A Union for Every Driver: Sectoral Bargaining Comes to the Rideshare Industry

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Welcome to FEDSOC Forums, a podcast of the Federal Society's
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Practice groups. I'm Ny kas Merrick, vice President and Director
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of Practice Groups at the Federal Society. For exclusive access
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to live recordings of fedsock form programs, become a Federal
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Society member today at fedsoc dot org.
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Hello everyone, and welcome to this Fireless Society virtual event.
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My name is Sarah Clark, and I'm Assistant Director of
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Practice Groups with the Fireless Society. Today we're excited to
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host this fedstock webinar, called a Union for every driver,
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sectoral bargaining comes to the ride share industry. We're very
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pleased to welcome our two speakers today, David Madlin and
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William Messenger. David Bblin is a Senior Fellow and the
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Senior Advisor to the American Worker Project at the Center
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for Our American Progress. William Messenger is the Vice president
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and Legal Director of the National Right to Work Legal
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Defunse and Education Foundation. Our moderator, Alex McDonald is a
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shareholder and cold Chair at the Workplace Policy Institute at
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Littler Mendelssohn. If you'd like to learn more about today's
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moderator or speakers. Your full bios can be viewed on
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our website But's dot org. Throughout the program, we'll turn
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to the audience for questions. If you have a question,
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please enter into the Q and A function at the
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bottom of your zoom window, and we'll do our best
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to answer as many as we can. Finally, I will
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note that, as always, all expressions of opinion today are
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those of our guest speakers that the Ferwerless Society. With that, Alex,
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thank you so much for joining us today and I'll
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hand things over to you now.
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Thank you, Sarah, and I do want to thank our
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expert panel for hearing today. I'm really excited about this one,
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and I'm sure our audience is as I am. To
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move on to hear what they have to say. But
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before we throw it to the more open discussion, I
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think it might help folks who just set the table
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a little bit talk about the genesis of this particular show,
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and as Sarah mentioned it to, today's topic of discussion
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generally is set choral bargaining or what's sometimes called broad
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based bargaining, but specifically, the genesis is a pair of
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new laws that focus on the app based ride share industry.
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The first of these two laws was adopted in Massachusetts
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in twenty twenty four by voter initiative actually got Question three,
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and then the second was adopted just this last session
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in California by the legislature that was AB thirteen forty.
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Now I'm going to gloss over some of the differences
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a little bit, because we could spend a lot of
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time on the differences of the mechanisms of these two laws.
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But they do both work in similar ways in broad terms.
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So I'm just going to lay out those broad terms.
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It's the extent we need to talk about the differences.
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We can get into that in the general discussion, but
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some broad strokes. What these two laws do is they
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erect a quote unquote six or bargaining system for app
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based ride share drivers. But the system has some features
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that are different from what those of us whoper have practiced,
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you know, traditional labor law for decades and decades, might
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think that a law like this would would function as
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So the biggest difference is that these two laws divide
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up all ride share drivers into what are effectively statewide
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election units at first, and then potentially barbing units. They
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also create a new kind of infrastructure for organizing those units.
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So the first step is that the ride share platform
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operators your typical apps or whereas the statutes call them,
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transportation network companies. You know, most people familiar with this,
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they're you know, the standard app based right share companies.
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They have to first give certain information about the driver
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community to a state regulator which collects the information and
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measures the size of the workforce, the volume of particular drivers,
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et cetera. And then that regulator can potentially give that
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information to a labor organization that wants to organize the workers.
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The way it works is the labor organization first cast
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petition the regulator showing that it has a baseline level
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of interest among the drivers. I think in both statutes
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the baseline interest is five percent of what the law
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is called active drivers, and that showing kicks off a
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streamlined organizing process, which, under either a statute can ultimately
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result in an election or an automatic certification based on
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a minimum showing this or thinking both, it's twenty five
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percent for the automatic certification. But either way, once the
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labor organization is certified, either through an election or through
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this just gathering enough signature, effectively the electronic signatures that
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enough drivers want the label organization to represent them, it
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becomes the exclusive bargaining organization for all drivers in the state.
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So now you've got a statewide unit, which is different
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than the way the NRA works, which is typically what
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we call enterprise bargaining, which is workplace by workpla's bargaining.
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So now we've got one union representing all drivers in
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the state, and that union then has a status story
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right to negotiate with all of the ride share platform
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operators or transportation network companies t and cs and the
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bargaining subjects. Again, there's differences between the two statutes, but
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generally those subjects mirror the NRA. We're mostly talking about compensation,
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schedule benefits, deactivations, are you know, getting kicked off the platform,
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those kinds of things disciplinary issues. But unlike the NLRA,
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once we get into this negotiation, there's no option for
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the employer equivalent here the TNCs, to unilaterally implement their
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final best offer. So normally, under the NLRA's process we negotiate.
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If we get to an impass, we can't know, we
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can't come to an agreement. The statute allows an employer
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to just implement this last best final offer. Here, what
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happens is we go to what's called interest arbitration, which
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is different from what most people think of as arbitration,
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which is like, you know, resolving a dispute under a contract.
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This kind of arbitration is where an arbitrator, a third party,
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effectively helps the parties write a contract. There's a hearing,
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both parties put on evidence, and the arbitrator ultimately comes
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up with terms. So already we're getting into a little
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bit more of a complex process than we have them
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the ra But even then we're not done. So now
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we've gone to Andrews arbitration. There've been a hearing, the
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arbitrator has written terms. Those terms then get sent to
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a public regulator and that regulator looks at the terms
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decides whether they meet the policies embedded in these statutes,
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mostly you know, providing a minimum level of compensation for
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the drivers. And only then if the public official approves,
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do we have terms that take effect. And they take
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effect statewide, even for every platform, every covered driver. This
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is effectively a statewide collective party and agreement. Now, again
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that summary glosses over some details in the process, but
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I think that's enough to give a sort of baseline
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understanding or what the structure is here. So I think
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now i'd like to start of involving our panelists a
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little bit, starting with you, David. You've written the law
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about broad based bargaining or sectoral bargaining. Just what is
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your sense of why the states are moving in this direction?
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Now?
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Why are we seeing these laws? What's driving this trend?
