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Case Number: TUR1/1424(2024)

22 October 2024

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

Oscar Mayer Limited

1. Introduction

1)聽聽聽聽聽聽聽聽 Unite the Union (the Union) submitted an application to the CAC dated 30 August 2024 that it should be recognised for collective bargaining by Oscar Mayer Limited (the Employer) for a bargaining unit comprising, 鈥淎ll workers including engineers in the following departments up to and including supervisors. Cold store, Dry Goods, Engineering, High Risk Assembly, High Risk Packing, Hygiene, Low Risk Kitchens, Low Risk Packing, Material Control, QA, Warehouse employed by Oscar Mayer located Ash Road South, Wrexham Industrial Estate, Wrexham, Wales LL13 9GU鈥�. The CAC gave the parties notice of receipt of the application on 30 August 2024.聽 The Employer submitted a response to the application on 5 September 2024.

2)聽聽聽聽聽聽聽聽 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.聽 The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Derek Devereux and Mr Ian Hanson.聽 The Case Manager appointed to support the Panel was Kate Norgate.

3)聽聽聽聽聽聽聽聽 The CAC Panel has extended the acceptance period in this case. The initial period expired on 13 September 2024.聽 The acceptance period was extended on two further occasions in order to allow time to conduct a membership check, to allow the parties to comment on the results of the check and for the Panel to consider said comments before arriving at a decision.聽 The final extension ends the acceptance period on 23 October 2024.

2. Issues

4)聽聽聽聽聽聽聽聽 The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union鈥檚 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 should therefore be accepted.

3. Summary of the Union鈥檚 application

5)聽聽聽聽聽聽聽聽 The Union had sent its formal request for recognition to the Employer on 4 July 2024.聽 A copy of the Union鈥檚 request letter was enclosed with the application, along with the Employer鈥檚 response to the request, by letter dated 12 July 2024, in which the Employer had proposed a meeting to 鈥淯nderstand the scope of a potential recognition agreement鈥�.

6)聽聽聽聽聽聽聽聽 The Union stated that the Employer, following receipt of the request for recognition, did not propose that Acas should be requested to assist.

7)聽聽聽聽聽聽聽聽 According to the Union there were approximately 800 workers employed by the Employer, 723 of whom were in the proposed bargaining unit.聽 Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered 鈥淵es鈥�.聽 The Union stated that a significant majority within the proposed bargaining unit were in membership, and it was happy to provide evidence to the CAC on a confidential basis.聽 When asked to provide evidence that the majority of the workers in the bargaining were likely to support recognition for collective bargaining, the Union stated that a significant majority of both members and non-members had supported a recognition petition, and it was also happy to provide this evidence on a confidential basis.聽聽

8)聽聽聽聽聽聽聽聽 The Union said that it had selected the proposed bargaining unit because it believed that it was compatible with effective management.聽 The said that the bargaining unit had not been agreed with the Employer.

9)聽聽聽聽聽聽聽聽 The Union confirmed that it held a certificate of independence.聽 The Union stated that it had copied its application and supporting documents to the Employer on 30 August 2024.

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

4. Summary of the Employer鈥檚 response to the Union鈥檚 application

11)聽聽聽聽聽聽 The Employer explained that it had received two previous written requests for recognition from the Union, and that had received the Union鈥檚 latest request for recognition on 4 July 2024.聽 The Employer said that it had responded to this request by letter dated 12 July 2024, a copy of which was enclosed with its response.

12)聽聽聽聽聽聽 The Employer stated that it had received a copy of the application form and supporting documents, from the Union on 30 August 2024.聽 It confirmed that it had not, before receiving a copy of the application from the Union, agreed the bargaining unit with the Union and that this remained the position explaining that that the Union had proposed a different bargaining unit in each of its earlier requests.聽 The latest request now included hourly paid employees (but not all hourly paid employees at the site) and some salaried employees (but not all salaried employees at the site).聽 The Employer further explained that when it conducted the annual pay reviews, its hourly paid employees and salary employees were treated separately.聽 Consequently, it would not consult over the pay in relation to some hourly paid employees and some salaried employees, collectively. 聽聽The Employer said that it therefore did not consider the proposed bargaining unit to be compatible with effective management.

13)聽聽聽聽聽聽 The Employer confirmed that following receipt of the Union鈥檚 request, by e-mail dated 26 August 2024, it had proposed that Acas be requested to assist.聽 The Union had acknowledged receipt of its e-mail and agreed to the proposal on the same day. The Employer said that the Union鈥檚 response to this question was therefore incorrect, as it did not accurately reflect the position reached between the parties.

