Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by "Drive Up Standards"


  1.1  "Drive Up Standards" is a joint cooperation between the Transport and General Workers Union section of Unite the Union and the International Brotherhood of Teamsters, based in the United States of America and Canada. "Drive Up Standards" mission is to ensure that employees of multinational transport companies are treated with respect and dignity in regard to their human rights in order to provide both quality jobs and safe, reliable transportation services to the communities that they serve.

  1.2  Unite the Union represents over two million workers in the United Kingdom, including over 90,000 workers employed in public transport provision. The International Brotherhood of Teamsters represent 1.4 million private and public sector employees, many performing transport services throughout North America, including 75,000 bus transportation workers, and many working for UK based multinational transport companies.

  1.3  We are grateful for the opportunity to submit evidence to the Joint Committee on Human Rights and hope our commentary assists the Committee in its inquiry. For the purposes of this submission we focus, given the limitations of length, on the overseas activities of UK-based transport multinational National Express Group.

  1.4  National Express Group, and its subsidiaries, employ 45,000 workers in its global operations; in the UK it operates local bus services in London, the West Midlands and Dundee, a national network of coach services and rail franchises for the Department for Transport; its North American subsidiary National Express Corporation in turn operates Durham School Services in the United States and Stock Transportation in Canada which combined comprise the second largest private school bus operator and serve 350 school districts in 29 states and two Canadian provinces; and in Spain the company's subsidiary is a major provider of coach and urban bus services.

  1.5  Our experience of this company, especially in North America, provides a picture of a business that continually practices union avoidance and consistently violates the human rights of its employees by every means possible.

  1.6  Public transportation companies are dependent on front line staff to project a positive image of the company and to deliver high quality and reliable services to passengers. This requires multinational companies to attract and retain high quality, professional employees. Failure to meet these challenges exposes companies to reputational and financial risk, especially in the case of National Express where the bulk of revenues are derived from contracts with national and local public authorities.

  1.7  Professor Lance Compa, a Cornell University Professor specializing in labour and human rights law, characterizes the situation "Community consensus is critically important to secure adequate funding for school transport services—including funding for pay and benefits to attract and maintain good employees. A company with a reputation for going to war against its own employees cannot sustain community consensus. A company with a reputation for working well with its employees' representatives is in a more advantageous position."[46]


The duty of the State to protect human rights

  2.1  The Special Representative of the Secretary-General of the United Nations, John Ruggie, identified in his report to the Human Rights Council (7 April 2008) various means by which business impacts human rights. For labour rights this includes Freedom of Association, the Right to organize and participate in collective bargaining and the Right to a safe work environment. Ruggie also noted many non-labour rights including the Right to hold opinions, freedom of information and expression and the Right to political life.

  2.2  Many States, including the United Kingdom, are signatories to the International Labour Organization core principles that include:

    — ILO Convention 87 —Freedom of Association and Protection of the Right to Organise Convention, 1948. Article 2 "Workers and employers, without distinction whatsoever, shall have the right to establish and… to join organisations of their own choosing without previous authorisation."

    — ILO Convention 98 —Right to Organise and Collective Bargaining Convention, 1949. Article 1 1. "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to—(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours."

  Although the United States of America is not a signatory to these conventions, it has embraced the Universal Declaration of Human Rights (1948) and the 1998 ILO Declaration on Fundamental Principals and Rights at Work "All members, even if they have not ratified the Conventions in question, have an obligation…to respect, to promote and to realize, in good faith…freedom of association and the effective recognition of the right to collective bargaining."

  2.3  Ruggie states "Indeed, there is increasing encouragement at the international level…. for home States to take regulatory action to prevent abuse by their companies overseas."[47]

How do companies like National Express Group impact human rights of workers in North America?

  3.1  After entering the United States school bus and transit market in 1998 it had became clear from 2001 reports gathered from Racine, Milwaukee, Hayward, Livermore and St. Louis that National Express Corporation's subsidiary Durham School Services was blocking workers' rights to unionize. Workers' progress toward workplace representation was hampered by anti-union tactics during organizing drives. When workers voted to join a union, the company retaliated by protracting first contract bargaining, encouraging workers to decertify the union and insisting on contract language that diminished union administration.

  3.2  Anti-union companies in North America, like National Express Corporation, employ tactics designed to "chill" workers rights, when they seek to form a union using a structured and legalistic system that often fails to protect workers basic human rights and lacks protection to deter anti-union behaviour in a timely manner. Workers at National Express subsidiaries face a "triple-jeopardy" involving signing authorization cards to apply for a secret ballot election; the election campaign itself and finally bargaining a first contract that grants collective representation in the workplace. At every stage National Express management is afforded ample opportunity to delay the process and to run anti-union campaigns to harass and frighten workers, frustrating workers rights to form a union.

