Decision

Acceptance Decision

Updated 15 November 2019

Case Number: TUR1/1117(2019)

12 July 2019

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

Seal Security UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 12 June 2019 that it should be recognised for collective bargaining by Seal Security UK Limited (the Employer) for a bargaining unit comprising “All Seal Security Guards employed to work at Bloomberg London sites”. The location of the bargaining unit was given as “All Bloomberg sites supported by (the Employer) primarily but not exclusive to Bloomberg, 3 Queen Victoria Street, London EC4N 4TQ”. The CAC gave both parties notice of receipt of the application on 12 June 2019. The Employer submitted a response to the CAC dated 19 June 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 Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mr David Crowe and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Nigel Cookson. Issues

3) 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.

2. The Union’s application

4) In its application the Union said that it had initially written to the Employer with a formal request for recognition on 21 January 2019 and that the Employer responded on 23 January 2019 refusing the request but gave an indication that it would participate in a substantive exploratory discussion should the Union provide the Employer with meaningful information in support of its request. The Union accepted the Employer’s invitation and a meeting was scheduled for 7 March 2019. The outcome of the meeting, according to the Union, was that the Employer agreed to consider a voluntary recognition proposal but failed to respond to the Union’s follow up requests for any update. The Union enclosed various email exchanges and copy letters with its application.

5) According to the Union, there was a total of approximately 107 workers employed by the Employer with all 107 of these falling within the proposed bargaining unit. The Union stated that it had 42 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 a petition with 73 signatories could be provided to the CAC. The petition asked all workers if they supported recognition of the Union as entitled to conduct collective bargaining on pay, hours and holidays. The bargaining unit was located at all Bloomberg sites supported by the Employer which was primarily the site at 3 Queen Victoria Street, London EC4N 4TQ but also other sites which were due to be discussed at the meeting on 7 March 2019.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that its membership operated on a number of Bloomberg contracts and could be deployed to Bloomberg’s sites as the business required. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it had a certificate of independence and also confirmed that, following receipt of the request for recognition, the Employer had not proposed that Acas be requested to assist.

8) The Union stated that there had been a previous application in respect of this or a similar bargaining unit under reference number TUR1/889/2014 the outcome of which was that the application was not accepted by the CAC on 4 December 2014.

9) Finally, the Union stated that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

3. The Employer’s response to the Union’s application

10) The Employer stated that it had received the Union’s formal request for recognition on 21 January 2019. When asked what its response was, the Employer stated that it responded in writing to the Union on 23 January 2019 (attaching a copy of the relevant letter) informing the Union that at that time the Employer was not able fully to consider or provide an informed response to its request due to a lack of information provided by the Union. Consequently, the Employer reiterated its request from October 2018 (when the Union was seeking recognition regarding a wider bargaining unit) for the Union to provide more information so that an informed and reasonable response could be made. This included a request for an explanation of why the Union considered the bargaining unit to be “appropriate”; details as to what the Union saw as the benefits of union recognition for the Employer and its employees; and evidence regarding support for recognition among the bargaining unit. The Employer also offered to have a meeting with the Union to discuss its request further. In response to this letter, the Union agreed to meet with the Employer, however it did not provide any of the information requested.

11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was received on 10 June 2019 as an attachment to an email to the Employer’s Human Resources Department. The Employer confirmed that it had not agreed the proposed bargaining unit prior to having received a copy of the completed application form adding that no agreement had been reached regarding the proposed bargaining unit subsequently. The Employer stated that the parties met on 8 March 2019 and the Union failed to present any of the reasonable information requested by the Employer. Instead, only a template recognition agreement was presented to the Employer with no further information. In light of this, the Employer informed the Union that it would not be able to engage with it further regarding the issue of recognition until the requested further information was provided. The Employer added that it would contend, in due course, that the bargaining unit should be larger than was currently proposed and it did not include a number of workers that operated in a security guard capacity on other sites for other clients in the UK.

