Diversity for Hire: Astroturfing, New Flyer and the Transportation Diversity Council - Jobs to Move America
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Diversity for Hire:
Astroturfing, New Flyer and the Transportation
Diversity Council
Diversity for Hire:
Astroturfing, New Flyer and the
Transportation Diversity Council
Jobs to Move America
TABLE OF CONTENTS
Foreword.......................................................................................................................3
Acknowledgements.......................................................................................................4
Executive Summary......................................................................................................5
Introduction....................................................................................................................6
I. What is astroturfing?..................................................................................................8
II. Background...............................................................................................................9
III. Is TDC astroturfing for New Flyer?...........................................................................10
a. Real vs. fake Community Benefits Agreements...................................................11
b. The TDC/New Flyer “Framework” falls short.......................................................12
c. TDC acts on behalf of New Flyer.........................................................................16
d. TDC and training.................................................................................................17
e. Conflicts of interest..............................................................................................19
Conclusion.....................................................................................................................21
Endnotes.......................................................................................................................22
JobsToMoveAmerica.org
/JobsToMoveAmerica
@JobsMoveAmerica
Diversity for Hire - Jobs to Move America 2
Foreword in Marvin Gaye’s song, “What’s Going On?”
This is the inclusive and democratically ac-
countable question that must be asked and
for which strategic, transparent, and partici-
Rev. Terrence Melvin, patory answers must be found. It is another
way of asking, “how do we not just fiddle with
President, Coalition of Black challenging racism at its moments of embar-
Trade Unionists rassing manifestations; but begin to end it at
its structural roots?”
Scott Douglas III,
We find a significant part of the answer to that
Executive Director, Greater Bir- question in our support for the campaign for
mingham Ministries New Flyer of America, a multi-billion dollar
global bus manufacturer, to negotiate a na-
Racial justice issues are worker issues. In the tional Community Benefits Agreement (CBA)
midst of a pandemic and a long-awaited upris- with the Alabama Coalition for Community
ing for racial justice, the conditions of frontline Benefits and Jobs to Move America. A CBA
workers, who are disproportionately people of would provide better jobs, equal opportunity,
color,1 should be front of mind for everybody. and healthier communities for all New Flyer
We already have food deserts, banking des- workers, especially workers of color.
erts, militarized police, inadequate infrastruc-
ture, and a racist criminal justice system. The It is unacceptable for New Flyer or any other
convergence of the killings of Ahmaud Arbery, company to try to defeat worker and commu-
Breonna Taylor and George Floyd, among so nity demands for a CBA by using a fake grass-
many others, with the COVID-19 pandemic roots organization to create an unenforce-
and its disproportionately negative impact on able “framework” with no participation from
Black, Latinx, and Indigenous workers and or democratic accountability to workers and
communities,2 compounds the traumatic so- community members. And it is unacceptable
cial and emotional impact on everybody, but for any non-profit organization, including a
especially people of color. Black-led non-profit, to allow itself to be used
in that way. Astroturfing for corporations that
And when profitable multi-billion dollar corpo- are harming front line workers of color fight-
rations respond to the pandemic by ignoring ing for their human rights and dignity is never
their workers’ health and safety and refusing okay, especially now, no matter who is doing
to pay them during a pandemic shutdown, that the astroturfing.
combines with all the other factors and contrib-
utes to the suffering of Black people and other Identifying, addressing and chang-
people of color too.3 Another way big profitable
companies contribute to Black suffering is by
ing systems of inequity is the call-
keeping Black workers out of unions, because ing of our times. We can’t allow in-
unions help shrink the Black-white wage gap,4 justice to go unchecked during the
while declines in union density grow that gap.5 pandemic and then emerge from
As one scholar said recently, “systematic so-
cial deprivation and economic disadvantage is social isolation and expect not to go
maintained and reinforced by those with eco- back to the same old way of doing
nomic and political power.”6 things. We must sow the seeds of
But in the face of despair’s obstacles, hope justice now to reap them at the har-
challenges with a deeper inquiry, reflected vest.
Diversity for Hire - Jobs to Move America 3
Acknowledgments The Author, Dean Hubbard, wishes to thank and acknowledge Scott Cum- mings and Ben Beach, who contributed valuable insights on Community Benefits Agreements; the researcher team at Jobs to Move America for their insightful contributions to the research; and the brave New Flyer workers who shared their experiences. The Author also wishes to acknowledge the Alabama Coalition for Com- munity Benefits: A Better Balance, Alabama Arise, Alabama State Confer- ence of the NAACP, Adelante, Communications Workers of America (CWA), GASP, Greater Birmingham Ministries, Hometown Action, United Steelwork- ers (USW), International Association of Machinists and Aerospace Workers (IAM), and International Brotherhood of Electrical Workers (IBEW). Diversity for Hire - Jobs to Move America 4
Executive Summary in 2020, New Flyer announced a “partner-
ship” with the Transportation Diversity Coun-
cil (TDC), a New York-based organization,
to create a so-called Community Benefits
Systemic racism infects every single institution Framework. The Alabama coalition charged
in our society, including corporations. In the
wake of the police murders of George Floyd,
Breonna Taylor and so many others, corpora-
tions across America have made statements1
affirming a commitment to anti-racism and ra-
cial equity. Some of these corporations have
committed2 to looking deeply at and address-
ing racial inequity in their ranks, while others
have been criticized3 for their hypocrisy.
Broadly, experts4 have identified two paths
corporations can follow in response to de-
mands that they do their part to remedy the
present day institutional manifestations of
longstanding racism and white supremacy.
