Case Number: TUR1/473/(2005)

1 December 2005

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DETERMINATION OF THE BARGAINING UNIT

 

 

 

The Parties:

 

Amicus

 

and

 

CCL Label

(formerly Inprint Extended Text Labels Ltd)

 

 

Introduction

 

 

1.         Amicus (the Union) submitted an application to the CAC dated 5 September 2005 that it should be recognised for collective bargaining by Inprint Extended Text Labels Ltd (the Employer) in respect of a bargaining unit comprising “(a)ll Permanent Production staff, excluding Administration, below Supervisory level at Inprint Extended Labels Ltd (sic) in Ashford” Kent.  The proposed bargaining unit included 4 workers employed at the Ashford site but whose manager was based at a different site and was part of a separate company within the Inprint Group.  In the course of this decision these workers are referred to as the “Ditchling 4”.  The CAC gave both Parties notice of receipt of the application on 6 September 2005.  The Employer submitted a response to the CAC dated 13 September 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 Ms Mary Stacey, Chairman of the Panel, and, as Members, Mr Ged Fisher and Ms Judy McKnight.  The Case Manager appointed to support the Panel was Nigel Cookson.

 

3.         By a decision dated 29 September 2005, the Panel accepted the Union's application and, as no agreement was reached on the bargaining unit, subsequently invited both Parties to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.  A hearing was held on 14 November 2005 and the names of those who attended the hearing are appended to this decision.

 

Background

 

4.         In a letter dated 30 September 2005 the Employer informed the CAC that it had been acquired by a Canadian company, CCL Industries and, as a consequence, the name of the company had changed to CCL Label.  

 

5.         On 5 October 2005 the Employer complied with its statutory duties under paragraph 18A and provided the Union and the CAC with a list of the categories of worker in the proposed bargaining unit, a list of the workplaces at which they worked and the number of workers it reasonably believed to be in each of the categories.  Making it clear that it was a preliminary submission the Employer detailed the proposed bargaining unit as:

 

            Production       

                        Machine Operators                   34

                        Warehouse & Shipping 3

                        Quality Inspection                     2

                        Machine Setup & Maint            3

            Pre-Production

                        Order Processing                      6

                        Pre-Press                                 4           

 

6.         On 3 November 2005 the Employer wrote to the Union with a proposal that the bargaining unit consist of “permanent production staff including administration”.  It stated that it understood that the Union would agree to the inclusion of administration staff on the proviso that the Ditchling 4 were also included.  Having reviewed the proposal and with a view to agreeing the bargaining unit the Employer agreed to include the Ditchling 4 on condition that the bargaining unit comprised:

 

Machine Operators       37

Production Support      12

Preproduction               10

Administration  6

 

7.         The Union responded to the Employer’s proposal on 11 November 2005.  The Union acknowledged the move made by the Employer in regard to the bargaining unit but it believed that, as the list of categories and numbers was significantly different to the list provided on 5 October 2005 (the list provided by the Employer to satisfy the requirements of paragraph 18A), it would be more appropriate if the CAC determined the bargaining unit. 

 

Summary of the submission made by the Trade Union

 

8.         The Union explained that in all its dealings with the Employer as well as in its application to the CAC it had described its preferred bargaining unit as “all permanent Production Staff, excluding Administration, below Supervisory level”.  It believed that this bargaining unit was compatible with effective management in that it encompassed all permanent production workers.  Only administration staff who were on different contracts of employment and supervisory/management employees with managerial responsibility were excluded.  This bargaining unit was compatible with effective management as all the workers were employed at the same location and were managed within the management structure by the same employer.  

 

9.         There had been, the Union explained, a series of meeting between the Parties with Acas also in attendance.  Following these discussions it was the Union’s understanding that the only area of disagreement between the Parties was that the Union wanted to include the Ditchling 4 in the bargaining unit whilst the Employer wished them to be excluded.  However, in its letter to the Union of 3 November 2005 setting out its counter proposal, the Employer had not only included the Ditchling 4 but had, without the Union’s agreement, further expanded the bargaining unit to include the admin staff. 

 

10.       The bargaining unit proposed by the Union comprised a total of 56 workers in the following categories: machine operators, warehouse and shipping, quality inspection, machine setup and maintenance, order processing and pre-press.  This figure was based on the information in the Employer’s letter of 5 October 2005 plus the Ditchling 4 although it acknowledged that there could have been a change in numbers since this date as there were currently no union activists within the company.

