Decision

Recognition Decision

Updated 27 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1340(2023)

27 October 2023

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

Spirax Sarco Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the CAC on 20 June 2023 that it should be recognised for collective bargaining by Spirax Sarco Limited (the Employer) for a bargaining unit comprising of “… all Machine Shop Operators employed by Spirax Sarco Limited within The Machine Shop South (Buildings A, B&C) including CNC Setter/ Operators; Press Shop; Weld Cell; Finishing and Lapping department’s”. The location of the proposed bargaining unit was Spirax Sarco Limited, The Machine Shop South (Buildings A, B, &C), Runnings Road South, Kingditch Trade Park, Runnings Rd, Swindon Village, Cheltenham GL51 9NQ. The CAC gave both parties notice of receipt of the application on 20 June 2023.  The Employer submitted a response to the CAC dated 27 June 2023 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 Ms Laura Prince KC, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Claire Sullivan.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         By a decision dated 24 July 2023 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. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A virtual hearing was held on 14 September 2023 and on 26 September the Panel’s decision was that the appropriate bargaining unit was that as proposed by the Union, namely: “CNC Setter/ Operators; Press Shop; Weld Cell; Finishing and Lapping departments, Assembly Operators, Team Leaders, Roving Inspectors, Janitor and Tools Store Operative employed by Spirax Sarco Limited within The Machine Shop South (Buildings A, B&C)”.  The bargaining unit had not changed but the roles had been clarified.

2. Issues

4)         Paragraph 22 of the 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 Unions claim to majority membership and submission they should be recognised without a ballot

5)         In a letter dated 26 September the Union was asked by the CAC whether they claimed majority membership within the bargaining unit and, if so, whether they submitted that they should be granted recognition without a ballot. The Union, in a letter dated 29 September 2023, stated that “It remains Unite’s position that we hold over 50% membership within the now established bargaining unit and therefore we submit that the union should be granted recognition without a ballot. If we reference the previous membership check conducted during this process by the CAC this confirmed that Unite held 53.24% membership within the proposed bargaining unit, with a support check demonstrating that 72.66% of the proposed bargaining unit was in support of union recognition. The bargaining unit that has been accepted by the CAC panel is the proposed bargaining unit that Unite submitted in the original application and that therefore naturally the findings of the membership check would remain applicable and relevant as to the decision to grant recognition. The employer may argue that they did not provide a complete staff list for the bargaining unit, as they only provided 139 names rather than the 150 that have been established as being within the bargaining unit. Despite this, 74 out of the 84 names provided by Unite appeared on the employer’s list of 139 therefore providing membership in excess of 50%. If looking to the revised bargaining unit number of 150, when checking the job titles of those members that did not appear on the employer’s original list of 139, the union reasonably believe that these will be included in the revised number of 150. These include job titles of Section Leaders, Roving Inspectors and Janitor, as such the union would maintain membership in excess of 50% against a revised list of 150 members as well has having demonstrably more than 50% against the original list of 139. The employer has continually stated that they believe a ballot should be held as they claim that employees have been coerced or pressured to sign the support petition. I would like to reiterate that no complaints have been made to Unite regarding this either by the employer or individuals either at the time that the petition was circulated or at any other time aside from the employer’s accusations to the CAC. The General Manager and Operations Manager have the Unite Regional Officer’s contact details and have contacted about other issues previously. The contact details for Unite’s offices are widely available for the public to contact however no individual has been in contact to complain or request that their names be removed from the support petition. No Unite member has been investigated or disciplined by the employer for any allegations of intimidating colleagues to sign the petition and our members strongly refute this allegation. The petition was circulated between March and May 2023 openly in the workplace by Spirax Sarco employees and was signed by 143 individuals. The employer has provided four letters expressing concern regarding the petition dated 20th and 21st July 2023. The letters have been anonymised so I cannot comment on the authenticity of these letters, or whether these four workers are included in the support petition, however I do not agree that this reflects the sentiment of the majority of workers within the bargaining group. The union’s considered position is that we have demonstrated both membership in excess of 50% and more broadly support for union recognition amongst members and non-members in the now agreed bargaining unit. As such Unite continues the position that recognition should be granted without the need for a ballot”.