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Thanks? Thanks for having me, and thanks for that really
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good introduction and overview of the laws. So, I think
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there are a lot of things behind why states are
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doing this. The first is talk about the general benefits
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of sectoral bargaining. I'll go into those. I think there's
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a lot of reasons economically that there's a good system
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of bargaining. There's also some details about the industry of
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ride share, and then the legal framework of ride share
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that I think is prompting all of this. So the
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first is the general benefits. Why might we like to
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cover all workers doing us similar kind of job with
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a similar kind of contract as opposed to just an
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individual work site by work site level. Well, for the
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way I said, the biggest thing that that leads to
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is that more workers get covered by a collective bargaining agreement,
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and that is a good thing in my view, because
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it means better jobs, It means higher wages, better benefits,
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greater protections, all of the kinds of things that collective
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bargaining agreements have that are an improvement upon what most
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workers are able to negotiate for on their own. And
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in this case and right here, they can negotiate for
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anything on their own to either take it or leave it. Basically,
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so you get the better benefit, better better improvements for
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the workers. You also create a level playing field where
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a firm that is unionized on the is not a
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economic disadvantage. They are on a same playing field as
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all the other firms, and that generally leads to productivity
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improvements because firms have to compete bas on productivity, not
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on lowering their labor costs, everyone has a similar plane.
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This has actually led to some level of conservative support
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for this kind of model. Who you can listen to
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sort of Moor and Casts and related ill Cool described
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sort of some of the same kind of benefits I described,
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and especially they will highlight that in their view, this
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tends to be better than an alternative like government wage
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setting strict more pure minimum wage or et cetera kind
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of thing. Then I think you also get to the
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specifics of the ride share industry. Why are we sort
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of starting with ride share in this model. The first
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is that this is a particularly difficult industry in a
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lot of respects. First, for workers, it is sort of
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the hallmark of low standards. Wages are often in like
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well below whatever minimum wage there exists. One study you
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show suggested that their workers are getting paid about six
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dollars an hour in California, where they're in They or
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regulations to set much higher standard, And that counts for
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because the drivers are paying for the costs of cars, insurance, etc.
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But they're also not necessarily getting paid for their waiting
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time while they're trying to work. So you have low standards,
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and as I mentioned, sort of existing policies haven't necessarily
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improved these conditions. And just one more thing, a couple
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more things on the sort of really low conditions, there's
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a threat with these drivers face of arbitrary deactivation with
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no way to challenge this, and that's seen by a
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lot of more pro worker sides, is like, this is
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that's kind of unfair. They should at least be able
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to present their case. Have some view that rather than
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an algorithm deciding, also the algorithm is deciding what they're
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getting paid. They they oftentimes have a hard time knowing
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what they're actually going to be taking home when they're
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accepting a ride. So these challenges of the industry lead
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a lot of people to say, we can do better,
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and this model presents that. Also, it's the other models,
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as I mentioned, aren't likely to work. So there's been
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efforts to raise minimum standards several states, and yes, there's
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improved above slightly slight. They've improved standards slightly above where
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they were without the minimum wages, but ultimately the studies
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suggest they are still getting very very low standards. Then
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you have, Okay, what could they just unionize under traditional model? Well,
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probably not for a lot of reasons. The one they're
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probably excluded from. You know, they're excluded from the an
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LRA explicitly written out. But couldn't a state do a
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workplace by workplace organizing model? Well, it's pretty unlikely to work.
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You know a lot of respects. First, these workers work
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for multiple companies, typically almost almost simultaneously. They don't have
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a traditional work site so the organizing process is very
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hard and different, and the turnover is incredibly high. All
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of these factors make the traditional worksite by work siding
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model less likely to work. And then the last and
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probably the most compelling or the reason that's really focused
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on right here, is that the legal regime is different.
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Because so states have much more freedom to act. As
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your listeners are probably aware, the National Labor Relations Act
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has been interpreted to prevent lots of things that state
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and local governments can do to promote unions and collective
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bargaining and less and until the Trump administration and the
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Supreme Court says these drivers are employees, they are out
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considered independent contractors on an LRA and outside its jurisdiction,
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giving states more freedom to act. And so I think
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all this combination of some successful models with some benefits
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that it can provide to workers and to the industry,
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the legal regime, and then a lack of successive or
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likely success of other.
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Kinds of models, that's great. And so Bill, I was
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going to ask you the same question of what you
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think might be driving this, but David's also laid out
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what eases some of the benefits for workers. I know
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you represent workers. That's what National Right to Work does.
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Just wonder if you have any reactions to whether you
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see anything on the other side or whether there are
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are potential downsides for workers. What's your view?
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Sure, sort of a host of thoughts, But the first
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I think is what makes sectoral bargaining that we're talking
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about different than normal collective bargaining is it's this sectoral
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bargaining results in a government order that sort of imposes wages, prices,
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working additions across the board. So sort of the hallmark
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of collective bargaining or the National Labor Relations Act, besides
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it being employer by employer, is that the government doesn't
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actually impose any terms. The government requires bargaining, but ultimately
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the government doesn't require terms, it's not involved in setting
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the terms, and the end result is at least a
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partially voluntary private agreement or no agreement at all if
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the company and union you can't come to an agreement
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on what the term should be.
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With sectoral bargaining.
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What you're talking about you describe the process in California
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Massachusetts is really just a process to set what will
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ultimately be a government order sort of regulating an entire industry,
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what wages it pays or prices, it has compensation and
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other terms. So the whole thing Massachusetts and California set
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up as you described as first you make the union
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the representative, and then they have to bargain over what
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the recommendation will be to a government official. And then
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if they can't agree to something, another government official comes
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in an arbitrator, which is really a false term here,
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you know, dictates what the term shall be. And then
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ultimately they make a recommendation to the government official, which
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is purb in California, Secretary of Labor in Massachusetts, who
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then basically says approves or disapproves it, and if it's approved,
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it becomes effectively a statewide law or regulation an entire industry.
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So what we're talking about here is sectoral bargaining isn't
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sort of a different kind of collective bargaining. It's just
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a sort of a process for central government planning and
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central government planning sort of the government setting wages and
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rates and the way you know, a whole industry should work.