12) The Employer stated that it employed 132 workers with 115 workers in roles on the Bloomberg sites supported by the Employer. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the proposed bargaining unit, the Employer stated that it was not in a position to agree the Union’s estimate and wished the position to be verified by the CAC. This was because the Employer did not know which of its workers were in membership or what jobs they did; the consistent failure to provide any information regarding the level of membership numbers despite repeated requests; collective grievances raised previously purportedly through the Union had failed to gather signatures of more than 28 employees; a number of reports had been received of employees being pressurised into joining the Union; reports had been received from a number of employees that the Union continued to inflate its support in its communications and there may be disagreement as to which individuals should be included in the bargaining unit which may impact on the number of members in the bargaining unit.

13) When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that, despite a number of requests, the Union had provided no evidence to show that this criterion had been satisfied other than a single reference to a petition that allegedly had 73 signatories. The Employer had a number of concerns with this petition: it was aware a petition was conducted but this was over a year ago and with a high turnover of employees within the proposed bargaining unit any petition of this age would have little relevance to the views of the workers in the proposed bargaining unit. Further, no information had been provided to evidence that any signatory of the petition fell within the proposed bargaining unit. The Employer was also aware of a practice of intimidation of its workforce by some individuals supporting the Union and employees being forced or pressurised into signing petitions. Any open petition would therefore be unlikely to represent the true views of the proposed bargaining unit.

14) The Employer understood that any petition presented by the Union would pre-date a change in senior leadership in October 2017 which led to changes in its employment practices resulting in significant improvements in employment contracts, increased pay, employee incentives & recognition, and development of the Employer’s corporate structure to support the business and the employees. It was therefore likely that, even if such a petition did represent the views of the proposed bargaining unit, such views would likely have changed.

15) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

16) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, the Employer answered in the affirmative adding that a previous application under case number TURI/889/2014 was not accepted by the CAC on 4 December 2014.

4. The membership 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 27 June 2019 from the Case Manager to both parties. The information requested from the Employer was received by the CAC on 3 July 2019 and from the Union on 4 July 2019.

18) The list supplied by the Employer contained the names of 113 workers and the list of members supplied by the Union contained 37 names.

19) The Union also provided a 5 page petition bearing the names and signatures of 73 individuals which were dated between 17 October 2018 and 23 November 2018. Four of the pages of the petition took the form of A4 sheets headed:

PETITION IN SUPPORT OF UNION RECOGNITION

SEAL Security UK Ltd

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:

There then followed a table with four columns headed Print Name, Job Title, Signature and Date and 27 rows for workers to enter their details. At the foot of each sheet it stated:

This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues. Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy.

20) The fifth sheet of the petition had a hand drawn table headed Name, Job Title, Signature and Date. It carried no proposition nor the footer set out above. There were two signatures on this sheet but both were duplicates of signatures on the petition proper.

21) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 27, a membership level of 23.89%. The check of the petition showed that it had been signed by 57 workers in the proposed bargaining unit, a figure which represents 50.44% of the proposed bargaining unit. Of those 57 signatories, 26 were members of the Union (23.01% of the proposed bargaining unit) and 31 were non-members (27.43% of the proposed bargaining unit). A report of the result of the membership check was circulated to the Panel and the parties on 5 July 2019 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.

5. Parties’ comments on the membership check

22) In a letter dated 10 July 2019 the Employer submitted that the findings of the report indicated strongly that the majority of the workers in the proposed bargaining unit were not likely to favour recognition of the Union to conduct collective bargaining on their behalf. The Employer contended that the Union’s application was therefore not an admissible one and so should be rejected by the CAC.

23) In support of this position, the Employer argued that the Union had been active for a number of years, pushing strongly to build support and membership numbers (this included a previous application for recognition in 2014 that was rejected by the CAC for lack of support). Despite this long history, the Union had failed to build up membership of more than 23% of the proposed bargaining unit. This was indicative of a lack of significant support among the relevant workers. No reference had been made to whether the union members were subscription paying members and were up to date with these subscriptions. If this was not the case, those individuals should be excluded from the calculation of density of union membership within the proposed bargaining unit, pushing this figure even lower.