One, the high road, is to give workers a voice
by addressing the underlying issues they Throughout this report, we present graphic represen-
bring up. The other, the low road, is to engage tations of the ways the TDC/New Flyer “Framework”
appears to be a product of astroturfing.
in a sophisticated marketing campaign to con-
vince the public that the corporation is “doing
the right thing,” while taking little action to end that, in reality, New Flyer hired TDC to run an
institutional injustice, thereby perpetuating it.5 “astroturf” campaign to lend a facade of legit-
imacy to New Flyer’s refusal to address the
New Flyer of America (New Flyer), the largest concerns of workers and residents.9
manufacturer of public transit buses in North
America, is a multi-billion dollar corporation This report documents how New Flyer’s rela-
that has taken the low road. In the fall of 2019, tionship with TDC follows a well-traveled cor-
Black and women workers had, in survey re- porate astroturf low road:
sponses and interviews, identified race and
• TDC has collaborated with New Flyer to
gender discrimination and dangerous and
produce a vague “framework” that has
unhealthy conditions at New Flyer’s Alabama
no mechanisms of enforceability and no
factory as major concerns.6 In a more recent
means for input by affected workers, in-
report, even greater percentages of surveyed
stead of an enforceable Community Ben-
workers raised concerns about discrimination
efits Agreement created with true worker
and unsafe working conditions at the Alabama
and community participation that provides
plant.7
meaningful benefits and genuine account-
New Flyer rejected a demand from a coalition ability;
of Alabama residents, civil rights groups, and
• TDC has repeatedly demonstrated that it
workers to negotiate an enforceable, nation-
sees its role as acting on behalf of New
al “Community Benefits Agreement” to create
Flyer, not representing the independent
better jobs, equal opportunity, and healthier
interests of workers and community mem-
communities for the company’s workers.8 In-
bers;
stead, on the Martin Luther King, Jr. holiday
Diversity for Hire - Jobs to Move America 5
• TDC, as part of its core activities, advo- stated that they had experienced race-
cates for transportation businesses and based discrimination and sexual harass-
executives and assists their efforts to ac- ment and discrimination in New Flyer’s An-
cess taxpayer funds; and niston facility.19
• TDC has conflicts of interest that likely • Four of twelve Anniston survey respon-
prevent it from independently representing dents who had filed complaints about
worker or community interests.10 discrimination, health and safety, or other
working conditions reported facing retali-
Introduction ation, including being assigned too much
work or hazardous work. Twenty-three
percent of the surveyed workers identified
production issues, and of those, 30 percent
New Flyer of America Inc. and New Flyer In- said that they did not feel that they could
dustries Canada ULC (New Flyer)11 are the safely report issues with the assembly or
North American arm of a multi-billion dollar12 manufacture of the product without retali-
global bus manufacturer known as NFI Group, ation.20
Inc. (NFI).13 New Flyer is the largest manufac-
• JMA’s interviews and Alabama A&M’s
turer of transit buses and motor coaches in
preliminary survey data showed at least
North America, with factories in Alabama, Cal-
a dozen workers reported working far be-
ifornia, Kentucky, Minnesota, New York, and
yond the standard work week. Eleven
Canada employing over 6,000 workers.14 Over
survey respondents reported being given
80 percent of New Flyer’s revenues come from
only a few hours notice before a schedule
public transit agencies in cities across North
change, and 11 workers interviewed by
America,15 including Birmingham, Chicago,
JMA complained that non-voluntary over-
Los Angeles, New York, Seattle, Washington,
time has a negative impact on their health
D.C., and many others.16
and well-being.21
In October 2019, New Flyer workers from An-
• Sixty-three percent of workers responding
niston, Alabama, responding to a survey, ex-
to the AAMU survey reported coming into
pressed concerns about discrimination and
contact with toxic chemicals, 15 percent
dangerous and unhealthy working conditions
reported being seriously injured on the job,
to Alabama A&M University researchers. In a
and two reported filing complaints about
subsequent published report, Jobs to Move
dangerous working conditions.22 Addition-
America (JMA) summarized the findings of
ally, in 2016, the Occupational Safety and
the Alabama A&M researchers and JMA inter-
Health Administration (OSHA) fined New
views as follows:17
Flyer for safety problems at its Anniston
• African American survey respondents were plant.23
more than twice as likely to say that, as far
At the end of June 2020, the Alabama A&M
as they knew, discrimination was a “big
researchers supplemented their previous find-
problem” in their workplace. Forty-three
ings and reported that even larger percentag-
percent of surveyed African-American
es of Alabama New Flyer workers responding
workers reported being denied promotions,
to surveys reported race and gender discrim-
feeling isolated, receiving less support from
ination, retaliation, and dangerous working
management, and being treated as if they
conditions.24
were incompetent because of their race.18
• In interviews with JMA, several workers
Diversity for Hire - Jobs to Move America 6
Alabama Arise, and the Greater Birmingham
Worker surveys highlight New Flyer ESG Ministries asked New Flyer to negotiate an
Report Flaws enforceable, national “Community Benefits
Agreement” to create better jobs, equal op-
Surveyed workers’ expressed concerns about portunity, and healthier communities for New
discrimination stand in contrast to the claims Flyer workers.34 New Flyer refused to negoti-
in the NFI Group’s “Environmental, Social and ate a Community Benefits Agreement with the
Governance” (ESG) Report that it has “zero coalition,35 ignoring and dismissing the voices
tolerance for workplace discrimination and ha- of organizations deeply rooted in the commu-
rassment.”25 In the ESG report, NFI claims to nities around its Anniston factory.
be committed to “promote into all job levels
the most qualified persons without regard to Instead, on the Martin Luther King, Jr. holi-
race…[or] gender,”26 to “ensure the represen- day in 2020, New Flyer announced they had
tation is tracking in a positive direction”27 and to entered into an expanded “partnership” with
“[p]romot[e] inclusive leadership. ”28 Yet even the Transportation Diversity Council (TDC,)36
in the ESG Report, New Flyer acknowledged a New York not-for-profit organization37 which
a race and gender breakdown that shows its does not include affected workers or commu-
middle and executive managers are more nity members among its leadership, to create
than 93% white.29 Eighty percent of the people a so-called “Community Benefits Framework.”
in middle management and executive roles in 38
New Flyer claimed this “framework” would
2019 were men.30 This would be bad news in focus on workforce diversity and training with
any industry. It is particularly egregious that local workers and community partners, first
New Flyer, which says it receives 80% of its in Alabama and later in New Flyer locations
revenues from taxpayer-funded public transit around the country.39 As discussed in Section
agencies,31 has only a small proportion of ex- III below, the TDC “framework” provides no
ecutive and middle management roles filled way to ensure that New Flyer applies its prin-
by people of color, because New Flyer man- ciples, and no way for New Flyer workers and
ufactures a product that communities of color community members to participate in con-
rely upon. According to a study by the Ameri- structing or enforcing it.