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You know, I think most economists agree is not a
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very good idea. It hasn't worked out very well. It
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has a host of downsides to it, and that's true
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no matter how it's done. So if you're against and
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don't think it's a good idea for some government agencies,
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see the Massachusetts Secretary of Labor to just dictate how,
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you know, the entire ride share industry should operate, that
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you shouldn't agree for sectoral bargaining, you know, to basically
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lead to that result of how the Secretary of Labor
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should ultimately do it. So I just think it sort
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of should be conceptualized in terms of what we're really
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looking at here with sectoral bargaining, which is ultimately a
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government regulation of an industry and how it works, and
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not true bargaining, which has done more voluntarily.
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You know, that makes a lot of sense. So, David,
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I think some of what the discussion is focused on
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here so far is really a predictive difference in what
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we might see produced through these systems and what the
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ultimate policy effects will be for workers. I know that
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you've written a lot about sectoral or broad based systems
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in other countries. I wonder if you have any thoughts
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about what lessons we might be able to take from
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the experience in other countries, and whether that could translate
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to what we should expect under these two the new systems.
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Got it. Yeah, So the you know, we're all familiar
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with the Wagneract model, which really in international terms is
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kind of an outlier. Most of the rest of the
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world tends to not everywhere, but generally they have more
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of a sectoral bargaining system. They achieve that through lat
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different methods, but most places that have collective bargaining tend
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to do it at this higher level above the individual
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work site. They also allow some work site by work
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site bargaining, but most of their or more of their
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bargaining is done at broader level. In the US, and
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I will say generally, there's lots you know, when I
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sort of cited the sort of good things about sector
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bargaining at the beginning, most of that is based on
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research around of countries around the world, particularly Europe, but
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also South America as well, and the you know, generally,
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the way the world has moved over recent decades is
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that most of the world has pushed, you know, sort
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of neoliberal kind of economic policy that has done things
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to weaken unions, collective bargaining and including sectoral bargaining. So
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generally there's been this trend. Even countries that have long
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established sectoral bargaining in Europe, etc. Have generally not always
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moved a little bit away from this. Yet the sort
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of I think the countries most like the US, the
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English speaking folks of the world of Britain's, Australia and
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New Zealand, Canada. They had a host of policymakers there,
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especially pro labor, but not exclusively. I have increasingly recognizing
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the benefits of sector bargaining, are pushing more towards it.
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The most recent sort of examples Australia and I think
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twenty twenty three, so the history of Australia, they had
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a sectoral bargaining model for much of its history, led
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to relatively low levels of inequality, relatively high wages by
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international standards. Then in the nineties they sort of got
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rid of it. They went to a more WAGNERAQ style
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model and had low union density, lower collective bargaining coverage,
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more stagnant wages, rising inequality, and just now in twenty
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twenty three they passed some policies, including some of the
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promote sectoral bargaining and have seen greater collective bargaining coverage,
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some rising wage growth. So that's sort of the general
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that's I don't know. The closest analog I can think
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of is probably Australia, and that's what I would expect.
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But as you elluded, you know, or even maybe you
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said directly, this is an experiment. We're kind of going
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to see how this actually operates in the US.
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Yeah, I mean, that's that's great. And Bill, I wance
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sort of back to something you said earlier about the
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way that these systems work as being sort of the government,
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government directed set of conditions supposed to true bargaining. It
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makes me wonder. Look, I know that you've litigated a
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lot of cases in the public sector because of the
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way that these statues are set up. Do you see
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any overlap between the experience that you've had in the
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public sector and whether any of the issues that you've
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dealt with in that sphere translates here and whether that's
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informing any concerns about these laws.
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Sure, there is some overlap with sectoral bargaining and public
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sector bargaining, but really sectoral bargaining is like a weird hybrid,
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you know, of public sector bargaining private sector bargaining and
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sort of government regulation. So where it's sort of similar
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to public sector bargaining is the government's involved. You know,
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the government approves whatever these contracts are. The sectoral bargaining
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agreements become basically government orders, and at least in Massachusetts
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and California, the government has evolved in setting those terms.
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The Secretary of Labor or perb can approve or disapprove them.
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The government appointed arbitrator can as well, So in that
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sense you have the government sort of at the table
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to some degree.
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That's similar to public sector bargaining.
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But where it's really different is public sector of bargaining
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is the state ordering its relations visavi itself.
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You know, it's about what the state is going to do.
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Sectoral bargaining, you're talking about the state organizing relations between
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two private parties or multiple private parties. So it's not
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just how the state deals with someone, it's how different
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private parties deal with each other. Namely the ride share
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companies over and Lyft, Union, whichever is designated, and then
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you know, hundreds of thousands of sort of ride share drivers,
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and so that sort of brings it more into the
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realm of you know a little bit of a private sector.
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But again it doesn't match the private sector model because
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you have the governments you know, involved in all this,
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and it's across the board. It's also similar to some
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ways to a government regulation. Instead of using say a
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rule making process, the traditional notice and comment, you know,
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for the government just to dictate how an entire industry
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should operate, instead of that notice and comment, you just
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have certain parties bargain over what the recommendations will be
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for the government regulator to then impose you know, the wage,
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uh sort of market order on things. So it's a
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very weird mix and because of that, it raises a
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whole lot of legal issues because as David.
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Said, this is sort of a novel experiment.
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But the thing is, there are existing laws in this
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country anti trust, federal labor law, and of course the Constitution.
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And it remains to be seen whether sectoral bargaining is
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odd hybrid sort of fits, you know, within the structure
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of American law.
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Yeah, I want to stay on that point for just
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a second. And we've gotten some questions from the audience
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and Franklin one of these questions another one I had too,
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and David, I'd like to start with you in mind.
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The question is, you know, we've all described this as
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an experiment certainly new in the United States, and perhaps
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you know, for some of the reasons bills describe these
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new in general, maybe there's not a direct comparison to
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some of these other systems and other countries. The question is,
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so you started out by talking about some of the
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reasons this might have started and ride share, are there
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other industries or sectors that you see as potentially describe
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as targets that's got a loaded term, but industries that
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might see legislation like this. So if you're sitting in California,
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what industry might you be looking at next that would
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share some of the features that attracted this law in
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the first But do you see any other industries as
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potential candidates for this kind of legislation?