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

6)         On 2 October 2023 the CAC copied the Unions letter of 29 September 2023 to the Employer and invited the Employer to make submissions in relation to the Unions claim that they 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 the Employer sent a letter dated 5 October 2023 and an attached document, the Employer stated “That on 26 September 2023 the Central Arbitration Committee (CAC) handed down the decision that Unite proposed an appropriate bargaining unit. By way of a letter dated 9 September 2023, Unite submitted that they have demonstrated both membership in excess of 50% and more broadly support for union recognition amongst members and non-members in the now agreed bargaining unit. As such Unite’s position is that recognition should be granted without the need for a ballot No majority membership The first question pursuant to paragraph 22 Schedule A1 Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) is whether the CAC is satisfied on the basis of the evidence before it that a majority of the workers constituting the bargaining unit are members of the union. The CAC must decide on the basis of the evidence adduced and it cannot and will not decide on the basis of mere speculation (GMB and Oughtred & Harrison (Facilities) Ltd (TUR1/301/03, 10 December 2003), CAC. It is submitted that the CAC cannot be satisfied of majority membership based on the submissions from Unite. Unite rely upon the previous membership checks which were conducted earlier in the year, and which may no longer reflect the position given there will be changes over the passing of time. The CAC must decide on the basis of the facts as it finds them at the date of its decision. It cannot decide on the basis of what had been higher union membership levels when the application for recognition was first accepted by the CAC (CWU and Cable & Wireless (TUR1/570/07, 4 April 2008), CAC, at para 43). Spirax has to plan for changes in its manufacturing processes to reflect the state of the company’s order book and general economic factors. It carries this process out on an annual basis. Any measure of membership and/or support taken earlier in 2023 will be inherently unreliable by the time the decision on recognition is taken by the CAC. Of more significance, as Unite recognise, the membership checks were based on the 139 names provided by Spirax rather than the 150 that have been established as being within the bargaining unit. Within the group of 139, 74 were identified by the membership checks as being members of Unite (i.e., 53.24%). In their letter dated 29 September 2023 Unite provide no evidence to support their contention that there are union members among the additional 11. To illustrate the significance of this point, if, for example, only one of the additional 11 staff not on the list of 139 names provided by Spirax were a member of Unite, this would be 75 members out of 150 which would amount to 50% and would not constitute the requisite majority. Therefore, given the lack of evidence adduced by Unite on this point, it cannot be assumed there is the requisite majority of members, as this would be mere speculation. One of the three qualifying conditions, as specified in paragraph 22(4) of the Schedule, are met Even if the CAC conclude there is a requisite majority membership within the bargaining unit, Spirax submits that a ballot should still be held as at least one of the three qualifying conditions, as specified in paragraph 22(4) of the Schedule, are met. Coercion Spirax are concerned by the petition that was submitted by Unite, as they are in receipt of four individually drafted and signed letters from colleagues from within the Proposed Bargaining Unit which express their concerns about how Unite and its members have been seeking to recruit and to get signed names on a petition through coercion. These concerns have been identified by Spirax for some considerable time and were referred to at the virtual hearing that was held on 14 September 2023 and so it is not the case that these are concerns first raised in these submissions. Copies of the letters from the four employees were included in the bundle for the hearing on 14 September 2023 (pages 70 to 73) and are attached to this submission for ease of reference. The letters were unsolicited by Spirax and received from reliable and respected employees. In order to protect the individual employees, Spirax agreed not to reveal the identities of the four employees to Unite or its members but 3 of the 4 have confirmed they would be willing to speak to the CAC to verify the concerns they raise as to coercion provided that the CAC will not divulge the identity of them to the union and/or its members. Please note the fourth individual is currently on holiday and so Spirax are unable to ascertain if he would be willing to speak to the CAC too. Staff uncertainty Spirax has an employee committee that stands for colleagues across the whole UK Supply business called The Voice. This is recognised, widely used by employees and the business, and is valued. Feedback from colleagues directly and via The Voice indicates that colleagues do not properly understand the full implications of recognition and do not want Unite to be recognised. Attached to these submissions are the minutes of the latest Voice meeting, held very recently on 27 September 2023. These minutes record the questions asked by colleagues and evidence the uncertainty about what union recognition actually means. Also attached to this submission are a set of FAQs reflecting questions which colleagues (including those within the Bargaining Unit) have raised, further evidencing the uncertainty of staff over recognition, which clearly indicates staff are not supportive of recognition. Good industrial relations As set out above, Spirax submits that staff have been coerced into joining the union and/or signing a petition indicating support for recognition. In Unite’s letter dated 29 September 2023 it “strongly refutes” this. It is therefore clear that there is a disagreement between the employer and the union about the issue of coercion in respect of support for recognition. Further, given that Spirax has received a large number of questions and queries from staff within the bargaining unit (including as recently as last week) about what recognition means, it is submitted that the petition organised by Unite, which it says evidence support for recognition, cannot be relied upon. Therefore, it is submitted that it would be beneficial for a long-term stable relationship if the parties’ respective cases were to be presented to workers in the regulated environment of a ballot campaign. Allied to this, it is submitted that there would be a clear benefit for both parties in future relations if the union were able to demonstrate it had a mandate through the ballot, especially given the narrow margin of the figures available (i.e. of the group of 139 the % membership is just 53.24%). It is noted that in Unite the Union and Wheelbase Engineering Ltd CAC Case No. TUR1/1006/2017 the CAC ordered a secret ballot to be conducted ‘in the interest of good industrial relations’ notwithstanding evidence that a majority of workers in the bargaining unit were union members. In the Wheelbase Engineering case, the CAC quoted with approval a statement made in a previous CAC decision that: ‘It is true that the process of balloting runs the risk of accusatory exchanges between the union and the employer but that may be a price worth paying to have the matter determined by the majority of individual workers in the bargaining unit.’ It is submitted that this is exactly the situation that applies to this case and so it would be appropriate to hold a ballot. To be very clear, Spirax confirms that it would cooperate with the union if the ballot supported recognition. Opposition of members and/or ‘Membership evidence’ It is submitted that the four letters from staff and the large number of queries raised at The Voice is sufficient credible evidence that members do not want Unite to conduct collective bargaining on their behalf and/or amounts to ‘membership evidence’ (i.e. evidence about the circumstances in which union members became members) which, it is submitted, is sufficient for the CAC to doubt whether a significant number of union members really want the union to be recognised -even if they do not openly admit it. Conclusions For the reasons set out above it is submitted that the CAC should not issue a declaration that Unite is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit but should instead direct that a secret ballot be held”.

