Case
Number: TUR1/429(2005)
2 March 2005
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:
British Air Line Pilots’ Association
and
Emerald Airways Ltd
Introduction
1. BALPA
(the Union) submitted an application to the CAC dated 2 February 2005 that it
should be recognised for collective bargaining by Emerald Airways Ltd (the Employer)
in respect of a bargaining unit comprising “All UK based pilots actively
engaged in flying and pilots whose terms and condition [sic] of employment are
determined by reference to the terms and conditions of employment of pilots
employed by the company in the UK”. The
CAC gave both Parties notice of receipt of the application on 8
February 2005. The Employer submitted a response to the CAC
on 14 February 2005 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 Professor Gillian Morris (Panel Chairman) and as Members, Mr Michael Leahy
and Ms Patricia Woods. The Case Manager initially
appointed to support the Panel was Kate Norgate but on 25
February 2005
Sarah Kendall took over this role.
3. The
CAC Panel has extended the acceptance period in this case. The initial period expired on 22
February 2005.
The period was extended to 4
March 2005
in order to allow time for a membership and support check to be conducted, for
the Parties to comment on the subsequent report and for the Panel to consider said
comments before arriving at a decision.
Issues
4. The Panel is required by the Act to
decide whether the Union's
application to the CAC is valid within the terms of paragraphs 5 to 8; is made
in accordance with paragraphs 11 or 12; and is admissible within the terms of
paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be
accepted.
5. In
its response to the CAC the Employer disputed the number of workers within the Union's proposed bargaining unit. The Union had stated in its application that the number of workers in
the proposed bargaining unit was 112; the Employer, in its response, stated
that due to natural wastage the number of workers in the proposed bargaining
unit was 105. The Employer did not agree
with the Union’s proposed bargaining unit stating that the majority of the
terms and conditions of employment are common to all staff (including ground
operations, cabin crew, and administration) and that issues which specifically
affect pilots are operational matters which could best be dealt with in other
ways. The Employer stated that there had
been no evidence submitted to support the Union’s claim of the level of its
membership. The Employer noted that the survey
referred to by the Union
was almost two years old and that since then there had been significant change
in the pilot workforce. It acknowledged
that some pilots held BALPA membership but did not have any evidence to
demonstrate that they represented 10% of the proposed bargaining unit. The Employer stated that it had no evidence either
way as to whether a majority of workers
in the proposed bargaining unit were likely to support recognition but stated anecdotally
it believed that there was a significant difference of opinion amongst pilots
as to whether they wished to have formal BALPA recognition. The Employer indicated that there were other
independent organisations available to represent pilots with which it might
wish to deal. The Employer did not
contend that the Union’s
application failed to meet any of the other admissibility or validity criteria
in the Schedule.
6. 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 are likely to support recognition of the union
(paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the Case
Manager of the level of union membership and support for recognition 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 of workers within the
proposed bargaining unit, and that the Union would supply to the Case Manager a
list of Union members within that unit and a copy of its survey results and a specimen
ballot paper in support of recognition to enable comparisons to be
undertaken. It was explicitly agreed
with the Parties that, to preserve confidentiality, the respective lists and
the survey would not be copied to the other Party. These arrangements were confirmed in a letter
dated 23 February 2005 from the Case Manager to both
Parties. The Union’s membership list and survey was
received at the CAC on 25 February 2005.
The information from the Employer was received at the CAC on 24
February 2005. The Panel is satisfied that the checks were
conducted properly and impartially and in accordance with the agreement reached
with the Parties. A report of the result
of the check of the level of union membership and of support for recognition
was circulated to the Panel and the Parties on 25
February 2005.
7. The list supplied by the Employer
indicated that there were 109 workers in the Union’s proposed
bargaining unit. The list of members
supplied by the Union contained 79 names. However, three individuals on this list were
marked as being “suspended”. The Union stated that
they had been in arrears for approximately one year and asked that they be
removed from the list. They were not
included in the membership check. According to the Case Manager’s report, the
number of Union members in the proposed bargaining unit was 68, a membership
level of 62.39%. The survey was an
anonymous exercise which resulted in the Case Manager being unable to verify
the data which was provided. The survey
ballot paper was entitled “BALPA, Emerald Airways Member Survey August
2003”. The paper then gave two
instructions, firstly to mark the individual’s preferred answer with a cross
‘X’, and secondly to place the survey sheet (and nothing else) in the envelope
provided and post it to BALPA Head Office to arrive no later than 10.00 hours
on 22nd August 2003. There followed
three questions each of them having an answer box with a Yes or No option.
Question 1,
“Bearing in mind the outlined benefits that BALPA recognition would bring,
would you like us to write to the Company and begin the process of seeking
BALPA recognition in Emerald Airways?
Question 2,
“Would you like us to arrange a members meeting at your local base?” also
stating “Please say which base and which day and time of day would suit you”.
Question 3,
“If yes to Question 2, would you feel comfortable with us inviting non-members
to attend such meetings?
8. The Union also provided
the results of this survey. It stated
that 66 ballot papers had been issued of which 49 were returned. To question one all 49 gave a yes answer. To
question two 42 gave a yes answer and 7 said no. Finally to question three 39 answered yes, 5
said no and a further 5 were undecided or did not reply.
9. The
Parties were offered the opportunity to comment on the Case Manager’s report.
The Employer did not provide any comment on the content of the report; the Union in a telephone conversation to the
Case Manager on 1 March 2005 stated that it was satisfied with
the content of the report and did not wish to comment.
Considerations
10. The
Panel is required to decide, firstly, whether, under paragraph 36(1)(a) of the
Schedule, members of the union constitute at least 10% of the workers in the
proposed bargaining unit and, secondly, whether under paragraph 36(1)(b), 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. The Panel considered carefully the
submissions of both parties and the supporting documentation.
11. The
Panel is satisfied that the Case Manager’s membership check described in
paragraph 7 above, which showed that 62.39% of the workers in the proposed
bargaining unit were members of the Union, was conducted properly and impartially and in accordance
with the arrangements agreed with the Parties. The Panel has therefore decided that the level
of union membership in the bargaining unit does constitute at least 10% of the
workers in the proposed bargaining unit as required by paragraph 36(1)(a) of
the Schedule.
12. The second issue for the Panel to
consider is whether, under paragraph 36(1)(b), a majority of 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. For the reasons given in the previous
paragraph the Panel accepts that the level of union membership is 62.39%. The Panel considers that, in the absence of
evidence to the contrary, the level of union membership provides a legitimate
indicator of the views of the workers in the proposed bargaining unit and is
accordingly satisfied that the majority of 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 in accordance with the
requirements of paragraph 36(1)(b) of the Schedule. In view of the level of
union membership the Panel has not been required to consider, and has not
considered, the evidence submitted by the Union relating to the survey in
support of recognition.
13. In
addition, the Panel is satisfied, after considering all the documentation
submitted by the Parties, that the Union’s application meets the remaining statutory tests.
Decision
14. For
the reasons given above, the Panel’s decision is that the application is
accepted by the CAC.
Panel
Professor Gillian Morris
Mr Michael Leahy
Ms Patricia Woods
2 March 2005