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Yeah, I certainly do. But you know, I've come at
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it this as I generally think collective bargaining coverage is
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a good thing. We want more of it. We want
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I would like my in my ideal world, most all
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workers would be covered by collective bargaining agreements, setting some
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minimum standards to ensure and improve the I'm sure they
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have a good job the and so the places I
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would most like to start would be the sort of
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share the elements of rideshare, where there's traditionally low job
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quality and significant barriers to traditional worksite by worksite unionizing.
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That was kind of that's where I would sort of start. Otherwise,
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I said, ultimately, I think this could apply to most
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any industry, and before I go into sort of the
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other industries in the US, So the other industries I
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think it might logically follow to. So in the US,
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we do actually have a tradition of sector bargaining, not
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exactly like this structure, and under the Wagoner Act, it
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is legal to get to a bargaining that covers most
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of the sector, but it's sort of the unions have
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to have an incredible amount of power to force all
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the employers to the table. You think of the old
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auto industry in fifty sixty seventies where they had near
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one hundred percent density, and can force all the big
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players to a pattern bargain that would effectively set the stage.
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So that gets that sort of Ultimately, I think a
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type of Sanders setting that covers a sector through collective
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bargaining could work for lots and lots of different sectors,
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but this kind of hybrid policy where it's sort of
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bargaining but there's also some government wage setting elements. And again,
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to my mind, this is much better than having the
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governor or state elected saying here's what we think the
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standards should be. You have the parties that are closest
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to it, the workers and the employers at the table
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set it trying to set. If they can't directly come
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to an agreement, then you have the sort of this
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arbitration function coming in. So then now, what are the
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most sort of industries with the low standards and what
437
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you would think of as sort of fissuring, which is
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where the work either workers work for a multip employers
439
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or there's not a clear line between the actual employer
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of record and the powerful company actually determining the working conditions.
441
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And I think of other industries, fast food being kind
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of a example where they work for French workers work
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for franchises, but they might not actually have the power
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to raise standards. Lots of retail could fit, but many
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of the big challenge with these other industries is the
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legal legal condition of that they are likely employees, so
447
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limits it significantly limits the ability of a state to
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regulate or they would have to come up with a
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different kind of model, which is not exactly this day.
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Then in some models it's a some have called it sector,
451
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but it's not exactly the fast Food Council, for example
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in California, which is a trip true tripart tide structure
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where the government is actually at the table, and it's
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really just a much more of a regulatory process. I
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get that even this ride share is still has some
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regulatory elements, but it's closer to bargaining.
457
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Yeah, let's stand that for just a beat. I know
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this is not a preemption webinar, but Bill appreciate your
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perspective on this. So you mentioned, I think in your
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initial statement that you know the drivers are independent contractors,
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which does create a different dynamic from the perspective. Is
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n l a preemption data that's referring to this a
463
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little bit. The NLRA is typically a exclusive uniform coherence
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system where it applies. States can't DEDA create a different
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bargaining system. Here we do have a group of independent contractors.
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So two questions really, One, how does that change, if
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at all, the preemption analysis, And two, because of the
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status of the workers in this case, does that create
469
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sort of a Sweeganeris situation for a statutory system like
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this or are there other industries that are potentially open
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to the same kind of regulatory uh approach in your
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mind or are we really dealing with one of the kind?
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Sure?
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So I think on your first question, I think imposing
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sectoral borrowing on rideshare drivers and independent contractors is preempted
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by the National Labor Relations Act, but for a different
477
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reason than it would be if individual if employees were
478
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subjected to sectoral bargaining. So the NLARRY would definitely preempt
479
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a state from imposing sectoral barreting on individuals who are employees,
480
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because that would interfere with the federal system of collective bargaining,
481
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which is company by company. So, for example, if California
482
00:29:35.319 --> 00:29:37.680
declared that every auto worker in the state, if they're
483
00:29:37.680 --> 00:29:40.599
already left, you know, are represented by the UAW for
484
00:29:40.640 --> 00:29:42.920
purposes of bargaining with every auto company in the state,
485
00:29:43.200 --> 00:29:45.799
that would obviously interfere with the National Labor Relations Act
486
00:29:46.160 --> 00:29:48.920
giving the employees the ability to choose do they want
487
00:29:48.960 --> 00:29:51.839
to be unionized visa v. Their employer or not? And
488
00:29:51.920 --> 00:29:54.799
do they want to be subject to a union agreement.
489
00:29:55.319 --> 00:29:58.480
So applying a state, at least applying sectoral bargaining to
490
00:29:58.519 --> 00:30:01.240
any individuals who are employees is probably.
491
00:30:01.000 --> 00:30:02.440
Definitely a no go under the NLRA.
492
00:30:03.000 --> 00:30:05.519
So that brings up the question what about independent contractors,
493
00:30:05.519 --> 00:30:09.000
who are of course exempted from the definition of employees
494
00:30:09.440 --> 00:30:12.640
under the NLRA. But I would say that's still preempted
495
00:30:12.680 --> 00:30:17.319
because the NLRA does protect independent contractors from agreements between
496
00:30:17.359 --> 00:30:20.079
employers and unions where the employer agrees to only do
497
00:30:20.200 --> 00:30:24.279
business with independent contractors who are represented by a union
498
00:30:24.519 --> 00:30:27.519
or subject to a union contract. The provisions the Actors
499
00:30:27.559 --> 00:30:32.680
section eighty and eightp. Four secondary boycott provisions, often known
500
00:30:32.680 --> 00:30:36.000
as hot cargo provisions, And the funny things are interesting
501
00:30:36.480 --> 00:30:39.160
is those provisions were actually sort of enacted in the
502
00:30:39.200 --> 00:30:43.119
large part to protect independent drivers from the teamsters, because
503
00:30:43.119 --> 00:30:45.720
the teamsters would try to get companies to agree to
504
00:30:45.759 --> 00:30:49.240
only do business with independent drivers known as owner operators,
505
00:30:49.400 --> 00:30:53.240
who are represented by the teamsters. That's prohibited by section
506
00:30:53.319 --> 00:30:55.720
eighty and section eighty four the Act. And so what
507
00:30:55.799 --> 00:31:00.559
you're really doing, California Massachusetts seek to do here rideshare
508
00:31:00.640 --> 00:31:03.640
drivers a sort of a hot cargo agreement sort of statewide,
509
00:31:04.119 --> 00:31:08.279
and I believe the NLRA a sort of preempts that attempt.
