Decision

Acceptance Decision

Updated 4 May 2020

Case Number: TUR1/1120(2019)

16 October 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

TE Connectivity Ltd

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 TE Connectivity Ltd (the Employer) for a bargaining unit comprising “All Production, Quality Assurance and Maintenance workers up to and including team leaders in the TE Connectivity Ltd, Faraday Road, Dorcan, Swindon, SN3 5HH.” The CAC gave both parties notice of receipt of the application on 17 June 2019. The Employer submitted a response to the CAC dated 5 July 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 Gerry Veart and Mr Mike Cann. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 July 2019. The acceptance period was extended on several occasions to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, for the Panel to consider the parties’ comments before arriving at a decision and for the Panel to finalise its written decision. The most recent extension ends the acceptance period on 18 October 2019.

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) The Union included with its application a copy of its certificate of independence and declared that it had not made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or similar unit. The Union stated that it had made its written request for recognition to the Employer on 30 January 2019 (a copy of the letter was enclosed with the application). The Union explained that the Employer had replied with a request for an extension of time to make its formal response which the Union did grant (a copy of the Employer’s reply dated 6 February 2019 was enclosed with the application). The Union confirmed it had received the Employer’s formal response to its request on 15 February 2019 in which the Employer had stated that it would enter into a potential voluntary recognition agreement under the auspices of Acas.

6) The Union confirmed that it did agree to this request and was contacted by the Acas Adviser on 3 occasions. The Acas adviser informed the Union that the Employer had employed a firm of solicitors and the solicitor acting for the Employer wanted membership details prior to any agreement on meeting with the Employer. The Union rejected the request as it did not think that it was in the spirit of voluntary recognition nor was it in the interests of its membership as it believed that this was a delaying tactic. A meeting was however scheduled for 20 June 2019.

7) According to the Union the total number of workers employed by the Employer was 450 of which 230 were workers within its proposed bargaining unit and 130 of which were Union members. When 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 stated that it had over 50% membership in the proposed bargaining unit and it could demonstrate significant support from non-Union members through petitions and surveys.

8) The Union stated that its reason for selecting the proposed bargaining unit was because it was compatible with effective management - being all workers up to and including team leader across the two relevant sites. The Union confirmed that the bargaining unit had not been agreed with the Employer.

9) Finally, the Union confirmed that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit and that it had copied its application and supporting documents to the Employer on 12 June 2019.

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

10) The Employer confirmed that it had received the Union’s written request for recognition under the Schedule on 4 February 2019. The Employer also confirmed that its initial response was dated 6 February 2019 and its formal response was provided to the Union by letter dated 15 February 2019 in which it had requested that the negotiating period commence on 11 March 2019. The Employer stated that the rationale for this request was to seek evidence of union membership in the bargaining unit.

11) The Employer stated that it received a copy of the application and supporting documents on 17 June 2019. The Employer answered “no” when asked in the Employer’s response questionnaire if it and the Union had agreed the bargaining unit prior to the Employer receiving a copy of the completed application form from the Union. The Employer answered “Yes” when asked in the following question if it agreed with the proposed bargaining unit.

12) The Employer confirmed that it did propose that Acas be requested to assist following receipt of the Union’s request for recognition. The Employer stated that a meeting was initially agreed with Acas to discuss the Union’s approach, bargaining unit and membership levels but this meeting was subsequently cancelled when the Union made the formal application to the CAC without providing further notice to the Employer.

13) The Employer informed that it employed 1,322 workers in the UK and it did not agree with the Union’s figure as to the number of workers in the bargaining unit. The Employer stated that there were 246 workers in the Union’s proposed bargaining unit and it did not know why the Union had a different figure.

14) The Employer stated that it did not believe that the Union’s membership levels were near or close to those stated by the Union in its application. According to the Employer there was very little Union activity on site other than the occasional poster. Union representatives were not visible on site and were not used in employee representative situations, for example in formal meetings. The Employer stated that it had undertaken an informal poll of the employees in the Union’s proposed bargaining unit which indicated that a majority of these workers did not favour recognition.

15) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit and that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit.

