Case Number: TUR1/373/[2004]

13 September 2004

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE WORKERS CONSTITUTING THE AGREED

BARGAINING UNIT

The Parties:

UCATT

and

F W Mason & Sons Ltd

Introduction

1. UCATT (the Union) submitted an application to the CAC dated 2 June 2004 that it should be recognised for collective bargaining by F W Mason & Sons Ltd (the Employer) in respect of a bargaining unit comprising ‘shop floor manual workers’ based at the Employer’s premises on the Colwick Industrial Estate, Nottingham. The CAC gave both Parties notice of receipt of the application on 2 June 2004. The Employer submitted a response to the CAC on 8 June 2004 which was duly 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 Lynette Harris, Chairman, and, as Members, Mr Ged Fisher and Mr Paul Gates. The Case Manager appointed to support the Panel was Nigel Cookson.

3. By a decision dated 25 June 2004, the Panel accepted the Union’s application. In its application the Union stated that the bargaining unit described as ‘Shop Floor Manual Workers’ had been agreed with the Employer. In its response to the Union’s application dated 8 June 2004, the Employer confirmed this agreement and the Panel accepted the application under paragraph 12(4) of Schedule A1 to the Act (the Schedule). As the Parties had reached agreement as to the appropriate bargaining unit before the end of the second period as defined in paragraph 10(7) of the Schedule, the Union’s application to the CAC was limited to the question as to whether the Union had the support of a majority of the workers constituting the bargaining unit.

4. On 23 June 2004 the Parties were informed of the Panel’s decision to accept the application and that the written reasons for the decision would follow shortly. This letter explained that the Panel, having taken into account the result of the membership check conducted on 17 June 2004 which showed a membership level in the agreed bargaining unit of 17.44%, was not satisfied that a majority of the workers constituting the agreed bargaining unit were members of the Union and accordingly gave notice, pursuant to paragraph 23(2) of the Schedule, that it intended to arrange for the holding of a secret ballot in which the workers in the bargaining unit would be asked whether they wanted the Union to conduct collective bargaining on their behalf. The same letter invited the Parties to lodge submissions on the form that the ballot should take.

5. Both Parties lodged submissions requesting a postal ballot which was confirmed by letter dated 7 July 2004. On 29 July 2004 the Parties were notified, in accordance with paragraph 25(9) of the Schedule, of the arrangements for the holding of the ballot namely the identity of the Qualified Independent Person (QIP) chosen to conduct the ballot and the date of their appointment (30 July 2004), the date ballot papers would be sent out to eligible workers (16 August 2004) and the date that the ballot would close (27 August 2004).

Issues

6. On 2 August 2004 the Union contacted the CAC by fax stating that the Employer had provided it with a list of names and occupations of the workers in the agreed bargaining unit and it was concerned that some of the occupations listed by the Employer fell outside the scope of the agreement on the bargaining unit reached between the Parties. The Union explained that it believed that this was an oversight by the Employer and that the list provided to the CAC for the purposes of the ballot would be a more accurate list.

7. On 2 August 2004 the Employer sent to the CAC the list of the names and addresses of the workers in the agreed bargaining unit. This list contained 86 names but, unlike the list supplied by the Employer to the Union, it did not provide the occupations of the individuals listed. The number of workers on the list was identical to the number on the list provided by the Employer for the membership and support check conducted on the 17 June 2004. In a telephone conversation with the Case Manager on 4 August 2004 the Union expressed concern that the list it had received from the Employer revealed that lorry drivers, cleaners and a painter and decorator had been included. These workers, 15 in number, should not, in the Union’s view, have been included as their posts were not within the agreed bargaining unit. The Employer confirmed, in a telephone conversation with the Case Manager on 5 August 2004, that 11 drivers, 3 part-time cleaners and 1 painter and decorator had been included in the list provided to the Union adding that the same names had been included in the list sent to the CAC for onward transmission to the QIP. This was the same number of names that had been provided by the Employer for the purpose of the membership check and which resulted in the Panel’s decision to accept the Union’s application.

