Decision

Validity Decision

Updated 2 March 2020

Case Number: TUR1/1139(2019)

2 March 2020

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

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 “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 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.

3) By a decision dated 6 November 2019 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. No such agreement was reached in the relevant period and therefore the Panel proceeded to determine the appropriate bargaining unit in this matter. A hearing was held in London on 14 January 2020 and in a decision promulgated on 17 February 2020 the Panel determined that the appropriate bargaining unit (“the new bargaining unit”) was one comprising Aviation Security Officers, Campus Security Officers, Night Campus Security Officers, CCTV Security Officers, Terminal Front Offices and Customer Services Officers. The new bargaining unit differed from that originally proposed by the Union by the inclusion of the Night Campus Security Officers, CCTV Security Officers, Terminal Front Offices and Customer Services Officers.

2. Issues

4) Having decided that the new bargaining unit differed from that proposed by the Union in its application, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs are:-

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

In a letter dated 17 February 2020 the Case Manager invited each party to make submissions on these points for consideration by the Panel.

3. Views of the Union

5) In an email dated 21 February 2020 the Union stated that there was no existing recognition agreement covering any of the workers within the new bargaining unit. It submitted that 10% of the workers in the determined bargaining unit were union members adding that the new bargaining unit comprised 257 workers according to data provided by the Employer for the bargaining unit hearing: 166 Aviation Security Officers; 40 Campus Security Officers (which the Union understood to include Night Campus Security Officers); 12 CCTV Security Officers; 7 Terminal Front Officers and 32 Customer Service Officers. According to the Case Manager’s membership and support check prior to the application being accepted, it was established that the Union had 78 members amongst Security and Campus Security Officers. Without taking into account additional members within the expanded new bargaining unit, these 78 members comprised 30% of the new bargaining unit. Furthermore, the Union confirmed that it had 10 members amongst the roles now included in the new bargaining unit.

6) As for whether the majority of the workers in the new bargaining unit were likely to favour recognition the Union believed that this was the case explaining that, according to the Case Manager’s membership and support check, it was accepted that the Union had 115 signatures amongst Security and Campus Security Officers on its petition in support of recognition. If one signature was discounted due to the Employer’s evidence of an email opposing recognition, there were 114 signatures amongst Aviation Security and Campus Security Officers which equated to 44.4% of the new bargaining unit. There were 51 additional workers within the new bargaining unit. The Union agreed with the Panel’s conclusions within the bargaining unit decision that the additional numbers were proportionally small, and for this reason it believed that the validity test regarding support for recognition should be met. The Union again stated that it had 10 members amongst the additional roles now included in the new bargaining unit.

7) The Union had not collected petition signatures from those additional roles within the enlarged new bargaining unit, having only been informed of their inclusion that week. It noted that within the ‘original’ bargaining unit there were 78 members and 114 signatories, a ratio of 1:1.46. The Union saw no reason why the ratio of members to supporters of recognition would differ between the roles in the original bargaining unit and the additional roles now included within the new bargaining unit. Applying this ratio to the 51 additional workers in the new bargaining unit, the Union would expect 15 supporters of recognition across those roles. If the 114 petition signatures already received within the ‘original’ bargaining unit were added to that figure of 15, support would exceed 50% of the new bargaining unit. The Union therefore contended that a majority of workers in the new bargaining unit were likely to favour recognition.

8) Finally, the Union confirmed that there was no competing application, from another union, where their proposed bargaining unit covered any workers in the new bargaining unit nor had there been a previous application in respect of the new bargaining unit.

4. Views of the Employer

9) In an email dated 26 February 2020 the Employer addressed the tests under consideration. It confirmed that there was no existing recognition agreement covering any of the workers within the new bargaining unit nor was there a competing application, from another union, where their proposed bargaining unit covered any workers in the new bargaining unit. The Employer also confirmed that there had not been a previous application in respect of the new bargaining unit.

10) On the question as to whether there was 10% union membership within the new bargaining unit the Employer confirmed that there are currently 264 workers within the new bargaining unit. The list provided by the Union stated that there were 85 union members within the original bargaining unit proposed by the Union. This equated to 32% of the new bargaining unit. Although some staff have advised the Employer that they had now cancelled their union membership, it seemed most likely that there was 10% union membership within the new bargaining unit.

11) In answer to the question as to whether a majority of the workers in the new bargaining unit were likely to favour recognition the Employer submitted that, following the decision of the CAC, it sent a communication to all affected employees on 17 February 2020 to notify them of the decision that the new bargaining unit now included Aviation Security Officers, Campus Security Officers, Night Campus Security Officers, CCTV Security Officers, Terminal Front Officers and Customer Services Officers. This communication also explained that the CAC would re-assess the request for recognition in light of the wider bargaining unit, in particular if the majority of workers within this new wider bargaining unit were likely to favour recognition of the Union or not. In response to this communication, unsolicited, the Employer had received 18 emails opposing recognition from employees, including eight emails from staff working within the teams now added into the bargaining unit and ten emails from staff working within Campus Security. A breakdown of the emails was attached as Department Totals. The Employer also supplied anonymised copies of the emails.

12) Importantly, so the Employer asserted, these included an email from the Staff Committee representative for Campus Security, Night Campus Security, CCTV and Terminal Front Officers confirming that, based upon discussions with colleagues, there was an overwhelming opposition to formal union recognition. There were a total of 71 staff in these four departments, comprising 27% of the bargaining unit. Furthermore, discussions had also been undertaken with staff in the Customer Services department (30 staff, comprising 11% of the bargaining unit), and the Employer could confirm that, based on feedback received, the large majority of Customer Services staff did not wish to see formal recognition. The Employer believed it telling that not one single member of the Customer Services team had indicated support for recognition in the course of these discussions.