510
00:31:08.359 --> 00:31:08.839
To do that.
511
00:31:09.359 --> 00:31:14.039
So it rains me seeing you know, that's a new issue,
512
00:31:14.559 --> 00:31:17.839
but I think you have preemption there for independent contractors.
513
00:31:18.440 --> 00:31:20.279
And then going to your second question, I think answered
514
00:31:20.279 --> 00:31:24.160
to the beginning, you know what about individuals beyond independent contractors?
515
00:31:24.160 --> 00:31:27.279
And again I think the National Labor Relations Act preempts
516
00:31:27.279 --> 00:31:30.119
it if the individuals sort of our employees.
517
00:31:32.119 --> 00:31:34.359
Okay, got it? And I just want to take another
518
00:31:34.359 --> 00:31:37.119
beat on this because just to level set for the
519
00:31:37.160 --> 00:31:39.799
audience to just to make sure every movies follow. And
520
00:31:39.920 --> 00:31:44.519
the NLRA applies to quote unquote statutory employees con for
521
00:31:44.680 --> 00:31:49.400
certain rights on them, but it excludes a person working
522
00:31:49.480 --> 00:31:52.799
in the status or having the status of an independent
523
00:31:52.880 --> 00:31:55.960
contractor from the definition of employee, which is why this
524
00:31:56.079 --> 00:31:59.400
becomes sort of a different legal question because of the
525
00:31:59.400 --> 00:32:04.000
status of the workers being regulated under these laws. I'm
526
00:32:04.000 --> 00:32:05.720
going to stay with you for just a second, Bill,
527
00:32:06.680 --> 00:32:09.480
because you did reference at the end that this may
528
00:32:09.519 --> 00:32:14.119
be a different question. Has there been, in your knowledge
529
00:32:14.160 --> 00:32:19.119
any kind of litigation over this or a similar issue
530
00:32:19.359 --> 00:32:22.000
that we might be able to look to as guidance
531
00:32:22.079 --> 00:32:24.160
for if this issue were keyed up for a core
532
00:32:24.559 --> 00:32:28.160
what that might look like. Has this been raised before?
533
00:32:28.200 --> 00:32:30.279
Is there anything we can look to sure?
534
00:32:30.279 --> 00:32:32.359
There's been at least one case to my knowledge, or
535
00:32:32.400 --> 00:32:36.000
actually two related cases coming out of Seattle. So round
536
00:32:36.039 --> 00:32:39.319
was a twenty seventeen. Twenty fifteen, Seattle passed an ordinance
537
00:32:39.599 --> 00:32:42.880
to unionize ride share drivers, not on a sectorial basis,
538
00:32:42.880 --> 00:32:46.359
but company by company, and so there are two lawsuits
539
00:32:46.440 --> 00:32:48.839
challenging it. One was by the Chamber of Commerce and
540
00:32:48.960 --> 00:32:52.559
Uber alleging that this file its antitrust law was preempted
541
00:32:52.599 --> 00:32:55.519
by the NLRA because it was debatable whether or not
542
00:32:55.599 --> 00:32:57.799
right shair drivers were employees or contractors.
543
00:32:58.519 --> 00:32:59.480
So that was that case.
544
00:33:00.119 --> 00:33:02.160
Group of ride share drivers represented by the Right to
545
00:33:02.200 --> 00:33:05.079
Work Foundation fouled a lawsuit saying it's preempted by the
546
00:33:05.160 --> 00:33:08.599
National Labor Relations Act for the reason just discussed the
547
00:33:08.640 --> 00:33:12.920
secondary boycott provisions of the NLRA preempt that kind of law,
548
00:33:13.279 --> 00:33:16.160
and that also it violates the First Amendment. And what
549
00:33:16.240 --> 00:33:19.920
ultimately happened is the Chamber basically won on its anti
550
00:33:19.960 --> 00:33:24.599
trust theory at the Ninth Circuit because Seattle's really only
551
00:33:24.599 --> 00:33:27.079
defense to the anti trust claim was the state action,
552
00:33:27.119 --> 00:33:29.920
community and the Ninth Circuit said you don't have it
553
00:33:29.960 --> 00:33:31.839
because the state never gave you authority to do this.
554
00:33:32.640 --> 00:33:35.640
And so because of that, Seattle folded up shop and
555
00:33:35.680 --> 00:33:39.240
basically rescinded its ordinance, and all the other claims more
556
00:33:39.319 --> 00:33:42.519
or less became moot. The driver's claims became moot. So
557
00:33:42.839 --> 00:33:46.440
that's what we've had so far is a court ruling
558
00:33:46.440 --> 00:33:48.920
on the state action community. But for those interested in
559
00:33:48.920 --> 00:33:50.680
these issues, if you go back to the case, you
560
00:33:50.720 --> 00:33:53.079
can read all the briefs and a lot of these
561
00:33:53.119 --> 00:33:54.200
issues are briefed.
562
00:33:54.200 --> 00:33:55.720
Again, it wasn't sectoral.
563
00:33:55.279 --> 00:33:58.119
Bargaining, but the issue of whether or not this case
564
00:33:58.200 --> 00:34:02.039
locality could unionize ride share divers was litigated to that case.
565
00:34:02.759 --> 00:34:07.960
Are two okay, So, I mean we've talked about some
566
00:34:08.079 --> 00:34:12.599
open legal questions with these schemes, but from policy standpoint,
567
00:34:12.599 --> 00:34:15.239
I want to circle back to that, and David you
568
00:34:15.519 --> 00:34:18.639
you you've said a few times that you think generally
569
00:34:18.679 --> 00:34:20.400
speaking with the rest of this is right because of
570
00:34:20.480 --> 00:34:25.639
support broader coverage of bargaining rights. But just from a
571
00:34:25.719 --> 00:34:29.719
design standpoint, like let's say we were, you know, creating
572
00:34:29.760 --> 00:34:33.760
these the second for bargaining system in a closet is
573
00:34:33.800 --> 00:34:37.599
this is this the model that you would have envisioned.
