Decision

Recognition Decision

Updated 14 January 2020

Case Number: TUR1/1141/2019

13 January 2020

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

Lear Corporation (UK) Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 25 October 2019 that it should be recognised for collective bargaining purposes by Lear Corporation (UK) Limited (the Employer) in respect of a bargaining unit comprising “All hourly paid shop floor workers, maintenance and Team Leaders based at the Sunderland JIT and Foam Facilities”, the Union adding “(As per joint statement and the stipulation within the agreement that was being discussed).” The location of the bargaining unit was given as “Lear Corporation (UK) Limited, Sunderland, Phoenix Way, Houghton Spring, DH4 5SA.” The application was received by the CAC on 30 October 2019 and the CAC gave both parties notice of receipt of the application on 30 October 2019. The Employer submitted a response to the CAC dated 6 November 2019 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 Kenny Miller, Panel Chair, and, as Members, Mrs Maureen Shaw and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 6 December 2019 the Panel accepted the Union’s application. In its response to the Union’s application the Employer agreed that the Union’s proposed bargaining unit was an appropriate bargaining unit.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (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 December 2019 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 10 December 2019, stated that it noted from the content of the Case Manager’s report dated 21 November 2019, and the Panel’s subsequent decision dated 6 December 2019, that it had met the required threshold for automatic recognition. The Union stated that its petition also demonstrated that “the majority of the workforce wished for Unite to have recognition for collective bargaining and representation purposes.” The Union stated that it therefore believed that a ballot was not required.

6) The Union stated that the CAC had acknowledged through its check that a majority of the workers in the bargaining unit were members of the Union. The Union stated that it believed “the narrowness of the Union’s majority is not of itself a ground for ordering a ballot; the CAC is not entitled to ‘impose, in effect, a threshold for recognition without a ballot higher than that stipulated by the legislators’.” To demonstrate this point the Union stated that it wished to rely on case ISTC and Fuller Computer Industries Ltd (TUR1/29/00) and the subsequent application for judicial review Re Fullarton Computer Industries Ltd, [2001] IRLR 752.

7) The Union stated that it had noted the Panel’s comments and subsequent conclusion as outlined in paragraph 39 of its decision and, in particular, the Panel’s statement 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”. The Union believed this confirmed its belief that the majority of union members within the bargaining unit also wished for Unite to conduct collective bargaining on their behalf “as there was no evidence to counter this assertion.”

8) It was the Union’s view that the holding of a ballot would not be in the interests of good industrial relations. The Union stated that prior to and during the CAC process it had sought to establish good industrial relations and that this was “without any success.”

9) The Union further stated that it believed the practical effect of a ballot would, by its very nature, “engender an adversarial situation within the workplace, with the Union and the Employer embroiled in a divisive contest.”

10) Finally, the Union submitted that it had demonstrated that it held a majority membership within the bargaining unit and that none of the three statutory conditions applied. The Union therefore believed that it should be awarded a declaration of recognition.

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

11) On 11 December 2019 the CAC copied the Union’s e-mail of 10 December 2019 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 the three qualifying conditions specified in paragraph 22(4) of the Schedule.

12) In its response dated 18 December 2019 the Employer stated it believed one or more of the conditions under paragraph 22(4) of Schedule A1 had been met and that accordingly, a ballot should be held.

13) In response to the first condition the Employer explained that the Company’s plant in Sunderland had operated without trade union recognition, by contrast to the other plants (in Coventry, Redditch and Alfreton) where Unite the Union was recognised. The Company had instead had a Staff Council in Sunderland for over 12 years and this was the model it had looked to for the Joint Consultative Committees that it had successfully set up with the agreement of Unite in its other plants. The Employer stated that the absence of trade union recognition was something that had been supported in Sunderland and consequently, recognition of a union was a significant step.

14) The Employer stated that despite the excellent relationship with Unite at its other Plants, the Union had mounted a negative campaign in recent months to attract members in October of this year. The Employer referred to an attachment it had submitted with its comments, and stated that it was an example of a leaflet, which was handed out at the entrances/gates to the Sunderland facilities in around the two Plants. The Employer stated that the leaflet contained the statements suggesting that the company was; ‘continuing with an anti-union stance’; ‘making out that they are listening to you and resolving issues’; ‘promot[ing] the current consultation body as a successful union alternative’, and; ‘continu[ing] to do their utmost to dilute our [union] membership’. ”

15) The Employer stated that it rejected those statements made by the Union. The Employer reiterated its point as stated above, that the Company had operated with a Staff Council in Sunderland and that it considered the basis of the Union’s campaign “to be misleading and unfair.” The Employer stated that this had caused tension and that there was a belief that the Union’s “intensive campaign” over a short period of time, together with an offer of discounted joining fees, “had persuaded employees to join the union based on misleading information.”

