N.B.: Benjamin Sachs penned this response to Part I of Veena Dubal’s post on comparing solidarity unionism with company unions earlier this week. In the spirit of debate, we’re cross-posting from On Labor.
Benjamin Sachs –
Veena Dubal writes an important piece that raises concerns about Uber and Lyft’s suggestion that drivers in California form a “workers’ association.” Dubal worries that such an association would amount to a company union that would “necessarily impede” the development of fully independent, exclusive-representative unions at the gig firms. Given the essential role that independent unions play in our economy and our politics, Dubal is highly critical of the workers’ association idea.
I share Dubal’s worries and agree completely about the indispensable role played by independent, exclusive-representative unions. But I am more open to the possibility that – in the United States of 2019 – we ought not necessarily reject workers’ associations of the sort being contemplated in the California debates over the future of gig economy work. My openness stems from three considerations which I think Dubal underplays.
First, we have some on-the-ground evidence about what a drivers’ association in the gig economy would look like, evidence in the form of the Independent Drivers Guild(IDG) in New York. The IDG is not perfect, of course, and it is not as powerful or meaningful as would be an exclusive representative union with full collective bargaining rights. But neither is the IDG the kind of company union that Dubal warns about. The IDG has been instrumental in securing significant gains for Uber drivers (the tipping option on the app, deactivation protections, the minimum payments law). The IDG also has become, by my lights, a genuinely independent voice – in politics and with the company – for the concerns of those drivers. And the Guild is pioneering an approach to benefits for gig workers that has significant promise.
Second, Dubal argues that workers’ associations necessarily impede the development of independent unions but I am not sure we know that to be true, especially in this historical moment. It may well be that workers’ associations (or works councils, or whatever we call them) necessarily stand in the way of union formation – for exactly the reasons Dubal outlines. But it’s also possible that workers’ associations can function as a first step on the road toward union formation – that they can be germinal of independent unionization rather than an impediment to it. (Probably the definitive theoretical treatment of this question is Barenberg’s Democracy and Dominationarticle.) In a work world defined by intense isolation and individualization, it is entirely possible that the experience of collective action that comes from a workers’ association will contribute to a desire for stronger and more robust forms of collective organization among workers. Should management try and dominate the association, one possible effect is cooptation and defeat. Another is resistance. And which way it comes out in any given case is not predetermined by the existence of the workers’ association. Unions might influence the outcome by using the workers’ associations as an organizing tool to build more fully independent organizations.
Third, Dubal points to the recent increase in strike activity as evidence that there is currently a viable union alternative to workers’ associations. Her suggestion is that if workers don’t form an “association” at Uber and Lyft then we can plausibly hope that they will form a union. This is of course a possibility and would be the best outcome. But while I wish I could be optimistic on this point, I am not sure I see reason to be. Without fundamental labor law reform – which is exactly the right goal but not the current reality – it is very hard to imagine the creation of an independent union at Uber and Lyft. I suppose some simple evidence for this claim is the fact that there is no independent union at Uber and Lyft. The continuing decline in union density to record low levels in 2018, along with the recent defeat of the UAW in Chatanooga also, unfortunately, seems more relevant to this question than the teacher strikes. As such, the alternatives may well be a worker’s association or nothing.
And, so, to consolidate the above points, if the current alternatives are workers’ association or nothing, I would suggest we choose the workers’ association. If the workers’ association turns out to be an impediment to unionization, it can join the club of unfettered employer opposition, a dispersed and isolated workforce, a deeply hostile federal judiciary, an even more hostile and entirely politically motivated NLRB, anti-trust liability, and a broken labor law in overdetermining why it’s hard to form a union at Uber and Lyft. On the other hand, the IDG suggests that such a workers’ association can deliver real, material benefits for drivers. And it is conceivable that a drivers’ association could be put to good use as part of a longer-term campaign to organize a union at the companies.
Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School.