can Public Transit Association, “[c]ommunities
of color make up a majority of [public trans-
portation] riders (60%), with African-Ameri-
can riders comprising the largest single group
(24%) within communities of color.”32 More-
over, the health and safety issues reported
by New Flyer Anniston workers in response
to the Alabama A&M surveys and the OSHA
fines levied against New Flyer raise questions
about NFI’s stated commitment in the ESG re-
port that “nothing is more important than the
health and safety of our team members…and
the protection of the environment.”33
Following the survey responses to the Ala-
bama A&M researchers, a coalition of Ala- In a February 4, 2020 letter, Alabama coalition
bama residents, workers, and civil rights and members denounced TDC as an organization
faith groups such as the Alabama NAACP, hired by New Flyer to run an “astroturf” cam-
Diversity for Hire - Jobs to Move America 7
paign to lend a facade of legitimacy to New and frank debate, conceals the true ben-
Flyer’s refusal to address the concerns of eficiaries of political decisions and raises
workers and residents about racism and dan- the prospect of the few benefitting from
gerous working conditions.40 the support of a mythical many.42
B. How has astroturfing been used?
I. Astroturfing There are, unfortunately, numerous examples
of corporations pursuing profit by creating a
false appearance of grassroots support to un-
dermine the work of consumer, worker, and
A. What is “astroturfing”?
community advocates while advancing the in-
Advocates for New Flyer workers and affect- terests of corporate beneficiaries.
ed community members charge that TDC and
The first widely publicized example of astro-
New Flyer’s relationship reflects a phenom-
turfing began in 1993, when the corporate to-
enon known as “astroturfing.” The name is
bacco behemoth Philip Morris hired a PR firm
drawn from the artificial turf used for sporting
to discredit a new Environmental Protection
events, which appears real, but has no actual
Agency report that found tobacco is a carcin-
living grass roots.
ogen that causes thousands of deaths from
Hence, lung cancer every year. The PR firm told Philip
Morris that to counter the EPA report, it need-
Astroturf organizations are fake grass- ed to “create the impression of a ‘grassroots’
roots organizations usually sponsored movement—one that had been formed spon-
by large corporations to support any ar- taneously by concerned citizens.” The PR firm
guments or claims in their favor, or to set up “a national coalition intended to educate
challenge and deny those against them. the media, public officials and the public.” For
They constitute the corporate version of a fee, the firm “prepare[d] and place[d] opinion
grassroots social movements. Serious articles in key markets” in order to “establish
ethical and societal concerns underline an image of a national grassroots coalition.”43
this astroturfing practice, especially if
corporations are successful in influenc- This same Philip Morris-funded coalition went
ing public opinion by undertaking a social on to help launch the effort to repudiate the
movement approach.41 science behind climate change, with funding
from Exxon Mobil.44 After its own scientists be-
This investigation will explore the many ethi- gan warning the company “the scientific ba-
cal and social issues created by New Flyer’s sis for the Greenhouse Effect […] cannot be
astroturf relationship with TDC. denied,”45 Exxon Mobil began paying several
other organizations seeking to undermine the
Astroturfing is, by definition, antithetical to de-
overwhelming scientific consensus on climate.
mocracy; it is
In 1998, these efforts included publishing a
the creation of an organisation or move- petition that used the font and format of the
ment with a purportedly popular message journal of the National Academy of Sciences,
but in reality pushing an orchestrated making it appear as if it was written and en-
publicity or opinion-forming campaign… dorsed by a renowned and respected climate
on behalf of its self-interested sponsors. science organization.46 Another report spon-
By its definition then, astroturfing is fun- sored by a conservative think tank, the U.S.
damentally non-democratic in that it dis- Heartland Institute, was published under the
torts the open process of transparency banner of the “Nongovernmental International
Diversity for Hire - Jobs to Move America 8
Panel on Climate Change,” a name aimed at ciple of worker participation.”51
creating confusion with the United Nations-af-
filiated “Intergovernmental Panel on Climate In 2014, as the Federal Communications
Change.”47 Also in 1998, the American Petro- Commission was considering new rules on
leum Institute—the county’s largest oil trade “network neutrality” that would classify broad-
association—created the “Global Climate Sci- band services as a public utility, a group called
ence Communications Plan.” This plan set the “Minority Media and Telecommunications
the roadmap for deceiving the public about Council” (MMTC) coordinated an onslaught
climate change by “develop[ing] and imple- of letters claiming such a change would
ment[ing] a national media relations program” “harm communities of color.” It turned out that
while “keeping industry’s role hidden.” Under- MMTC had received “hundreds of thousands
standing that fossil fuel-affiliated scientists of dollars from Verizon, Comcast, the National
would lack credibility, the industry cultivated Cable and Telecommunications Association,
seemingly “independent” scientists by funding and other telecom sources.”52 A former May-
their work.48 or who lined up Latino civil rights groups to
oppose net neutrality was on staff with one of
In 2006, a farmworker organization called Verizon’s lobbying firms.53 The Congressional
the Coalition of Immokalee Workers (CIW) Hispanic Leadership Institute (CHLI), which
was urging McDonalds to pay a fair wage hosted a Capitol Hill event arguing that net
and improve working conditions and human neutrality would harm Latino and other “mi-
rights abuses for agricultural workers in Mc- nority and disenfranchised communities,” was
Donalds’ supply chain. McDonalds, seeking sponsored by Verizon, Comcast, and AT&T.54
to avoid these demands, signed on to a code
of conduct “written by agricultural employers In hiring TDC, New Flyer is following the same
without input from the workers it will affect.”49 well-established corporate playbook: deflect
This weak code of conduct was sponsored by genuine organizing against discrimination and
an organization called Socially Accountable for positive change by workers and communi-
Farm Employers (SAFE). ties affected by its actions by affiliating with a
non-profit organization that appears indepen-
According to the Robert F. Kennedy Center for dent but is in fact its partner and defends it in
Human Rights, the media.55
SAFE is headed by the Florida Fruit and
Vegetable Association and the Redland
Christian Migrant Association. The FFVA
II. Background
is a membership organization of agricul-
tural employers, representing their in-
terests. While the RCMA is an excellent NFI and New Flyer
child care provider, it has no expertise
NFI says that it is “North America’s largest and
or experience with labor issues and, as
most diversified bus and coach manufactur-
much of its budget is funded directly by
er.”56 It states that 80 percent of its revenues,
FFVA, it cannot be considered indepen-
which topped $2.5 billion in both 2018 and
dent enough from agricultural employers
2019, comes from “public (i.e. government
to be a voice for fair labor standards.50
funded) customers.”57 It reported profit mar-
Eventually, McDonalds succumbed to genu- gins58 of 13.4 percent in 2017, 12.5 percent
ine organizing and public pressure (including in 2018 and 11.6 percent through the first two
the exposure of SAFE) and signed “a stronger quarters of 2019.59
code of conduct [with CIW] based on the prin-
Diversity for Hire - Jobs to Move America 9
NFI subsidiary New Flyer states that it is In practice, TDC has no prior experience
“North America’s largest transit bus manufac- negotiating genuine Community Benefits
turer and EV leader.”60 In the U.S., workers Agreements or advocating for the indepen-
at the New Flyer factories in St. Cloud and dent interests of rank and file manufacturing
Crookston, Minnesota are represented by the workers or communities affected by a manu-
Communications Workers of America. New facturers’ operations.
