The Consulting Association had been in operation at least 15 years when it was shutdown in February 2009 by privacy watchdog the Information Commissioner. But for workers concerned about health and safety on the job, this does not signal an end to blacklisting at work.
Campaigners – the word itself a red rag to a blacklister – believe the government’s proposed legislative solution is so riddled with flaws and complacent assumptions the practice will continue unseen and largely uncontrolled.
The first problem is the nature of blacklisting. No firm admits to operating a blacklist and no firm admits to using a blacklister’s services – even when caught red-handed.
Sir Robert McAlpine, a top contributor to the coffers of covert blacklisting organisation The Consulting Association, is denying publicly allegations it used the blacklist to refuse work to a former bricklayer.
In June, Mick Dooley – a long-time activist with construction union UCATT – launched a claim against McAlpine.
But a letter from the firm to Mick Dooley states: “Sir Robert McAlpine does not deny that it had dealings with the Consulting Association. However the company denies that it was provided with or operated any ‘blacklist’. Specifically we have not provided to or received from any party any information about yourself.” The firm spent over £26,000 in 2008 alone for Consulting Association information to vet potential employees, on top of a £3,000 annual subscription fee. Papers in Dooley’s file mentioned McAlpine’s explicitly.
And The Consulting Association is proof that covert organisations can re-emerge unscathed even after having their operations exposed.
It is believed Ian Kerr, the man fined £5,000 in July 2009 for Data Protection Act offences related to the operation of The Consulting Association blacklist, began investigating trade unionists and leftwing activists in the 1970s for the Economic League, a secretive, rightwing vetting organisation set up in 1919. Minutes from internal Economic League meetings in 1988 show that Kerr liaised with construction companies who were collectively known inside the league as the Service Group. Group members got greater help with vetting and covert intelligence-gathering on union activists, allegedly leftwing employees and workers who complained about safety or rights at work. The league was wound up in 1993 and at about that time, the information commissioner believes, Kerr took the league files on construction workers and set up The Consulting Association.
Unions and organisations like Hazards magazine – and workers on the end of blacklisting – knew the practice had continued unabated. Still, in 2003, the government announced after a consultation there was no proof of the practice occurring and refused to legislate.
With no active investigation, covert operations are likely to remain covert. The Consulting Association is the only organisation ever to be shutdown for running a blacklisting operation and Ian Kerr remains the only person – the only entity – to ever be prosecuted, and then on Data Protection Act technicalities rather for the whole seedy, human rights infringing, poverty-inducing business.
The absence of a blacklisting law should not be an excuse, especially when it comes to health and safety. When it comes to health and safety, victimisation of union safety reps is supposed to be illegal already.
The Employment Rights Act 1996 says a person should not suffer detriment or be dismissed or made redundant for reasons including:
• carrying out their legal functions as safety rep
• raising health and safety concerns or participating in safety consultations with an employer
• leaving or refusing to return to work in circumstances of serious and imminent danger” or taking steps to protect themselves or others in those circumstances.
Section 44 of the act says “an employee has the right not to be subjected to any detriment…
“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or…
“in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”
Section 100 says to fire someone for taking this action should automatically constitute “unfair” dismissal.
But the law protecting union safety reps from victimisation is not enforced, because there is no enforcement agency believes it is responsible for enforcing it. The Health and Safety Executive (HSE), particularly, believes illegally firing health and safety reps is not its concern, but an “industrial relations issue”. But HSE’s new mantra is based around “worker involvement”, and you can’t be involved without having relations with your industry’s management. Union safety reps are a creation of health and safety legislation, and their job is to negotiate on health and safety – a core industrial relations function.
The Consulting Association may be a rarity in some respects, in that its sole purpose appears to have been monitoring and blacklisting workers. Overall, the threat may come from respected big name management consultancies and law firms, who provide “union avoidance” and other apparently benign human resources services.
An internal unionbusters’ handbook, prepared by US law firm Jackson Lewis, included a list of 20 warning signs employers must act on and included in the list is an interest in health and safety. Its website today lists activities including “union avoidance” and “occupational health and safety”. US union avoidance firms are now operating in the UK, alongside their home grown equivalents. A series of studies in the US suggests “firing union supporters” is a tactic used in over a quarter of anti-union campaigns.
The Burke Group (TBG) was identified in a 2008 TUC report as involved in a series of union busting campaigns in the UK since 2001, involving major employers including Amazon, Calor Gas, T-Mobile and Virgin Atlantic Airlines.
The TUC report, ‘US anti-union consultants: A threat to the rights of British workers’, noted that when GPMU, the union attempting to organise Amazon workers, ran into a TBG counter campaign it was “the most aggressive campaign it had ever encountered and accused management of sacking a union activist and committing other unfair practices.”
TBG certainly knows health and safety is a crucial union role – and when unions raise the issue, TBG makes sure it publicises the most polarised industry case rather than the facts. For example, US unions campaigned around the horrific death of a worker cooked in an industrial dryer at anti-union laundry firm Cintas.
TBG forgot the worker and concentrated on the threat of a possible slight liberalisation of union recognition rules in the US. A TBG website entry highlighted a 20 March 2009 Wall Street Journal Op-ed, an isolated piece critical of the union for linking unionisation to safety. The Op-ed went: “The accident occurred at a plant operated by Cintas Corp., a large uniform supplier. The implication is that the accident never would have occurred if the worksite had been unionized.” Rather than considering the merit of the union case – and the union safety effect is proven fact – it concluded “it’s no wonder that activists have resorted to exploiting tragedies to gin up votes. What labor activists are unwilling to acknowledge is that membership might be falling because workers are less interested in joining unions.”
What the piece was unwilling to acknowledge was that the Cintas tragedy was anything but an “accident“. OSHA safety inspectors reported 46 illegal hazards in the Tulsa laundry – including 42 ‘wilful’ violations. At least one citation was for not protecting workers from the equipment involved in the death of 46-year-old worker Eleazar Torres Gomez’s death. Wilful violations are those committed with ‘intentional disregard’ for the law or ‘plain indifference’ to worker safety. None of these facts merited a mention in TBG’s news release. Nor was the record fine levied on the company.
Last year, Paul Nowak of the TUC warned “there are many of these firms operating behind the scenes in disputes where we have no idea of their presence”. He said they regard the UK as a relatively untapped market. “The more successes they obtain, the more employers will bring them in.”
- Have you been blacklisted? What industry are you in? Who was responsible for the blacklisting? We know The Consulting Association isn’t the only outfit out there targeting health and safety activists. Have management consultants, lawyers or others been used to clampdown on union organisation and to get safety activists fired? Tell Hazards.