Decision

Acceptance Decision

Updated 7 May 2019

Case Number: TUR1/1073/2018

05 November 2018

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

Senior Aerospace Weston

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 10 October 2018 that it should be recognised for collective bargaining purposes by Senior aerospace Weston for a bargaining unit described as: “Hourly paid workers at Senior aerospace Weston, Earby”. The application was received by the CAC on 11 October 2018 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 17 October 2018 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, Panel Chair, and, as Members, Mrs Maureen Chambers and Mr Gerry Veart. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 25 October 2018 and was extended to 16 November 2018 to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider these 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 to the CAC the Union stated that it had made a request for recognition to the Employer on 18 July 2018 and also sent a letter recorded delivery which was delivered on 20 July 2018. A response from the Employer was received on 1 August 2018 rejecting the Union’s request but informing the Union that the Employer was prepared to engage in negotiations. The Union indicated that it met with the Employer on 20 August 2018 when the Employer asked for evidence that the employees wanted recognition and that it explained that there had been a huge increase in membership and that it had completed a site petition which more than met the requirements of a CAC application. The Employer had requested time to consider recognition and agreed another date to meet. The Union stated that on 23 August 2018 it had written to the Employer raising concerns about alleged “scaremongering” and asked if the Employer genuinely wanted to engage or if it was frustrating the process. On 12 September 2018 they met and agreed a workplace ballot would take place to prove the bargaining unit wanted recognition. The Union stated that on 26 September 2018 it wrote to the Employer expressing concern about a large number of disciplinary letters being received by workers in the bargaining unit and that there was a clear message, delivered by supervisors, that they were the result of employees wanting recognition. The Union also requested confirmation of the terms of the ballot. The Union stated that on 28 September 2018 the Employer responded stating the allegations were “unfounded” and proposed a ballot framework. On 1 October 2018 the Union requested amendments to the framework as it included the whole site and not just the suggested bargaining unit and it also placed a number of unworkable restrictions on the process. On 5 October 2018 the Employer responded by refusing to make any adjustments. On 8 October 2018 the Union wrote to the Employer to explain why it considered that the Employer’s position was disingenuous and indicated that it only wanted to use ACAS for the proposed ballot. Finally the Union stated that it had indicated to the Employer that if the Employer refused to alter its proposals the Union would have to complete the CAC application form. The Union enclosed a copy of their request letter and the Employer’s response together with copies of emails between the parties and a copy of the draft ballot framework.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered ‘no’. The Union stated that, following receipt of the request for recognition, the Employer had proposed that ACAS should be requested to assist the parties and it had agreed.

7) The Union stated that the total number of workers employed by the Employer was 335. The Union stated that there were 269 workers in the proposed bargaining unit, of whom 91 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that it gave out a petition for the employees to say if they agreed for Unite to gain recognition which was overwhelmingly supportive.

8) The Union stated that the reason for selecting the proposed bargaining unit was because the hourly paid workers were on the same or similar terms and conditions and rates of pay and were also flexible and moved within the boundaries of the different areas of the site when required with adequate training. The Union stated that they were managed as a group or groups of individuals and were subject to the same disciplinary and grievance procedures and company handbook. The Union stated that representation of these employees as a collective group by a union would be entirely consistent with their management as a collective group by the company. The Union said that Senior aerospace also had two other North West sites, Senior aerospace BWT and Senior aerospace Bird Bellows, and that it was recognised on those sites and that the bargaining units in those cases were for hourly paid workers. In answer to the questions as to whether the bargaining unit been agreed with the employer and whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘no’.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 10 October 2018.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 19 July 2018. The Employer stated that it had responded to the Union on 1 August 2018 and enclosed a copy of its response.

11) The Employer confirmed that it had received a copy of the Union’s application form on 11 October 2018. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that the reason it objected to the proposed bargaining unit was because it excluded a group of employees who were the salaried staff.

12) The Employer stated that, following receipt of the Union’s request, it had proposed that ACAS should be requested to assist and explored with ACAS the terms for a voluntary ballot but terms could not be agreed between the parties.

13) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that there were 252 workers in the proposed bargaining unit.

14) The Employer confirmed that there was currently no recognition agreement in place covering any of the workers in the proposed bargaining unit.

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated the reason for disagreeing was because of natural attrition/management of the business due to a reduction in work. When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer stated that it held regular informal discussions and team-based meetings with their employees about workplace matters and also had an established Works Council and employee reps. The Employer stated that, since the Union contacted them in July 2018 and began gate leafleting they had updated their managers, employees and Works Council representatives on the Union’s proposals and there had been no feedback of support and that it believed that a majority of employees did not support Union recognition. The Employer stated that during its exploratory meetings with Union officials they had consistently refused to disclose membership numbers, the petition statement, or the numbers of signatures they had obtained.

