Case Number: TUR1/568(2006)

18 October 2007

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

Xansa UK Ltd

Introduction

1. Unite - the Union, formerly known as Amicus, (the Union) submitted an application dated 23 April 2007 to the CAC that it should be recognised for collective bargaining by Xansa UK Ltd (the Employer) for a bargaining unit comprising “Xansa employees in job bands 1-4 based on the Boots site and working on or providing a service to Boots IS&T Department (also known as teamIS)”. The bargaining unit was located at the premises of Boots the Chemist in Thane Road West, Nottingham. The CAC gave both parties notice of receipt of the application on 23 April 2007. The Employer submitted a response on 30 April 2007 which was duly copied to the Union. Following the merger of Amicus with the TGWU on 1 May 2007 the application proceeded in the name of “Unite 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 Professor Paul Davies, Chairman of the Panel, and, as Members, Mr Rod Hastie and Dr Susan Corby. The Case Manager appointed to support the Panel was Nigel Cookson.

3. By a decision dated 14 June 2007 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. However, no agreement was reached by the end of the relevant period and so the parties were notified that a hearing would take place at which the bargaining unit would be determined. The parties were duly invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit and a hearing took place in London on 3 September 2007.

4. In a decision promulgated on 19 September 2007, the Panel decided that the appropriate bargaining unit should be one that comprised those workers employed by Xansa UK Ltd working at the Boots site in Nottingham who were either transferees from Boots to Xansa (whether they had subsequently moved onto Xansa terms and conditions or not) or who had at least one year’s continuous service on the Boots site. This bargaining unit was different to that proposed by the Union in its application.

Issues

5. As the determined bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of the Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50. To this end both parties were invited, by way of letter dated 19 September 2007, to supply the Panel with written submissions relating to the validity tests.

Union’s submissions

6. In a letter dated 24 September 2007 the Union observed that it had 75 members in the bargaining unit determined by the Panel and could provide a list of these members on the basis that it was kept confidential and was not copied to the Employer. With reference to the list of members attached to the Employer’s submissions and forwarded to the CAC after the hearing on 3 September 2007, the determined bargaining unit would appear to consist of 115 workers. Having regard to these figures the Union clearly had over 10% of the new bargaining unit in membership and the Union asked the Panel to apply its industrial relations experience to conclude that 75 out of 115, a membership density of 65.36%, was very strong evidence that a majority would be likely to favour recognition.

7. The Union confirmed that there were no existing recognition agreements that covered any of the workers in the determined bargaining unit, there were no competing applications and there had not been any previous applications in respect of the new bargaining unit.

Employer’s submissions

8. In a letter dated 26 September 2007 the Employer confirmed that there was no existing agreement covering any of the workers in the determined bargaining unit although it noted that there was an agreement in place which covered representation, health and safety and equal opportunity matters on-site. The Employer did not know whether or not the Union satisfied the 10% requirement and it believed that the workers were split on the question as to whether a majority in the determined bargaining unit were likely to favour recognition. The Employer referred to documents it had produced for the purpose of the hearing to determine the appropriate bargaining unit in which a number of workers had objected to being included within the bargaining unit as evidence that not all of the workers would welcome recognition of the Union. The Employer then confirmed that there had not been any competing applications that covered workers in the new bargaining unit nor had there been any previous application in respect of the new unit.

Clarification of the determined bargaining unit

9. In the same letter dated 26 September 2007 the Employer invited the Panel to consider whether the definition of the determined bargaining unit be amended to include those workers with one year of service by reference to a specific date each year and suggested that the most appropriate date would be those with one year’s service on 1 May each year as that is the date of the annual pay review.

10. Further, the Employer pointed out that although both parties were aware that the decision related to workers in Bands 1-4 at the Boots site and the managerial and senior grades were never mentioned during the course of the hearing, the written decision did not make that absolutely clear. Therefore, for the sake of clarity the Employer believed that it would assist the parties if the decision could be amended so that it expressly referred to the new bargaining unit as made up of workers in Bands 1-4.

11. In a letter dated 3 October 2007 the Panel responded to the Employer’s concerns. The Panel, having considered the points raised by the Employer, was happy to clarify that its definition of the bargaining unit in paragraph 17 of the Decision applied only to workers in bands 1-4, as was implicit in paragraph 1 of the Decision.

12. As to the service requirement embodied in that definition, the Employer was informed that the Panel’s general view was that, as with any definition of a bargaining produced by a CAC Panel, all the elements of that definition had to be applied to the facts as they existed at the time the need for its application arose. Thus, if it were necessary for the Panel to determine who was entitled to vote in a ballot, it would be those workers who met the terms of the definition at the time the ballot was held. It would be in conflict with the terms of the statute for the Panel to choose some other date for testing membership of the bargaining unit, whether that date was set by reference to the date of its decision on the appropriate bargaining unit or to a date fixed by reference to the Employer’s annual pay review.