8. In a letter dated 5 August 2004 the Union stated that as drivers were paid salary in accordance with white collar staff and the cleaners were part-time workers they would not fall within the definition of the agreed bargaining unit (there was no longer an objection to the inclusion of the painter and decorator). It was the Union’s view that drivers and cleaners were outside the bargaining unit as their terms and conditions were not aligned to those workers on the shop-floor.

9. In an email to the Case Manager on 6 August 2004 the Employer explained that it understood the list to have been agreed with the Union. The Employer also questioned why it had taken the Union since 23 July 2004, when it had faxed the list to the Union, to raise this query. It was the Employer’s belief that the drivers and cleaners fell within the scope of the bargaining unit and that it would be unreasonable to exclude them at this stage in the process.

10. The Panel, having considered the submissions of the Parties took the decision that it had no alternative but to suspend the ballot pending the determination of the constituency of the bargaining unit. The Parties were informed of this decision on 10 August 2004. The Employer permitted the Case Manager the use of its list of names and addresses that it had provided for the purposes of the ballot to enable each worker in the bargaining unit to be contacted and informed of the suspension of the ballot.

11. The Parties were then invited to supply the Panel with, and to exchange, written submissions relating to the question of the composition of the agreed bargaining unit. A hearing was held on 3 August 2004 and the names of those who attended are appended to this decision.

Submissions made by the Union

12. The Union explained that it had never accepted or agreed to the inclusion of lorry drivers or cleaners in the bargaining unit. The Employer had agreed with the Union’s definition of the bargaining unit and the Union’s efforts at securing recognition had been targeted at manual, craft and semi-skilled shop-floor workers. Traditionally the Union represented craft and manual workers but not lorry drivers or cleaners who had different terms and conditions. The Union pointed to the example of a local authority which employed both craft workers and drivers where drivers would be traditionally represented by unions such as the TGWU or the GMB whereas UCATT only represented workers in construction and allied trades.

13. There were differences in their terms and conditions, for instance, lorry drivers did not come within the European Working Time Directive for 48-hour working and their sick pay was the same as the Company’s scheme for staff rather than shop-floor workers. Cleaners were ancillary workers who were traditionally organised separately and would rarely, if ever, come into contact with shop floor craft and manual workers. It was the Union’s view that cleaners should be regarded as office staff as primarily they cleaned offices.

14. The Union acknowledged that correspondence regarding union recognition had most likely been sent to drivers and cleaners but that this was due to the individuals having been included in the list provided by the Employer. It was recognised that some of them might well vote in favour of recognition and that excluding them could even be disadvantageous to the Union. Furthermore, there could be Union members amongst the cleaners and drivers. It was not a question of wanting to stall the ballot but, if recognition was granted, of wanting to represent the workers properly.

15. The Union had not specifically excluded the drivers and cleaners in its application as it was not in possession of information about the posts and so was not aware of the differences or, at the time it lodged its application, that the drivers were directly employed by the Employer. It was explained that the issue of the inclusion of the cleaners and the lorry drivers within the bargaining unit had been raised by a number of Union members who were concerned at the inclusion of workers within the bargaining unit who might not have access to surgeries, were paid differently when it came to sick pay and were to be regarded more as staff than shop-floor workers. The Union confirmed that it was not drivers or cleaners themselves that had raised these concerns. Indeed one driver at the company had insisted on joining the Union even though it had been explained to him that he might be better off joining an alternative union more used to representing transport workers.

16. The Union, when asked by the Panel, confirmed that whilst its letter of 5 August 2004 had made reference to the cleaners as part-time workers it was not seeking to exclude them on this basis. During the hearing the Union accepted that it could accommodate the three part time cleaners in the bargaining unit and agreed that, on the basis of the type and location of their work, the cleaners fell into the category of shop-floor manual workers. However the Union argued, if the same analysis of type and location was also applied to the drivers, the result would not be same. Once the vehicles had been loaded the drivers were scattered to all corners of the country and so it was difficult to support any argument that they worked on the shop-floor.

17. The Union agreed that working time directives would not prevent it from giving proper representation to the workers it sought to exclude from the bargaining unit. It was not normally involved in representing transport workers although it did have transport workers in membership. It was simply that the Union had no local or national collective agreement that covered drivers and whilst the Union admitted that it could accommodate such divergence it was nonetheless concerned that the differences, such as working hours, would mean that there would be two sets of negotiations, one for the shop-floor workers and another for the drivers.

