Case Number: TUR1/457(2005)

18 October 2005

 

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

 

THE DETERMINATION OF THE BARGAINING UNIT

 

 

The Parties:

 

ATL

 

and

 

Wycliffe College Incorporated

 

 

Introduction

 

1.         The Association of Teachers & Lecturers (ATL), (the Union) submitted an application dated 10 June 2005, to the CAC that it should be recognised for collective bargaining by Wycliffe College Incorporated (the Employer) for a bargaining unit consisting of “all teaching staff” at Wycliffe College comprising The Senior School, The Preparatory School and Pre-Prep Department in Gloucestershire.

 

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 John Purcell, Chairman of the Panel, and, as Members, Mr George Getlevog and Mr Bob Purkiss.  The Case Manager appointed to support the Panel was Miss Maverlie Tavares and, for the purposes of this decision, Nigel Cookson.

 

3.         In a decision promulgated 4 July 2005 the Panel accepted the Union’s application and, as no agreement had been reached on the bargaining unit, subsequently invited both Parties to supply the Panel with, and exchange, written submissions relating to the question of determining an appropriate bargaining unit.  A hearing was held on 16 September 2005.  The Panel, after careful consideration of the Parties’ oral and written submissions, decided that the appropriate bargaining unit should be all teaching staff at Wycliffe College including supply teachers on zero hours contracts, science technicians with classroom responsibilities and teaching assistants, comprising The Senior School, The Preparatory School and Pre-Prep Department in Gloucestershire, but excluding the Gap Students and Heads of the College and the Preparatory School.  The determined bargaining unit differed from the bargaining unit proposed by the Union in its application by the inclusion of Supply Teachers, Teaching Assistants and Science Technicians.

 

4.         As the determined bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. 

 

Case Manager’s membership and support check

 

5.         To assist the determination of the two admissibility tests under paragraph 45(a) and 45(b) of Schedule A1, 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 on the level of union membership within the determined bargaining unit and the number of workers who had indicated support for recognition of the Union for the purposes of collective bargaining.

 

6.         The Parties agreed 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 union members within that unit and a petition in support of the Union to enable a comparison to be undertaken.  The Employer provided a list of 162 workers, which was received by the CAC on 29 September 2005.  On 30 September 2005 the Union lodged with the CAC a list of 43 union members in the determined bargaining unit and a petition with 108 signatures supporting recognition of the Union.  It was explicitly agreed with both Parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both Parties dated 26 September 2005.  The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the Parties.          

 

7.         The result of the membership and support check showed that there were 162 workers in the bargaining unit of whom 38 were members of the Union, giving a membership level of 23.46%.  The Union’s petition of 108 signatures ran to 10 A4 sheets with each carrying the following proposal:

 

“We the undersigned support the Recognition of ATL in their application for the establishment of Collective Bargaining for the Teaching Staff at Wycliffe College”.

 

The check of the petition showed that it had been signed by 75 of the 162 workers, which is 46.3% of the bargaining unit.  Of those 75 signatories, 22 were members of the Union (13.58%) and 53 were non-members (32.71%).  No additional checks were carried out to verify the information supplied by the Parties.  A report of the result of the check of the membership level and support for recognition was circulated to the Panel and the Parties on 30 September 2005.  Both Parties were then invited to supply comments relating to the validity tests and the membership check report. 

  

Union’s comments

 

8.         The Union, in a letter dated 30 September 2005 that accompanied its membership list and petition and so prior to the production of the Case Manager’s report, commented that it was disappointed that the Panel considered it necessary to re-apply the validity tests.  In its application the Union had defined the bargaining unit as “all teaching staff” at the College and it suggested that the bargaining unit as determined by the Panel was not materially different in that it comprised “all teaching staff at Wycliffe College”.  The Union submitted that the Panel had merely refined which groups of staff were within the stated bargaining unit.   Nevertheless the Union was confident that the current level of membership and the extent of support within the bargaining unit satisfied the requirements of the Schedule.     Firstly, it submitted, all of its informal soundings over many months had suggested a strong majority of teaching staff supported the application.  It referred to the petition it had collected in March 2005 when it had originally thought that the bargaining unit comprised 125 workers and the fact that 63% of these workers had showed support for the Union by signing the petition.  Secondly, the Union referred the Panel to its own conclusion in paragraph 13 of the acceptance decision wherein it had concluded that, even based on the Employer’s figure of 185 workers, it was more likely than not that a majority of the workers would be likely to favour recognition of the Union.  The Union submitted that there were no significant factors that should lead to the Panel to arrive at a different conclusion now.  Thirdly, the Union referred to the petition it had conducted as evidence towards the test under paragraph 45(b).  It explained that it had gathered 108 signatures in a 4 day period by informally approaching staff in the school common rooms.  It observed that many of the teaching staff were not present during this period and therefore could not be asked for their views and suggested that the actual number of teaching staff who would support recognition of the Union would be substantially higher than this figure.

 

9.         The Union understood that the Employer had objected to this method of measuring support and described it as “unreliable”.  The Union acknowledged that it was, given the time constraint, essentially informal but that it had initiated the petition specifically in response to a suggestion by the Case Manager as being a tangible method of showing support which had apparently been utilised, and considered relevant, in other recognition cases.   