574
00:34:38.000 --> 00:34:40.199
How would you rate this from a policy standpoint? Are
575
00:34:40.239 --> 00:34:43.119
there things that could have been improved here? Or is
576
00:34:43.159 --> 00:34:47.840
this essentially the paradigm that states from your perspective, should
577
00:34:47.880 --> 00:34:51.079
be looking at. How would you rate these these statutes
578
00:34:51.079 --> 00:34:52.159
from a policy perspective?
579
00:34:53.239 --> 00:34:56.920
Got it? Well, generally I support them in my but
580
00:34:57.000 --> 00:34:58.800
you asked my ideal and then all sort of back
581
00:34:58.800 --> 00:35:01.840
down to sort of what's reality in my ideal world?
582
00:35:02.639 --> 00:35:06.039
The sort of best kind of sectoral model actually in
583
00:35:06.800 --> 00:35:10.480
you know, my partner here might actually agree with me
584
00:35:10.639 --> 00:35:13.000
a little bit, a little bit on this. The ideal
585
00:35:13.039 --> 00:35:18.440
model is much more more private ordering that what I
586
00:35:18.480 --> 00:35:21.880
think of sort of the Nordic model, the Sweden, Denmark,
587
00:35:22.199 --> 00:35:25.800
Norway where they have sector bardin but is largely based
588
00:35:25.880 --> 00:35:28.800
on policies that support very strong unions. So unions have
589
00:35:28.920 --> 00:35:30.719
lots of power, and then they have lots of ability
590
00:35:30.719 --> 00:35:33.960
to use their economic weapons, as do employers. And then
591
00:35:34.039 --> 00:35:37.400
this has led to a system that covers the vast
592
00:35:37.400 --> 00:35:41.079
majority of workers with a good union contract, leading to
593
00:35:41.159 --> 00:35:44.960
high wages, low inequality, et cetera. And it's they don't
594
00:35:45.000 --> 00:35:47.960
have you know, minimum wage, they don't have all these
595
00:35:48.000 --> 00:35:50.519
kinds of other things. It's really a private ordering, but
596
00:35:50.639 --> 00:35:54.280
they have policies that support very strong unions as well,
597
00:35:54.360 --> 00:35:57.519
so that that leads to the private ordering. Most of
598
00:35:57.559 --> 00:36:01.400
the English speaking world, as we unions for a variety
599
00:36:01.480 --> 00:36:04.480
of reasons, they don't have the policies that encourage them,
600
00:36:04.519 --> 00:36:07.199
so they end up more with a this kind of
601
00:36:07.280 --> 00:36:11.400
hybrid model where the state is that the English speaking
602
00:36:11.400 --> 00:36:13.800
world that supports sectoral worketing, you tend to have this
603
00:36:13.880 --> 00:36:18.199
sort of hybrid model where it's a bargaining like structure,
604
00:36:18.280 --> 00:36:21.679
but the state is kind of a backstop to the bargaining.
605
00:36:22.159 --> 00:36:26.480
And so yeah, I ultimately I think this is probably
606
00:36:26.519 --> 00:36:29.880
in this short term where you end up for most
607
00:36:30.000 --> 00:36:33.199
anywhere in the US. But actually, I want to get
608
00:36:33.239 --> 00:36:35.400
this leads me to another point. I wanted to make
609
00:36:36.719 --> 00:36:40.119
the there's a big difference here between bargaining and unionization.
610
00:36:41.039 --> 00:36:48.719
These policies are about bargaining primarily. No, they are ultimately
611
00:36:48.760 --> 00:36:51.000
a right to work policy. No one has to be
612
00:36:51.039 --> 00:36:54.800
a union member, no one is forced to join. The
613
00:36:54.840 --> 00:36:57.559
bargaining is for all the workers, whether they choose to
614
00:36:57.639 --> 00:37:03.519
join a union or not. And so that also should
615
00:37:03.559 --> 00:37:06.400
be something that I think, you know, my debate partner
616
00:37:06.679 --> 00:37:10.079
would support the Right to Work Foundation should support these
617
00:37:10.159 --> 00:37:14.280
kinds of policies that are creating a model that is,
618
00:37:14.760 --> 00:37:19.880
how do we raise standards for all workers and leaves
619
00:37:20.000 --> 00:37:25.960
the freedom of choice totally outside the bargaining decision. They also,
620
00:37:26.199 --> 00:37:29.239
you know, do create some ways for the worker, for
621
00:37:29.320 --> 00:37:31.679
the unions and workers to have some communications, but the
622
00:37:31.840 --> 00:37:38.679
choice is still purely on the worker. So anyway that
623
00:37:39.000 --> 00:37:43.880
gets to your point is these are my view good
624
00:37:43.920 --> 00:37:46.960
policies and they're also the most likely kind of structure
625
00:37:47.000 --> 00:37:49.880
that is going to happen in any any short term
626
00:37:50.280 --> 00:37:51.920
way in the US.
627
00:37:53.400 --> 00:37:56.719
Thanks Bill, let me give you a chance to respond
628
00:37:56.719 --> 00:38:00.719
to that. So there's two points I think on the table.
629
00:38:00.840 --> 00:38:04.119
One is that maybe these statues would be improved if
630
00:38:04.119 --> 00:38:07.960
it is more focused on private ordering. We'll give you
631
00:38:07.960 --> 00:38:09.719
a chance to respond to that. And I think the
632
00:38:09.800 --> 00:38:13.199
other point was that the way these laws are structured
633
00:38:13.360 --> 00:38:20.360
perhaps give more flexibility to workers to join or not join,
634
00:38:20.440 --> 00:38:24.719
and they might have under an nrace. Can appreciate your
635
00:38:24.760 --> 00:38:26.719
reactions to either of those points.
636
00:38:27.719 --> 00:38:30.199
Sure, So I think on the first point, ultimately you
637
00:38:30.239 --> 00:38:32.400
know the drivers or others don't have a choice. That's
638
00:38:32.440 --> 00:38:35.119
a representation you know, I think every individual should have
639
00:38:35.199 --> 00:38:38.880
the freedom to choose individually who represents them or doesn't
640
00:38:38.920 --> 00:38:41.800
represent them for purposes of dealing with a private party.
