Decision

Bargaining Unit Decision

Updated 14 January 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1219/2021

29 October 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

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. Mr Nicholas Caton was subsequently replaced by Mr Robert Lummis. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 17 June 2021 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A virtual hearing was held on 11 October 2021 and the names of those who attended the hearing are appended to this decision.

4) Both parties provided helpful written submissions prior to the hearing, and the Panel is grateful for the additional supporting documentation received from the Employer, at the Panel’s request, following the hearing. The Panel would also like to thank the parties for their contributions during the hearing, all of which were particularly helpful to the Panel.

2. Issues for consideration by the Panel

5) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

3. Matters clarified at the start of the hearing

6) Before the hearing commenced the Panel Chair proposed a short adjournment in order to allow time for the Union to provide clarity on its proposed bargaining unit and, subsequently, for the parties to hold further discussions in a final attempt to agree an appropriate bargaining unit. The Panel Chair asked that the parties then clarify their respective positions.

7) Following the short adjournment, the parties informed the Panel that whilst they were unable to agree the bargaining unit, they had narrowed down the areas that remained in dispute.

8) Overall, there are some 50 employees based at the Braunston site which includes 2 managers. It was agreed between the parties that there are 39 ‘Warehouse Workers’, in the following roles at the Braunston Warehouse; 24 Warehouse Operatives; 10 Warehouse Packing Sorters; 4 Warehouse Loaders; and 1 Warehouse Hygienist all of whom fell within the Union’s proposed bargaining unit. It was also agreed that if the panel did not accept the proposed bargaining unit then the 2 managers, 3 administrative staff and 1 shunter based at Braunston should be excluded from any alternative imposed by the CAC

9) There were 4 Team Leaders and 1 Supervisor also located at the Braunston Warehouse and it was those roles which remained in dispute. The Union was of the view that as they were also Warehouse Workers below the level of management they fell within its proposed bargaining unit, in addition to the 39 Warehouse Workers as set out in paragraph 8 above.

10) The Employer also conceded that its alternative bargaining unit, as set out in full at paragraph 30 of this decision, would not be limited to those wholly assigned to the Crown Bevcan contract, and it was therefore no longer requested by the Employer that this be stipulated within the description of the determined bargaining unit.

11) Finally, at the request of the Panel the Employer agreed to provide to the Case Manager, following the hearing, copies of the Team Leaders and Supervisor contract and an organigram for the Braunston site. This information was lodged by the Employer, but it was not considered by the Panel for the purpose of this decision and it was not therefore copied to the Union.

4. Summary of the submissions made by the Union

12) The Union maintained that its proposed bargaining unit was entirely appropriate for the following reasons;

i. It was located on a single site that did not cut across any existing national or local bargaining arrangements. ii. There were no local bargaining arrangements at the site. There was however an existing agreement ‘Warehouse Representatives body’ with 16 warehouse representatives from 12 sites across the UK, with only one from the proposed bargaining unit, which lent itself to the proposed bargaining Unit. There was also a recognition agreement unit at Crown, Cork Seal Premises, Botcherby, Carlisle. iii. Both members and non-members had expressed their desire for both recognition and to be included within the bargaining unit. iv. All of the workers in the proposed bargaining unit were based at the Braunston Warehouse.

13) It was the Union’s view that its proposed bargaining unit would be compatible with effective management, and it would dovetail perfectly with the Warehouse Representatives body. It would assist all the Warehouse Workers and not just those who were currently union members.

14) Whilst the Union acknowledged the desire of an employer to avoid creating small fragmented bargaining units was understandable, where a group of the employees shared a similar status and specific location, the Union believed that recognising them as a bargaining unit would not create fragmentation.

15) The Union submitted that there was a recognition agreement between Eddie Stobart Ltd and the GMB in respect of employees based at Crown, Cork Seal Premises, Botcherby, Carlisle, that had been in place for nearly 20 years. The Union considered that this site was the mirror image of the set up at in Braunston. Questioned by the Panel as to whether the Carlisle agreement included Team Leaders, the Union said that it believed it did.

16) The Union also pointed out that although Team Leaders and the Supervisor undertook disciplinary and grievance investigations, they did not chair any subsequent disciplinary or grievance hearings. Similarly, although they report and collate sickness absence the Team Leaders and Supervisor do not manage it as such. There were also other aspects of their jobs that could not be described as management, and there was no indication as to the amount of time spent on those jobs. The majority of their work was still as operatives or packers and therefore their terms and conditions would be affected by any bargaining unit, and it therefore made sense to include them. Furthermore, one of the Team Leaders was a member of the Union and had agreed to the proposed bargaining unit. The Union’s original understanding was that these roles were not salaried but were hourly paid like the Warehouse Staff.