24) The Union’s petition showed that only 50.44% of the workers within the proposed bargaining unit signed it. Given the flawed nature of the petition, it was almost certain that this petition was not a true reflection of the level of support that the Union had and that a number of workers who signed the document did not actually support union recognition. This was because the legitimacy of the signatures could not be determined and the Employer was concerned that it may not be an accurate document. In particular, it was concerning that a number of repeat signatures appeared to have been included in a seeming attempt to boost the appearance of support.

25) The Employer argued that it was important to note that the petition document was not a confidential one and it would therefore be very clear to all workers and to the Union’s representatives who had and had not signed it. Within the context of the aggressive stance that the Union’s representatives had taken, including intimidation of other workers, the Employer contended that it was very likely that a number of workers who were not union members would have felt pressurised to sign the petition to avoid reprisals, even though they did not agree with its contents. This was supported by the fact that all other Union driven petitions where workers would have likely not have feared such negative connotations had failed to gather more than 28 signatures.

26) In addition, the petition did not explain what the Union was seeking other than “collective bargaining”. There was no indication that the Union had sought to explain or educate the workers what this meant to them either in theory or in practice. Given this and the fact that a number of the workers in the bargaining unit did not speak English as a first language, it was of concern that a number of workers would not have understood what they were signing.

27) The petition relied upon was dated from October and November 2018 and the Employer was confident that a petition dated eight or nine months ago was not indicative of the current support among the bargaining unit. Since the dates of the petition the Employer had implemented a number of measures that were beneficial to its workers, including substantial pay rises and pension contribution increases, new staff forums, guaranteed hours contracts for all workers, a worker recognition program and educational scholarships. This combination of factors made it very likely that current support for union recognition was even lower than indicated by the petition.

28) The Employer made the point that it was important to note that if any of the above was true for even just two of the petition signatories, the proportion of workers in the proposed bargaining unit who were in support of recognition would be below 50%. In the circumstances this was almost certainly the case. The Employer was therefore confident that support for the Union would in reality be significantly below the required 50% threshold and, as a result, the application should be rejected on this basis.

29) In an email dated 10 July 2019 the Union stated that, after examining its membership system, it became apparent that the original list sent to the CAC was incomplete. The Union had been attempting to rectify this by sending to the CAC the true updated list however, there had been some technical difficulties with this which the Union was trying to resolve.

30) As things stood, the Union did not believe that it had any further comments to offer on the initial report findings other than it would appreciate it if the CAC could re-examine the data based on the new membership list the Union was trying to supply.

6. Considerations

31) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

32) 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 and that the application was made in accordance with paragraph 12 of the Schedule in that, before the end of the first period of 10 working days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request but was willing to negotiate but no agreement was reached before the end of the second period of 20 working days. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

7. Paragraph 36(1)(a)

33) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the check of membership and support conducted by the Case Manager on 5 July 2019 reported a membership level of 23.89%. The Union stated in its email of 10 July 2019 that it had produced an incomplete list to the Case Manager and called upon the CAC to conduct the check again using its complete list which it was apparently struggling to send to the CAC. However, the Union was informed that it should not send any confidential information to the CAC unless it was specifically called for and prior agreement had been reached with the parties that such information would remain confidential. No such agreement has been reached for the provision of a further list of members and, in any event, the check has been conducted on the basis of the agreement reached at the time and the information subsequently provided.

34) In its comments the Employer questioned whether the Union’s members were subscription paying members and whether they were up to date with these subscriptions. If this was not the case, the Employer argued that such individuals be excluded from the calculation of union membership.

35) The Panel notes that the arrangements for the membership and support check to be conducted were made on the basis that the Union agreed to supply a list of its paid up members in the proposed bargaining unit. There is no evidence to show that the Union did not comply with the terms agreed. The Panel accepts that, in the absence of any specific evidence to the contrary, the list provided by the Union consists of paid up members within the proposed bargaining unit, although it could be inferred from the Union’s comments in its email of 10 July 2019 that the list did not represent all of its paid up members. On the basis of the findings established by the Case Manager in his report the Panel is satisfied that members of the Union constitute at least 10% of the workers in the bargaining unit and the test under this paragraph is met.

