Decision

Recognition Decision

Updated 15 April 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1424(2024)

14 April 2025

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

Oscar Mayer Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 30 August 2024 that it should be recognised for collective bargaining by Oscar Mayer Limited (the Employer) for a bargaining unit comprising, “All workers including engineers in the following departments up to and including supervisors. Cold Store, Dry Goods, Engineering, High Risk Assembly, High Risk Packing, Hygiene, Low Risk Kitchens, Low Risk Packing, Material Control, QA, Warehouse employed by Oscar Mayer located Ash Road South, Wrexham Industrial Estate, Wrexham, Wales LL13 9GU”. The CAC gave the parties notice of receipt of the application on 30 August 2024.  The Employer submitted a response to the application on 5 September 2024.

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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Derek Devereux and Mr Ian Hanson.  Mrs Sarah Havlin was later replaced as Panel Chair by Mr Stuart Robertson.  The Case Manager appointed to support the Panel was Kate Norgate.

3)         By a decision dated 22 October 2024 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.  By e-mails to the Case Manager dated 10 January 2025 the parties confirmed that they had reached agreement and that the bargaining unit should be described as “All hourly paid workers in the following departments: Cold Store, Dry Goods, High Risk Assembly, High Risk Packing, Hygiene, Low Risk Kitchens, Low Risk Packing, Material Control, QA, Warehouse, Health and Safety, and People and Development employed by Oscar Mayer, located at Ash Road South, Wrexham Industrial Estate, Wrexham, Wales LL13 9UG.”

4)         As the agreed bargaining unit differed from that proposed by the Union in its application, the Panel was required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application was valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.  By a decision dated 20 February 2025 the Panel determined that the application was valid for the purposes of paragraph 20 and that the CAC would therefore proceed with the application.

2. Issues

5)         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 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 to conduct collective bargaining on their behalf.

6)         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 that it should be recognised without a ballot

7)         In a letter dated 26 February 2025 the Union submitted that it had a strong majority of membership within the agreed bargaining unit with the validity check data^{[footnote 1]} clearly confirming that it represented the majority of members.  Additionally, the membership density had increased since that check. Given these facts, the Union should be granted recognition without the need for a ballot.

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

8)         The CAC copied the Union’s letter to the Employer and invited the Employer’s submissions on the Union’s claim to majority membership and that it should be recognised without the need for a ballot.  In an email dated 4 March 2025 the Employer stated that it did not consider there was sufficient credible evidence that there was majority membership within the bargaining unit.  The membership check results demonstrated that the proportion of workers in the agreed bargaining unit who had signed the supporting petition and were union members stood at 46.59% - less than the majority threshold.  Given the Union’s efforts to demonstrate support for recognition, it was not safe to assume that the disparity between members supporting recognition (46.59%) and members generally within the bargaining unit (54%) was a result of union members’ failure to respond to the petition.

9)         Further, the Employer stated that the membership level currently stood at only a very small majority based on the CAC’s report, having dropped by 10.5% within six months, or about 10 people per month.  Applying this logic going forward, the Union would have less than 50% membership in the bargaining unit in three months’ time.

10)       Against a background of recent industrial action, the Employer understood that those who wished to strike were told to sign up for three months to get strike pay and to be part of a claim in relation to a change of terms exercise.  This suggested to the Employer that they had joined for a very specific reason/perceived benefit, as opposed to a desire for the union to conduct collective bargaining on their behalf.

11)       Moreover, the Employer argued that at least one of the qualifying conditions set out in paragraph 22(4) applied and that a secret ballot should be held in the interests of good industrial relations. The Employer contended that the application was taking place in the context of industrial action which had commenced on 12 September 2024 and was scheduled to continue until at least 27 March 2025.  This strike action had led to an erosion of trust on both sides.  Given what the Employer considered to be a complete lack of clarity in respect of what members really wanted, an independent ballot would ensure that the result was based upon objectively verifiable support within the bargaining unit and would be the only method of setting the record straight once and for all.

12)       If (a) a majority of the workers voting and (b) at least 40 per cent of the workers constituting the bargaining unit wished the Union to conduct collective bargaining on their behalf, the Employer would accept that and would work towards a conductive and amicable relationship going forward. The Employer contended that a secret ballot would provide the opportunity to clear the air and, whatever the outcome, provide closure one way or the other.  Without a ballot, the parties could not possibly be on a level playing field and relations could deteriorate further.  A ballot would provide the clarity needed and the parties could then work towards building a stable and respectful relationship where their interests were aligned.  

5. Union’s comments on the Employer’s submissions

13)       In a letter to the CAC dated 12 March 2025 the Union said that the CAC had accepted that a majority of the workers in the bargaining unit were members of the Union and the narrowness of the Union’s majority was not of itself a ground for ordering a ballot.  It submitted that the CAC was not entitled to ‘impose, in effect, a threshold for recognition without a ballot higher than that stipulated by the legislators’. On this point, the Union relied on the decision in ISTC and Fuller Computer Industries Ltd (TUR1/29/00) which was affirmed on an application for judicial review in Re Fullarton Computer Industries Ltd, [2001] IRLR 752.

