Decision

Validity Decision

Updated 14 January 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1219(2021)

20 December 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

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 Robert Lummis and Mr Nicholas Childs. 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. No agreement was reached between the parties as to the appropriate bargaining unit. Following a virtual hearing held on 11 October 2021 the Panel decided, by a decision dated 29 October 2021, that the appropriate bargaining unit was “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.”

2. Issues

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 Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In a letter dated 29 October 2021 the Case Manager invited each party to make submissions on this matter for consideration by the Panel.

5) In a letter to the Case Manager dated 3 November 2021 the Employer made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “There is no recognition agreement between Eddie Stobart Limited and any independent trade union that covers the workers within the bargaining unit.”

b) Is there 10% union membership within the new bargaining unit?

The Employer did not have access to this information. However, based upon the findings of the membership and support check that was conducted by the CAC on 20 May 2021, it was assumed that there was at least 10% membership in the new bargaining unit. It was however suggested that a further membership and support check was appropriate given that:

• the original check encompassed the entire workforce at the warehouse at Braunstone, Leicester, consisting of employees in 10 different roles. The number of roles within the bargaining unit had now reduced to 4, and therefore there may also be fewer GMB members within the new bargaining unit;
• nearly 6 months had passed since the membership check had taken place, during which time there had been leavers from within the new bargaining unit, and therefore there may also have been a reduction in GMB membership within the bargaining unit for this reason.

c) Are the majority of the workers in the new bargaining unit likely to favour recognition?

The Union had previously relied upon a petition that it conducted between 16 – 23 January 2021 to contend that the majority of workers in the bargaining unit were likely to favour recognition. It was assumed that the Union would seek to rely upon this again. The Employer had not had sight of the completed petition and therefore did not know who had signed that petition, or whether those individuals were in the new bargaining unit. In addition, nearly 10 months had passed since the petition was conducted, within such time employees in the new bargaining unit had left the business and therefore should be discounted if they had signed the petition. Furthermore, employees may have changed their mind, if indeed they knew what the purpose of the petition was in the first instance. It was the Employer’s view that the petition was now stale and could not be relied upon.

The Employer also reiterated its submissions concerning the petition during the acceptance period. The Employer believed that the wording of the petition was unclear as to what the workers were signing up to, and subsequently Eddie Stobart sought the views of its employees on GMB being recognised to conduct collective bargaining on behalf of the bargaining unit, of which a number had expressed the view that they did not want GMB to collectively bargain on their behalf. It was also apparent that a number did not know what collective bargaining was.

The Employer therefore believed that it would be appropriate for the Panel to order a further membership and support check and that a ballot be held if it was determined that the application remained valid.

Finally, the Employer said that whilst it was not aware of the level of GMB membership in the bargaining unit to the extent that it was relied upon to demonstrate support for collective bargaining, it reiterated the points it had made in its letter of 6 May 2021, a copy of which the Employer had re-submitted for ease of reference, along with the information provided above with regard to the views of its employees.

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No”.

e) Has there been a previous application in respect of the new bargaining unit? “No”.

6) In an e-mail to the Case Manager dated 4 November 2021 the Union made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “There is not an existing recognition agreement covering any of the workers within the new bargaining unit.”

b) Is there 10% union membership within the new bargaining unit? “Of the PBU of 33 warehouse workers, 21 are members of the union (63%).”

c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “Yes.”

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “Not that we are aware of.”

e) Has there been a previous application in respect of the new bargaining unit? “Not at this site.”

Membership and support check

7) To assist the determination of two of the validity tests specified in the Schedule, namely whether 10% of the workers in the determined bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the determined 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 determined 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 the petition signed by workers in favour of recognition. It was explicitly agreed with both the 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 9 November 2021 from the Case Manager to both parties.

8) The information from the Employer was received by the CAC on 11 November 2021 and from the Union on 12 November 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 38 workers in the determined bargaining unit. The list of members supplied by the Union contained 23 names. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 21, a membership level of 55.27%.

10) The petition supplied by the Union contained 38 names and signatures, of which 25 were in the determined bargaining unit, a figure that represents 65.79% of the proposed bargaining unit. Of those 25 signatories, 19 were members of the Union (50% of the determined bargaining unit) and 6 were non-members (15.79% of the determined 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.”

