Decision

Acceptance Decision

Updated 1 November 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1226/2021

27 August 2021

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 Wincanton

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 22 June 2021 that it should be recognised for collective bargaining purposes by Wincanton (the Employer) for a bargaining unit described as: “Team Leaders, Clerks and Site Services who are based at Wincanton for Argos, National Distribution Centre, Kettering NN14 1UB”. The application was received by the CAC on 13 July 2021 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 27 July 2021 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Miss Kerry Holden and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 27 July 2021. The acceptance period was extended to 17 August 2021 to allow time for the Panel to obtain more information from the parties and to allow time for a membership and support check to be carried out and for the parties to comment on the subsequent report. The acceptance period was further extended until 1 September 2021 to allow the Panel to consider all the documents 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 had two zoom meetings with the Employer on 5 March and 6 May 2021 to discuss recognition of the bargaining unit and having failed to reach an agreement sent a formal request letter to the Employer dated 7 May 2021 by email and post. A copy of the Union’s request letter was attached to the application.

6) 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 the Union had agreed.

7) The Union stated that the total number of workers employed by the Employer was 17,600. The Union stated that there were 57 workers in the proposed bargaining unit, of whom 37 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 a workplace petition had been carried out which could be presented to a third party on request along with membership details taken from the Union’s membership system.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it believed that the proposed bargaining unit was compatible with effective management and avoided fragmentation. The Union stated that the workers in the proposed bargaining unit did not currently have mechanisms in place for collective bargaining. The Union stated that the bargaining unit had not been agreed with the Employer. When asked whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘N/A’.

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 22 June 2021.

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 7 May 2021. The Employer advised that it had met with the Union on 18 May 2021 via Microsoft Teams to seek further clarification and to ask for verification of membership for the proposed bargaining unit. The Employer explained that Wincanton did not agree to the request.

11) In response to the question please give the date that you received a copy of the application form (and supporting documents, if any) from the Union the Employer stated that it was yet to receive an application form.

12) When asked had you and the Union agreed the bargaining unit before you received a copy of the application form from the Union the Employer stated that it disputed the proposed bargaining unit for reasons that had been shared with the Union.

13) The Employer stated that it did not agree to the proposed bargaining unit and until the application was ruled admissible, the question as to the appropriateness of the proposed bargaining unit did not arise. The Employer stated that it reserved the right to set out its position in that regard in full if the application was accepted and the question arose. In order to assist the CAC, however, the Employer stated that it considered the appropriate bargaining unit to be wholly inappropriate as the employees within the proposed bargaining unit fell under the Wincanton Group Management and Administrative Grade whose terms and conditions, including reward were determined nationally and not just at the Kettering site. The Employer was of the opinion that that ensured that the business was able to effectively manage the population and avoided a small fragmented bargaining unit.

14) The Employer stated that following receipt of the Union’s request it proposed that ACAS be requested to assist. The Employer stated that the Union confirmed that contact had been made with an ACAS Senior Advisor and that they had agreed to assist. The Employer stated that it did not consider that ACAS had had a sufficient opportunity to play a role in those circumstances and that the application on the part of the Union was premature.

15) In answer to whether it agreed the number of workers in the bargaining unit as defined in the Union’s application the Employer stated that it reserved its position in that respect and had requested support from ACAS to confirm numbers and that process was ongoing.

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that again it reserved its right in that respect and had requested support from ACAS to confirm numbers and that the process was ongoing. 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 given its responses above they were unable to answer that point and repeated again that it reserved its right in that respect. The Employer maintained that the Union had not provided any evidence of likely majority support for recognition within the proposed bargaining unit and even if the membership level was at the level suspected by them that would not be evidence of a likely majority support for recognition. The Employer stated that the Management and the Administration Grade population had functioned adequately without a recognised union.

17) The Employer answered ‘not aware’ 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 applications in respect of workers in the proposed bargaining unit.

