Decision

Acceptance Decision

Updated 14 January 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1219(2021)

17 June 2021

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:

GMB

and

Eddie Stobart

1. Introduction

1) GMB (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 16 April 2021 that it should be recognised for collective bargaining purposes by Eddie Stobart (the Employer) in respect of a bargaining unit comprising “Eddie Stobart employees based at the Crown Bevcan Warehouse in Braunstone Leicestershire.” The location of the bargaining unit was given as “The Crown Bevcan Warehouse, Leicester, LE3 1TX.” The application was received by the CAC on 19 April 2021 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 28 April 2021 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 Mr Rohan Pirani, Panel Chair, and, as Members, Mr Nicholas Caton and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 May 2021. The acceptance period was extended on two further occasions in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 17 June 2021.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a request letter to the Employer on 19 December 2020 (see below, this appears to be mistaken). The Employer responded by letter dated 25 November 2020 in which it rejected the Union’s request, and said “Based on our knowledge, we do not believe you have the majority membership to meet the requirements for statutory recognition.” A copy of the Union’s request letter and the Employer’s response were attached to its application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “N/A”. The Union stated that, following receipt of the request for recognition the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 44, and there were 36 workers in the proposed bargaining unit, of whom 34 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union explained that its membership had grown from 2 members to in excess of 30 members. The Union said that since 26 June 2020 it had gained 32 new members. The Union also ran a petition in January 2020 which, the Union stated, confirmed that the workers on site were happy for the GMB to be the recognised trade union. The Union offered to supply to the CAC a copy of the petition, on a confidential basis.

8) When asked for its reasons for selecting its proposed bargaining unit, the Union stated that it proposed a traditional bargaining unit comprising warehouse workers below the level of management in the company’s single site. The Union explained that it identified job roles as forklift driver, warehouse operative, warehouse packing operative, cleaner operative, and traffic controller. It was the Union’s view that its proposed bargaining unit “makes industrial common sense”, and that it was fully compatible with effective management. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union also said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 16 April 2021.

4. Summary of the Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 19 November 2020, and that the Union’s reference to its request letter dated 19 December 2020 was incorrect. The Employer said that it had responded by letter dated 24 November 2020 in which it refused the Union’s request. A copy of the Union’s letter of 19 November 2020 and the Employer’s letter of 24 November 2020 were attached to its response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 19 April 2021, although it considered parts of the form were illegible. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer added that the description of the bargaining unit covered all employees that were based at Crown Bevcan warehouse. There were two separate Eddie Stobart companies/employers that operated at that warehouse, and the description seemed to encompass roles that would not be suitable for inclusion in a bargaining unit with certain other roles, for numerous reasons. The Employer therefore believed that the proposed bargaining unit was not appropriate, as it was not compatible with effective management.

12) The Employer stated that, following receipt of the Union’s request it had proposed that Acas be requested to assist.

13) The Employer said that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer considered that the description of the Union’s proposed bargaining unit was not sufficiently clear so as to enable it to readily identify which posts were covered and which were not. The Employer re-iterated its point in paragraph 11 above that there were two “Eddie Stobart” entities/employers which had employees based in the Crown Bevcan warehouse in Leicestershire and it was not clear whether the application applied to both of those entities, or just one of them. The Employer said that the application was also made in respect of all “…employees based in the… warehouse” and it was not clear whether the Union intended to include all employees based at the warehouse, although this was the company’s understanding. The Employer further questioned whether, for example, the description extended to Administrative Staff, Managerial Staff and Team Leaders.

14) The Employer stated that the Union appeared to have provided further information on its proposed bargaining unit at section 15 of its application, but the form supplied by the Union was illegible at section 15. The Employer maintained that, in any event, the description of the bargaining unit provided by the Union needed to be sufficiently clear for the CAC and the Employer to readily identify which posts were covered by the proposed bargaining unit and which were not. The Employer said that it was therefore unable to identify the correct number.

15) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer explained that the company had in place an internal consultation body for Warehouse Operatives which was documented in the Warehouse Representative Recognition Agreement (the Agreement). A copy of the Agreement was attached to the its response. The Employer said that the agreement came into effect on 23 January 2019. When asked whether the agreement was in writing the Employer referred to the Agreement and a copy of a presentation to Warehouse Representatives dated 23 January 2019, which it stated included details of the scope of the arrangement in place. The parties to the Agreement were Eddie Stobart and the elected warehouse representatives (on behalf of the warehouse operatives). The Agreement was not with a Trade Union although the Warehouse Representatives were party to collective consultation in respect of pay, holidays, working rotas, hours of work, workforce agreements and contracts. They were further consulted with regards to health and safety and business developments. The representatives were elected for a 3-year term and were consulted with regards to all matters that directly affected the workforce. There were said to be 16 warehouse representatives from 12 sites across the UK. Elections were ongoing to fill representative vacancies at a further 5 sites. The Braunstone site had 1 representative on this staff consultation body.

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it was noted that the Union claimed that there were 34 members within the proposed bargaining unit. The Union had not however provided a membership list and it was therefore unable to verify the level of membership.

17) The Employer said that with no list provided, it was not clear which Eddie Stobart entity such members were allegedly employed by, and in what role. Therefore, if the definition of the bargaining unit was not intended to cover all employees of both Eddie Stobart entities based in the warehouse, this number did not give any indication of what employees/roles it intended to cover. There were fewer than 34 employees in each Eddie Stobart company who performed the most manual of warehouse roles.

18) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that the Union had not provided evidence to support its suggestion, either in the form their membership records or its petition. The Employer believed that even if membership had increased, as claimed by the Union, this was not necessarily indicative of support for union recognition. There were numerous reasons as to why membership may have increased, such as a desire to have support in an employee relations situation, access to union benefits and/or because free or discounted membership had been offered.

19) In any event, the company did not agree that a majority of workers in the proposed bargaining unit, assuming that the proposed bargaining unit was all Eddie Stobart employees at the Crown Bevcan warehouse, were likely to support recognition.

20) The company engaged with its workers through the Warehouse Representatives body and received feedback on issues of concern to staff. At no time had staff indicated either directly to managers or through the consultation body that there was a desire to replace the current arrangements with Trade Union recognition.

21) The warehouse representatives body worked well and provided a voice for staff. As a national body that included warehouse representatives from numerous sites across the UK, this also provided a consistency of approach and an opportunity to consult on all staff related matters collectively at a national level. Furthermore, in recent discussions with workers based at the Crown Bevcan warehouse, a number of workers had indicated to management that they did not want recognition.

22) Finally, the Employer stated that no previous application had been made by the Union under the Schedule in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties

23) On 30 April 2021 the CAC copied the Employer’s response to the application and its comments invited. In an e-mail dated 6 May 2021 the Union stated that it had sent a scanned copy of the application to the Employer and a hard copy was also posted sent to the Employer via the post.

24) The Union explained that the proposed bargaining unit did not “cross separate Eddie Stobart companies” and it consisted of the job roles the Union had identified, namely, for warehousing staff.

25) The Union said that it had proposed that Acas assist but the Employer had not replied to that request. The Union said that it did not have all the correct details of all Eddie Stobart companies and subsidiaries, but it was of the understanding that all workers in the proposed bargaining unit had one employer/company. The scanned copy of the application may not have been clear, but the hard copy sent via post made perfectly clear the proposed bargaining unit.

26) The Union maintained that there was no formal recognition with a Trade Union or bargaining unit for this site, only a consultative forum. It was noted by the Union that the company’s Warehouse Representative Recognition Agreement was updated in February 2021, while the Union “was in formal application for a bargaining unit.”

27) In response to the Union’s point that it had not been provided with a membership list or petition, the Union asserted that all the members paid full union submissions, but they were protected under GDPR and therefore it was unable to share details with the Employer. The Union said that it was however happy to share this information with the CAC along with its petition of the bargaining unit.

28) The Union said that the staff had clearly indicated to the GMB their desire “to the proposed bargaining unit”, as opposed to the warehouse consultative forum. The Employer’s recent discussions with staff at Crown Site did not give a true reflection of the workers desire for recognition of the GMB. The Union believed that this was however reflected by almost 100% membership on the site.

6. The membership and support check

29) To assist in 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 would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit and of a petition compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 11 May 2021 from the Case Manager to both parties.

30) The information requested from the Union was received on 12 May 2021 and from the Employer on 18 May 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

31) The list supplied by the Employer indicated that there were 51 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 37 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 32, a membership level of 62.7%.

