Bargaining Unit Decision

Question 1

1. Introduction

Accepted Answer

1) RMT (the Union) submitted an application to the CAC on 30 April 2024 that it should be recognised for collective bargaining by Loram UK LTD (the Employer) for a bargaining unit comprising the “Shunter, Cleaner, Apprentice, Rog Technician, C4 Overhaul Technician, IM Technician, NMT Technician, Team Leader Routine Maintenance, Team leader projects, Painters, Welders, RGX Technicians, Side Tipper Technicians” based at Loram UK Limited, RTC Business Park, London Road, Derby, DE24 8UP. The CAC gave both parties notice of receipt of the application on 30 April 2024. The Employer submitted a response to the CAC dated 8 May 2024 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 Chair established a Panel to deal with the case. The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mrs Susan Jordan, (replaced by Mr Mustafa Faruqi for this hearing) and Mr Paul Morley. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 3 June 2024 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, which the parties duly did. A virtual hearing was held on 27 September 2024 and the names of those who attended the hearing are appended to this decision.

4) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the 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.

Question 2

2. Summary of the submissions made by the Union

Accepted Answer

5) The Union by way of background explained that it submitted a letter dated 15 April 2024 to the Employer seeking a voluntary recognition agreement for workshop floor grade members of staff which at that time numbered 62 workers within the workforce. The Union confirmed that this request was turned down in writing on 24 April 2024 by the Employer who stated that, after consideration, it was unable to grant formal recognition with no further reasoning. The Union then proceeded to submit an application to the CAC for formal recognition for those workers in the groups of grades that had joined the Union and that had asked for the Union to represent them in the workplace. The Union confirmed that at the time it based the grade group names on the information from the members along with its activists in the workplace.

6) The Union stated that during the formal process, the Employer had advised that there were actually 80 workers and not 62 in the groups identified by the Union. The Employer wanted the bargaining group to be 107 employees, even though the Union had not sought recognition for some of these additional grades nor did it have any members in the grade groups that the Employer wanted to include.

7) The Union explained that after the Panel’s acceptance decision had been issued, talks with the Employer commenced regarding a re-organisation of its workforce which resulted in the redundancies of union members in the groups of grades in its proposed bargaining unit. The Union allowed itself during this time to focus on supporting its members who were affected by the proposed redundancies. The Union asked the Employer if would accept an extension on the date to conclude discussions as it was also mindful that the redundancies would also impact on the figures and grades. The Employer agreed to the extension which allowed the Union to have discussions around redundancy talks and also an attempt to reach an agreement on the bargaining unit.

8) The Union stated that the Employer had advised that they wanted all hourly paid staff to be included in the collective bargaining unit which equated to 102 employees. The Employer also provided an organisation chart which allowed the Union to then confirm that its figures were accurate. The Union, for clarity, said it used the new organisational chart and the amended head count for the restructuring and redundancies.

9) The Union stated that the following grades were the group it had originally sought recognition for, amounting to 58 employees which was a reduction of 7 from its original application. The Panel asked the Union to map across the original job roles titles to the new job title names and the Union with assistance from Mr Appleby (HR Director) from the Employer confirmed the following:

New Job Title	Original Job Title	Number
Maintenance - Technicians	ROG Technician	22
New Build/Projects Technicians	C4 Overhauls Technician
	IM Technician
	NMT Technician, Painters,
	Welders, RGX Technician &
	Side Tipper Technicians	11
New Build/Projects	Team Leader Projects	5
Maintenance - Train Presentations Technicians	Cleaner	2
Maintenance – Team Leader	Team Leader Routine Maintenance	3
New Build/Projects – Apprentices	Apprentice	6
Rail Ops – Shunter/Senior Shunter	Shunter	9

10) The Union confirmed that some of its members had moved roles as part of the redundancy and reorganisation process. During its discussion with the Employer, the Union had agreed to include additional roles which covered workers who had either joined the Union or had moved into new roles. The Union said that from both its own membership checks and knowing where members had joined, it agreed as part of the discussions with the Employer to add in the following grades to the above: Rail Grinding – Rail grinding/Maintenance 10; Rail Ops – Ops Controllers/Coordinator 6; Finance & Procurement – Team Leader 2 & Finance & Procurement – Inventory & Tooling Controller 2.

11) The Union stated that this equated to an additional 20 members coming into the proposed bargaining unit giving a new total of 78 workers. The Union said that the Employer wanted to include Train Drivers/Training Manager, Supervisors and the Ops Control Manager as part of the bargaining unit but its members in the workplace did not want to include these roles for the following reasons:

Train Drivers – they were mainly home based all over the country on varying contracts from zero hours to full time. They were not based on the shop floor or really worked on site. The drivers had come in from other Railway companies and were probably still members of ASLEF (Train Drivers Union). The Union did not have any members amongst the driving grades, nor had they received any request from the train drivers for the Union to represent them.