8)         The Union and Employers comments were cross copied on 6 October 2023. The Panel chair asked for the Union to confirm membership levels of the 11 roles of the people in the bargaining unit. An email from the CAC was sent to the Union 18 October 2023, to which the Union responded on the same day by stating “I can confirm the answer to the question is that 5 out of the 11 new members added are Unite the Union members. The addition of these 11 would change Unite the Union membership density at 52.66% - down from 53.24%”.

5. Considerations

9).         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. 

10)       The membership and support check conducted on 7 July 2023 had shown the Employer listing a total of 139 workers. As stated in the acceptance decision dated 24 July 2023, the Union had provided a spreadsheet listing 84 union members. The number of union members in the proposed bargaining unit was 74, a membership level of 53.24%.  The Union since have confirmed the density of its membership as 52.66%, accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

11)       The Panel is satisfied that the membership check conducted on 7 July 2023 is likely to reflect membership as it is now, and the Union has also provided information regarding the 11 additional roles which changed membership density to 52.66%. The CAC are satisfied that the Union still has majority membership.

12)       The Panel has carefully 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)

13)       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.

Paragraph 22(4) (b)

14)       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)

15)       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.

6. Declaration of recognition

16)       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 “CNC Setter/ Operators; Press Shop; Weld Cell; Finishing and Lapping departments, Assembly Operators, Team Leaders, Roving Inspectors, Janitor and Tools Store Operative employed by Spirax Sarco Limited within The Machine Shop South (Buildings A, B&C)”. 

Panel

Ms Laura Prince KC, Panel Chair

Mr Sean McIlveen

Ms Claire Sullivan

27 October 2023