14)聽聽聽聽聽聽 The Employer explained that several meetings had taken place in an attempt to reach a voluntary recognition agreement, and the last meeting that took place was held on 28 August 2024 and was facilitated by Acas.聽 聽The Employer said that it believed that the Union鈥檚 request for recognition was in order to try and stop an ongoing process from taking place. The Employer explained that it had started a consultation process in April 2024 following the loss of a customer contract in relation to certain proposed changes to terms and redundancies. That process had taken place over the last five months. Collective consultation took place during the period from 2 May 2024 to 17 June 2024.聽 聽

15)聽聽聽聽聽聽 The Employer stated that it employed a total of 1007 workers at the Wrexham site, and that 869 of these were in the bargaining unit proposed by the Union.聽

16)聽聽聽聽聽聽 Asked if it disagreed with the Union鈥檚 estimate of membership in the proposed bargaining unit the Employer stated that the Union had not provided any evidence of support for collective bargaining.聽

17)聽聽聽聽聽聽 When asked whether a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer said that it had been holding individual conciliation meetings with employees as a result of the ongoing process as explained in paragraph 14 above. There had been 208 individual consultations planned for which the Union had failed to provide trade union representation, despite employees requesting that they be accompanied by a Unite representative. 聽The Employer said that it was aware that employees were becoming frustrated by the Union鈥檚 lack of engagement, and some had stated verbally to the HR team that they were leaving the Union due to this issue.

18)聽聽聽聽聽聽 The Employer said that it was not aware of any ballot which had taken place to seek confirmation that the workers in the proposed bargaining unit wished for the Union to be recognised for collective bargaining purposes. 聽聽The Employer said that it would therefore be in support of the CAC undertaking its own statistical check.聽聽 The Employer questioned the intentions of the information that the Union had given to employees to seek to recruit them. The Employer said that this had seemingly been on the premise that joining the union would result in Oscar Mayer discontinuing the ongoing consultation process, and it did not believe that the employees or members were aware of the wider implications of collective bargaining in a general sense, rather they believed that recognition would simply result in this ongoing process being halted or stopped entirely.

19)聽聽聽聽聽聽 The Employer confirmed that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.聽

20)聽聽聽聽聽聽 Finally, when asked whether it was aware of any previous application under the Schedule in respect of this bargaining unit or a similar bargaining unit, the Employer said that the Union has made a previous application on 15 August 2024 that was subsequently withdrawn before it was accepted by the CAC.

5. The membership and support check

21)聽聽聽聽聽聽 To assist in 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 the Union鈥檚 petition.聽 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 its petition.聽 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 19 September 2024 from the Case Manager to both parties.聽

22)聽聽聽聽聽聽 The information requested from the Union was received by the CAC on 22 September 2024, and from the Employer on 23 September 2024.聽 The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.聽聽聽

23)聽聽聽聽聽聽 The list supplied by the Employer indicated that there were 876 workers in the Union鈥檚 proposed bargaining unit.聽 The list of members supplied by the Union contained 584 names. According to the Case Manager鈥檚 report, the number of Union members in the proposed bargaining unit was 550, a membership level of 62.79%.聽

24)聽聽聽聽聽聽 The Union鈥檚 petition comprised of 577 A4 sheets and contained 577 names/signatures.聽 In its covering e-mail the Union explained that it had conducted an online petition, and that on 26 June 2024 all Unite members that it held a mobile telephone number for were sent a text and/or email that contained a link to its online petition. The Union explained that all members in support of Unite gaining recognition for collective bargaining purposes should click the link contained within the text. The Union also handed out leaflets to non-members on the gate of Oscar Mayer.聽 This leaflet contained a QR code link for those workers to scan with their smartphone cameras, that took them straight to the online petition.

Each page was headed with the Unite the Union logo and was set out as follows:

鈥淧etition in Support of Recognition

Oscar Mayer Wrexham, Ash Road South, Wrexham Industrial Estate, Wrexham

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 workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

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鈥檚 full up-to-date privacy policy can be found at

www.unitetheunion.org/privacypolicy

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours, holidays and any other item that all parties agree to refer.

First Name

Last Name

Job Title

Date

Signature

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 results will be shared with Unite鈥檚 national and regional officers or elected workplace representatives.

The petition will be retained by Unite for the duration of the recognition campaign and any associated issues. For those that are not union members, elected workplace Unite representatives may contact you in future to engage in other campaigns that could be of interest.

For full information regarding Unite鈥檚 data processing of member information, your information rights and how to contact our data protection team, see Unite鈥檚 full privacy policy.鈥�

Each page was also dated in the top right-hand corner.聽 The dates ranged between 21 June 2024 and 17 July 2024.

25)聽聽聽聽聽聽 The check of the Union鈥檚 petition showed that it had been signed by 443 workers in the proposed bargaining unit, a figure which represents 50.57% of the proposed bargaining unit.聽 Of the 443 signatories, 376 were members of the Union (42.92% of the bargaining unit) and 67 were non-members (7.65% of the bargaining unit).聽

26)聽聽聽聽聽聽 A report of the result of the membership and support check was circulated to the Panel and the parties on 9 October 2024 and the parties were invited to comment on the results of that check, by noon on 14 October 2024.

6. Summary of the parties鈥� comments on the result of the membership check

27)聽聽聽聽聽聽 In an e-mail dated 11 October 2024 the Union said that it was satisfied that the level of union membership within its proposed bargaining unit constituted more than 10% of the workers. 聽It further stated that it was confident that the large majority of workers within its proposed bargaining unit would favour and support recognition between Unite the Union and Oscar Mayer.聽The Union said that it was therefore happy to proceed to the next stage.