  3.3  Anti-union tactics used by National Express Corporation subsidiaries involve holding mandatory "captive audience" meetings where workers are forced to watch corporate anti-union DVD's and carefully scripted speeches, often orchestrated by professional "union busters". The constant recurring themes include joining a union and entering into collective bargaining is futile, strikes are inevitable and strikers can be permanently replaced, unions are corrupt, lie and are only interested in collecting dues and locations might be closed if a union is voted in.

  3.4  This climate of fear is reinforced through "one-on-one" conversations between supervisors and workers and in company produced literature circulated before the election. Fear remains a constant norm —fear of retaliation for supporting the union, fear of losing jobs if a union is voted in, fear of losing existing pay and benefits as a result of collective bargaining, fear of union strikes, corruption and coercion, fear of conflict in the workplace and fear of change. As an ultimate deterrent to other workers, union supporters are sometimes fired to derail support for the union.

  3.5  Professor John Logan from the London School of Economics states "Under the American system of union recognition, fear is the number one deterrent that employers….exploit in their aggressive efforts to undermine employee support for unionization."[48]

  3.6  "Drive Up Standards" experience is that National Express Corporation subsidiaries uses these tactics during the election process which is often a prolonged, stressful experience for workers. Durham workers in Racine voted 2001 to not form a union following a vicious antiunion campaign waged by management. Driver Debbie Christensen, admitted that she was "worried for her job during the union organizing campaign and had been told that her contract did not allow her to join a union."[49] The Teamsters filed objections to the NLRB and not until two years later did Durham agree to a settlement setting the election result aside and arranging a new ballot. The company settled eleven NLRB charges concerning harassment, intimidation, surveillance and coercion of workers during the election and agreed to pay $25,000 to five workers who had been fired and disciplined for their union support.[50]

  3.7  If workers are strong enough to overcome the violation of their rights to form a union then National Express Corporation often stalls the next step by failing to bargain in good faith and in a timely manner for the first contract.

  3.8  For example, in St. Louis, Durham drivers voted to join the Teamsters union in 2001. The company stalled contract negotiations[51] and later unilaterally imposed a contract[52] and supported efforts to try and get rid of the union through a decertification petition and firing a worker for protected union activities.[53] Finally, in June 2004, after more than three years without reaching a contract agreement, the school district awarded the work to another provider.[54]

  3.9  National Express Corporation subsidiaries flout worker human rights even where a public authority attempts to promote labour harmony. Durham gained a contract in Seattle and in a 2005 effort to promote labour peace, Seattle School District introduced a requirement for bus contractors to recognize a union if 75% of workers signed a card authorizing the union to act as their representative. Rather than positively react to this initiative, Durham refused to agree and chose to walk away from a contract valued at more than $5 million per year.[55]

  3.10  National Express Corporation continues to violate workers human rights today. Carpentersville workers filed an unfair labour practice complaint with the NLRB in 2007, which was upheld. The company was instructed to bargain with the union but refused to, according to the NLRB Regional Director. In May 2008 the company was ordered to negotiate and a date was set for an election.[56] As in earlier campaigns, Durham management subjected the workers to their usual tactics, holding captive audience meetings where a corporate DVD warned of the "risks" involved with collective bargaining, that the union was "a big business that only wanted their dues" and ended "Now that you know the essentials about the Teamsters vote NO."[57]

  3.11  UK Government guidance relies in part on former DTI guidelines concentrating on Corporate Social Responsibility (CSR) seeking to promote awareness and best practice by improving existing processes. When National Express and others, however, refuse to consider partnerships with "employees and their representatives" as suggested, then government guidance is destined to fail. OECD guidelines on human rights issues lack specificity and lag behind many current voluntary standards already in place. As Ruggie notes in his report, "On the contrary, the less governments do, the more they increase reputational and other risks to business."[58]

The responsibility of businesses to respect human rights

  4.1  The Committee's Call for Evidence notes some services previously provided by public bodies are now provided by private companies, and though bus services in Britain, outside London, are deregulated, National Express still receives public subsidy for socially provided services and those operated for Transport for London. Further taxpayer monies are provided for pensioners' free travel and the Bus Service Operators Grant totalling £413 million in 2008, part of the government's subsidy to the bus industry of £2.485 billion. In North America in 2008 National Express earned £372.5 million from school bus contracts funded by tax dollars from local, state and federal subsidies.