Training Manager – This role was managerial and was not part of the shop floor. There could be a conflict of interest if the Union had to take any action relating to a decision by the Training Manager

Ops Control Manager – This role was also managerial and was not part of the shop floor. Again, there could be a conflict of interest as they managed the other control staff.

Supervisors - Whilst they were not a managerial grade, they did have a supervisory and management responsibility. They undertook low level disciplines. There could be a conflict of interest. They carried out both H & S & Disciplinary Investigations and they undertook performance Management Meetings with staff. They undertook accident Investigations and sat on Hearing Panels on the management side. If a Supervisor carried out a hearing or meeting that resulted in a dispute between Union members and the Employer and a ballot for Industrial Action was called amongst the members then the Supervisors would also be balloted for Industrial Action even though the Supervisor’s decision may be the cause of the dispute.

12) The Union proposed to the Employer that as a compromise, the Supervisors should sit in a separate bargaining unit to stop any potential conflict, but this proposal was rejected by the Employer. The Union also said that there was also a concern amongst its members that including Supervisors and Train Drivers was an attempt by the company to weaken the Union to make it difficult to maintain the required levels of membership to obtain recognition. The Union stated that in all the three meetings held with the Employer it did not respond to the questions in relation to this concern. The Union confirmed that it did not have access to contracts of employment & terms and conditions of all the employees.

13) The Union stated that in regard to Paragraph 19B of the Schedule that, after discussions with the Employer, it was seeking a bargaining unit of the following grade groups:

Maintenance – Technicians, Train Presentation Technicians & Team Leader

New Build/Projects – Technician, Team Leader & Apprentices

Rail Ops- Shunter/Senior Shunter, Ops Controllers/Coordinator

Rail Grinding – Rail Grinding/Maintenance

Finance & Procurement – Team Leader & Inventory & Tooling Controller

The Union confirmed that it did not want to include the Supervisors, across the various functions as well as Train Drivers, Training Manager and Ops Control Manager.

14) Finally, the Union confirmed that it did not want to include these grades because there was a potential conflict of interest if Supervisors were included due to the role they undertook and the rest of the workforce. The proposed bargaining unit was at the request of its members who were part of the workforce, rather than workers who were in a Supervisory/managerial role or were home based such as a Train Driver. The Union was proposing a bargaining unit to ensure that it represented those members who were based and worked on site or from the site on a regular basis.

Question 3

3. Summary of the submissions made by the Employer

Accepted Answer

15) The Employer stated that all 102 employees should be included in the bargaining unit. It confirmed that there was no existing local or national bargaining arrangements within its business. For context, the Employer confirmed it had held face-to-face talks with the Union Regional Organiser and two of its employees who were members of the Union and whilst the discussions were productive and useful, unfortunately no agreement on the bargaining unit had been reached.

16) The Employer believed that the bargaining unit should include all employees who were hourly paid as outlined table below. The Employer said its guiding principle throughout these discussions had been to be fair, equitable and consistent in the treatment of all of its hourly paid employees. The Employer stated that to exclude a smaller group(s) of people from the collective bargaining unit would go against that principle and it believed would create smaller fragmented bargaining units within its business. For clarity the Employer table showed its hourly paid employees by job role and the total number of roles that it was proposing to include was 102 as of 14 August 2024.

Department	Role/Level/Title	Location	Total	RMT View
Rail /Grinding	Rail Grinding/Maintenance	National/International	10	10
	Supervisor	National/International	5	0
Maintenance	Technician	Derby	22	22
	Train Presentation Technician	Derby	2	2
	Team Leader	Derby	3	3
	Supervisor	Derby	3	0
New Build/Projects	Technician	Derby	11	11
	Team Leader	Derby	5	5
	Supervisor	Derby	1	0
	Apprentices	Derby	6	6
Rail Ops	Train Drivers/Training Manager	National	14	0
	Shunter/Senior Shunter	Derby	9	9
	Ops Controllers/Coordinator	Derby	6	6
	Ops Control Manager	Derby	1	0
Finance & Procurement	Team Leader	Derby	2	2
	Inventory & Tooling Controller	Derby	2	2
			102	78

17) The Employer stated that it believed that the Union’s proposal was shown in the righthand column, showing 78 roles. During its discussions, it had requested the Union to confirm by email, its justification for excluding certain roles. The Union confirmed that including the Supervisor grades could result in “a potential conflict of interest” in situations of disciplinaries, grievances and performance management, particularly if this resulted in the dismissal of an employee, due to the Supervisors being involved in these management processes. The Employer’s view was that this situation would be no different to that of Team Leaders who were also involved in the management processes for the employees. In addition, the current disciplinary process did not allow for Team Leaders or Supervisors to manage processes where dismissal was a likely outcome, except during the probationary process and therefore it did not believe that there was a significant risk of a conflict of interest. The Employer stated that the Union’s email also confirmed that “the RMT is an all-grades trade union and are willing and happy to have all grades included if those grade groups asked us and wanted to be involved” and “if those grade groups joined the RMT we wouldn’t have had any objections to them being part of the CBA.”

