC Mr. Aspell was replaced by Mr. Richard Fulham. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 1 February 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 15 March 2022 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was “LGV drivers that drive on the British Gypsum contract. “ This differed from the original bargaining unit proposed by the Union which was “all LGV drivers based out of Slade Yard and BG Robertsbridge”. The new bargaining unit totaled 60 workers with 55 based at the Robertsbridge site, 4 based at Slade Yard in Rye, and the final worker based at a remote location. The difference between the two bargaining units was the inclusion of the worker based at the remote location.

2. Issues

4) Paragraph 22 of the Schedule provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

5) In a letter dated 6 April 2022 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 6 April 2022, stated that it had previously supplied membership details which had been checked against the Employer’s supplied information. This data had established that the Union had significantly more than 50% membership and it felt that there should be no need to hold a ballot of the workforce and recognition should be granted by the Panel.

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

6) On 7 April 2022 the CAC copied the Union’s e-mail of 6 April 2022 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) In its response dated 12 April 2022 the Employer stated that whilst it trusted the previous tests that were conducted in respect of union membership, which were not being disputed, there remained some concerns about the methods/tactics employed to gain support in the first instance and the residual support that remained amongst the workforce. The Employer had asked questions to the workforce to gauge the actual level of support and could only draw conclusions from the responses received, although it remained mindful that these may/may not be the same. The Employer had been advised on multiple occasions that people had joined the union but were not wholly convinced of the benefits that membership may deliver. The Employer also confirmed that it was not challenging the Union’s claim for majority membership, as this test was previously passed in January 2022

8) The Employer confirmed in a further email addressed to the CAC dated 21 April 2022 that it was not providing any evidence in support of any of the qualifying conditions.

5. Considerations

9) The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

10) The membership and support check conducted on 14 January 2022 had shown the Employer listing a total of 58 workers. As stated in the acceptance decision dated 1 February 2022, the Union had provided a spreadsheet listing 35 union members which concluded that 58.62% of the workers in the proposed bargaining unit were members of the Union. The change between the bargaining unit proposed by the Union and that subsequently agreed by the parties is very minor and has no material effect on the density of membership within the agreed bargaining unit. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

11) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

6. Paragraph 22(4) (a)

12) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. In this case neither party has submitted evidence that holding a secret ballot would be in the interests of good industrial relations. The Panel is therefore satisfied that this condition does not apply.

7. Paragraph 22(4) (b)

13) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The CAC has no such evidence and this condition does not apply.

8. Paragraph 22(4) (c)

14) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. No such evidence has been produced, and this condition does not apply.

9. Declaration of recognition

15) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “ LGV drivers that drive on the British Gypsum contract”.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Richard Fulham

Ms Stephanie Marston

29 April 2022