Decision

Acceptance Decision

Updated 17 July 2019

Case Number: TUR1/1088(2019)

4 March 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

International Baccalaureate Organization (UK) Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 29 January 2019 that it should be recognised for collective bargaining by International Baccalaureate Organization (UK) Ltd (the Employer) for a bargaining unit comprising “All employees, excluding executives and directors, based at the IB Global Centre, Cardiff CF23 8GL”. The CAC gave both parties notice of receipt of the application on 30 January 2019. The Employer submitted a response to the CAC dated 4 February 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. Barry Clarke, Panel Chair, and, as Members, Mr. Nicholas Caton and Mr. Paul Noon OBE. The Case Manager appointed to support the Panel was Linda Lehan.

2. Issues

3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. The Union’s application

4) In its application the Union said that it had written to the Employer seeking recognition on 20 December 2018 and the Employer responded by way of email dated 8 January 2019 in a negative manner indicating its preference was for a works forum. A copy of the Union’s letter of 20 December 2018 and the Employer’s reply thereto was attached to the application.

5) According to the Union, there was a total of 200 workers employed by the Employer with 199 of these falling within the proposed bargaining unit. The Union stated that it had 116 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it relied upon its membership list and documentation which could be supplied to the CAC when appropriate. In addition, it was also conducting a petition in support of its application which again would be disclosed at the relevant time to the CAC Case Manager.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was an established bargaining unit as described in the “Voluntary Recognition Agreement” previously in operation between the Employer and the Union. The Union confirmed that the bargaining unit had not been agreed with the Employer.

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

8) When asked whether there was an existing agreement which the Union was aware of which covered any of the workers in the proposed bargaining unit the Union answered “No” stating that there had been a voluntary agreement which had been in place for approximately ten years and which had been terminated by the Employer with effect from 1 January 2019.

9) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

10) In its response to the application dated 4 February 2019 the Employer stated that it had received the Union’s formal request for recognition on 20 December 2018 and it had responded by way of email dated 8 January 2019, a copy of which the CAC had already received as part of the Union’s application.

11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that on 30 January 2019 it had received a copy by email from the CAC but not from the Union. A hard copy was also received on 4 February 2019 by the post. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and this remained the case. Asked to briefly set out its objections the Employer stated that it was unsure how the 199 figure had been calculated as there were two individuals who fell into the ‘executive & directors’ category as the Union’s site representatives were aware. The Employer believed that Heads of Department should likewise be excluded from the proposed bargaining unit and set out its reasons for arriving at this conclusion. There were currently six workers in these roles.

12) The Employer stated that it employed 252 workers at the site. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit. As stated above, there were two workers in the category “executives and directors” that the Union purposefully excluded but, according to the figures in its application, only one had been omitted. However, if those workers the Employer would wish to exclude were removed from the figure there would be 246 in total.

13) When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it did disagree but had no available evidence other than knowledge of cancelled memberships from some workers over recent months and workers who had approached informally to state they believed one employee forum, which was inclusive to all, was the better approach for the culture of the organisation. Further, since membership subscriptions were not paid via payroll the Employer could not use this method to obtain accurate data.

14) In December 2018, the Employer understood membership to stand at just 60 members. This figure being reported informally from a senior staff member who had obtained it verbally from a Union representative. It was possible of course that, following the decision to derecognise, the Union’s membership campaign had yielded an increase in membership but this was to be offset by the number of workers stating that they had cancelled their membership. Membership of 116 would be nearly doubling their numbers in the space of 12 months.

15) When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer explained that there was in place a long established employee forum now named the UKEF (UK Employee Forum). This employee forum enabled an employee ‘voice’ and as a key part of the Employer’s engagement strategy. The forum meets on a monthly basis and a representative attended the GCLT (Global Centre Leadership Team) for transparency of decision making and to give a staff view on GCLT proposals. For this reason the Employer believe that the majority of workers did not feel the need to have two consultative forums and that one, inclusive, forum would best fit the ethos of the organisation.

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

17) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer answered “N/A”.
Union’s comments on the Employer’s response

18) On 6 February 2019 the Employer’s response was served on the Union and it was invited to comment on the response in general and specifically on the point that the Union did not serve a copy of the application directly on the Employer contrary to paragraph 34(b) of the Schedule. The Union was asked to provide evidence of service should such evidence be in its possession. In an email dated 8 February 2019 the Union stated its belief that the application to the CAC and the Employer were sent by recorded delivery on the same day but it was unable at that moment to provide evidence. On 12 February 2019 the Union emailed stating that a further copy of the application was sent to the Employer again by recorded delivery and email. After a further exchange of correspondence the Employer, on 18 February 2019, confirmed that it “was in receipt now of everything” which the Panel took as referring to the copy of the application recently sent by the Union.