641
00:38:41.840 --> 00:38:42.960
Or dealing with the government.
642
00:38:43.199 --> 00:38:44.880
So at the end of the day of sectoral bargain,
643
00:38:44.960 --> 00:38:48.159
you still have the government dictating that every ride share
644
00:38:48.199 --> 00:38:52.159
driver in California shall be represented by the SEIU, whether
645
00:38:52.199 --> 00:38:54.679
they liked it or not. Now, the fact it appears,
646
00:38:54.719 --> 00:38:57.119
at least on the face of the law, drivers won't
647
00:38:57.159 --> 00:38:59.519
be forced to financially support the union. You know, that's
648
00:38:59.519 --> 00:39:01.920
a good thing, But I think their drivers also have
649
00:39:01.960 --> 00:39:04.039
the freedom to choose whether or not they want to
650
00:39:04.039 --> 00:39:06.960
be represented by this union or to be subject, you know,
651
00:39:07.039 --> 00:39:10.639
sort of to the union's contract. So I think, you know,
652
00:39:10.679 --> 00:39:13.760
freedom goes all the way. I think taking away freedom
653
00:39:13.800 --> 00:39:16.840
of bargaining representative doesn't make it okay.
654
00:39:17.400 --> 00:39:18.000
I'm sorry.
655
00:39:18.360 --> 00:39:21.039
The fact you're not forcing individuals to financially support the union,
656
00:39:21.079 --> 00:39:23.079
which I think will be unconstitutional in this case, because
657
00:39:23.079 --> 00:39:25.280
you have the government action here, you know, doesn't make
658
00:39:25.280 --> 00:39:27.760
it okay to take away their choice as to whether
659
00:39:27.840 --> 00:39:31.119
any union represents them. Right now, you know that, I'm
660
00:39:31.159 --> 00:39:33.119
sure there's many right share drivers who don't want any
661
00:39:33.199 --> 00:39:35.440
union to represent them. It's one of the reasons that
662
00:39:35.840 --> 00:39:39.199
thresholds and these laws are so low, which allows unions
663
00:39:39.239 --> 00:39:41.960
to become the exclusive representative with either twenty five or
664
00:39:42.000 --> 00:39:44.159
thirty percent, or to call for an election with just
665
00:39:44.280 --> 00:39:47.559
five or ten percent. So you're looking at very, very low,
666
00:39:47.960 --> 00:39:50.400
you know, sort of amounts of support for rideshare drivers
667
00:39:50.559 --> 00:39:53.440
that would allow a union to become the representative of
668
00:39:53.480 --> 00:39:55.960
every right share driver in the state for the perpetuity
669
00:39:55.960 --> 00:39:58.840
of the law. So I don't think taking away that
670
00:39:58.960 --> 00:40:00.159
choice is good thing.
671
00:40:03.039 --> 00:40:05.760
We've gotten some other questions from the audience, and I
672
00:40:05.800 --> 00:40:07.159
think this one is a good one. It's also a
673
00:40:07.199 --> 00:40:11.800
question I've had in my mind. David's circling back to you.
674
00:40:11.800 --> 00:40:14.880
You've talked about some of the benefits you see for workers,
675
00:40:14.920 --> 00:40:18.719
but there's a question about from an economic standpoint, are
676
00:40:18.760 --> 00:40:22.199
we raising the costs of these services in ways that
677
00:40:22.360 --> 00:40:27.440
could have negative externalities? And so in my mind now
678
00:40:27.599 --> 00:40:29.559
I'm extract wetting on the question a little bit, but
679
00:40:30.960 --> 00:40:35.360
could higher costs have negative impacts on consumers? The money
680
00:40:35.400 --> 00:40:38.400
has to come from somewhere. Could services become more expensive
681
00:40:38.920 --> 00:40:42.440
your proper variety of the airport, could that be more
682
00:40:42.440 --> 00:40:47.000
expensive and could that in turn have potential downsides for
683
00:40:47.119 --> 00:40:52.079
workers in the sense of fewer opportunities, fewer consumers who
684
00:40:52.119 --> 00:40:54.760
are using these services. How do you think about those
685
00:40:54.760 --> 00:41:00.159
potential what I'm describing to negative externalities and does this
686
00:41:00.320 --> 00:41:06.360
law or could this law do anything to mitigate those
687
00:41:06.360 --> 00:41:09.440
extra analogiers? Just something that if we want to have
688
00:41:09.480 --> 00:41:12.039
a second, more marketing system, people have to live with
689
00:41:12.320 --> 00:41:16.159
the higher costs of services. What's your perspective on that?
690
00:41:17.519 --> 00:41:20.440
So, Yeah, I think there's a lot of research that
691
00:41:20.519 --> 00:41:24.559
is analogous that can help shed light on what kind
692
00:41:24.599 --> 00:41:28.119
of economic effects we might have. And as I mentioned
693
00:41:28.159 --> 00:41:31.400
at the beginning, I generally view this as productivity enhancing
694
00:41:32.480 --> 00:41:35.760
and that's for a couple of reasons. One, you are
695
00:41:35.800 --> 00:41:39.239
setting a higher wage across for all competitors, having a
696
00:41:39.320 --> 00:41:41.400
level playing field, and so then they are forced to
697
00:41:41.400 --> 00:41:47.840
base to have a productivity based competition. The other element
698
00:41:48.159 --> 00:41:52.639
here is you are taking the conflict about wages to
699
00:41:52.840 --> 00:41:57.480
a higher level, not at the individual work site, which
700
00:41:57.519 --> 00:41:59.719
is sort of a hard, weird thing in the rideshare
701
00:41:59.719 --> 00:42:02.960
world to think about. But you're also creating an opportunity
702
00:42:03.199 --> 00:42:07.639
for more collaborative relationships at other levels, for discussions about
703
00:42:07.679 --> 00:42:13.039
other works kinds of things, especially training, that the research
704
00:42:13.079 --> 00:42:16.800
suggests generally you get to more and better of the training,
705
00:42:16.840 --> 00:42:21.559
for example, under sectoral systems, because you are not having
706
00:42:22.119 --> 00:42:24.199
the fear that if you set up a training system
707
00:42:24.400 --> 00:42:27.239
and you pay you pay your worker to get training
708
00:42:27.480 --> 00:42:28.880
or allow them to do it, that then you're just
709
00:42:28.920 --> 00:42:30.800
going to get poached by your competitor and said you've
710
00:42:30.840 --> 00:42:35.039
created a system that supports and encourages that. The other
711
00:42:35.119 --> 00:42:37.360
kind of research that I think is relevant and you're
712
00:42:37.599 --> 00:42:40.119
looking to is the minimum wage research, especially in the
713
00:42:40.199 --> 00:42:43.559
United States. There's really, you know, heavily researched and debated.