32) The petition supplied by the Union contained 36 names and signatures, of which 34 were in the proposed bargaining unit, a figure that represents 66.67% of the proposed bargaining unit. Of those 34 signatories, 29 were members of the Union (56.87% of the proposed bargaining unit) and 5 were non-members (9.80% of the proposed bargaining unit). The petition consisted of 9 A4 sheets each containing 4 names/signatures, which were set out as follows:

“I, the undersigned wish for the GMB to be recognised as the bargaining unit for Eddie Stobbart employees based at the Crown Bevcan Warehouse in Braunstone, Leicestershire.”

Each signatory to the petition was asked to provide their name, signature, and date. The dates on the petition ranged between 16 January 2021 and 23 January 2021.

33) A report of the result of the membership and support check was circulated to the Panel and the parties on 20 May 2021 and the parties were invited to comment on the results of that check by close of business on 24 May 2021. The Employer subsequently requested an extension to this deadline and the period for the parties’ comments was extended to noon on 26 May 2021.

7. Summary of the parties’ comments following the membership and support check

34) In an e-mail to the CAC, dated 25 May 2021, the Union stated that in respect of two tests, the Union had met the 10% threshold with a membership level of 62.7% and the report had clearly stated that the proportion of workers in the proposed bargaining unit who support recognition was 66.67%.

35) With regards to the 51 members of staff on site that the Employer had identified, and job roles were shown, the Union said that the Union was not aware that there were 51 workers on site and believed the figure was 44 in total. The Union said that it also wished to clarify that of the 5 members who did not appear on the Employer’s list, some had left their employment, and others were HGV Drivers and the Union was now aware that they were not employed directly at this site and therefore were not part of the proposed bargaining unit.

36) Finally, the Union explained that the Employer had shown 51 workers with 10 job roles identified that were not all part of the proposed bargaining unit. The Union said that it was however happy to include those roles with the exception of the management.

37) In a letter to the CAC, dated 26 May 2021, the Employer explained that although it still maintained that the proposed bargaining unit was not sufficiently clear so as to be able to readily identify which posts are covered and which are not, it accepted that the Union members constituted more than 10% of that bargaining unit.

38) The Employer further explained why it did not however believe that the Union’s petition could be relied upon as evidence that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

39) The Employer said that it had noted the statement made by each of the workers signing the petition that the Union relied upon, and was as follows:

“I, the undersigned wish for GMB to be recognised as the bargaining unit for Eddie Stobart employees based at the Crown Bevcan Warehouse in Braunstone, Leicestershire” (emphasis added).

40) The Employer believed that the statement was unclear. It purported to give support for a bargaining unit to be formed which consisted of what appeared to be either Eddie Stobart employees at the Braunstone warehouse, or those employees at the Braunstone warehouse who were also GMB members. It did not confirm that those signing the petition were in favour of the Union being “…entitled to conduct collective bargaining on behalf of the bargaining unit”, which, the Employer contended, was the crucial point. The workers could quite rightly believe that they were signing the petition for reasons other than collective bargaining. For example, that they as a group of workers were generally in support of the GMB; or that they wished to be recognised as a group of workers, supported by GMB, dealing with other general grievances or matters falling outside of the ambit of collective bargaining.

41) It was the Employer’s view that there was no evidence to suggest that workers understood that they were signing the petition specifically to show their support for GMB to conduct collective bargaining on their behalf (as opposed to dealing with more general issues, or employee relations matters that unions more commonly helped workers with). Further, the CAC will note that the term “collective bargaining” was a technical legal one and was not something that an ‘ordinary’ person may understand. Notwithstanding the fact that there was no mention whatsoever of collective bargaining within the petition, and, at the very least, one would expect to see an explanation within the petition as to what the Union was seeking to do on the workers’ behalf, so they knew what they are giving their support for: negotiating their pay, hours and holidays with their employer, on their behalf. Nothing of the sort was contained within the petition, and no evidence had been provided. The petition was therefore too uncertain for the CAC to rely upon.

42) The Employer further stated that the report confirmed that the Union’s petition was carried out between 16 – 23 January 2021. However, the membership and support check was conducted on 20 May 2021, some four months’ later. Given the lapse of time between the date of the petition and the check, the attitude of the workers that signed the petition may have changed. The petition was therefore unreliable and out of date. This was particularly significant in this case as the bargaining unit was very small consisting only of 51 people, with 34 of those people (or 66.67%) signing the petition. Given the small numbers involved, each person represented 1.96% of what, the Employer said, it understood to be the bargaining unit. As such, and assuming that the petition was not defective, only 9 people needed to have changed their mind within the four month period since signing the petition for there no longer to be a “majority of workers constituting the relevant bargaining unit [who] would be likely to favour recognition of the Union”.