5. Summary of the parties’ further comments

16) By invitation of the Panel, the Union provided its comments on the Employer’s response to the application by e-mail to the CAC on 3 July 2019. It appeared to the Union that the Employer had in its response to the application included every employee into the proposed bargaining unit, including staff employees that the Union expected to be outside of it when declaring its figures. The Union’s proposed bargaining unit was clear and undisputed by the Employer. The Union reiterated that its proposed bargaining unit was “all Production, Quality Assurance and Maintenance workers up to and including team leaders in the TE Connectivity Limited sites “A” & “H””. The Union stated that the numbers that it had provided in its application to the CAC was to the best of its knowledge accurate.

17) With regard to the Employer’s employee poll, the Union stated that its members on site had suggested that this poll was taken under supervision and pressure from managers and not conducted in private and was not confidential. The Union disputed the Employer’s point that there was very little Union activity. Its position, on the contrary, was that Union members on site had been extremely active with newsletters and campaigning to recruit. There were no Union representatives on site due to there being no recognition agreement. However the officer responsible for this site had confirmed that he/she had represented Union members in disciplinary hearings and Grievances regularly.

18) In response to the Union’s comments, the Employer submitted (by e-mail to the CAC dated 15 July 2019) that the total number of employees in the Union’s proposed bargaining unit was actually 254. The smaller number provided initially was because the reports that the Employer had relied on when completing the Employer’s response questionnaire excluded one team.

19) The Employer explained that it did not use the term “Team Leader” and had therefore assumed that the bargaining unit proposed by the Union was Cell Leaders below its Band 5 which was the management grade. The figure of 254 therefore excluded any employees at this grade.

20) In the Union’s further comments in response (set out in an e-mail to the CAC dated 24 July 2019) the Union stated that in its view the terminology of “team leader” and “cell leader” were one and the same in that the roles and responsibilities were identical. However, the Union did have documents from the Employer that did use the term “team leaders”. The “cell leaders” in question were within the scope of its proposed bargaining unit, based on the fact that they were primarily production workers who had limited supervisor responsibility. They mostly operated machinery the same as the production workers or indeed embarked on activities that one would associate with production workers. The Union maintained that, when applying to the CAC, it had used the data available to it at the time and it was confident that the numbers given were accurate.

6. The membership and support check

21) To assist the determination of whether two of the admissibility criteria specified in the Schedule were satisfied, 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, 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 dates of birth) 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 would not be copied to the other party and that agreement was confirmed in a letter dated 31 July 2019 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 1 August 2019 and from the Employer by 29 July 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Summary of the membership and support check results

22) The list supplied by the Employer showed that there were 258 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 137 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 122, a membership level of 47%.

23) The Union also submitted by e-mail to the CAC a PDF (scanned) copy of its petition which contained 179 signatures. The earliest dated signature was 12 January 2019 and the most recent dated signature was 3 April 2019. The petition was 15 A4 pages in length and each page was headed with the following statement:

“PETITION IN SUPPORT OF UNION RECOGNITION

TE Connectivity

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 the 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:”

Beneath which was a table of four columns for the worker to complete as follows:

PRINT NAME	JOB TITLE	SIGNATURE	DATE

Underneath the table appeared the following statement:

“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”

24) The petition supplied by the Union contained 179 names and signatures, of which 163 were in the proposed bargaining unit, a figure that represents 63% of the proposed bargaining unit. Of those signatories, 107 were members of the Union (41% of the proposed bargaining unit) and 56 were non-members (22% of the proposed bargaining unit).

25) The Employer also submitted a petition by e-mail to the CAC as a PDF (scanned) copy. The PDF document was called “Scanned straw poll slips” and included 171 completed tear off slips. The tear off slips for workers to complete were attached to a letter from the Employer to the worker and read as follows:

“Dear Colleague

As you may be aware Unite the Union have made a formal application to a statutory body called the Central Arbitration Committee, to be compulsorily recognised by the Company in respect of collective bargaining over pay, hours and holidays.

The application for recognition is in respect of sites A & H in Swindon, for all production, quality control and maintenance workers up to and including team leaders.

If Unite achieve recognition then all production, quality control and maintenance workers at those sites would be represented by the Union for collective bargaining purposes, irrespective of whether they are a member of Unite or not.

TE Connectivity does not believe that recognition of Unite is in the best interests of its workforce or the Company going forward. We support our workers’ rights to belong to a trade union and freely engage in trade union activity, but we do not believe that formal recognition for collective bargaining over pay, hours and holidays is conducive to the excellent worker relations that have been fostered over many years by management and worker colleagues.