5. Membership and Support Check

19) To assist in the application of the admissibility tests, the Panel proposed independent checks of the level of union membership in the proposed bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full names, dates of birth and job titles of workers within the bargaining unit, and that the Union would supply to the Case Manager a list of the full names and dates of birth of the paid up union members within that unit and a copy of its petition. The information from both the Employer and the Union was received by the CAC on 18 February 2019. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 18 February 2019.

20) The Union provided a list bearing the details of 114 members as well as a petition bearing 185 names/signatures. The Union’s petition carried the following proposition:

Unite the Union Recognition Petition

We the undersigned workers, who are employed by International Baccalaureate Organization (UK) Ltd, ask that Unite the Union be the recognised union that represents us for collective bargaining purposes.

Under the proposition were four columns headed Name, Department, Signature and Date. The dates of the signatures ranged between 8 February 2019 and 14 February 2019.

21) The Employer’s provided a list with the details of 250 workers with columns headed “First Name”, “Preferred Name”, “Last Name”, “Date of Birth”, “Employee Contract Type” and “Position Name”. On its list the Employer highlighted two names as being new starters since the Employer’s response numbers were submitted and a further five names as denoting ‘Executives & Directors’ and whom the Employer sought to exclude from the bargaining unit. However, for the purpose of the check all 250 workers were included. The Employer had also listed one person whom it stated had been removed from the bargaining unit data by the Union and this person was not included in the check.

22) According to the Case Manager’s report, the number of Union members in the bargaining unit was 108, a membership level of 43.20%. The check of the petition showed that it had been signed by 181 workers in the bargaining unit, a figure which represents 72.4% of the bargaining unit. Of those 181 signatories, 95 were members of the Union (38% of the bargaining unit) and 86 were non-members (34.4% of the bargaining unit).

23) A report of the result of the membership check was circulated to the Panel and the parties on 20 February 2019 and the parties’ comments duly invited.

6. Employer’s comments on the Case Manager’s report

24) The Employer, in an email to the Case Manager dated 21 February 2019, commenting on the results of the Case Manager’s comparisons set out its concerns as to the way in which the Union conducted its petition and whether the test under paragraph 36(b) had been properly met.

25) It had been drawn to the Employer’s attention that the Union had undertaken the petition activity during work time without the Employer being notified and several members of staff had informed the Employer that they felt coerced into signing without really understanding the consequences.

26) The petition process was not confidential with workers being visited at their desk by those members conducting the petition. Workers therefore felt pressurised to sign there and then and not, necessarily, with free will. Further, misleading information was given by those conducting the petition with one worker being told “this is nothing to worry about, you don’t have to be a member or anything, it is just to say you are happy that unite are on site”. This was not the same as being in favour of collective bargaining. Neither were workers given good time to study the question on the petition or to ask the Union the impact of what they were signing. There was no briefing or explanation given by the Union.

27) The Employer was also concerned to find what appeared to have been six ex-employees being recorded in the membership figure disclosed by the Union. The Employer was also unsure why only 95 of the Union’s 114 members were in support of collective bargaining. The petition took place over a duration of one week allowing plenty of time to capture signatures and during that period the absence log recorded a minimal number of workers away from the workplace and this would not be wholly reflected in the 19 missing members.

28) The Employer also noted that there appeared a reduction of two members since the application was made just one month ago supporting reports that some had withdrawn their membership from personal choice. It believed this would steadily decrease to return to the lower number of members the Employer believed were in existence prior to the decision to invoke the three month termination clause in the Voluntary Agreement. From September 2018, when the three month period commenced, there was activity to increase membership levels and, again, some workers felt pressured at that time.

7. Union’s comments on the Case Manager’s report

29) In an email dated 22 February 2019 the Union confirmed that it had gone through the Employer’s list of workers and did not propose to challenge it. It also informed the CAC that five members had confirmed that they used different surnames for their Union membership and their employment, so these would not have tallied on the Employer’s list. Whilst the Union understood there was no requirement to provide that information at this stage, it would be happy to do so if requested by the CAC in the future.