 

11.       The workers in the proposed bargaining unit were the type of workers that the Union traditionally represented, namely production workers or ‘blue collar’ workers.  This was the bargaining unit that the Union had understood to have been agreed following its meetings with the Employer and Acas.  It was not until the Union received the Employer’s letter of 3 November 2005 that it discovered that the Employer wished to include the admin staff in the bargaining unit.  However, the Union did not wish to include the admin staff in the bargaining unit as they were not Union members and had hitherto expressed no interest in being in the bargaining unit.  Further, the inclusion of the admin staff would dilute the density of Union members in the bargaining unit which could affect whether the Union was granted recognition without the need for a secret ballot. 

 

12.       The Union believed that there was a clear distinction between the workers in the proposed bargaining unit and the other workers.  In the main it submitted, the workers in the proposed bargaining unit were hourly paid, attracted overtime and worked a shift pattern whereas the admin staff were on separate contracts of employment.  There was also a clear distinction between the production workers and the supervisors/managers who were part of the management team.  The workers did not look upon the supervisors as being part of production but considered them to be part of the management team.  The supervisors were entitled to take disciplinary measures against the workers in the proposed bargaining unit and the Union wished to avoid a situation whereby a supervisor could be tasked with disciplining a shop steward.      

13.       The Union questioned the Employer’s claim that it was in favour of an all inclusive group as the Employer’s argument before the Panel was that certain categories of workers should, in fact, be excluded from the bargaining unit. 

 

14.       The Union reminded the Panel that its original proposal was for a bargaining unit that was limited to production workers plus the Ditchling 4 but the Employer would not agree to the inclusion of the 4.  The Union had tried to be flexible in respect of the admin staff but if it accepted a bargaining unit of 65 it could jeopardise the Union’s chances of gaining recognition. 

 

15.       The proposed bargaining unit would cover the majority of workers at the company.  The Union did not believe that the proposed bargaining unit could be considered to be either small or fragmented.

 

Summary of the submission made by the Employer

 

16.       When the Employer had submitted the breakdown of the categories of workers in the Union’s proposed bargaining unit and the numbers in each category on 5 October 2005 it had done so on the basis that the information was a “preliminary submission”.  The Employer explained that it had made this clear as it was not familiar with either the case or the process following the change in management that had just taken place following CCL Industries’ acquisition of Inprint Extended Text Labels Ltd.

 

17.       The Employer explained that the discrepancy in the numbers between the list it provided on 5 October 2005 and that set out in its letter to the Union of 3 November 2005 was simply because it had excluded from the 3 November list the Ditchling 4, the 6 admin staff and 2 workers that were currently suspended. 

 

18.       The Employer submitted that the Union’s proposed bargaining unit was not one that was compatible with effective management and instead proposed an alternative unit that comprised the entire workforce that was managed at Ashford plus the Ditchling 4.  It explained that an inclusive bargaining unit such as this represented the team ethic that prevailed within the company.  This bargaining unit would include the admin staff and those workers currently under suspension.  The Employer went on to explain that this bargaining unit formed the proposal it put to the Union on 3 November 2005 and which was repeated to the CAC on 7 November 2005.  The numbers differed from those it gave in its letter of 5 October 2005 as follows;

 

Production

Machine Operators (34 on 5 October) now 37

Production Support

Quality Inspection 2

Setup and Maintenance 3

Warehouse and Shipping 4

Supervisors/QC Operator Supervisors 3

Preproduction

Order Processing 6

Pre-Press 4

Admin

IT Support and General Admin 6

 

19.       The Employer explained that the number of machine operators differed because the previous figure had excluded the Ditchling 4.   However, the Employer also acknowledged that it may have reclassified some machine operators as production support.  These were senior operators or production leaders and included 3 supervisors.  In addition, the Employer had taken on a few new production support workers in the intervening period.

 

20.       The dispute between the Parties was clear.  The Union did not want the 6 admin staff nor the 3 supervisors included in the bargaining unit whilst the Employer’s position was that if the admin staff were to be excluded then it also wanted the Ditchling 4 to be excluded from the bargaining unit.

 

21.       The Employer objected to the Union’s proposed bargaining unit on the grounds that, whilst its preference would be not to have union recognition within the company, if it had to recognise the Union then it would prefer for the bargaining unit to be an all inclusive one, reasoning that it was divisive to have the workforce split into separate groups.  It argued that the supervisors were practically indistinct from the other production workers.  They were working supervisors that worked alongside the machine operators.  The Employer gave the example of one supervisor that spent 95% of his time working on a machine.  In response to questioning by the Union the Employer confirmed that the supervisors could issue verbal warnings and that they would advise management on further procedures within the disciplinary process.

