Decision

Acceptance Decision

Updated 2 March 2020

Case Number: TUR1/1139(2019)

06 November 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

London City Airport Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 1 October 2019 that it should be recognised for collective bargaining by London City Airport Ltd (the Employer) for a bargaining unit comprising the “Aviation Security Officers [and] Campus Security Officers”. The CAC gave both parties notice of receipt of the application on 3 October 2019. The Employer submitted a response to the CAC dated 10 October 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, Panel Chair, and, as Members, Mr Len Aspell and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

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 with a formal request for recognition on 24 July 2019. The Employer did not agree to recognise the Union but offered to meet at Acas. A meeting took place on 3 September 2019 and it was agreed that Acas would undertake a confidential check to establish the level of support for recognition. However, according to the Union, the Employer failed to supply its information to allow the check to be conducted and had not responded to further communications from the Union. A copy of the Union’s letter of 24 July 2019 was enclosed with the application.

5) According to the Union, there was a total of 555 workers employed by the Employer with 209 of these falling within the proposed bargaining unit. The Union stated that it had 88 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 had a petition “signed by +50% of employees in the bargaining unit”.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that there was a high density of union members and a majority of the workforce, which included non-members, in support of recognition. Aviation Security Officers and Campus Security Officers shared the same level of training which differentiated them from the other workers employed by the Employer. 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 from the Certification Officer and enclosed a copy with its application. When asked if, following receipt of the request for recognition, the Employer proposed that Acas be asked to assist the Union answered “yes”. The Union confirmed that it accepted the proposal and gave the name email address and phone number of the Acas officer concerned.

8) 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

9) The Employer stated that it had received the Union’s formal request for recognition on 30 July 2019 and responded with a proposal that the parties meet with Acas to discuss the request.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was 3 October 2019. 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. The Employer stated that in the event that the application was ruled admissible it reserved the right to present a full argument as to the grounds why the proposed bargaining unit was “inadmissible” (sic).

11) The Employer stated that it employed a total of 714 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit stating that the current figure was 212. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer answered that it had no visibility of membership but in the previous recognition campaign many non-employees were included in the Union data. 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 answered that it reserved the right to present evidence that the majority of workers in the proposed bargaining would be unlikely to support recognition, by oral argument as outlined in the covering letter attached, particularly given the age of the petition and the circumstances under which it was compiled.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed 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 “Yes” adding that the parties met with Acas and following this meeting, suggested a route forward to assess support for recognition which was set out in writing on 5 September 2019 (letter attached). However, the Union did not respond to this suggestion.

13) As set out in the letter enclosed with its response, the Employer had evidence that individual members of the Union did not want recognition. The Employer considered that it had continued to carry out responsible communications with its workers making its position clear - that it supported individual membership but would not enter into a recognition agreement without a clear mandate from the majority to do so.

14) 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 stated that an application was made to the CAC in 2011. Following a ballot the workers at the airport voted by a large majority to reject recognition in 2012.

5. Union’s comments on Employer’s response

15) In an email dated 16 October 2019 the Union commented on the Employer’s response. On the matter of the parties’ meeting with Acas the Union challenged the Employer’s assertion that it had failed to respond to the Employer’s letter of 5 September 2019. On the matter of the Union’s petition, the Union submitted that the Employer had provided no argument or evidence to show that the manner in which the signatures were gathered were a cause for concern, and that in the absence of such arguments or evidence the Union saw no good reason for granting an oral hearing. The Union had also been informed that HR advisers had approached members of staff and requested them to sign a letter against the Union. The Union was aware that some of the workers felt intimidated by this approach. They subsequently asked to be allowed to withdraw their signatures as they did not receive any explanation from HR as to the nature of the letter but this was refused by HR.

6. The membership check

16) 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. 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 any evidence in its possession to show that workers did not support recognition of the Union and that the Union would supply to the Case Manager a list of its paid up members within that unit including their full names and dates of birth and a copy of a petition in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and evidence of support or otherwise would not be copied to the other party and that agreement was confirmed in a letter dated 21 October 2019 from the Case Manager to both parties. The information from the Union and from the Employer was received by the CAC on 22 October 2019.

17) The Employer provided a spreadsheet with the details of 200 workers and also provided evidence to show workers’ opposition to recognition. This evidence took the form of five emails and four typed statements. The emails, having been redacted to remove personal information, are set out below. They were all addressed to the Employers Chief People Officer.