 

10.       The Union, when invited to comment on the result of the check of membership and support in the determined bargaining unit, informed the Case Manager that it had nothing further to add to its comments set out in its letter of 30 September 2005.

     

Employer’s comments

 

11.       In a letter dated 4 October 2005 the Employer reiterated points it had made in an earlier email to the Case Manager.  It set out its complaints as follows: 

 

·         “The petition was of “All Staff” which disregarded the Panel’s changes to the composition of the bargaining unit;

 

·         The petition was conducted without any attempt to explain its purpose;

 

·         The wording of the petition was an inaccurate description of the Union’s application; and

 

·         Names in support of the petition were “collected” in a very public way.”

 

These points had been previously raised in an email dated 30 September 2005 to the Case Manager.  In this email the Employer also expressed concern on behalf of the union members as to the Union’s mandate for the action it was taking, the Employer having been informed that the full membership within the bargaining unit had not met for a number of years.

 

12.       In its letter of 4 October 2005 the Employer acknowledged that it was clear that the Union satisfied the test under paragraph 45(a) in that at least 10% of the workers in the determined bargaining unit were members of the Union but not the second test as a majority of the workers were not members of the Union.  The Employer asked that a ballot be held so that it could put to the workers a balanced case in sufficient detail and in enough time for them to consider options for consultation with management on an unlimited agenda.

 

Considerations

 

13.       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, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit.  The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and whether 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.

 

 

 

 

Paragraph 45(a)

 

14.       The Case Manager’s check established that 23.46% of the workers in the bargaining unit were members of the Union and this figure was not disputed by the Employer.  Accordingly, the Panel is satisfied that at least 10% of the workers in the determined bargaining unit are members of the Union, and that the Union has met the admissibility test as set out in paragraph 45(a) of the Schedule. 

 

Paragraph 45(b)

 

15.       The second issue for the Panel to consider is whether, under 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.  The Panel reminds the Parties that this is not a definitive test of support and that, for this test to be met, the Panel must only be satisfied that a majority of the workers in the bargaining unit would be likely to favour recognition.  It is not, as suggested by the Employer, a test as to whether the Union has majority membership within the bargaining unit.   The Union relies on its petition as evidence that this test is satisfied.  The petition was signed by 46.30% of the workers in the bargaining unit.  If the test of a majority of workers being likely to favour recognition of the Union were a matter of simple arithmetic, then it would only require the signatures of a further seven more workers to show a numerical majority.   The Union has explained the circumstances as to the origin of the petition in that it was conducted over a short period of time after the Panel had determined the bargaining unit in this matter.  The Union submitted that it had not had the opportunity of approaching a number of the workers given the time constraint and that it was of the opinion that support for the Union was substantially higher than demonstrated by the result of the petition.

 

16.       Conversely, the Employer questions the validity of the petition for the reasons given in paragraph 10 above.  However, the Panel, having considered the points made by the Employer, finds that it is not persuaded by its arguments.  Whilst the petition may have been addressed to “all staff” and referred to collective bargaining without specifically spelling out the core topics, namely pay, hours and holidays, nonetheless the Panel is of the view that this is not sufficient to devalue the currency of the petition for the purpose of this test.  The Panel asks itself whether the signatories would have understood the implications of signing the petition.  Having looked to the proposal on the document the Panel is satisfied that they would have known that, by signing the petition, they were signalling their support for recognition of the Union by the Employer.  Whilst a petition, as a method of indicating support, has been termed “unreliable” by the Employer, it is however accepted by the CAC as a valid indicator of the views of the individuals within a bargaining unit in the absence of any evidence to the contrary.  

 

17.       The Union, in its letter of 30 September 2005, claimed that the petition was initiated specifically to a suggestion from the Case Manager as being an immediate and tangible method of showing support.  Whilst it is not for the CAC Case Manager to instruct a party to an application as to how it should conduct its case nonetheless they are often called upon to advise the Parties as to CAC procedure.  In this case the advice was simply a reflection of that given in the CAC’s Guide for the Parties where, when addressing the question as to whether a majority of workers would be likely to support recognition of a Union, the guide states that a possible example as to the sort of evidence a party could provide would be a petition from workers.  The Union expressed disappointment that the Panel felt that it was necessary to apply the validity tests but the Panel notes that this is a legal requirement under paragraph 20 of the Schedule.                  

 

18.       The Panel having considered the views of both Parties and the evidence submitted, is satisfied that, on the balance of probabilities, a number of the workers that the Union was unable to canvass during the short period it gathered its petition would also be likely to favour recognition of the Union and, bearing in mind that it would have taken only a further seven signatures for the Union to have demonstrated an arithmetical majority, the Panel has arrived at the conclusion that the majority of workers in the determined bargaining unit would be likely to favour recognition of the Union and therefore the test under paragraph 45(b) is also satisfied.  

 

Decision

 

19.       The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC will therefore proceed with the application. 

 

Panel

 

Professor John Purcell

Mr George Getlevog

Mr Bob Purkiss

 

18 October 2005