18) The Employer believed that the bargaining unit should include all roles, whose terms and conditions were similar because as an organisation it needed to ensure consistency, fairness and inclusivity as far as is reasonably possible. The Employer said it had a need for the bargaining unit to be compatible with effective management and believed that by excluding certain hourly paid roles, it would be counter-productive to this view. The Employer stated that all of its roles were UK based, however it recognised that a small number of its employees had peripatetic national and international roles, and as such were “home-based”, however its only site for hourly paid employees was on the RTC in Derby and all employees regularly visited the RTC. As such the Employer explained it did not believe that this should prevent the small number of employees from being included. The Panel asked the employer to confirm the hourly rate of pay for Train drivers, Supervisors, Team Leaders, and Technicians.

19) Finally, the Employer also stated that the Union had included some of the roles that were national/international but not others which was not consistent or fair. Overall, the Employer recognised that there were both pros and cons to recognising a union and some people would want to be members of the Union and some people would not. The Employer confirmed its guiding principle was to remain being fair, equitable and consistent in the treatment of all its hourly paid employees, which supported its proposal to include 102 roles in the collective bargaining unit. When asked by the Panel, the Employer indicated that although it had not experienced a conflict of interest in the past it recognised that there was the possibility of a conflict in the future in relation to the supervisors.

Question 4

4. Considerations

Accepted Answer

20) The Panel begins with the statutory framework. The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the 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 “In 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.”

21) In reaching its decision the Panel has taken full and detailed account of the views of the Union and the Employer as expressed in their written submissions, responses to questions and oral submissions during the hearing. Both parties confirmed at the conclusion of the hearing that the hearing had been conducted fairly and that they had the opportunity to say everything that they had wanted to say to the Panel.

22) 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. That does not require the Panel to determine whether it is the most appropriate bargaining unit; only whether it is appropriate. This is the overriding requirement under 19B(2) and relates principally to the matters to be collectively bargained for under the statutory regime namely pay, hours and holidays. The requirement is that the proposed bargaining unit would be compatible with effective management, not that it be compatible with the most effective management. Against the background of that overall responsibility the Panel has to consider the matters listed in paragraph 19B(3) of the Schedule reminding itself that these matters must not conflict with the need for the unit to be compatible with effective management.

23) The Panel finds in the circumstances that the bargaining unit proposed by the Union is compatible with effective management. The Panel’s reasons are as follows:

the roles in the Union’s proposed bargaining unit all form part of the Public Safety (PSS) division. PSS is situated in one location, namely, Loram UK Limited, RTC Business Park, London Road, Derby, DE24 8UP.
The train drivers are not primarily based at Derby site although they do visit on a weekly basis. They are also the most highly paid individuals with their hourly rate of pay being more than £10 higher than Team Leaders and more than £12 higher than the Technicians.
all of the workers in the roles in the Union’s proposed bargaining unit are subject to the same contracts of employment.
The Union had no members who were train drivers, nor had it received a request for assistance by the train drivers.
There was real risk that including supervisors within the bargaining unit could create a conflict-of-interest situation.

24) As part of those deliberations the Panel considered those matters at 19(B)(2)(b) not dealt with above as follows:

The views of the employer and union were fully considered. Suggestion by the Employer during the course of the hearing that recognition could be across for all hourly paid employees was considered but was not accepted by the Panel for the reasons set out above and below.
There were no existing national or local bargaining arrangement with the train drivers or supervisors.
The Union’s proposal created one bargaining unit at a single site and the proposed bargaining unit is situated in one location, and it avoided small, fragmented bargaining units.

Question 5

5. Decision

Accepted Answer

25) The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely:

Maintenance – Technicians 22 (ROG technician)

Maintenance – Train Presentation Technicians 2 (cleaner )

Maintenance – Team Leader 3

New Build/Projects – Technician 11 (C4 Overhauls), Painter, Welders RGX Technician, Side Tipper

New Build/Projects – Team Leader 5

New Build/Projects- Apprentices 6 (apprentice)

Rail Ops – Shunter/Senior Shunter 9 (shunter)

Panel

Ms Naeema Choudry, Panel Chair

Mr Mustafa Faruqi

Mr Paul Morley

14 October 2024

Appendix

Names of those who attended the hearing

For the Union

John Watson - RMT Midlands Regional Organiser

Luke Gibson -RMT Employee

For the Employer

Stephen Wright - Finance Director

Daniel Appleby - HR Director

Bargaining Unit Decision

Applies to England, Scotland and Wales

1. Introduction

2. Summary of the submissions made by the Union

3. Summary of the submissions made by the Employer

4. Considerations

5. Decision

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Applies to England, Scotland and Wales

1. Introduction

2. Summary of the submissions made by the Union

3. Summary of the submissions made by the Employer

4. Considerations

5. Decision

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