18) The first email was dated 22 October 2019 and called for more discussion and debate openly between the parties. The second email was dated 21 October 2019 and called for more information as workers were confused as to the implications of recognition. The email concluded by stating “I think a proper fair ballot after this question and answer sessions is the right and the fair way forward”. The third email was also dated 22 October 2019. The author stated that they opposed union recognition and that a ballot should be held. This email questioned whether signatures had been forged on the Union’s petition and claimed that workers were not aware of what they were signing up to. The fourth email was dated 22 October 2019 and stated the author’s opposition to recognition and called for a ballot to be held. The final email was dated 22 October 2019 and the author stated that they opposed recognition of the Union. This email appeared to be from the same individual that sent the third email referred to earlier.

19) In addition to these emails the Employer provided four signed statements from workers. There were all in identical terms and were all undated. They stated as follows:

Re: Union Recognition at London City Airport

To whom it may concern,

I, the undersigned, am opposed to Union recognition at London City Airport.

I understand that this is not a matter of Union membership, but recognition, which I believe is a matter of personal choice and should be based on an informed debate.

20) The Union provided the details of 85 members of which all were annotated “Fully Paid” in the “Financial Description” column bar two who were annotated “New member”. The Union also provided a petition which took the form of 161 individual sheets. The signatures on the petition were dated between 30 July 2019 and 21 October 2019. Each petition sheet were headed:

PETITION IN SUPPORT OF UNITE RECOGNITION

At LONDON CITY AIRPORT

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.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:

21) Beneath the proposition was a table with Print Name, Job Title, Signature and Date on the left and space on the right for the worker to provide their details. At the foot of each page it stated:

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’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy.

22) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 78, a membership level of 39%.

23) The check of the Union’s petition showed that it had been signed by 115 workers in the proposed bargaining unit, a figure which represented 57.5% of the proposed bargaining unit. Of those 115 signatories, 68 were members of the Union (34% of the proposed bargaining unit) and 47 were non-members (23.5% of the proposed bargaining unit).

24) The check of the evidence submitted by the Employer against the list of workers in the proposed bargaining unit and the information provided by the Union established that one email was submitted on behalf of two workers and that two emails appeared to have been sent by the same individual and so was only counted once. Of the four remaining emails all were identified as being workers in the proposed bargaining unit. Of these:

• one individual was not a union member and had not signed the Union’s petition.

• one individual was not a union member but had signed the Union’s petition.

• three individuals were union members and all had signed the Union’s petition.

25) A report of the result of the membership check was circulated to the Panel and the parties on 23 October 2019 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Union’s comments on the results of the membership and support check

26) In an email dated 29 October 2019 the Union stated that, of the emails provided by the Employer, emails one and two did not explicitly oppose recognition, and suggested that the signatories had been misinformed by the Employer that the Union would automatically receive recognition as a result of the petition. None of the emails stated that the sender had not signed the petition or otherwise provided evidence that the signatures on the petition were not genuine, although the Union accepted that some of signatories may have changed their mind. Four of the emails authors had signed the Union’s petition, so it was possible that just one signatory had changed their mind taking into account the possibility that the three signatories to emails one and two may have signed the petition.

27) The Union submitted that the four statements from those who did not sign the petition were not relevant. The Union accepted that some workers within the bargaining unit may not support recognition but to satisfy the test under consideration the Union only required a majority, which it believed it had. The Union was aware that the statements were gathered by a HR advisor and that some of the signatories asked to withdraw their signatures when they found out what it meant. This request was rejected on the grounds that it was too late for them to change their mind.

28) The Union argued that, as its petition was signed by 57.5% of the workers in the bargaining unit, the possibility of a few workers, possibly one, changing their mind was not a reason to not have a ballot requiring 50% support. The Union argued that it had strong evidence that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Union.

29) The Union made the point that it had requested access to meet the workforce and answer any questions workers might have about the recognition process in order that they could make a fully informed decision but these requests had been refused by management.

8. Employer’s comments on the results of the membership and support check

30) In a letter dated 29 October 2019 the Employer addressed the two tests in paragraph 36 of the Schedule. In relation to the “10%” test, the Employer conceded that it appeared from the figures that the Union had passed this test. The only comment the Employer would make was that the report did not indicate whether all the members were fully paid up and not in arrears as only fully paid up members of the Union should count towards the 10% test.