17) The Union considered that its proposed bargaining unit was wholly appropriate, as it prevented bargaining unit fragmentation and it also engendered and promoted inclusivity for all of the Warehouse Workers.

18) Finally, the Union maintained that the existence of a well-established unit at the Botcherby site was evidence that creating an almost identical unit in this instance should be created. It therefore requested that the Panel determine that its proposed bargaining unit was appropriate.

5. Summary of Submissions made by the Employer

19) Firstly, the Employer maintained its view that, despite the matters clarified by the parties and subsequently agreed before the hearing, it wished to emphasise that the initial wording of the Union’s proposed bargaining unit was ambiguous and that it was clear from the clarifications provided that the Team Leaders and Supervisor were not initially included.

20) The Employer submitted that only a bargaining unit that consisted of the 39 Warehouse Workers as set out in paragraph 8 above was an appropriate unit. To include the Team Leader and Supervisor as proposed by the Union would be incompatible with effective management.

21) The Employer explained that the Team Leaders and Supervisor were all based at Braunston Warehouse. They were interchangeable roles; Four were Warehouse Team Leaders and had managerial responsibility for Warehouse Operatives, and one was a Packing Sorter Supervisor, who was managerially responsible for the Warehouse Packing Sorters. Both roles reported to the Warehouse Manager who had overall responsibility for the Braunston Warehouse. They were paid a monthly salary and, like everyone else with overtime, it was paid by the hour, the Employer emphased that this was not unusual. The annual salary for Team Leaders/Supervisors was £26-27,000. In comparison, Warehouse Operatives were hourly paid. They worked a 52-hour week and received £16-17,000. There was overtime for warehouse operatives which was paid at the basic rate of pay.

22) The Employer further explained that the Team Leaders and Supervisor were treated as “part and parcel” of the management team and, along with the Warehouse Manager they made up the entire people management team at Braunston (the other manager being a Contracts Manager). Although they were called ‘Team Leaders’ and ‘Supervisor’ respectively, this was mere labelling. They both had the same management and leadership duties and responsibilities. They had management contracts that gave a more generous notice period. When pay was decided by the company they were included with the management side as they were seen as management and treated as management. They could also choose whether or not to wear a uniform, and they worked closely with the customer. Their characteristics were different to that of the Warehouse Workers.

23) The Employer submitted that due to the ‘lean’ management structure at Braunston, the Team Leaders and Supervisor performed a day to day line management role, and more management functions than may be expected from people with those job titles in other workplaces. The majority of their time was spent on people management, and not a warehouse role. Those duties included but were not necessarily limited to: undertaking disciplinary grievance investigations; managing sickness; managing shift rotas; managing sickness absence; allocating, approving and refusing holiday requests; and allocation of overtime, and therefore deciding who will be in receipt of overtime pay.

24) The Employer emphasised that those duties not only touched upon matters that fall within the scope of collective bargaining, but they also had the potential to bring the people fulfilling those roles into conflict with other members of the proposed bargaining unit (i.e. the ‘blue collar’ workers) and the Union that was seeking to represent them. As could be seen, at times, they would be ‘on the opposite side of the table’ to the remainder of the proposed bargaining unit / GMB.

25) Furthermore, whilst the pay and terms and conditions of the remainder of the people within the proposed bargaining unit were similar, and were reviewed and decided in a similar way this was not the case for the Team Leaders and Supervisor roles, who were part of the management team on the site, their pay and terms and conditions of employment are different and are reviewed and decided in a different manner. Their terms and pay were determined so that they were consistent or relative to Team leaders and Supervisors at other sites. Therefore, including them within the proposed bargaining unit was likely to be divisive as it was likely to create divergence between the pay and terms of Team Leaders and Supervisors at Braunston, and Team Leaders and Supervisors at other ESL sites.

26) The Employer also pointed out that Jim Clarke says at paragraph 8 of his witness that he accepts that management and supervisors should be excluded from the bargaining unit. Although Mr Clarke says in the same paragraph that Team Leaders, on hourly pay, should be included, in fact, the Team Leaders were not on hourly pay. The Employer asserted that Team Leaders did pretty much the same, albeit they looked after the warehouse, not packing, and it was therefore unclear as to why the Union still argued for those roles to be included.

27) To include the Team Leaders and Supervisor would be wholly inappropriate and unworkable and create conflict as they would be reluctant to make decisions for example on pay and holidays. It would not be compatible with effective management.

28) Questioned by the Panel as to the clocking-in procedures and how the data was used for the specific groups, the Employer explained that everyone was required to clock-in and out, including management. It was used by management to forward onto payroll and used for the purpose of calculating hours.