Flyer’s remaining U.S. manufacturing facil-
ities, in Anniston, Alabama; Elkhart, Indiana; TDC began its “partnership” with New Flyer
Shepherdstown, Kentucky; and Jamestown, in 2017, when New Flyer retained it to recruit,
NY; as well as its service centers in Ontario, and train, “disadvantaged workers” at its ser-
California and Renton, Washington; are non- vice facility in Ontario, California.64
union.61 The partnership later expanded to include
The Transportation Diversity Council New Flyer’s Alabama factory and the even-
tual “Community Benefits Framework” dis-
According to its Certificate of Incorporation, cussed below.
TDC’s purposes include:
To support transportation infrastructure in III. The evidence
suggests TDC is
developing countries…;
To initiate a global diversified workforce
of transportation and construction profes- astroturfing for
sionals …;
New Flyer.
To encourage and support diversity in
ownership and senior management
throughout the transportation industry…;
TDC fulfills the same “astroturfing” function
and
for New Flyer as groups like the “Minori-
To expose young people to the opportuni- ty Media and Telecommunications Council”
ties for ownership and employment in the (MMTC) did for the telecommunications com-
transportation field…62 panies and the “Socially Accountable Farm
Employers” (SAFE) did for McDonalds. Just
On its website, TDC says that it is as McDonalds did with SAFE, New Flyer has
collaborated with TDC to produce a vague
led by seasoned executives from the “framework” that has no mechanisms of en-
worlds of transportation, education and forceability and no means for input by affect-
construction who are dedicated to en- ed workers, instead of working to create an
suring that every individual and compa- enforceable Community Benefits Agreement
ny has the opportunity to fully contribute with real worker and community participation
to America’s future. TDC was formed in that provides meaningful benefits and genu-
2010 to meet the growing need for lead- ine accountability.
ers, technical professionals, educators
and construction workers in the transpor- Like MMTC, TDC does not appear to be a
tation and construction industries. Those grassroots representative of the independent
needs can only be met by engaging and interests of workers and community mem-
developing a large and diverse work- bers, but rather acts on behalf of corpora-
force.63 tions like New Flyer. Indeed, as established
below, TDC largely advocates for transporta-
Diversity for Hire - Jobs to Move America 10tion businesses and executives and assists ny agreeing to confer a range of benefits
their efforts to access taxpayer funds. Of on affected workers and community mem-
even greater concern, TDC also has conflicts bers.
of interest that prevent it from independently
representing worker or community interests.65
And the vague, unenforceable “framework” it
produced with New Flyer bears little resem-
blance to a binding, enforceable Community
Benefits Agreement.
A. A real Community Ben-
efits Agreement protects
the independent interests
of workers and community
members.
1. What is a Community Benefits
Agreement?
Community Benefits Agreements (CBAs) are
legally enforceable agreements between pri-
vate companies and coalitions of community
and labor groups. CBAs can be used to en-
sure a wide range of high-road job standards b. A community benefits program that the
and equity measures that meet community company promises to provide is nego-
needs. When cities and states enter into con- tiated with the coalition. The program
tracts with privte corporations to purchase tends to fall within buckets of commit-
manufactured equipment, these private cor- ments around jobs, diverse hiring commit-
porations are rarely required to create good ments, wages, and other goals.
jobs or commit to equity measures.66 CBAs
2. How do we identify a CBA process
allow coalitions of community-based groups,
and product as effective or ineffec-
workforce development organizations, labor
unions, and other social justice advocates to tive?
ensure deeper equity commitments and high- According to Community Benefits Agreement
road hiring practices at these facilities.67 expert Ben Beach, Legal Director of the Part-
CBA expert Scott L. Cummings, Robert Henig- nership for Working Families and Director of
son Professor of Legal Ethics and Professor the Community Benefits Law Center,69 there
of Law at UCLA School of Law,68 says that a are myriad examples of effective and ineffec-
“classic” CBA is a legally enforceable contract tive CBAs, in terms of both process and prod-
with two components: uct, from which the essential characteristics of
both can be identified.
a. The coalition gives up something in
exchange for the company giving up An effective Community Benefits Agree-
something. Generally, the coalition gives ment includes three main characteristics, all
up the right to continue to protest against of which must be present according to Mr.