8. Paragraph 36(1)(b)

36) The test in paragraph 36(1)(b) is whether 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. Here the Union relies on its level of membership as well as the petition in support of recognition. The Case Manager’s check, as stated above, established that union membership stood at a minimum of 23.89%. That figure may actually be higher, as the Union now states that it provided an incomplete list, but whether or not this is the case has not been tested. The Panel has proceeded on the basis of the figure recorded in the Case Manager’s report.

37) The Case Manager’s report also established that 57 workers had signed the Union’s petition in favour of recognition which represents 50.44% of the proposed bargaining unit and that, of this 57, 26 were members of the Union (23.01% of the proposed bargaining unit) and 31 were non-members (27.43% of the proposed bargaining unit).

38) The Employer challenged the reliability of the petition as evidence indicating 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 on a number of grounds. To paraphrase its arguments, the Employer was concerned that the legitimacy of the signatures on the petition could not be determined; a number of repeat signatures appeared to have been included in a seeming attempt to boost the appearance of support; the petition was not private and so it was clear to all workers and the Union’s representatives who had and had not signed it; there was concern with the aggressive stance that the Union’s representatives had taken, including intimidation, and workers feeling pressurised to sign the petition to avoid reprisals; there was no explanation on the petition as to what it was that the Union was seeking; it was concerned that a number of workers would not have understood what they were signing; the age of the petition meant it was not indicative of current support for recognition and if only two of the petition signatories were affected by any of the matters set out above, the proportion of workers in the proposed bargaining unit who were in support of recognition would be below 50%.

39) The Panel has given careful consideration to the objections raised by the Employer to the reliability of the petition as evidence indicating that the relevant test has been satisfied and borne in mind the following considerations and findings in reaching its conclusions.. The Panel considers that there is no specific evidence before it that cogently casts doubt on the authenticity of the signatures on the petition. All duplicate signatures were identified by the Case Manager during the course of his check and were duly set aside and so no advantage was gained by the Union. The Panel accepts that the nature of a collective petition concerning trade union recognition such as this is that workers will be able to see the names of those colleagues that have signed it. There has been no specific evidence put before the Panel to show that the way in which the petition was conducted placed undue pressure on the signatories nor has any evidence been adduced that leads the Panel to conclude that workers were subject to aggression on the part of the Union or intimidated into signing the petition.

40) The Panel is of the view that the proposition on the petition is clear and unambiguous and there is no evidence before the Panel cogently to suggest that workers did not understand what it was they were being asked to support. The Panel has not seen any evidence indicating that it should disregard the petition on the basis of the views of the signatories having changed since they originally signed the petition between October and November 2018. In the view of the Panel, the petition upon which the Union relies is specific evidence of the satisfaction of the applicable test whereas the challenges to the reliability of that petition which the Employer asserts cannot be quantified or assessed in the absence of any specific evidence in support of its assertions.

41) The Panel has borne in mind that the tests that are applied at this stage of the statutory process are effectively thresholds to ensure an application has a realistic chance of success in going forward. This is why the test under this paragraph is one of likely support, and so hypothetical by nature, rather than one of actual support. At this stage the question for the Panel to determine is whether, in light of the evidence before it, it is likely that a majority of the workers would support recognition of the Union. On the basis of the evidence before the Panel, the Panel concludes that this test has been satisfied.

42) In view of the above and in the absence of any cogent evidence to the contrary, the Panel is of the view that the level of Union membership within the proposed bargaining unit, coupled with the number of petition signatories, provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining and the test set out in paragraph 36(1)(b) is therefore met.

9. Decision

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

Panel

Mr Charles Wynn-Evans, Chairman of the Panel

Mr David Crowe

Mr Paul Noon OBE

12 July 2019