Membership and support check

13. Having considered the submissions received from the parties as to whether the Union’s application was valid or invalid, and to assist the determination of the two admissibility tests under paragraph 45(a) and 45(b) of the Schedule, namely whether 10% of the workers in the determined bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed the Case Manager to carry out checks as to the level of union membership and support for recognition within the determined bargaining unit.

14. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names of workers within the determined bargaining unit, and that the Union would supply to the Case Manager a list of its members within that unit to enable comparisons to be undertaken. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 3 October 2007 from the Case Manager to both parties. The Employer, in light of its comments in its letter of 26 September 2007, was asked to lodge any evidence it had in support of its argument as to likely support for recognition other than the material it had produced at the hearing on 3 September 2007 to determine the appropriate bargaining unit. The information from the Union was received by the CAC on 3 October 2007 and the information from the Employer was received on 9 October 2007. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

15. The Union provided a membership printout containing 70 names. The Employer provided a spreadsheet containing the details of 120 workers. In its covering letter the Employer explained that it had included in its list workers with one year’s continuous service on the Boots site as of 4 October 2007. The Employer also highlighted in yellow a number of workers that it believed to be in scope for a TUPE transfer out of its employ in the near future. However, as these workers are currently in the determined bargaining unit they were included for the purpose of this check.

16. In the letter that accompanied its list of the workers in the determined bargaining unit the Employer confirmed that it had not received any further letters of complaint from workers in the bargaining unit other than those included in its bundle of exhibits for the hearing on 3 September 2007.

17. No additional checks were carried out by the Case Manager to verify the information supplied by the Parties.

18. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 70, a membership level of 58.33%. The report setting out the result of the check of the level of Union membership was circulated to the Panel and the parties on 10 October 2007 and the parties’ comments were duly invited.

Views of the Union

19. In a letter dated 11 October 2007 the Union submitted that the result of the check, showing a membership density of 58.33%, clearly showed the validity test in paragraph 45(1) to be made out and it asked the CAC to apply its industrial relations knowledge to conclude that the test in paragraph 45(b) was also made out.

Views of the Employer

20. In a letter dated 15 October 2007 the Employer confirmed that it had no further comments on the result of the check or on the further tests that were subject to examination by the Panel.

Considerations

21. The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force covering any of the workers in the determined bargaining unit, that there is no competing application and that there has been no previous application to the CAC in respect of the determined bargaining unit. The remaining tests to be considered by the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the determined bargaining unit are members of the union and that a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

22. In respect of the first test of whether Union members constitute at least 10% of the workers in the determined bargaining unit, the Case Manager’s check conducted on 10 October 2007 established that 58.33% of the workers in the determined bargaining unit were members of the Union, a figure which the Employer did not challenge. The Panel is therefore satisfied that Union membership in the determined bargaining unit is greater than 10% and the test in paragraph 45(a) is met.

23. The second issue for the Panel to consider is whether, pursuant to paragraph 45(b), a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

24. The Panel is conscious that the test under paragraph 45(b) is whether a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining (emphasis added) and that the test is not a purely arithmetical one. It is a question of likelihood in the light of all the circumstances rather than a certainty.

25. To support its position that the majority of workers would be likely to favour recognition the Union relied on its density of membership in the determined bargaining unit, which, as stated above, the Panel accepts as standing at 58.33%. It urged the Panel to use its industrial relations knowledge and find, on the strength of its membership, that this test was satisfied.

26. The Employer, in its letter of 26 September 2007, drew the Panel’s attention to comments from 11 workers at the Boots site which it had included in its bundle for the bargaining unit hearing. These comments were all unfavourable to the recognition of the Union, either at all or in relation to certain possible bargaining units at the Beeston site. These comments were necessarily anonymous (in the form in which they were presented to the Panel). The main difficulty in weighing this evidence is that it is unclear how many of these workers are members of the bargaining unit, as defined in the Panel’s decision. A number of the responses made the point that they thought inclusion inappropriate for them on the grounds that they were assigned to Beeston only temporarily, and so it is likely that some of them are in fact now outside the bargaining unit, as defined by the Panel (with its one-year qualification for inclusion in the case of workers who are not ex-Boots). Further, none of those who submitted letters states that he or she is a member of the Union, and in about half the cases the writer states, explicitly or by inference, that he or she is not a member. In the light of the foregoing the Panel does not think that the conclusion it would normally draw from the fact that a majority of the bargaining unit was in membership of the Union is seriously put in question by the letters to which the Employer drew our attention.

27. Having given the matter careful thought the Panel is of the view that a level of membership as found in this case provides, on the balance of probabilities and in the absence of any persuasive evidence to the contrary, a legitimate indication of the views of the workers in the determined bargaining unit. On this basis, the Panel believes that it would not be unreasonable for it to conclude that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. Accordingly, the Panel is satisfied that the majority of workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and therefore the test set out in paragraph 45(b) is satisfied.

Decision

28. The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Professor Paul Davies – Chairman of the Panel

Mr Rod Hastie

Dr Sue Corby

18 October 2007