the company in exchange for the compa- Beach:
Diversity for Hire - Jobs to Move America 11a. Democratic participation. The process An ineffective or astroturf CBA, on the other
must include robust, equitable engage- hand, can be identified from one or more of
ment of communities who will be impacted the following characteristics:
by the economic development, especially
those who would otherwise be excluded • There is little real community partici-
or not have a powerful voice in shaping pation: the signatories are handpicked
and approving the development. In almost by the company or politicians, there is no
every case, this includes communities of coalition presence at all, or the coalition
color, so the engagement must include a lacks the broad-based representation of
focus on remedying historic inequities af- the array of community interests affected
fecting communities of color. by the development.
b. Meaningful benefits. The benefits ul- • The negotiation process is secretive
timately provided for in the CBA are not and exclusive: a small group is involved
only a product of authentic community in the process with little or no communica-
engagement, they represent authentically tion with local residents and organizations.
articulated community needs. The bene- • The commitments are vague, with no
fits are robust and adequate to the task clear timeframes or measurements:
of meeting the needs that the community parties may easily opt out, provisions are
has identified. Ineffective CBAs cover is- voluntary, or compliance relies too heavily
sues that are not urgent or high priority for on good faith efforts; there are no process-
affected communities, or pay lip service es outlining how provisions will be imple-
to issues that are important, for example mented to make the commitments real.
the hiring of local marginalized or disad-
vantaged individuals, but do not treat the • There are no effective formal means of
issue with the depth and seriousness it re- olding parties accountable: there is no
quires. clearly defined structure to monitor prog-
ress; instead, there is an impeded ave-
c. Accountability. This includes: nue of recourse for the community parties
• CBA terms are drafted with specificity should there be a breach of contract, or
that makes them readily enforceable there is an inexpensive “buyout” provision
and easy to follow and clear. They under which corporate stakeholders can
don’t contain vague words that allow pay for their obligations instead of actually
for interpretation. providing community benefits.71
• Community enforcement is readily B. The “Framework” TDC
accomplished – the agreement pro- produced with New Flyer
vides a procedure so that community
members who are parties can easily
does not meet the mini-
take steps to ensure that the prom- mum criteria of a CBA, let
ised benefits are realized. alone an effective one.
• Robust community oversight of im- On March 12, 2020, New Flyer released their
plementation of the CBA, so the com- “Community Benefits Framework.”72 The
munity can be confident it has all the “framework” includes a slate of unenforce-
information about what is happening able promises on serious issues like diversity,
and they have a role through imple- health and safety, training, and more.
mentation.70
Diversity for Hire - Jobs to Move America 12Drafted with the help of TDC, the “framework” forceability and concrete commitments
is a response to the efforts of Jobs to Move on the part of the company. The innova-
America and the Alabama Coalition for Com- tion of a CBA is that companies would
munity Benefits, which have been organizing be on the hook for commitments that are
to hold New Flyer accountable by demanding legally defined. The New Flyer Frame-
the company negotiate real programs to solve work is a set of general principles that
the problems raised by workers through a na- are vague in important respects and have
tional Community Benefits Agreement (CBA). no mechanisms of enforceability and no
means for input by affected workers. That
makes it different from successfully nego-
tiated Community Benefits Agreements
that have real impact.74
As established above, a genuine CBA is a le-
gal agreement that would establish real and
enforceable commitments around equitable
hiring practices, training, and apprenticeship
programs. New Flyer’s “framework” does not
meet the threshold test of being an agree-
ment – the document was developed by the
company itself, with the help of TDC as a
hired consultant, not through negotiations with
workers or local community members.
Mr. Beach confirms,
The “framework” document bears little
resemblance to any of the effective com-
munity benefits measures we’ve seen in
CBA experts Beach and Cummings inde- use all across the country, which contain
pendently reviewed the New Flyer/TDC detailed, measurable commitments, pro-
“framework” with an eye to the characteristics vide for significant roles for community
for effectiveness/ineffectiveness discussed and workers in implementation and en-
above. forcement, and result from negotiation
Mr. Beach noted, with broad coalitions representing im-
pacted communities and workers…
The most ineffective community bene-
fits efforts have some common features: The “accountability” provisions make
vague language; commitments to do lit- no mention of a role for communities or
tle more than comply with the law, and workers, including in negotiating or over-
negligible voice or recourse for the pur- seeing implementation of local agree-
ported beneficiaries. New Flyer’s “frame- ments. Much of the content describes
work” contains numerous examples of steps the company has allegedly already
these…73 taken internally regarding its workforce
and it is thus difficult to see how the doc-
According to CBA expert Cummings, the New ument could function as a framework for
Flyer/TDC “framework” local negotiation.
fails on the core elements of legal en- The only nod to any form of democratic
Diversity for Hire - Jobs to Move America 13participation or accountability to impact- the complaint.”77 In 2016, after workers at the
ed individuals in the document is the Em- Anniston plant complained to OSHA that they
ployee Engagement Committee, but this were exposed to hexavalent chromium, a tox-
body as described is seemingly selected ic welding byproduct, OSHA discovered ten
by the company and merely advisory to other health and safety violations at the plant.
the company.75 Instead of immediately acknowledging and
The “framework” is also flawed because there
is no way to enforce it: New Flyer says they
will receive quarterly reports on their progress
towards commitments, but these reports will
go to New Flyer leadership and TDC; there is
no indication that they will be made public, and
the “framework” does not provide a mecha-
nism for affected workers or community mem-
bers to have their concerns adjudicated by an
impartial third party. New Flyer is planning to
“enforce” the “framework” itself, or have its
non-profit-for-hire TDC do so. But, as shown
in Section C below, TDC has already shown
its partiality by publishing op-eds defending
New Flyer and attacking organizations like
Jobs to Move America that are advocating for
a true Community Benefits Agreement.