18. The Union closed by submitting that the drivers were on different terms and conditions from the shop-floor workers and that, as they had more in common with the salaried staff, they should therefore be excluded from the bargaining unit. Further, Union members within the company believed that because of the drivers’ enhanced terms and conditions they would vote against recognition.

Submissions made by the Employer

19. The Employer was of the view that the list of names and occupations that it issued to the Union on 23 July 2004, which was the same as provided to the CAC for the membership and support check on 16 June 2004 had been agreed by the Union. It was not until some weeks later that the Union had questioned the inclusion of the drivers and cleaners. These workers had been invited to Union meetings and surgeries, received Union literature and would have been encouraged to support the Union so to now exclude them from the bargaining unit was, in the Employer’s view, most unreasonable and divisive.

20. The Employer, accepting the Union’s acceptance during the hearing of the inclusion of cleaners in the bargaining unit, nonetheless believed that the drivers should also be included as it would be unfair to disregard their views. The Union has included these workers in the bargaining unit until 2 August 2004. It explained to the Panel that the Parties had not met at any stage to discuss the occupations that fell within the agreed bargaining unit. The Employer worked on the belief that all workers other than office, sales, supervisory and management were to be included in the bargaining unit and produced its lists on that basis. Furthermore, a bargaining unit that included the drivers would comprise 52% of the total workforce and would provide a more accurate reflection of the workers’ views on trade union recognition.

21. The Employer explained that the drivers were paid on a staff basis rather than an hourly rate in that, like cleaners, they were paid a fixed weekly rate for a set number of hours. Drivers were paid a fixed wage only because overtime payments were not available to them. The cleaners and drivers also had their sick pay calculated on the same basis as the salaried staff. However, all other terms were the same for all, for example attendance bonus, pensions and holidays. The drivers operated in the Warehouse area and worked with Despatch workers in the physical loading goods which could routinely amount to 15 loads to be delivered to DIY stores throughout the country. The drivers were also responsible for the unloading of the vehicles when they reached their destination. In the event that there was no work for a driver on any given day they would be required to work in the despatch/loading area alongside the hourly paid despatch workers. The drivers used the same facilities as the other shop-floor workers, such as the canteen, and would not view themselves as separate from the other workers. There were also hourly paid workers in the bargaining unit who were qualified drivers who could be called upon to make deliveries if required. For example, a worker categorised as hourly paid maintenance made deliveries once a week although he retained his original terms and conditions when doing so. If the drivers were to be excluded from the bargaining unit it would have an adverse effect on employment relationships throughout the company and would compromise the flexibility of the workforce.

22. The Employer explained that there were two meetings held during the year whereby management reviewed the workers’ terms and conditions including those of the drivers. The Employer accepted that there were some differences between the terms and conditions of the drivers and the other shop-floor workers but submitted that there were many similarities such as the attendance bonus, holiday and pension entitlement and Christmas gifts. Further, all workers were covered by the same employee manual.

23. The Employer closed by reaffirming their belief that there was no reason to justify the exclusion of the drivers from the bargaining unit. The common terms and conditions the drivers shared with the other workers far outweighed any differences and, on that basis, the drivers should not be excluded.

Considerations

24. This is an unusual issue in that the Panel is not charged with determining the appropriate bargaining unit but rather clarifying the composition of the agreed bargaining unit. Paragraph 19 of the Schedule requires the Panel to determine the appropriate bargaining unit but only does so where an application is accepted either under paragraph 11(2) or 12(2), that is when the Parties have not reached agreement as to the appropriate bargaining unit before the end of the appropriate period. However, in this case the Union stated in its application that the bargaining unit had been agreed with the Employer, and the Employer, in its response to the Union’s application, confirmed that agreement had been reached and so neither paragraph 11(2) and 12(2) were applicable. The application was therefore brought under paragraph 12(4) of the Schedule to determine the question as to whether the Union had the support of the majority of the workers constituting the agreed bargaining unit. The Panel, having no cause to doubt the Parties’ agreement on the bargaining unit, and, having considered the necessary tests relevant to this stage of the statutory process, accepted the application under paragraph 12(4).