 

22.       When questioned by the Union, the Employer explained that not all of the workers were hourly paid and that the vast majority of the workers, including some of the salaried staff worked a shift pattern although it accepted that the admin staff were not required to do double day shifts.  However, it submitted, contrary to the Union’s claim, all of the workers were paid on the 25th of the month.  The Employer went on to argue that the terms and conditions of the admin staff were substantially the same as the production workers.  They all worked a standard 37 ½ week and, whilst it was true to say that the admin staff did not work shifts, neither did half of the production workers.  In response to a question from the Panel, the Employer explained that the admin staff were generally office based with 3 employed on finance, 1 on general admin/sales support, 1 receptionist and 1 in IT support which covered the shop floor as well as the office.  In support of its submissions the Employer explained that a recent inflation pay rise had been awarded across the board to all staff irrespective of whether they were admin staff or production workers.

 

23.       The Employer argued that the Union’s proposed bargaining unit was not compatible with effective management because it would be left with small groups - the admin staff and the supervisors - and would have to negotiate with these workers separately.  The Employer would rather go through one set of negotiations.  Conceivably, the Employer submitted, it could be faced with a number of smaller bargaining units at the Ashford site.

 

Considerations

 

24.       The fundamental question for the Panel to determine is whether, in accordance with paragraph 19(3)(a) of the Schedule, a bargaining unit comprising “all Permanent Production staff, excluding administration, below Supervisory level” is compatible with effective management.  The Union has submitted that it has identified this bargaining unit on the basis that it covered a group of work that it has historically represented: the type of worker referred to previously as “blue collar”.  The Union argued that such a bargaining unit covered the majority of the workers at the site in Ashford and their terms and conditions and characteristics made them distinct from the other workers that the Employer sought to include i.e. the admin staff and supervisors.  The Union was also concerned as to the effect on its level of membership within the bargaining unit should the admin and supervisors be included and the impact this would have on its case for recognition without the need for a ballot.  The Panel did not consider this to be a relevant consideration for determining the appropriateness of the bargaining unit. 

 

25.       The Employer, on the other hand, has argued that there were more similarities between the production workers and the supervisors than claimed by the Union contending that there was very little that separated the 2 roles.  It gave the example of a supervisor that spent 85% of his time working alongside the production workers operating the same machinery in support of its argument.  The Employer also argued that it was divisive to separate the various categories of workers and that it would not be compatible with effective management should it be forced to enter into separate negotiations for the different groups.  However, having taken this position the Employer also argued that, should the admin staff be excluded, then the Ditchling 4 should be likewise excluded.    

 

26.       The Panel, having carefully taken into account the submissions of the Parties, has arrived at the conclusion that the bargaining unit proposed by the Union is one that is compatible with effective management.  It is a bargaining unit that comprises workers of similar if not identical characteristics.  They are all workers either engaged in, or related to, the production process and as such share similar characteristics that set them apart from the admin staff and supervisors.  The Employer has argued the similarities between the production workers and the supervisors but the Panel is not persuaded by this submission.  The Panel is conscious of the fact that the supervisors can issue verbal warnings and are the first layer of management within the company and as such are in a different position from the workers that they supervise.  On the other hand, the Ditchling 4 work in the same location and are engaged in work of a similar nature and so, in the Panel’s view, it would be logical that they be included in the bargaining unit.  

 

27.       Turning to the remaining matters in paragraph 19B,

 

(1)   The Panel has taken account of the Parties’ views.

 

(2)   There are no existing national or local bargaining arrangements that are applied to the Employer’s organisation.

 

(3)   The bargaining unit is a large bargaining unit relative to the size of the undertaking.

 

(4)   The production workers and the Ditchling 4 have shared characteristics that render them distinct from the admin staff and the supervisors.  Their work is of a similar nature and they have common terms and conditions of employment. 

 

(5)   The production workers and the Ditchling 4 are based in the same location.

 

Decision

 

28.       For the reasons given above, the Panel has come to the conclusion that the Union's proposed bargaining unit as particularised in paragraph 1 of this decision is compatible with effective management and is an appropriate bargaining unit.  This bargaining unit currently comprises the following categories and numbers of workers:

 

Production

            37 Machine Operators (which includes 2 workers currently suspended)

Production Support

            4 Warehouse and Shipping

            2 Quality Inspection

            3 Set Up and Maintenance

Preproduction

            6 Order Processing

            4 Pre-Press.

 

Panel

 

Ms Mary Stacey

Mr Ged Fisher

Ms Judy McKnight

 

1 December 2005

Appendix

 

Names of those who attended the hearing:

 

For the Trade Union

 

Peter Ellis

Paul Baker

Guy Langston

 

For the Employer

 

Stuart Morel