  4.2  Such reliance on public monies (and by providing former public services) places a greater responsibility on companies like National Express to comply with "national laws" and to reduce the risk of human rights harm with a view to eliminating it completely, without regard to whether they are operating outside of their home State or the size of the company.

  4.3  Ruggie suggests "due diligence" as an example of good practice and which exists, as a starting point, in North America at the largest school bus operator, UK-based FirstGroup plc. After raising human rights issues with FirstGroup, the company introduced, albeit unilaterally, a Compliance Monitoring Programme for its North American subsidiaries in January 2008. This comprises a Freedom of Association Policy and an Independent Monitoring system. The Policy states FirstGroup supports human rights including the employee's rights to associate with a union without influence and interference from management, who will not act in any way that could reasonably be perceived as anti-union. Workers and unions can report violations of the policy to the Independent Monitor, who if necessary suggests remedies to redress the situation.

  4.4  The introduction of this policy has witnessed a sizeable reduction in human rights violations and a surge in the number of FirstGroup workers voting to join a union. As Ruggie states "Companies should identify and address grievances early, before they escalate. An effective grievance mechanism is part of the corporate responsibility to respect."[59]

  4.5  As to whether the current economic climate should affect the relationship between business and human rights, Compa makes this point "For a human rights analysis, it makes no difference whether a corporate violator's conduct helps or hurts its 'bottom line.' Human rights violations are unacceptable in and of themselves, without regard to profit or loss. Still, a recurring pattern of worker's rights violations can have significant collateral effects on a firm's business interests."[60]

Effective access to remedies

  5.1  "Drive Up Standards" recommends that States play a greater role in protecting the human rights of multinational companies' employees, wherever those workers reside and regardless of whether that is in the world's strongest economies or underdeveloped nations. Government judicial and business grievance mechanisms will have little impact on human right abuses unless there is the ability to investigate, punish and redress abuses inflicted by bad corporate actors.

  5.2  Perhaps one such remedy for companies like National Express, which provide services previously carried out by public entities and receive considerable amounts of revenue from the public purse, would be to have their human rights records taken into account when awarding rail franchises, bus quality contracts, school bus contracts or procurement agreements by central or local government or their agencies. Companies that refuse to submit to this test and that continue to allow anti-union behaviour to be waged against their employees should be debarred from the bidding process.

  5.3  One of the greatest forces in upholding human rights and exposing abuses is the international trade union movement and that interaction would not be possible without enforcing the basic rights of workers to freely associate and form unions to collectively bargain without undue interference from employers.

  5.4  "Drive Up Standards" is grateful for the opportunity to make this submission and is willing to attend any oral evidence sessions should it be necessary.

46   Compa: Freedom of Association and Workers' Rights Violations at First Student, Inc. 2006 Back

47   Ruggie: Human Rights Council, Eighth session, Agenda item 3. 2008 Back

48   Compa, Logan & Feinstein: FirstGroup's Neutrality Policy: Failed Implementation. 2007 Back

49   Media story, "Drivers ask for fair union election" by Brent Killackey, 4 November 2003 Back

50   National Labor Relations Board: Settlement Agreement cases 30-CA-1SS46.1, 30-CA15687-1, 30-CA-15690-1,30-CA-15701-1,30-CA.15857-1,30.CA-15863-1,30.CA-15864-1,30-CA.15891-1,30.CA-15948-1,30-CA.16450-1,30-A16595,30.RC-6310 Back

51   Durham School Services document: "The Michigan Avenue Story" Back

52   Constangy, Brooks & Smith LLC: Letter to Mr. Rich Piglowski, Teamsters Local 610, dated 31 July 2002 Back

53   National Labor Relations Board: Case £14-CA-26801 Back

54   Durham School Services document: "The Michigan Avenue Story" Back

55   Durham School Services President & CEO John Elliott: Memo to all Durham School Services Employees at Seattle CSC Back

56   Daily Herald: "District 300 bus drivers to vote on union" by Jameel Naqvi, 13 May 2008. Back

57   Durham School Services, Hampshire Yard, Elgin IL,: Captive audience meeting held January 2009 Back

58   Ruggie: Human Rights Council, Eighth session, Agenda item 3. 2008 Back

59   Ibid. Back

60   Compa: Freedom of Association and Workers Rights Violations at First Student, Inc. 2006 Back

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Prepared 16 December 2009