13) Given the timeframe for providing the Employer’s views, it had not been able to conduct a formal survey, but based upon this immediate response from its employees, the Employer was certain that in the coming days it would receive more and more such emails and views opposing recognition.

14) Notwithstanding the previously communicated concerns over the Union’s original petition (forged signatures, widespread confusion over what employees’ were signing, etc), for there to be a majority of workers likely to favour recognition, in addition to the original petition of 115 workers in favour, at least a further 18 workers from the additional 64 employees from the CCTV Security Officers, Terminal Front Offices and Customer Services Officers would have to be in favour (to achieve 133 in favour out of 264 workers). Based upon the evidence provided, it was clear that nearly all workers in these added teams opposed recognition and any further Union petition would not achieve the required support of 133 workers.

15) Although the Employer understood that the required approach was not a strict arithmetical test, based on the information it had put forward and in all the circumstances (in particular, the force of the immediate and unsolicited opposition to recognition), it appeared clear that the majority of workers in the new wider bargaining unit were not in favour of recognition. As such, the application for recognition in relation to the new bargaining unit was not valid.

5. Considerations

16) The Panel is required to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has taken into account the submissions of both parties and all the other evidence before it. On the evidence available, the Panel is satisfied that there is no existing recognition agreement covering any of the workers within the determined bargaining unit; that there is no competing application from another union; and that there has been no previous application in respect of the determined bargaining unit. The remaining issues for the Panel to decide are whether the validity criteria contained in paragraph 45(a) and paragraph 45(b) are met.

6. Paragraph 45(a)

17) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the new bargaining unit.

18) As mentioned by both parties in the course of their submissions on these tests, the membership check conducted at the acceptance stage of this process established a membership density of 39%, that is 78 members in a 200 strong bargaining unit. The new bargaining unit now comprises a total of 264 workers. There has been no evidence put forward to show that membership is now lower than the figure established during this check - only an assertion on the Employer’s part that it had been advised by some staff that they had cancelled their membership. On the other hand, the Union claims that it has members within the groups of workers that now form part of the new bargaining unit and who were not therefore included in the initial check. However, using the original figure as a baseline, the Panel is satisfied, and this is not particularly contested by the Employer, that members of the union constitute at least 10% of the workers in the determined bargaining unit as required by paragraph 45(a) of the Schedule.

7. Paragraph 45(b)

19) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the new bargaining unit.

20) The Union submitted that it believed that a majority of the workers in the new bargaining unit were likely to favour recognition. It pointed to the 115 signatures on the original petition in support of recognition stating that, if one signature was discounted due to the Employer’s evidence of an email opposing recognition, there were 114 signatures amongst Aviation Security and Campus Security Officers which equated to 44.4% of the new bargaining unit. There were an additional 51 workers in the new bargaining unit and the Union again stated that it had 10 members amongst the roles now included in the new bargaining unit.

21) Whilst it had not petitioned the workers that had been added to the expanded new bargaining unit the Union submitted it would expect to see a similar ratio of workers in favour of recognition as seen when the original petition was checked against the new bargaining unit. According to its figures this would mean at least 15 supporters of recognition across the new roles thus exceeding 50% of the new bargaining unit. For these reasons the Union contended that a majority of workers in the new bargaining unit were likely to favour recognition.

22) On this test the Employer made a number of points. First, following the communication it sent to the workers in the new bargaining unit on 17 February 2020 notifying them of the Panel’s decision it received, unsolicited, 18 emails in which the authors stated their opposition to recognition and that this number included eight emails from workers within those teams that had been added into the bargaining unit following the Panel’s determination.

23) Second, the Employer stated that it had received feedback which suggested that the large majority of Customer Services Officers did not wish to see formal recognition adding that not one single member of the team had indicated their support for recognition. Thirdly, the Employer reiterated its previous concerns about the Union’s original petition when it had made reference to forged signatures and the widespread confusion over what individuals were being asked to support, and submitted that for there to be a majority of workers likely to favour recognition the Union must be supported by at least a further 18 workers from the additional 64 workers that had been added to the bargaining unit. The Employer submitted that based upon the evidence provided, it was clear that nearly all workers in these added teams opposed recognition and any further Union petition would not achieve the required support of 133 workers.

24) Finally, the Employer acknowledged that, whilst this was not a strict arithmetical test, it had submitted information it believed sufficient to convince the Panel that the majority of workers in the new bargaining unit were not in favour of recognition.

25) In its decision promulgated 6 November 2019 the Panel made the point that, when deciding likely support for recognition, the Panel is required to gauge whether an application has a reasonable prospect of success and it was on that basis that the assessment was made. The same approach applies here when considering the similar test under paragraph 45. The issue in this regard is succinctly put by the Employer when it states that, in addition to the original petition of 115 workers in favour of recognition, the Union would need the support of at least a further 18 workers from the additional 64 workers from amongst the CCTV Security Officers, Terminal Front Offices and Customer Services Officers, to achieve a (demonstrable) majority in favour of recognition.

26) The Employer states that eight of the 64 workers that were included in the new bargaining unit following the Panel’s determination sent unsolicited emails opposing recognition. This would still leave 56 workers whose views on union recognition have yet to be ascertained. The Panel asks itself whether it is likely that 18 of these workers would favour recognition and we take the view that, in the absence of sufficiently cogent evidence to the contrary, this may be the case. Whether this level of support exists or not will be tested in the next stage of the statutory process when the matter will be put to the workers themselves by way of a secret ballot. In relation to this validity decision, having taken into account the parties’ submissions and the various figures and calculations put to it, the Panel has concluded that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the new bargaining unit.

8. Decision

27) 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

Mr Charles Wynn-Evans, Panel Chair

Mr Len Aspell

Mr Paul Noon OBE

2 March 2020