5. Summary of the Union’s comments on the Employer’s response

18) In a letter dated 29 July 2021 the CAC Case Manager asked the Union to comment on the Employer’s response, both in general and specifically in respect of the Employer’s answer to the question 3 in its response to the application, where the Employer had stated that it had not received a copy of the application form (and supporting documents) from the Union The Union was also asked to provide any evidence of service of the application form and supporting documents on the Employer.

19) In a letter dated 3 August 2021 the Union confirmed that it had served the documents on the Employer and enclosed a copy of the Royal Mail proof of delivery along with the letter which, was sent together with the application, to the employer on the 22 June 2021 and signed for by the employer on the 24 June.2021.

20) In respect of their general comments on the Employer’s response the Union advised that initial meetings with the Employer took place on the 5 March and 6 May and following the meeting on the 6 May the formal request for recognition was made on the 7 May. The Union stated that they then met virtually with the Employer on the 18 June (not the 18 May as suggested by the Employer). The Union stated that following the meeting on the 18 June, the Application for recognition was made on the 22 June, with copies of the Application being sent to the CAC and the Employer.

21) The Union stated that a letter along with the application and the CAC letter was sent recorded delivery to the Employer on the 22 June and singed for by the Employer on the 24 June. Copies of the letter, proof of postage and confirmation of delivery was attached.

22) The Union stated that it was of the belief that no valid reason had been given to dispute the proposed bargaining unit. The Union was of the belief that the proposed bargaining unit was not small and fragmented and was completely workable within the Kettering site. The Union stated that furthermore part of the proposed bargaining unit was covered by a collective agreement until the Employer changed their job titles, so basically doing the same role with a different job title, but with no collective bargaining rights.

23) The Union stated that it was them that ACAS involvement to help with the process and verify membership and support for recognition and a meeting was in the process of being organised to verify membership and levels of support

24) The Union stated that it believed ACAS involvement at an early stage important for the verification of membership and support and kept individual names out of the discussions with the Employer.

25) The Union believed the number of workers in the bargaining unit to be correct and had been verified by contacts on site and they were currently waiting for a meeting to verify membership and support The Union also believed the numbers indicated on the application form to be correct but again were waiting for ACAS to verify that.

26) As to the workplace petition the Union said that this was carried out and could be presented to a third party on request, along with membership details taken from the Unions membership system, which would support that a majority of the bargaining group supported recognition. The Union contended that one third of the proposed bargaining group were originally covered by a recognition agreement until the Employer with a change of job title had moved them out of that arrangement.

6. The membership and support check

27) 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, date 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 the names and date of birth 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 4 August 2021 from the Case Manager to both parties.

28) The information from the Employer and the Union was received by the CAC on 9 August 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

29) The list supplied by the Employer indicated that there were 55 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 349 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 30, a membership level of 54.55%.

30) The Union’s petition consisting of 35 names/signatories was set out as follows: Unite the Union Workers Mandate

We the undersigned, Departmental Managers and Team Leaders, employed by Wincanton/Argos, who are based at Kettering Business Park, call upon our employer to recognise Unite the Union, for the purposes of collective bargaining.

There were four columns under this headed Name, Signature, Department and Date and in the column headed date the dates ranged from 14/10/20 – 06/08/21.

The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 30 workers had indicated that they wanted the Union to be recognised which corresponded to 54.55% of the bargaining unit. 23 of the 30 were union members (41.82%) and 7 were non-members (12.73%).

31) A report of the result of the membership and support check was circulated to the Panel and the parties on 10 August 2021 and the parties were invited to comment on the results by 12 August 2021.

7. Summary of the parties’ comments following the membership and support check

32) In a letter to the CAC dated 12 August 2021 the Union stated that given that the check in the report had shown that at least 10% of the relevant bargaining unit were union members namely 54-55% they were prepared to accept the report. As a majority of workers constituting the relevant bargaining unit would be likely to favor recognition namely 66% i.e. confirmed union members and the non-members who had signed the petition the Union confirmed again that they were prepared to accept the report.

