N.B.: Sharon Block and Benjamin Sachs posted a response to Part II of Veena Dubal’s pieces (here’s Part I) comparing solidarity unionism with company unions. In the spirit of debate, we’re cross-posting from On Labor.
Sharon Block and Benjamin Sachs –
In her second post on the Uber/Lyft drivers’ association, Veena Dubal rightly celebrates the success of the recent Uber/Lyft work stoppages. The example of workers, who have no labor or employment law rights, engaging in the kind of collective action that she describes is inspirational. Dubal also raises some important criticisms of the IDG, criticisms we take very seriously.
As Dubal recognizes, however, none of the actions by Uber and Lyft drivers have yielded collective bargaining rights, yet. So the question is what is the best path forward toward the securing of those rights. We agree with Dubal that winning union status and collective bargaining power at Uber and Lyft will depend critically on the continuation of the kind of solidarity actions that Dubal describes. But, in our view, a fundamental reshaping of labor law (at the state or federal level) will also be necessary. Unfortunately, even if an “uncompromised” version of California AB 5 passes, that won’t get us there. Although that bill would constitute enormous progress, it would not on its own equip Uber and Lyft drivers to organize and bargain collectively.
To facilitate unionization and collective bargaining by Uber and Lyft drivers, a reformed labor law (whether state or federal) would need to do quite a bit more than recognize that Uber and Lyft drivers are employees. It would need to include a process that makes organizing the “unusually dispersed, atomized and differentially dependent” Uber drivers a realistic possibility; it would have to control what undoubtedly will be the companies’ vociferous campaigns against organizing; it would have to include real penalties so employers don’t treat those penalties as the cost of doing business; it would need to move bargaining from the level of the firm or unit to the level of the sector; and it would have to fix the myriad other problems present in labor law as it stands today.
Such reform, while profound, is achievable. And given that the NLRB (at least currently) seems to consider Uber and Lyft drivers independent contractors, such reform might even be achievable at the state level. As Dubal describes, Seattle took significant steps in this direction. And although the Seattle law was blocked by anti-trust legal challenges, it’s pretty clear that a state could plausibly do what Seattle was prevented from doing.
As we work toward this kind of labor law reform, however, we are still left with the question Ben asked in his earlier post: are workers’ associations inevitably an impediment to independent, collective bargaining unions or can they constitute a first step in the direction of those unions. Dubal says “impediment,” asserting that allowing workers’ associations is antithetical to what she calls solidarity unionism. Because we think that workers’ associations can, under the right circumstances, facilitate rather than impede union formation, we think that Dubal has presented something of a false choice. That’s because with or without a viable collective bargaining law for gig workers, a drivers’ association might serve as a locus for deeper organizational activity.
The problem is that, in the context of the current political debate in California, the creation of a drivers’ association at Lyft or Uber might be used to diffuse momentum for legal reforms that would facilitate true gig unions. Indeed, it seems likely that the CEOs of Uber and Lyft would like to offer such a trade: a drivers’ association as a substitute for an autonomous, collective bargaining union. Given the potential for real labor law reform in California, this would be a disaster. No one should believe that a drivers’ association is an adequate substitute for a union. So no one should be satisfied – and we certainly are not – with a compromise where a drivers’ association substitutes for legal reforms that facilitate autonomous union formation. Workers’ associations are worth supporting in contexts where they can serve as a first step in the direction of unionization. Where workers’ associations are used to cut off debate about more fundamental labor law reform, they should be rejected.
Sharon Block is is the Executive Director of the Labor and Worklife Program at Harvard Law School. Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School.