16) The Employer answered ‘NA’ 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 and when asked if it had received any other recognition applications in respect of workers in the proposed bargaining unit.

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 and of a petition compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, addresses, and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and addresses of paid up members within that unit and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 22 October 2018 from the Case Manager to both parties.

18) The information from the Union was received by the CAC on 22 October 2018 and from the Employer on 23 October 2018. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Employer provided a spreadsheet consisting of 255 names and a list of the job titles were listed in the Case Manager’s report. The Union provided a print-out bearing the details of 96 members as well as a petition. The petition was set out as follows:

Unite the Union

Recognition petition

We, the undersigned workers, who are employed by Senior Aerospace Weston’s at West Craven Drive, Earby, Barnoldswick, BB18-6JZ ask that Unite the Union be the recognised union to represent us for collective bargaining purposes.

We are not placed under duress of any kind to sign this petition and have taken part of our own free will.

NAME	SIGNATURE	SHIFT (east or west side)	DATE

In the column headed date the dates ranged from 15/06/18 – 25/08/2018.

19) According to the Case Manager’s report the total number of workers in the proposed bargaining unit was 255 and the number of Union members in the bargaining unit was 88, a membership level of 34.51%. The check of the petition showed that it had been signed by 183 workers of which 154 were workers in the proposed bargaining unit, a figure which represents 60.39% of the proposed bargaining unit. Of those 154 signatories, 78 were members of the Union (30.59% of the proposed bargaining unit) and 76 were non-members (29.80% of the proposed bargaining unit). A report of the result of the membership check was circulated to the Panel and the parties on 23 October 2018 and the parties’ comments invited.

20) On 24 October 2018 the CAC received 8 letters from workers at Senior Aerospace West stating that they understood that Unite had applied for Union recognition and informing the CAC that they did not support the Union’s campaign for recognition. The CAC wrote to the parties to explain that the letters would not be released for confidentiality reasons but would be taken into account when making a decision. The parties were given until close of business on 29 October 2018 to make any further submissions.

6. Summary of the parties’ comments following the membership and support check and letters received from employees

21) In a letter to the CAC dated 24 October 2018 the Union stated that from the information provided it clearly demonstrated that they had more than three times the required number of members in the proposed bargaining unit and the number of employees in the proposed bargaining unit who had signed their petition demonstrated a clear majority. The Union stated that this had all been completed in a hostile environment, with no onsite access to employees, and also that the vast majority of onsite employees who had signed their petition who were not members had informed them that once they had secured recognition they would become members of Unite.

22) In a letter to the Case Manager dated 26 October 2018 the Employer contended that, having reviewed the CAC’s report, whilst at face value the Union would seem to meet the CAC’s two primary numerical tests it believed the results required greater scrutiny. The Employer stated that the background to the Union’s submissions had been a public and very pushy membership drive since June 2018 and persistent gate-leafleting which many employees had found disruptive, intrusive and aggressive. In summary it believed that a mid 30% Union density was a questionable uptake of employees joining the Union, especially after multiple and critical flyers about Weston. In the same vein the Employer believed that the number of petition signatures did not reflect support for Union recognition. The Employer said that signing the petition simply reflected an attempt by employees to avoid undue pressure from external Union activists who had thrust clip boards in front of them as they wound down their car window to activate the entry barrier.

23) The Employer also stated that union membership was not something that it tracked at Weston and it was therefore not in a position to comment on the names submitted by the Union. The Employer explained that, since Unite first approached the Company, it had invested time at two meetings and correspondence with Unite representatives to clarify the evidence it was relying on to support its application for recognition. The Employer said that the Union had consistently declined to disclose details of membership numbers and it believed that the Union’s reluctance to do so was because it had low interest. The Employer stated that at face value it accepted the results of the report which showed the Union satisfied the first validity test of 10% union density.

24) The Employer noted that the Union claimed a total of 96 members whereas the Case Manager’s report showed only 88 Union members. The Employer contended that this overstatement by 8 raised certain credibility doubts about the Union’s other claims that Union members wanted collective bargaining.

25) The Employer stated that the content of the Union’s flyers had tended to emphasise individual worries (for example, union representation to address grading issues, shift changes, redundancies, disciplinary hearings, etc) and felt that employees may have joined the Union for individual representation and not necessarily Union recognition. The Employer stated that this may explain why 10 Union members did not sign the petition as it could reasonably be assumed that all Union members would have been given the opportunity, and been actively encouraged to sign the petition, especially as the Union had personal contact details for all its members.