TE Connectivity has a newly formed Great Place to Work Team that allows employees to influence decisions around improving employee engagement and site investment. The unplugged sessions are set to continue as a way of giving colleagues a voice and ability to give upward communication to site management. TE has a competitive and comprehensive benefits package that sets us apart from other local employers.

The Company therefore intends to oppose the Unite application. I anticipate that the Company will need to disclose evidence of the views of our workforce as to whether or not a majority of the workforce at sites A & H are in favour of recognition of Unite.

I would be grateful if you would complete the slip below and return it to me to indicate your wish as to recognition of Unite by the Company.

If you wish to discuss the Unite application or the Company position generally then please do not hesitate to contact me personally.

Best wishes

Andrew Donachie Global Director – Operations

I [name] am/am not (delete as appropriate) in favour of recognition by TE Connectivity of Unite the Union at sites A & H Swindon, for all production, quality control and maintenance workers up to and including team leaders.

Signed: Dated: ………”

26) Not all of the completed slips were dated. The earliest date of signature was 19 June 2019 and the most recent dated of signature was 21 June 2019.

27) The Employer’s petition consisted of 171 names/signatures of which 2 did not appear on the Employer’s list. Of the remaining 169 slips there were 135 slips which had unreadable/duplicate signatures or were unsigned. In respect of the remaining 34 identifiable slips, 7 workers had indicated that they were in support of the Union and 27 indicated that they were not in support of the Union. Of the 27 who indicated that they were not in support of union recognition: 15 (6% of the proposed bargaining unit) did not sign the Union’s petition and were not Union members; 8 (3% of the proposed bargaining unit) also signed the Union’s petition and were non-Union members and 4 (1.6% of the proposed bargaining unit) also signed the Union’s petition and were Union members.

28) A report of the result of the membership and support check was circulated to the Panel and the parties on 20 August 2019 and the parties were invited to comment on the results of that check, including any evidence to support those comments.

8. Summary of the parties’ comments

29) In its e-mail to the CAC dated 20 August 2019 the Employer stated that the Union’s application was seemingly admissible by reference to paragraph 36 of the Schedule. Accordingly, the Employer went on to provide its views on whether a ballot should be held and its preference for the form of ballot should a ballot be held. The Employer noted that the CAC must order a ballot where it has accepted as admissible a trade union’s application for statutory recognition under Part 1 of the Schedule but is not satisfied that more than half of the workers in the relevant bargaining unit are union members. It was clear to the Employer that the Union had less than half the workers in the proposed bargaining unit as members. Its position was that the Case Manager’s report illustrated this for the Employer. The Employer also opined that a ballot would be in the interests of good industrial relations. Were the CAC to allow the application to proceed and arrange a ballot, the Employer’s preference would be for a work place ballot to be held.

30) In its e-mail to the CAC dated 23 August 2019 the Union asserted that both admissibility tests were comfortably met by the Union. At least 10% of the workers constituting the relevant bargaining unit were Union members and, whether utilising the Union’s figure of 230 or the Employer’s figure of 258 of workers in the bargaining unit, there was evidence that a majority of the workers in the proposed bargaining unit was in favour of Union recognition.

31) With regard to the Employer’s petition, the Union’s position was that the findings of the CAC’s report showed that it would appear to do little, due to the legibility issues, to counter the evidence of majority support for recognition as demonstrated by the check of the Union’s membership level and petition. The Union questioned the increase in the number of workers in the proposed bargaining unit from 230 to 258 which diluted the Union’s membership density. The Union stated that, even when discounting the 15 members that did not appear on the Employer’s list, this would mean a membership density of 53% against a bargaining unit of 230 and not 47% against a bargaining unit of 258. The Union calculated that support for recognition using the same figures and discounts would be 71% as opposed 63%.

32) In a later e-mail to the CAC dated 2 September 2019, the Union asked the CAC to provide the names of those Union members who according to the Case Manager’s report did not appear on the Employer’s list of workers in the proposed bargaining unit. The Union also raised its concern that the Employer was undermining the process by watering down the bargaining unit by inflating the number of employees to 258 versus the Union’s figure of 230 for the proposed bargaining unit. The Union felt this was a considerable difference and asked the Panel to consider disclosing the 258 employees (which included the additional 28 employees) in the proposed bargaining unit to the Union to assist it with either accepting or challenging the numbers that had been provided by the Employer.