25. Having accepted the application, the Panel then had to address the question as to whether it was satisfied that a majority of the workers in the bargaining unit were members of the Union. For the reasons given in paragraph 4 above, the Panel was not satisfied that a majority of the workers in the bargaining unit were members of the Union and so gave notice that a secret ballot would be held in which the workers constituting the bargaining unit would be asked whether they wanted the Union to conduct collective bargaining on their behalf. It then became the duty of the Panel to ensure that all of the workers constituting the bargaining unit were given the opportunity to vote in the secret ballot. It is this reference in paragraph 23(2) to “workers constituting the bargaining unit” from which the Panel draws its jurisdiction to determine the constituency of the bargaining unit.

26. The Panel has noted the Union’s acceptance, during the course of the hearing, that cleaners were shop-floor workers who were to be included in the bargaining unit and has noted the reasoning that led to the Union revising its position in this respect.

27. Having carefully considered the Parties’ submissions, both in writing and those rehearsed orally during the course of the hearing, the Panel takes the view that what the Union is seeking is to change the composition of the agreed bargaining unit. If the Union specifically wished to exclude drivers from the bargaining unit it should have stated this in its application. It did not do so and the Employer, in all good faith, has included the drivers in the bargaining unit for the purposes of the membership and support check and later, for the purposes of the ballot. The Union had the opportunity, when it was invited to comment on the results of the membership and support check in June 2004, to question the number of workers in the bargaining unit but did not do so. This matter was not raised until after the appointment of the QIP on 30 July 2004 when Union members within the bargaining unit brought it to the Union’s attention. The Union submitted at the hearing that these members were concerned that the drivers, because of their enhanced terms and conditions, would be likely to vote against recognition. This may or may not be the case. However, it appears to the Panel that the Union is now seeking to redefine the bargaining unit on the grounds that a category of workers within the bargaining unit may vote against recognition of the Union.

28. As to the Union’s other arguments in support of the exclusion of the drivers, the Panel takes the view that, as the Union has accepted that the salaried cleaners should be included within the bargaining unit, the Union cannot then seek to exclude the drivers on the grounds that they were also salaried workers. Neither does the Panel accept the Union’s argument that the differences in the terms and conditions of the workers in the bargaining unit would make representation difficult since in the Panel’s experience this occurs in many organisations and industries. The Panel is also persuaded by the argument that as the drivers (one of whom is a member of the Union) have already been sent information by the Union on its campaign for recognition that it would not be conducive to good industrial relations to change the bargaining unit at this stage of the process.

29. To test its decision the Panel took into account the factors that it would have addressed if this had been a case of determining the appropriate bargaining unit in accordance with paragraph 19 of the Schedule. Having heard from the Employer that there was a degree of flexibility within the workforce, the Panel took the view that a bargaining unit inclusive of the drivers would be compatible with effective management. The Panel accepts that in a business employing less than 200 workers retaining such flexibility was important to the effective operation of the company. The hourly paid workers and drivers work alongside each other and, although there were variations in the terms and conditions, the similarities outweighed any differences. Furthermore, to exclude the drivers from the bargaining unit could give rise to fragmentation as the drivers numbered 11 in total and they would be the only workers, other than office, supervisory and management, outside of the bargaining unit.

Decision

30. For the reasons given above, the Panel's decision is that drivers and cleaners are entitled to vote in the forthcoming ballot as they form part of the agreed bargaining unit constituting shop-floor manual workers.

31. The Panel will give notice, by separate letter, of the revised arrangements for the holding of the secret ballot. It was agreed with the Panel that the Parties would give maximum encouragement to all the workers in the bargaining unit to vote in the forthcoming ballot.

Panel

Professor Lynette Harris, Chairman

Mr Ged Fisher

Mr Paul Gates.

13 September 2004

Appendix

Names of those who attended the hearing:

For the Trade Union

Mr Steve Murphy

For the Employer

Mr John Spencer

Mr David Mason