28)聽聽聽聽聽聽 In a letter dated 9 October 2024 the Employer clarified that the Union鈥檚 proposed bargaining unit was still in dispute.聽 The Union said that in terms of the first test, it accepted that at least 10% of the workers in the proposed bargaining unit were members of the Union.

29)聽聽聽聽聽聽 In respect of the second test, the Employer said that it did not accept 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.

30)聽聽聽聽聽聽 The Employer explained that when providing the information for the check on 24 September 2024, 31 workers that it had included, were now no longer in its employment. 聽聽The Employer had appended a list of those workers to its letter.聽 The Employer further stated that while it did not have access to the membership information provided by the Union, it had grounds to believe that a reasonable proportion of those 31 workers were members of the Union. The Union therefore believed that those names should be removed, and a further membership and support check be conducted.

31)聽聽聽聽聽聽 The Employer further stated that its business, and, specifically, the Union鈥檚 proposed bargaining unit was such that employee turnover was significant. 聽On average, approximately 20 to 30 people leave the Union鈥檚 proposed bargaining each month, and since the Union had issued its petition on 26 June 2024, 95 people had left the business.聽 The Employer said that it therefore continually recruited new staff, and given the significance of statutory recognition, it believed that the CAC should not rely on the membership data from June/July 2024, and its spreadsheet of 24 September 2024, to determine whether the application was admissible. 聽The Employer maintained that the CAC should instead remove those 31 workers from the combined list.

32)聽聽聽聽聽聽 The Employer further adding that the likelihood that a majority of workers in the proposed bargaining unit would favour recognition of the Union diminished with every week that passed. Approximately 307 workers in the proposed bargaining unit were currently serving out their notice and had not, at the time of writing, indicated whether or not they would be accepting the offer of re-engagement. In light of the industrial action, it was reasonable to assume that a greater proportion of union members would not accept re-engagement, than non-union members. It was the Employer鈥檚 view that as more workers left the business each week, it became less likely that a majority of the Union鈥檚 proposed bargaining unit would be likely to favour recognition of the Union.

33)聽聽聽聽聽聽 The Employer believed that this was particularly significant where the report showed that less than 43% of the workers in the Union鈥檚 proposed bargaining unit who have signed the petition, were union members.

7. Considerations

34)聽聽聽聽聽聽 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.

35)聽聽聽聽聽聽 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 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule.聽聽聽聽

Paragraph 36(1)(a)

36)聽聽聽聽聽聽 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鈥檚 proposed bargaining unit.聽 The check of Union membership in the proposed bargaining unit as conducted by the Case Manager on 9 October 2024 showed that Union membership stood at 62.79% which clearly satisfies the requirements of this test.聽 The Employer, in its comments on the Case Manager鈥檚 report, did not seek to challenge this finding.聽 The test set out in paragraph 36(1)(a) is therefore satisfied.聽

Paragraph 36(1)(b)

37)聽聽聽聽聽聽 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.聽 聽On the basis of the level of union membership alone the Panel would have been prepared to conclude that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. In this case the Panel also notes that the support check conducted by the Case Manager showed that 50.57% of workers in the proposed bargaining unit (443 out of 876 workers) had signed a petition in favour of recognition (see paragraph 25 above). Of those who had signed the petition 376 were union members (42.92% of the proposed bargaining unit) and 67 were non-members (7.65% of the proposed bargaining unit).聽聽

38)聽聽聽聽聽聽 The Panel notes the Employer鈥檚 comments concerning the ongoing changes to the bargaining unit, and, specifically, the 31 workers that the Employer has claimed are no longer in employment. 聽聽However, in a bargaining unit of this size, even if all 31 workers were members of the Union, the revised proportion of union members in the proposed bargaining unit would still be 59.13%.聽 In terms of the petition, if all 31 workers had signed the petition, the revised proportion of workers in the proposed bargaining unit, who had signed the petition in favour of recognition would still be 46.92%. 聽聽The Panel wish to emphasise that, at this stage of the statutory process the test is of hypothetical support and that the Panel must arrive at a decision on the evidence placed before it in a short space of time in accordance with the statutory timetable. 聽聽聽Furthermore, the Panel has received no evidence to suggest that signatories to the petition have changed their minds about union recognition since signing the petition.

39)聽聽聽聽聽聽 Finally, the Panel notes the Employer鈥檚 concerns that 鈥渢he CAC should not rely on membership data from June/July.鈥澛� However, these dates within the report were in reference to the petition.聽 The Union members referred to within report, are the Union鈥檚 current list of members.聽

40)聽聽聽聽聽聽 On the basis of the evidence before it the Panel has decided, 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.聽

8. Decision

41)聽聽聽聽聽聽 For the reasons given in paragraphs 35 - 40 above the Panel鈥檚 decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Derek Devereux

Mr Ian Hanson聽

22 October 2024