29) Addressing the points made by the Union drawing a parallel with the Botcherby site, the Employer said that the agreement was put in place 20 years ago and those employed at the site had not known any difference. There had also been a number of contracts come and go. It was treated like a standalone, isolated site. It was the Manager and Assistant Manager at the Botcherby site who covered people management work. The Team Leaders did not cover people management activity and had limited responsibility and therefore could not be compared. The Employer asserted that what was applicable now at the Braunstone site could not be compared to the historical agreement, and the fact was that specific roles at the Braunstone site needed to be considered.

30) In summary, the Employer considered that the only appropriate bargaining unit was one comprising “Employees employed by Eddie Stobart Limited in its warehouse at Braunston, Leicester LE3 1ED, who were: (i) Warehouse Operatives; (ii) Warehouse Packing Sorters; (iii) Warehouse Loaders; and (iv) Warehouse Hygienists.” This bargaining unit consisted of 39 employees (78% of employees on site), and all of whom were ‘blue collar’ workers.

6. Considerations

31) The Panel’s decision has been taken after a full and detailed consideration of the views of both the Union and the Employer as expressed in their written submissions and as amplified during the course of the hearing.

32) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context.

33) The Panel does not consider that the Union’s proposed bargaining unit is appropriate because it did not demonstrate a distinct and identifiable group of workers. Although the proposed bargaining unit, as set out at section 14 of the application form, is “Eddie Stobart employees based in the Crown Bevcan Warehouse in Braunston Leicestershire” the reasons for the proposal, provided at section 15, cut across the bargaining unit. It is suggested in section 15 that the proposal is a “traditional bargaining unit” which comprised “warehouse workers below the level of management”. As set out above, even apart from the Team Leader/Supervisor issue, there are 2 managers based at Braunston. On the face of it the proposed bargaining unit would include these managers. The issue which occupied the greatest amount of time at the hearing was that of the Team Leaders and Supervisor and whether they should be included within any alternative bargaining unit. During the hearing it become clear that their day-to-day work was very different to that of the Warehouse Workers, with the majority of their time spent dealing with Line Management/people matters. There was also a significant difference between their pay levels, the Warehouse Workers were hourly paid whereas the Team Leader and Supervisor were salaried and received £10,000 more.

34) Having decided that the Union’s proposed bargaining unit is not appropriate the Panel’s next responsibility is to decide a bargaining unit which is appropriate. The Panel has concluded that it is appropriate to exclude the Team Leaders and Supervisor from the bargaining unit in this case. The Panel has therefore determined that a bargaining unit consisting of “Employees employed by Eddie Stobart Limited in its warehouse at Braunston, Leicester LE3 1ED, who were: (i) Warehouse Operatives; (ii) Warehouse Packing Sorters; (iii) Warehouse Loaders; and (iv) Warehouse Hygienists” is the appropriate bargaining unit. The Panel considers that this bargaining unit is compatible with effective management. This bargaining unit is managed by a lean management structure at the Braunston site. The workers inside the proposed bargaining unit are clearly an identifiable group, who carry out similar roles and share common terms and conditions of employment. They have the same pay review structures, are hourly paid, and receive overtime payments.

35) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. The bargaining unit is not small (78% of the workers at the Braunstone site) and does not give rise to fragmentation. As far as the characteristics of workers are concerned, as set out in paragraph 34 above, the workers covered by this bargaining unit share common terms and conditions and levels of pay. All the workers in the bargaining unit are located at the Braunston site. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

7. Decision

36) The Panel’s decision is that the appropriate bargaining unit is “Employees employed by Eddie Stobart Limited in its warehouse at Braunston, Leicester LE3 1ED, who were: (i) Warehouse Operatives; (ii) Warehouse Packing Sorters; (iii) Warehouse Loaders; and (iv) Warehouse Hygienists.”

37) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will proceed under paragraph 20(2) of the Schedule to decide if the application is invalid within the terms of paragraphs 43 to 50 of the Schedule.

Panel

Mr Rohan Pirani, Panel Chair

Mr Robert Lummis

Mr Nicholas Childs

29 October 2021

  Appendix

Names of those who attended the hearing:

For the Union

Ricco Rixon - Head of Employment, Simpsons Solicitors

Jim Clarke - Organiser for GMB Union

For the Employer

Stephen Chegwin - Senior Associate, Eversheds Sunderland

Paul Harding - Director of Contract Logistic and Warehousing for Eddie Stobart Limited

Angelina Miley - HR Director for Eddie Stobart Limited

Kimberley Smales - HR Business Partner for Eddie Stobart Limited