8. Parties’ further comments

30) On 26 February 2019, in a further email to the CAC, the Union stated that it absolutely refuted the allegations made by the Employer in its email dated 21 February 2019 and in an email to the CAC of the same date the Employer repeated its concerns as to the conduct of the petition as set out in its email of 21 February 2019.

9. Considerations

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

32) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

10. Paragraph 36(1)(a)

33) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the membership check undertaken by the Case Manager established that Union membership in the proposed bargaining unit stood at 43.20%. The Employer, in its comments on the Case Manager’s findings, noted that six of the names on the Union’s membership list were found to not be workers in the proposed bargaining unit and the number of workers had decreased by two since the Union had completed its application form in December 2018. It also suggested that workers had been pressurised into joining the Union during the course of a recruitment campaign after September 2018.

34) On the issue of the six names not found on the Employer’s list, the Union, in its comments on the results of the Case Manager’s Membership and Support check, stated that five of its members had confirmed that they used different surnames for their Union membership and their employment and this would explain why they could not be identified. This may well be the case. However, in the absence of a further check to make certain the Panel cannot assume that they are workers in the bargaining unit and so cannot take them into account for the purpose of this decision. In the alternative, it may well be that these individuals have simply left the company and not deemed it a priority to inform the Union of the change employer. Whichever is the true scenario, the Panel is conscious that this particular statutory test is simply a measure of membership within the relevant bargaining unit rather than an audit as to the accuracy of the Union’s records. As to the other matters raised by the Employer it is difficult to assess the impact of such assertions in the absence of any supporting evidence. The Panel must base its decision on the evidence before it and here it is clear that the evidence in the form of the Case Manager’s report established that members of the Union constitute at least 10% of the workers in the bargaining unit and so the Panel finds that this test is satisfied.

11. Paragraph 36(1)(b)

35) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. In its application the Union stated that it relied upon its membership list and a petition as evidence that the majority of workers were likely to support recognition of the Union.

36) The Employer, in its submissions, made a number of points in connection with this test. They can be summed up as follows:

• the Union had gathered signatures for its petition during work time without the Employer being notified.

• several workers had informed the Employer that they felt coerced into signing without really understanding the consequences.

• the petition process was not confidential with workers being visited at their desk by those conducting the petition.

• misleading information was given by those conducting the petition.

• workers were not given sufficient time to study the petition’s proposition or to ask questions.

• nineteen members had not signed the petition which took place over a week allowing plenty of time to obtain signatures and with a minimal number of workers absent the workplace.

37) However, the Panel has received no documentary evidence to support the Employer’s assertions that workers were coerced into signing the petition or that they did not fully appreciate the issue at stake or that they were misled by the Union in an effort to gain their signatures. This is not a workplace with no experience of union recognition or collective bargaining but rather a workplace in which the bargaining unit was covered by a voluntary agreement wherein the Union was recognised by the Employer as entitled to conduct collective bargaining. This agreement had been in place for a decade before the Employer, as it was fully entitled to do, triggered the termination clause set out in the agreement and the Union was no longer recognised by the Employer with effect from 1 January 2019. That collective bargaining was in place as recently as December 2018 makes it difficult to accept the argument that workers were unaware as to the consequences of recognition and the Panel is not persuaded by the Employer’s submissions on this point. Nor are we persuaded by the argument that the strength of likely support is weakened by the fact that not all of the Union members signed the petition. There may be a number of reasons why this was so but whatever the cause, the number of workers, both members and non-members, that signed the petition is, in our view more persuasive evidence for support for recognition rather than the lack of 19 signatures as highlighted by the Employer. In the absence of any evidence to the contrary the Panel is therefore content to rely upon the figures set out in the Case Manager’s report.

38) The Panel has considered the evidence provided by the parties and is of the view that it is more likely than not that workers that have taken on membership of the Union would be likely to favour recognition of the Union for the purposes of collective bargaining. In addition, and whilst emphasising that this is not a purely mathematical exercise, the Panel considers that such a measure of “likely” support for the Union which can be gleaned from the pages of its petition, which was signed by 72.4% of the workers in the proposed bargaining unit, provides a legitimate indicator within the proposed bargaining unit as to likely support for recognition of the Union for collective bargaining purposes and the test set out in paragraph 36(1)(b) is therefore met.

12. Decision

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

Panel

Mr Barry Clarke, Panel Chair

Mr Nicholas Caton

Mr Paul Noon OBE

4 March 2019