New Flyer’s actions make it impossible to
trust that it can enforce these commitments
itself. For example, the “framework” claims
that, “New Flyer has robust whistleblower, in-
cident reporting, and investigation processes
that ensure safe disclosure, confidentiality,
and non-retaliatory behavior.” However, when
Alabama A&M University surveyed workers
in New Flyer’s Anniston plant about wheth-
er they had faced retaliation for complaining
about discrimination, health and safety prob-
lems, or other working conditions, “four of the
twelve workers who reported filing complaints
claimed they faced retaliation, saying that
they were given too much work or particular- addressing these issues, New Flyer fought
ly hazardous work in response.”76 In the June the complaints, although it eventually settled
2020 Alabama A&M study, an even greater and was assessed fines.78
percentage of respondents reported retali- Moreover, the “framework” does not establish
ation. “Twenty-four percent of respondents what commitments the company is making.
reported filing a complaint with an outside The “framework” says New Flyer will pay the
agency…Two thirds…of those who reported “prevailing wage” for the area, but at least
filing a complaint then reported experiencing three of the states where New Flyer operates,
retaliation from the company for having made Alabama, Indiana and Kentucky, do not have
Diversity for Hire - Jobs to Move America 14a prevailing wage law.79 Where states do not set any actual targets around diversity and
have a “prevailing wage,” the wages tend to inclusion. Nor does New Flyer’s “framework”
be lower for the same job.80 Moreover, since identify concrete steps the company will take
“prevailing wage” is a term of art that generally to foster diversity and inclusion, aside from
applies to the construction industry, not man- promising to “base all employment deci-
ufacturing,81 the phrase as used in the “frame- sions on job requirements.” In a country and
work” is meaningless as applied to New Flyer a company where workers have complained
workers. Even if prevailing wage laws did ap- about discrimination against people of col-
ply to New Flyer manufacturing workers, the or and women and their exclusion from high
“framework” does not commit New Flyer to level managerial, executive and professional
calculating the prevailing wage as set forth in positions, a commitment to meritocracy isn’t
the law of the states where it operates, so its enough. Conscious, intentional efforts are
meaning and application are completely un- needed to transform corporate culture to hire
clear. and retain traditionally excluded people in
these positions. New Flyer isn’t committing to
The company does not make any commit- clear goals, benchmarks, or even specific ef-
ments around benefits at all. They promise forts in any of their diversity “commitments.”
a “social service” program for “employees in
need,” without recognizing that if New Flyer According to Beach,
were providing living wages and benefits, their
employees would not be in need. They also The framework is more specific and seri-
do not say how many employees this program ous with regard to [Disadvantaged Busi-
will cover, what the standards would be for ness Enterprise (DBE)] contracting, de-
coverage, what the program would provide, or scribing an approach with measurable,
how New Flyer compliance with the program robust targets and a number of specific
would be enforced. process steps. Unfortunately, while DBE
contracting is very important on its own,
New Flyer says it will work to “bolster com- because this aspect of the framework
munity outreach, recruitment and placement” shows the company knows how to take a
for workers who do not traditionally have ac- meaningful approach to community ben-
cess to manufacturing careers, but does not efits, it reinforces the shortcomings in the
remainder of the areas of commitment.
Moreover, DBE contracts benefit owners of
outside businesses. They do not benefit New
Flyer rank and file workers or affected com-
munity members who aren’t business owners.
One of the “framework’s” goals is to increase
compliance and accountability with local
agreements, but, according to expert Beach,
“offers little beyond…generality.” The docu-
ment does highlight a handful of public con-
tracts with transit agencies that have included
Jobs to Move America’s good jobs and equity
policy, the U.S. Employment Plan.82 Unfortu-
nately, not only has New Flyer failed to live up
to the jobs and wage commitments outlined in
these contracts, the company has actively hid-
Diversity for Hire - Jobs to Move America 15den information about these broken promises accountability by joining a corporate-created
from the public through protracted and costly program with no input or enforcement mech-
litigation.83 This raises the question of how a anisms from workers, New Flyer has followed
company that refuses to be held accountable the same playbook with their “framework” and
for broken promises in public contracts can be TDC. Indeed, workers that JMA and CWA staff
trusted to voluntarily fulfill and enforce promis- have interviewed or surveyed at New Flyer
es outlined by a private consultant. factories in Alabama, California, Kentucky,
Minnesota, and New York report that they
Two of New Flyer’s main competitors in the have not seen any regular presence of TDC
electric bus industry, BYD and Proterra, have or its representatives at any of these factories,
already negotiated or are in the process of ne- nor were they contacted by TDC in connection
gotiating CBAs. By refusing to negotiate, New with the preparation of the “framework”.85 This
Flyer is an outlier in this industry. stands in contrast to New Flyer’s announce-
In short, the New Flyer/TDC “framework” fails ment in March 2020 that it would apply its
to include any of the three characteristics of Community Benefits Framework with TDC
an effective CBA: democratic participation, “across America, including in Minnesota, Cal-
meaningful benefits, and accountability. It in- ifornia, and New York,” while the “initial focus”
cludes all four of the markers of a weak or of its Community Benefits Framework part-
ineffective community benefits process and nership with TDC would “intensively support
product: There is no evidence of any affected identifying, training, and onboarding new hires
community participation in crafting it; the ne- at New Flyer’s Anniston, Alabama facility.”86
gotiation process was secretive and excluded This leads to the central problem with New
affected workers and community members; Flyer’s approach to community benefits: its
reliance on TDC.
C. TDC regularly acts on
behalf of New Flyer, rather
than defending the inde-
pendent interests of work-
ers and community mem-
bers.
New Flyer claims that its partnership with TDC
supports “meaningful relationships with com-
munity organizations, in alignment with [Com-
munity Benefits Framework] objectives to hire
individuals from local groups and programs
the commitments are vague, with no clear that serve underrepresented and under-
time frames or measurements; and it provides served populations.”87 In practice, however,
no effective means for holding New Flyer ac- TDC’s President and CEO, Dwayne Samp-
countable.84 son, has penned op-eds and provided quotes
The “framework” produced by TDC and New for press releases defending its “partner”
Flyer thus appears to be a PR exercise aimed New Flyer from charges it has discriminated
at appeasing investors and customers and against workers and fostered unsafe working
manufacturing the consent of New Flyer’s conditions, and lauding its purported support
workforce. Just as McDonald’s avoided real for diversity and inclusion efforts.88 Sampson
Diversity for Hire - Jobs to Move America 16extolled the Community Benefits “framework” the first time we’ve had a chance to be
TDC produced with New Flyer as “building a at the table…With [Atlantic Yards] we’ve
foundation that speaks to our shared demo- been able to sign a community bene-
cratic values,”89 even as the Alabama Coali- fits agreement with terms that can be
tion for Community Benefits referred to it as enforced.95 (Emphasis supplied.)