26) The Employer also said it was unclear how many Weston employees were fully paid up and current members of the Union, and this was not an issue that could be resolved by a numerical report comparing the Union’s membership list against the Company’s list of employees. Any lapsed members should not be counted as members, and not assumed to be supportive of Union recognition. The Employer said it would encourage the CAC to require the Union to demonstrate a list of Union members ‘in good standing’ showing the date they joined the Union.

27) Finally in respect of the membership the Employer stated that it did not believe that Union membership was indicative of support for Union recognition and Unite had not provided any such evidence.

28) In respect of the petition the Employer stated that it was equally surprised at the number of signatures on the Union’s petition, given that anecdotally employees had repeatedly expressed strong concerns about the Union’s protests and gate-leafleting at shift times and during recent customer visits, and been anxious and angry about the potential negative reputation and risk of losing prospective orders. The Employer said that a number of employees had expressly told them that they did not want recognition and several had written independently to the CAC to say so.

29) The Employer stated that it readily accepted that the petition statement appeared clear and some employees will have signed the petition to signify they wanted Union recognition. However, the Employer also believed that employees might have signed the Union’s petition based on superficial or misinformed understanding of what Union recognition meant or how it would operate. The Employer conveyed that it had a loyal and long-serving workforce and in Weston’s history had never had nor needed a formal Union agreement.

30) The Employer stated that its understanding was that the statutory recognition topics were pay, hours of work, and holidays and the petition did not specify any subject matter of collective bargaining. In contrast, the Union’s flyers had conveyed the impression that collective bargaining covered wider terms and conditions and therefore the Employer believed that signatures had quite possibly been obtained by misrepresenting the scope of collective bargaining

31) The Employer stated that it would not be unsurprising that some employees signed the petition purely to avoid the feeling of undue pressure, given the Union’s frequent protests, pressure tactics and confrontational manner. The Employer explained that it had been told by a number of employees that they were fed up with the Union’s repeated presence and inconvenience to employees needing to get home. The Employer concluded by stating that they believed if employees signed the petition under such circumstances the signatures did not signify support for Union recognition.

32) On 1 November 2018 the CAC received a further 2 letters from workers at Senior Aerospace West stating that they understood that Unite had applied for Union recognition and informing the CAC that they did not support the Union’s campaign for recognition. The CAC wrote again to the parties to explain that the letters would not be released for confidentiality reasons but would be taken into account when making a decision.

7. Considerations

33) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

34) 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 12. 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 of the Schedule. 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)

35) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Union constitute at least 10% of the workers in the proposed bargaining unit.

36) The membership check conducted by the Case Manager showed that 34.51% of the workers were members of the Union. As stated in paragraph 18 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 notes that the system of membership and support checks employed to determine whether the admissibility tests in paragraph 36 are satisfied relies on the good faith and honesty of both parties in supplying information. The Panel has received no evidence which leads it to suspect that either party has not acted honestly and in good faith in relation to this application. The Panel notes the Employer’s comment that at face value it accepted the results of the report which showed the Union satisfied the first validity test of 10% Union density. 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)

37) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides 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.

38) The Panel notes that the support check conducted by the Case Manager showed that 60.39% of the workers in the proposed bargaining unit (154 out of 255 workers) had signed a petition in favour of recognition of the Union. Of those who had signed the petition, 78 were Union members (30.59% of the proposed bargaining unit) and 76 were non-members (29.80% of the proposed bargaining unit). The Panel notes the Employer’s concern that some employees may have signed the petition on superficial or misinformed understanding of what union recognition meant and some felt under pressure to sign the petition. However, the Panel has not received, from either the Employer or any workers within the proposed bargaining unit, any form of documentary evidence substantiating these allegations from any individuals the Employer alleges have been subjected to such pressure. The Panel has taken into consideration the letters received from workers informing the CAC that they did not support the Union’s campaign for recognition. However, the Panel has noted that these 10 letters only equates to 4% of a bargaining unit of 255. The Panel has concluded that this 4% level of explicit objection to union recognition does not undermine the strong level of support for recognition demonstrated by the level of union membership within the bargaining unit and the level of support expressed for recognition evidenced by the petition.

39) 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

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

Panel

Mr Charles Wynn-Evans, Panel Chair

Mrs Maureen Chambers

Mr Gerry Veart

05 November 2018