31) In relation to the “likely to favour” test, the Employer had provided a number of emails which had been noted in the report and, since that time, over 50% of those working in Campus Security had signed documentation stating they were opposed to recognition. Additionally, the Employer argued that the fact that one email quoted in the report suggested that the forgery of signatures had occurred, alongside the widespread confusion amongst those in the bargaining unit about what they were signing and the fact that a number of people had made clear they were either cancelling their membership or transferring to another union all suggested that the level of true support for recognition was likely to be significantly lower than the petition numbers would suggest.

32) The Employer also argued in effect that as only 57% of the proposed bargaining unit had signed the petition (115 people), then once Campus security were deducted [40 workers] on the assumption that half of those that had signed the petition now either did not want the Union recognised or wanted a ballot, that reduced the true level of support demonstrated by the petition to 75 workers. If this were further discounted it by 10% given the emails received including those mentioned in the report, then that reduced the true level of support demonstrated by the petition to 67 workers or 33% of the claimed bargaining unit.

33) For the above reasons the Employer did not consider that the Union could establish that it had likely majority support and therefore the application was not admissible.

9. Considerations

34) 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.

35) 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 12 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 but indicated a willingness to negotiate. However, no agreement was reached in the second period of 20 working days starting with the day after that on which the first period ended. 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)

36) 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 check of membership conducted by the Case Manager established a membership density of 39%. The Employer, in its comments on the Case Manager’s report, acknowledged that it seemed that this test was satisfied but qualified this acceptance with a concern as to whether the Union had included any members that were in arrears on the list it provided for the check.

37) The Panel has considered the Employer’s comments on the membership status of those appearing on the Union’s list. The Union was requested to provide a list of its paid up members for the purpose of the check and, in the absence of any evidence to the contrary, the Panel accepts that those whose details appeared on its list were fully paid up members in accordance with the Union’s rule book. It is clear to the Panel on this basis that members of the Union constitute at least 10% of the workers in the bargaining unit and the test under this paragraph is satisfied.

11. Paragraph 36(1)(b)

38) 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. Here the Union relies on its petition as evidence towards the satisfaction of the test. The Employer challenges the evidentiary weight of the Union’s petition on a number of fronts. First, in its comments on the Case Manager’s report, the Employer points to its counter petition as evidence that a majority of the workers did not want the Union recognised. The Panel observes that this was evidence that has not, in the main, been tested as it was not put forward at the time the Case Manager conducted his comparisons in order to produce his report on membership and support within the proposed bargaining unit and accordingly, has not been subject to scrutiny. Second, the Employer challenges the veracity of the Union’s petition on the basis that one individual, in an email recounted above, made reference to the forging of signatures on the Union’s petition. However, no evidence has been put forward to support this assertion that would lead the Panel to question the authenticity of the signatures on the petition. Third, the Employer alleges that there was widespread confusion amongst the petition signatories as to what it was that they were signing but again, other than the handful of emails provided by the Employer, there is no evidence to show that the workers that signed the petition did not understand the proposition set out on the Union’s petition, which we find clear and unambiguous in meaning. Finally, the Employer refers to the fact that a number of workers had made clear they were either cancelling their membership or transferring to another union, as evidence that the level of true support for recognition was likely to be significantly lower than the petition numbers suggested. The Panel has not, however, seen any specific cogent evidence to lead it to draw such a conclusion.

39) At this stage of the statutory process paragraph 36 of the Schedule, in effect, calls upon the Panel to gauge whether an application has a reasonable prospect of success and it is on this basis that the assessment of likely support for recognition is accessed. It is not a strict arithmetical test but one under which the Panel has to use its industrial relations experience and arrive at a decision on the basis of the information put to it by the parties. In this case, even if the Panel discounted the four petition signatories that had also sent emails to the Employer, and only one of these emails could be said to oppose recognition, the Union’s petition would still be supported by 55.5% of the workers in the proposed bargaining unit.

40) In view of the above and in the absence of any persuasive evidence to the contrary, the Panel is of the belief that the strength of the Union’s petition is a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. Accordingly, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

12. Decision

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

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Len Aspell

Mr Paul Noon OBE

06 November 2019