“a heavy-handed attempt to shut down the
coalition…which has been organizing to hold Unfortunately, even that Community Benefits
New Flyer accountable…”90 After the New Agreement—negotiated before TDC existed—
York Post reported on workers’ charges that has been criticized by experts as ineffective,
New Flyer’s response to the COVID-19 virus because there were “conflicts of interest be-
endangered their health and safety,91 Samp- tween community signatories and the broader
son published an op-ed praising New Flyer’s community”; the terms of the agreement were
response, and attacked organizations seeking “aspirational, broad, with few details on exe-
to hold New Flyer accountable: cution and funding;” and it “lack[ed]…enforce-
ment mechanisms.”96
…[I]n every jurisdiction where New Fly-
er operates, they are complying with the D. TDC’s website disclos-
rules…New Flyer has risen to the occa- es little of the training ex-
sion…New Flyer has gone above and be-
yond…Unfortunately, activist groups hell-
pertise New Flyer claims it
bent on pushing their agenda from the has.
sidelines are trying to railroad New Flyer
New Flyer has billed TDC as “a non-profit or-
and its employees by promoting their ac-
ganization delivering world class education
cusations as fact without merit.92
and development programs that promote di-
Indeed, in correspondence with JMA, TDC versity in the transportation and construction
has represented itself as acting “on behalf” industries…TDC has extensive experience in
of New Flyer.93 Sampson even demanded on recruitment, training, and retention of employ-
behalf of New Flyer that JMA sign a far-reach- ees in advanced manufacturing…” In fact, as
ing non-disclosure agreement before being shown below, a review of TDC’s website, its
permitted to visit a New Flyer factory, which submissions to the IRS, interviews with New
would have required JMA to disclose all of its Flyer workers,97 and other publicly available
current and future conversations with New information shows no evidence that, prior to
Flyer workers to the company. JMA refused being hired by New Flyer, TDC as an organi-
this demand.94 zation had either the objective or experience
of advocating for the independent interests of
Sampson’s attacks on worker and communi- manufacturing employees, or of supporting
ty activists seeking the protection of a Com- production workers opposing management
munity Benefits Agreement stand in contrast discrimination and retaliation.
to his views before being hired by New Fly-
er. TDC’s Chief Executive was once quoted TDC claims to provide scholarships to “quali-
by a Brooklyn newspaper touting the benefits fied students” but its website does not provide
for workers and community members in New the number, dollar amount, dates, or frequen-
York of a Community Benefits Agreement. In cy with which these scholarships are granted,
discussing Brooklyn’s controversial Atlantic or the identity of any recipients. There is, how-
yards development, Sampson said, ever, a prominent button soliciting donations,
ostensibly to fund the TEC Scholarships. Yet
I’ve been impacted all my life by money TDC has not reported any scholarship income
and development coming to town. This is or expenditures to the IRS.98
Diversity for Hire - Jobs to Move America 17The “Training” described on TDC’s website
is focused not on manufacturing skills but
on business topics such as “leadership com-
petency,” “identifying financial resources for
business opportunities,” and “building partner-
ships.” TDC’s website does describe a “Trans-
portation, Education and Construction (TEC)
Opportunities Program” that claims to provide
“apprenticeships, internships, and fellowships
at agencies and related businesses,” but there
is no information on the site about any individ-
ual placed in an apprenticeship, internship or
fellowship through this program.99 Moreover,
TDC’s website provides no indication that this
program includes opportunities with pre-ap-
prenticeship100 and registered apprenticeship America that, “I have been doing workforce
programs.101 Registered apprenticeship and development for frontline workers in New York
pre-apprenticeship programs help bring un- City for 20 years, and I have never seen TDC
derrepresented employees into trades with involved in providing hands-on training to
the skills they need to succeed. Registered new entrants or apprentices to transportation
apprenticeships also have record-keeping re- jobs.” To this expert’s knowledge, “TDC does
quirements that foster accountability. Finally, proposals and meetings, but no actual train-
the “education” entry on TDC’s website simply ing.” The expert said that on one occasion his
provides a link to the Bronx Design & Con- organization obtained a large grant to start a
struction Academy, a New York City public project that would provide apprenticeships.
school which is not accessible to New Flyer According to this expert, Mr. Sampson learned
manufacturing employees, all of whose manu- about the grant and came to a meeting asking
facturing facilities are located outside the New to receive some of the funding without offering
York City metropolitan area.102 new programmatic ideas. His organization re-
jected Mr. Sampson’s request.
In a July 17, 2020 interview, a New York City
workforce development and training expert TDC’s website discusses employment, but
with substantial experience, knowledge and lists “public sector” job opportunities with New
contacts in that area advised Jobs to Move York’s MTA only, and, as of the date of this
Did TDC’s Cuba trip open the door for private interests?