33) By direction of the Chairman of the Panel, the Case Manager wrote to the Union on 9 September 2019 providing in confidence those names of the Union members who did not appear on the Employer’s list. The Union was notified that, if it wished to put evidence before the Panel that these individuals who did not appear on the Employer’s list should have been included on the Employer’s list, it should do so by no later than noon on 16 September 2019.

34) By e-mail to the CAC dated 12 and 16 September 2019 the Union accepted that 14 of the named Union members were justifiably withdrawn but stated that the remaining member should have been on the Employer’s list. (In an e-mail to the CAC dated 20 September 2019 the Union confirmed to the Case Manager that the individual concerned had given permission for their name to be disclosed to the Employer to investigate). The Union also informed the Panel that it was aware that there had been a reduction in the number of employees within the “Harnessing” section, an area covered by the proposed bargaining unit. The Union asked for confirmation that this had been taken into consideration as this would reduce the numbers that were declared by the Employer. The Union’s response to the Panel was copied to the Employer on 23 September 2019 for its comments.

35) The Employer responded by e-mail to the CAC dated 25 September 2019. The Employer confirmed that the named Union member was on the list of workers provided to the Case Manager for the membership and support checks, but that the individual went by a different last name. The Employer provided the relevant line number on the spreadsheet to assist the Case Manager with locating the Union member on the list provided for the Case Manager’s check on 26 September 2019. In answer to the Union’s concerns, the Employer stated that the harnessing section had not seen any specific headcount reduction programme. There had been normal turnover activity and therefore the list provided to the Case Manager was accurate with regards to all parts of the business, including harnessing. The Employer stated that there had been no adding or withdrawing of names to the bargaining unit as indicated by the Union. The list provided to the CAC was given in good faith and accuracy and the Employer could see no reason to go beyond that at this stage by providing names to the Union.

9. Considerations

36) 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 before it in reaching its decision.

37) 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(2). 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 issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

10. Paragraph 36(1)(a)

38) 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. The membership check conducted by the Case Manager (described in paragraphs 21 to 27 above) showed that 47% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 21 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. 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.

11. Paragraph 36(1)(b)

39) 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.

40) The Panel notes that the membership and support check conducted by the Case Manager (described in paragraph 24 above) showed that 63% of the workers in the proposed bargaining unit (163 out of 258 workers) had signed a petition in favour of recognition of the Union. Of those who had signed the Union’s petition, 107 were Union members (41% of the proposed bargaining unit) and 56 were non-members (22% of the proposed bargaining unit).

41) The Panel considers 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. In this case the level of Union membership within the proposed bargaining unit is 47%. Taken together with the level of non-Union member signatures on the Union’s petition the available evidence indicates that overall the Union has the support of at least 68% of the workers in the proposed bargaining unit.

42) In this case, whilst the Employer subsequently conceded that the Union’s application was seemingly admissible for the purposes of paragraph 36, the Employer did provide some evidence to the contrary in the form of its petition. However, the Employer’s petition established that 27 workers out of 258 workers in the proposed bargaining unit were not in support of recognition of the Union. At only just over 10% of the proposed bargaining unit this represents a significantly lower percentage of the proposed bargaining unit opposed to recognition compared to the Union’s evidence of the number of workers in favour of recognition of the Union. Analysis of the petition also establishes that the percentage of those signatories of the Employer’s petition that did not sign the Union’s petition and were not Union members was approximately 6% of the proposed bargaining unit.

43) Although the Union expressed its concerns regarding the accuracy of the figures provided by the Employer there was no evidence from the Union that would cause the Panel to doubt the reliability of the information declared by the Employer. The Panel is also mindful that the test set in the Schedule states that the Panel should be satisfied that the majority of the workers in the proposed bargain unit would be likely to favour recognition of the Union and does not require the Union to establish actual majority support at this stage of the application process.

44) On the basis of the evidence described above, the Panel considers that the evidence indicating 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 is considerably stronger than that against, and therefore the Panel is satisfied that the requirement under paragraph 36(1)(b) of the Schedule is met.

12. Decision

45) 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 Gerry Veart

Mr Mike Cann

16 October 2019