43) The Employer further explained that it regularly held engagement sessions with its employees at the Crown Bevcan warehouse in Braunstone, Leicestershire. It also listened to their views via its National Warehouse Consultation Forum. Some engagement sessions had taken place after following the Union’s application to the CAC, and as recently as April and May 2021. During those engagement sessions discussions were held with all but three employees about issues on site (the three remaining employees were absent at the time), and what collective bargaining meant. Following on from those discussions it was apparent that the main concerns were general issues falling outside collective bargaining arrangements, and the majority confirmed that they did not want the Union recognised to collectively bargain their pay, hours and holidays on their behalf.

44) The Employer also referred to the Union’s comments dated 6 May 2021, in which the Union stated that “…recent discussion with staff at crown site doesn’t give a true reflection of workers desire for GMB recognition”. The Employer maintained that the Union had provided no evidence to support this. The Employer stated that it, on the other hand “held these discussions with employees and can confirm that the above was confirmed to me.”

45) The Employer said that the Union relied upon its petition to demonstrate the support needed for collective bargaining, it also stated in its application for recognition that its membership has grown between the period 26 June 2020 and the date of its application. The Employer submitted that as set out in its response to the Union’s application, there may be any number of reasons as to why employees become (and remain) union members, and why the Union may have gained additional members in any period of time. This could be because of offers made by the Union on membership, some of the benefits that they provide to members or due to the assistance that trade union representatives can provide in employee relations matters. Just because someone was a member of a trade union does not necessarily mean that they are supportive of that union collective bargaining on their behalf. The test at paragraph 36(1)(b) of Schedule A1 of the Act was not one of generalised support for the trade union - but a very specific test of support for recognition of the trade union for the purposes of collective bargaining on behalf of the proposed bargaining unit. Membership numbers alone (or combined with the defective petition) do not satisfy that test.

46) It was the Employer’s view that the CAC did not have any reliable evidence before it on which it could reasonably conclude that the majority of the workers constituting, what the Employer considered was an unclear bargaining unit, would be likely to favour recognition of the Union to conduct collective bargaining on their behalf. Additionally, if the CAC was minded to decide that the Union’s application was admissible, at the appropriate time it would welcome a ballot of the workers in the bargaining unit.

8. Considerations

47) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

48) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule.

49) The Panel notes that in its response to the application the Employer stated that there was an existing recognition agreement in force covering workers in the bargaining unit in the form of the internal consultation body for Warehouse Operatives, which was documented in the Warehouse Representative Recognition Agreement. This is not an agreement with an independent union. The Panel has therefore concluded that, on the basis of the evidence before it, the Panel is not satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the proposed bargaining unit. The application is not, therefore, rendered inadmissible by the provision in paragraph 35 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

50) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 29 - 31 above) showed that 62.7% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 30 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

10. Paragraph 36(1)(b)

51) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that 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.

52) On the basis of the level of union membership alone the Panel would have been prepared to conclude that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. In this case the Panel also notes that the support check conducted by the Case Manager showed that 66.67% of workers in the proposed bargaining unit (34 out of 36 workers) had signed a petition in favour of recognition (see paragraph 32 above). Of those who had signed the petition 29 were union members (56.87% of the proposed bargaining unit) and 5 were non-members (9.80% of the proposed bargaining unit). The Panel notes the Employer’s comments concerning the wording on the Union’s petition and the Employer’s assertion that workers may not have understood what they were signing. The Panel considers that the wording is sufficiently clear and unambiguous about the Union seeking recognition and it has received no evidence to suggest that signatories to the petition have changed their minds about union recognition since signing the petition. These documents should not be legalistic, nonetheless care should be taken when drafting them. Although the Panel have found in this case that the wording is sufficiently clear, it could be improved. The period of time between the Union’s petition and the membership and support check is not unduly long or a cause for concern. Although the bargaining unit may be relatively small, the percentage signing the petition is high.

53) Therefore, given the level of union membership and support demonstrated by the petition, and in full consideration of the evidence made available, the Panel finds that the majority of the workers would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

11. Decision

54) For the reasons given in paragraphs 48 - 53 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Nicholas Caton

Mr Nicholas Childs

17 June 2021