According to a local ABC affiliate, the Transportation Diversity Council organized a trip to Cuba
for members of the Birmingham, Alabama transit authority that was financially sponsored by a
global private transit company, MV Transportation.127 The ABC affiliate reported that MV and
Louis Berger, the engineering firm with which TDC Chair Connie Crawford was an executive, later
attended a meeting at Birmingham City Hall to make what the Chair of the City Council Transpor-
tation Committee said was “a sales pitch from companies that privatize transportation” to Birming-
ham government and transit agency leaders. The Transportation Committee Chair asserted,
[p]ublic transportation is not a for-profit business and we’ve been struggling to use every dime
on our transit system and to build faith in our transit system and somebody’s profiting . . .I
can’t imagine anyone going to this length to destroy our transit system without having a way to
make a buck off of it somewhere down the line.128
Diversity for Hire - Jobs to Move America 18report, has no paid employment opportunities Sampson devotes 40 hours per week to
under its “private sector” listings.103 TDC, yet it also claims he does not receive
compensation from TDC.106
E. TDC has potential con-
• Cosema (Connie) E. Crawford, who is
flicts of interest that in- listed in TDC’s tax and corporate filings
terfere with its ability to as Chairperson of the TDC Board of Di-
effectively advocate for rectors, and on TDC’s website as Chair
worker or community in- of its “Advisory Board,”107 is described on
TDC’s website as Senior Vice President of
terests. the Louis Berger Group, an infrastructure
A review of TDC’s website reveals that TDC’s engineering firm. Louis Berger’s work has
activities include supporting executive net- included publicly-funded transit projects
working in public and private sector transpor- in the New York City metropolitan area
tation and construction, and advocating for such as the Newark and JFK AirTrains,108
public policies that protect the profits of com- among many others.109 The Louis Berger
panies and executives in that industry. Group is listed on TDC’s website as a “Sil-
ver Series Sponsor” and “Founding Part-
1. TDC’s board and leaders are largely ner” of TDC.110
transportation executives who seek
• Frank Otero, listed on TDC’s tax filings
business from public transportation and Certificate of Incorporation as a Di-
agencies, and executives of those rector111 and on TDC’s website as an Ad-
public agencies, which often have visory Board member,112 is the President
conflicting interests. and CEO of PACO Technologies, Inc.,
which worked on multiple New York MTA
TDC’s board members and leadership are
construction projects.113 PACO Group, a
almost exclusively executives of companies
related entity114 of which TDC Vice Presi-
that seek business from transit agencies, cur-
dent Luis Lugo, Jr. is President and CEO,
rent high-level transit agency managers, and
is listed as a “Founding Partner” of TDC
former transit managers who now own or work
on its website.
for companies that do business with their for-
mer employers. There do not appear to be • Sheila Jordan, TDC’s “Secretary” accord-
any frontline workers among them. ing to the website, is a “Senior Consul-
tant with over 20 years of corporate ex-
These are the affiliations of TDC’s key Direc-
perience…Ms. Jordan works with senior
tors and Principal Officers:
management to link the HR strategy to
• Dwayne Sampson, TDC’s President and the overall organizational strategy to ad-
CEO, is a former Superintendent of Main- dress a variety of human resources issues
tenance Operations for New York’s MTA, including change management and work-
an immense public transportation agency force performance.”115
that provides subway, bus and commuter
TDC also lists more than twenty (20) addition-
rail for the tri-state New York City metro-
al members of its leadership team, the vast
politan area.104 According to his LinkedIn
majority of whom either serve as high-level
profile, he is also currently the President
executives of for-profit entities that do busi-
and CEO of his own consultancy, Samp-
ness with public transportation agencies,
son Management Enterprise, Inc.105 In
or are high level executives or managers of
its Forms 990 filed with the IRS for the
those agencies.116 The for-profit entities they
years 2013 through 2018, TDC claims Mr.
own or manage include transportation-ori-
Diversity for Hire - Jobs to Move America 19ented companies in the construction sector TDC’s ENGINE initiatives also include meet-
such as Smalls Construction, Inc. and New- and-greets that “bring together agency rep-
POT Solutions, Inc.; the Rizzo Group, which resentatives and TDC members… as the
represents real estate developers to address foundation for doing business;” making “a da-
governmental land use, building code and tabase of project solicitations from agencies
zoning issues; law firms specializing in gov- and institutions … available to the member-
ernment contracts for corporate entities; in- ship;” and marketing TDC corporate members
surance brokers for transit agencies such as to “agencies and institutions…such that they
National Consultants, Inc.; and management seek the participation of TDC members in the
consultants for governmental entities such as execution of projects; so that members can
PRM Consulting Group, LLC.117 “project and grow their services.”122
Also, several of TDC’s top leaders, such as One of TDC’s more prominent activities is
President and CEO Dwayne Sampson, have hosting the so-called “TDC-MIT Transporta-
their own consultancies118 and TDC promotes tion & Infrastructure Summits,” which TDC has
for-profit businesses affiliated with its officers organized annually since 2013. The Summits
and leadership on its website.119 largely include as speakers representatives of
corporations (often those that derive revenue
2. TDC’s program services focus from government contracts) and government
largely on benefiting corporate and officials (often those responsible for contracts
executive members’ interests. with the private sector), never rank and file
New Flyer workers or community members
Some of TDC’s initiatives, to the extent they affected by New Flyer’s operations.123 The
exist, focus on the goal of enhancing diversity Summits discuss strategies for building spe-
in the management levels of the public trans- cific infrastructure projects that are in the de-
portation industry. Others, however, focus on velopment phase and actual “budgeted proj-
providing political advocacy and pecuniary ects.”124 In other words, they are part of TDC’s
benefits to TDC’s corporate and executive corporate networking opportunities, without
members that seem inconsistent with an inde- the formality and taxpayer and consumer pro-
pendent advocate for workers and local com- tections of an RFP process.
munity members. This is especially true of
TDC’s description of its ENGINE120 program, TDC’s political advocacy to ensure a lev-
which primarily supports business and institu- el playing field for its corporate members by
tional members of TDC. engaging Senators and Congresspersons
seems inconsistent with its ability to repre-
Under its ENGINE acronym, TDC promotes sent the interests of workers and community
itself as an “advocate for members in access- members whose interests may conflict with
ing business opportunities at agencies and in- the activities of TDC’s corporate members.125
stitutions across the country.” TDC highlights Moreover, TDC’s role in providing business
its “Political Liaison Services,” which “apply a acquisition and corporate networking oppor-
tactical approach in engaging the vital players tunities seems to present a conflict with its
in the formulation of government policy. TDC ability to independently advocate for workers
seeks out and engages senate and con- and communities affected by the operations of
gressional members of committees that a major transportation manufacturer that de-
deliberate on transportation, construction rives 80 percent of its revenues from publicly
and education issues and ensure[s] that funded agencies.126
the field is level to allow our corporate
membership to participate without hin- None of TDC’s initiatives appear to be oriented
drance.”121 (Emphasis supplied) towards representing the interests of ordinary
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