11) 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.

12) A report of the result of the membership and support check was circulated to the Panel and the parties on 16 November 2021 and the parties were invited to comment on the results of that check by the close of business on 19 December 2021.

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

13) In an email to the Case Manager dated 19 November 2021 the Union confirmed that, having read the report, it was happy with the content and it had no comments to make.

14) In a letter to the Case Manager, dated 25 November 2021, the Employer accepted that more than 10% of the bargaining unit consisted of members of the GMB, as required by paragraph 45(a) of the Schedule.

15) With regard to the second test at paragraph 45(b) the Employer contended that the check was conducted on 16 November 2021, and that it was ten months after the period in which the petition was conducted. Given this passage of time, in addition to a number of significant changes in the business, and within the economic environment, the attitude of the workers who had signed the petition may have changed. The Employer considered that the petition was therefore unreliable because it was out of date. The Employer believed that this was of particular significance in this case because the bargaining unit was very small. Each person within the bargaining unit represented 2.63% of that bargaining unit. As such, only 6 people needed to have changed their mind within the ten month period since signing the petition, for there no longer to be a majority support.

16) The Employer said 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.

17) Some engagement sessions took place after the GMB originally submitted its application for recognition. During those engagement sessions discussions were had with all but three employees about issues on site (the three remaining employees were absent at the time), and about what collective bargaining means. Following on from those discussions it was apparent that the main concerns were general issues falling outside collective bargaining arrangements, and many confirmed that they did not want the GMB recognised to collectively bargain their pay, hours and holidays on their behalf.

18) The Employer considered that it was clear from those discussions that many of the workers at the warehouse in Braunstone did not know what collective bargaining was, the purpose of the petition for which they were signing, or that they had changed their mind. It was the Employer’s view that this demonstrated that the petition was not a reliable source of evidence on which to conclude 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.

19) The Employer further explained why it considered that membership figures were not indicative of support for collective bargaining. The Employer stated that there may be any number of reasons as to why employees became, and remained, union members. This could be because of offers made by the Union concerning membership, some of the benefits provided to its 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, it did not necessarily mean that they were supportive of that union collectively bargaining on their behalf.

20) The Employer asserted that the test at paragraph 45(b) of the Schedule 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 ‘stale’ petition which appeared not to have been understood by workers, did not satisfy that test.

21) The Employer concluded that if the CAC was minded to decide that the Union’s application was admissible, it would welcome a ballot of the workers in the bargaining unit. The Employer further added that should the application proceed to that stage, when invited to give its reasons on whether a ballot should be held, it would make its submissions that a ballot was necessary for many of the reasons it had stated above, and that it would be in the interests of good industrial relations.

4. Considerations

22) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it.

23) The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

5. Paragraph 45(a)

24) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the determined bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 7 to 9 above) showed that 55.27% of the workers in the determined bargaining unit were members of the Union. As stated in paragraph 8 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 determined bargaining unit as required by paragraph 45(a) of the Schedule.

6. Paragraph 45(b)

25) Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the bargaining unit determined by the CAC would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the support check conducted by the Case Manager showed that 65.79% of the workers in the determined bargaining unit (25 out of 38 workers) had signed the petition in support of recognition of the Union (see paragraph 10 above). Of those who had signed the petition, 19 were Union members (50% of the determined bargaining unit) and 6 were non-members (15.79% of the determined bargaining unit).

26) The Panel has considered carefully the Employer’s submission that the petition was “stale” and an unreliable source of evidence as the workers’ views may have changed since they had signed the petition. The Panel is not satisfied that it has been presented with sufficient evidence to demonstrate that the level of support disclosed by the petition within the determined bargaining unit has changed. We consider that the contentions of the Employer in this regard amount to no more than supposition. The period of time between the petition and membership check is not unduly long. The Panel considers that, in the absence of evidence to the contrary, the support check provides sufficient evidence of the views of workers in the determined bargaining unit as to whether they would be likely to favour recognition of the Union, as required by paragraph 45(b) of the Schedule.

7. Decision

27) For the reasons given in paragraphs 23 - 26 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Mr Rohan Pirani, Panel Chair

Mr Robert Lummis

Mr Nicholas Childs

20 December 2021