Memorandum submitted by "Drive Up
Standards"
INTRODUCTION AND
SUMMARY
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]
RESPONSE TO
CALL FOR
EVIDENCE—BUSINESS
AND HUMAN
RIGHTS
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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