14)       The Union contended that once majority membership was established, it should be awarded recognition without a ballot unless there was good reason to hold otherwise.  The Union submitted that none of the three statutory exceptions applied in these circumstances.  In particular, the Union submitted that holding a ballot would not be in the interests of good industrial relations.  It stated that it had sought to establish good industrial relations both before and during the CAC process without any success and 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.

15)       In its email and evidence bundle sent to the CAC on 4 March 2025, the Employer had sought to assert that fewer than 50% of those in the bargaining unit supported recognition whereas the final validity decision on 20 February 2025 indicated 54.07% of workers in the bargaining unit were in membership.  If necessary the Union would be happy to supply additional membership information to evidence the current membership level.  In the same email, the Employer had made observations in relation to levels of union membership but provided no evidence to support its case. It had also asserted that members were required to sign up for a guaranteed period and were not able to cancel their membership which was not true. Workers were free to join or leave the Union at any time.

16)       In summary, the Union’s submission was that it had demonstrated majority membership within the bargaining unit, none of the three statutory exceptions applied and, therefore, the Union should be granted recognition.

6. Membership and support check

17)       To assist the Panel in deciding whether to arrange for a secret ballot under the Schedule, the Panel proposed an independent check by the CAC of the current level of union membership in the 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth).  It was explicitly agreed with both the 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 17 January 2025 from the Case Manager to both parties.  

18)       The information requested from the Employer was received by the CAC on 2 April 2025 and from the Union on 3 April 2025.  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 from the Case Manager to both parties dated 31 March 2025.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.    

19)       The Employer provided a list with the details of 918 workers in the agreed bargaining unit. The Union provided a list with the details of 550 members. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 510, a membership level of 55.56%.    A report of the result of the membership and support check was circulated to the Panel and the parties on 6 April 2025. 

7. Considerations

20)       The Schedule 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. 

21)       The membership and support check conducted on 6 April 2025 showed that the number of union members in the agreed bargaining unit was 510 out of 918 workers in the bargaining unit, a membership level of 55.56%.  The Employer argued that the level of union membership had dropped by 10.5% within six months and so there could be less than 50% membership in the bargaining unit in three months’ time. The Panel must arrive at a decision based on the information available at the time the decision is made and, as it currently stands, union membership satisfies the statutory threshold required for the Panel to consider whether the Union should be awarded recognition without the need for a secret ballot.  For the reasons given above the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

22)       The Panel has considered 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.

Paragraph 22(4) (a)

23)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer has argued that this qualifying condition applies.  It has explained the circumstances which it says gave rise to the application and how industrial action had “led to an erosion of trust on both sides”.  It has argued that a ballot would resolve any lack of clarity as to what members really wanted and the result would put the record straight once and for all. 

24)       The Panel considers that where two parties take opposing views, such as here, a ballot, by its very nature, would be adversarial and rather than improving the relationship between the parties, may have the opposite effect and drive them further apart. The Panel notes that there has been no reduction in membership of the Union during the period of industrial action.  In the Panel’s view, it can generally be assumed that Union members will support recognition. The Panel is not satisfied after considering the Employer’s submissions that industrial relations will be advanced by a ballot being held, or hindered if one is not held,  but rather takes the view that the sooner that the parties start to engage in meaningful collective bargaining the better.  This will allow both to move forward and start to build a relationship that works for all.   The Panel is therefore satisfied that this condition does not apply.

Paragraph 22(4) (b)

25)       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.

Paragraph 22(4) (c)

26)       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.  In its submissions the Employer said that it understood that workers who wished to strike were told to sign up as members for three months so that they would get strike pay and also to be part of a claim in relation to a change of terms exercise, and so it questioned whether members had joined for a very specific reason or a perceived benefit, rather than because they wanted the Union to conduct collective bargaining on their behalf.  The Union, commenting on this point, said that the Employer’s contentions were wrong and members were able to become members or cancel their membership at any time.  The Panel concludes that the Employer has not provided any persuasive evidence in support of its assertions concerning membership of the Union, and the Panel therefore finds that this condition does not apply.

8. Declaration of recognition

27)       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 “All hourly paid workers in the following departments: Cold Store, Dry Goods, High Risk Assembly, High Risk Packing, Hygiene, Low Risk Kitchens, Low Risk Packing, Material Control, QA, Warehouse, Health and Safety, and People and Development employed by Oscar Mayer, located at Ash Road South, Wrexham Industrial Estate, Wrexham, Wales LL13 9UG.”  

Panel

Mr Stuart Robertson, Panel Chair

Mr Derek Devereux

Mr Ian Hanson

14 April 2025

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1.    This check, conducted on 29 January 2025, established that the number of Union members in the agreed bargaining unit was 492, giving a membership density of 54.07%. ↩