33) In a letter to the CAC dated 16 August 2021, received by the CAC on 12 August 2021, the Employer stated that they were alarmed to note that the Union had submitted a petition that was signed by some 349 individuals who they purported fell within the proposed bargaining unit of “Departmental Managers and Team Leaders”. The Employer submitted that the title of “Departmental Managers and Team Leaders” suggested by the Union did not accurately reflect job titles utilised by Wincanton generally or at Wincanton/Argos. To that end the Employer understood that the Union were referring to Management and Administration grades and advised that Management and Administration grades at Wincanton/Argos Kettering consisted of the following job roles as per their previous response, namely those of Warehouse Team Manager, Facilities Technician and Warehouse Operations Clerk. The Employer stated that they understood that a check had been conducted against the signed petition and a total of 30 were common to both lists albeit they had no way of verifying that. The Employer also submitted a detailed argument on why it believed that the Union’s proposed bargaining unit was unsuitable, which will if necessary be considered by the Panel at a later stage of the process.

34) The Union in a further email to the CAC dated 13 August 2021 commented on the Employer’s letter dated 16 August 2021 confirming that the petition was only signed by 35 individuals and not 349 individuals as suggested by the Employer. The Union stated that the spread sheet showed 349 members, which was the total membership for the site and mostly belonged to a different bargaining group who currently enjoyed recognition. The Union stated that the application form clearly indicated a bargaining group of 57 and the application form and all correspondence with the Employer referred to their proposed bargaining group of “Team Leaders, Clerks and Site Services” not just Team Leaders.

8. Considerations

35) 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.

36) The Panel is satisfied that the Unions made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that their 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, 35 and paragraphs 37 to 42 of the Schedule.

Paragraph 34

37) Paragraph 34 of the Schedule states that an application under paragraph 11 or 12 is not admissible unless the union gives to the employer: a) notice of the application, and b) a copy of the application and any documents supporting it.

38) In its application the Union stated that it had served the Employer with a copy of the application (and any supporting documents) on 22 June 2021. However, the Panel noted that in its answer to question 3 of its response to the application, the Employer stated that it had not received a copy of the application form (and supporting documents) from the Union. Accordingly, the Union was asked to confirm whether or not it did serve a copy of the completed application form on the Employer and to provide any evidence of service, if such evidence was in its possession.

39) In a letter dated 3 August 2021 the Union confirmed that it had served the documents on the Employer and enclosed a copy of the Royal Mail proof of delivery along with the letter which, was sent together with the application, to the employer on the 22 June 2021 and signed for by the employer on the 24 June.2021.

40) The Panel is satisfied that the Union did send the Employer a copy of the application and supporting paperwork and therefore the application is not rendered inadmissible by the provisions of paragraph 34.

41) 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.

Paragraph 36(1)(a)

42) 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.

43) The membership check conducted by the Case Manager (described in paragraphs 27-29 above) showed that 54.55% of the workers were members of the Union. As stated in paragraph 28 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Employer did not dispute the level of membership and the Panel is content to rely for the purposes of this decision on the information provided by both parties in determining the level of union membership within the bargaining unit. 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.

Paragraph 36(1)(b)

44) 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.

45) In this case the Panel would have been prepared to decide that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit on the basis of the level of union membership alone. However, the Union provided further evidence of support for recognition in the form of the petition which was signed by 35 workers and the comparison of the Union’s petition with the Employer’s list of workers showed that a total of 30 workers had indicated that they wanted the Union to be recognised which corresponded to 54.55% of the bargaining unit. Of those who had signed the petition 23 were Union members (41.82% of the proposed bargaining unit) and 7 were non-members (12.73% of the proposed bargaining unit). If you add the union members (54.55%) to the non-members who signed the petition (12.73%) you would get a majority ‘likely to support’ figure of 67.38%. The Employer did not dispute the validity of the petition only the numbers it originally thought had signed the petition.

46) On the basis of the evidence before it, the Panel has decided that, 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.

9. Decision

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

Panel

Mrs Lisa Gettins, Panel Chair,

Miss Kerry Holden

Mr David Coats

27 August 2021 .