16) The Employer submitted that it believed the discrepancy between union member signatures on the petition and the number of members in the bargaining unit showed that a significant number of union members do not want the Union to conduct collective bargaining on its behalf.

17) It was the Employer’s view that “a ballot would resolve this uncertainty and clear the air.” To demonstrate this point the Union stated that it wished to rely upon the following decisions; TGWU v Economic Skips Ltd (TUR1/121/01), and GPMU and Red Letter Bradford Ltd (TUR1/12/00).

18) The Employer stated that if a ballot favoured collective bargaining then the Union would have a mandate that management would recognise “in accordance with Lear Corporation’s Code of Business Conduct and Ethics which expressly provides that it is the Company’s policy to not interfere with its employees’ rights to freedom of association.”

19) The Employer stated that where trade unions are present, it was the Company’s policy to deal with them fairly and conduct negotiations in a purposeful and non-adversarial manner. The Employer maintained that the Union had not offered any evidence to support its assertion that a ballot would produce a “divisive contest”. The Employer stated that it believed a ballot would ensure that all employees in the bargaining unit were given the opportunity to understand what formal recognition would mean and to express their views.

20) In response to the second condition, the Employer stated that according to the membership check conducted by the Case Manager, there were 226 union members in the bargaining unit of 366 employees. Furthermore, according to the petition supplied by the Union, 155 of those who had signed the petition were union members. Therefore, 46 of the union members within the bargaining unit had not signed the petition, representing 22.89% of the union members in the bargaining unit. The Employer stated that this constitutes evidence that a significant number of union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf.

21) In response to the third condition the Employer reiterated its point above that the Company’s Sunderland plant had operated without trade union recognition for many years. The Employer stated that it was only in recent months that the Union had begun a campaign to increase their membership and it was only in the past three months that the Company’s payroll team had received applications to have union membership fees deducted from employees’ earnings.

22) The Employer stated that those requests were submitted in October 2019 for the JIT Plant and November 2019 for the Foam Plant. The Employer stated that the fact that the campaign for membership was very recent was consistent with the Union’s petition having begun in May 2019. Part of the Union’s recent campaign consisted of leaflets, which were handed out at the entrances/gates to Company facilities. It was the Employer’s view that those leaflets were “very unfair and misleading.”

23) The Employer further submitted that “Company management was informed that in order to secure membership, the Union offered discounted monthly membership fees.” Further adding that “Company management has also been informed by member of the Works Council that such discounted fees have not been applied in certain cases and that some of these employees have become unhappy.” The Employer stated that this raised doubts as to the motives of employees joining the Union and further suggested that (since joining) certain members had become unhappy and may no longer wish the Union to conduct collective bargaining on their behalf. The Employer stated that this may be the reason that a significant proportion of Union members in the bargaining unit had not signed the Union’s petition.

24) Finally, the Employer stated that it believed all three of the qualifying conditions had been met and that a ballot should therefore be held. The Employer stated that it strongly believed that a ballot would be in the best interests of all concerned, and would represent a positive way forward for industrial relations at the Sunderland plant. It would give all employees “the opportunity to determine what is a significant decision affecting them.”

5. Considerations

25) 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 then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

26) The membership check issued by the Case Manager on 21 November 2019, described in paragraphs 21-25 of the acceptance decision dated 6 December 2019, showed that 54.92% of the workers in the bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and is satisfied that a majority of the workers in the bargaining unit are members of the Union.

27) 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.

28) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by the Employer and has concluded that it is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel notes the Employer’s view on what it had referred to as “the Union’s negative campaign in recent months to attract members”, and specifically in relation to a Unite leaflet submitted by the Employer with its comments. However, no persuasive evidence has been put before the Panel to show how industrial relations would be detrimentally affected if it were to award recognition without holding a ballot. Equally, the Panel is not convinced that the union’s leaflet creates any issues of sufficient seriousness to cause concern to the Panel. The Panel has therefore concluded that this condition has not been satisfied. The Panel also notes the Employer’s view that workers were satisfied with its current Staff Association which had been in operation at the Sunderland plant for over 12 years. However, the Panel observes that recognition under the Schedule does not preclude the operation of a staff council covering matters outside the scope of recognition if the parties wish to participate in such a body.

29) 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. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

30) 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 the Panel is satisfied that this condition does not apply.

6. Declaration of recognition

31) 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 are met. Pursuant to paragraph 22(2) of the Schedule, the CAC must 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 “All hourly paid shop floor workers, maintenance and Team Leaders based at the Sunderland JIT and Foam Facilities”.

Panel

Professor Kenny Miller, Panel Chair

Mrs Maureen Shaw

Mr Gerry Veart

13 January 2020