714
00:42:44.000 --> 00:42:47.840
And my take on that research is the because so
715
00:42:48.039 --> 00:42:49.719
the reason I say it is analogous to the man wages,
716
00:42:49.760 --> 00:42:53.400
you are raising the labor costs and in effect creating
717
00:42:53.400 --> 00:42:58.639
some sort of minimum wage. The generally that has seen
718
00:42:58.840 --> 00:43:03.039
to improves for workers. Very clear research on that, I
719
00:43:03.039 --> 00:43:08.719
think almost unambiguous that workers are better off. Then there's
720
00:43:08.719 --> 00:43:12.800
a huge research on well, how can you know then
721
00:43:14.280 --> 00:43:17.960
is it going to reduce employment pretty minimal, if at
722
00:43:18.039 --> 00:43:21.440
anything at all? And that's sort of contrary to some
723
00:43:21.639 --> 00:43:23.599
standard economic thought, and so how could it be if
724
00:43:23.599 --> 00:43:27.079
you're raising the cost of labor, you're getting minimal employment effects. Well,
725
00:43:27.079 --> 00:43:29.159
that's because there's also lots of other things going on.
726
00:43:29.760 --> 00:43:33.800
You are, the workers are consumers, you can have purchasing things.
727
00:43:33.800 --> 00:43:36.239
You're reducing turnover, You're getting a more stable workforce, and
728
00:43:36.280 --> 00:43:43.679
turnover does have costs. And the other thing as you mentioned, Yes,
729
00:43:43.760 --> 00:43:46.320
sometimes the costs so tend the costs tend to be
730
00:43:46.360 --> 00:43:48.559
can be born by customers having to pay a little
731
00:43:48.559 --> 00:43:51.280
bit more, and farms might make a little bit less profits.
732
00:43:51.360 --> 00:43:54.679
All of those are possible and have happened in the
733
00:43:54.679 --> 00:43:58.559
minimum wage space. In my view, those aren't bad things.
734
00:43:58.800 --> 00:44:02.760
Workers getting paid better, profits being trimmed possibly a little bit.
735
00:44:03.360 --> 00:44:06.000
We are at a point in the United States where
736
00:44:06.079 --> 00:44:10.119
corporate profits are in your record highs, wages are not
737
00:44:10.239 --> 00:44:12.920
been doing particularly well over decades. We're having a struggling
738
00:44:12.920 --> 00:44:15.800
with an affordability crisis. This is the kind of thing
739
00:44:16.039 --> 00:44:18.639
that is a more than reasonable trade off.
740
00:44:21.679 --> 00:44:24.960
Got it, Bill, I'll give you a chance to take
741
00:44:24.960 --> 00:44:26.719
a run at that one. And so the question on
742
00:44:26.760 --> 00:44:29.920
the table is stated, which is explainny is because of
743
00:44:30.280 --> 00:44:34.280
the just naturally increased labor costs, which is the flip
744
00:44:34.320 --> 00:44:39.000
side of higher wages representing workers or just in your
745
00:44:39.000 --> 00:44:43.280
experience practicing labor law for decades, and do you anticipate
746
00:44:43.400 --> 00:44:49.119
any negative downside from an economic standpoint for workers? What's
747
00:44:49.199 --> 00:44:51.679
your view on how this could affect the workforce?
748
00:44:53.159 --> 00:44:55.559
Well, I think it's hard to say, you know, given
749
00:44:55.760 --> 00:44:57.800
you know what sector you're unionizing and what terms are
750
00:44:57.840 --> 00:45:00.679
imposed on it. But I think natural really, you know,
751
00:45:00.719 --> 00:45:02.840
when you have the government sort of setting wages you know,
752
00:45:02.880 --> 00:45:06.079
across the board, you're naturally, you know, leading to inefficiencies
753
00:45:06.079 --> 00:45:08.639
with that, as opposed to the free market setting wages
754
00:45:08.679 --> 00:45:10.880
and other prices in this case, because we're dealing with
755
00:45:10.960 --> 00:45:15.039
rideshare drivers, uh, you know, buy free market forces and competition,
756
00:45:15.440 --> 00:45:18.480
and of course having the flexibility for the independent companies
757
00:45:18.519 --> 00:45:21.599
to evolve and figure out the best way to do
758
00:45:21.719 --> 00:45:24.199
things instead of being locked into sort of a one
759
00:45:24.280 --> 00:45:27.119
size fits all in the industry, uh, sort of union
760
00:45:27.159 --> 00:45:30.280
agreement that dictates all kinds of terms which aren't just wages,
761
00:45:30.920 --> 00:45:32.719
a lot of other terms, you know, looking at the
762
00:45:32.719 --> 00:45:36.800
California bill, uh, deactivations, things like that. And then of
763
00:45:36.800 --> 00:45:39.079
course you also have the drag of all the things
764
00:45:39.119 --> 00:45:42.480
the union extracts as it's sort of rent seeking, you know,
765
00:45:42.559 --> 00:45:45.159
from this arrangement, and you can sort of really see
766
00:45:45.159 --> 00:45:47.360
that in the California bill with all sort of the
767
00:45:47.400 --> 00:45:50.440
perks that it is designed to give to unions. So,
768
00:45:50.480 --> 00:45:53.599
for example, if a union becomes the representative, the Uber
769
00:45:53.639 --> 00:45:56.840
and Lyft automatically have to start deducting dues on behalf
770
00:45:56.840 --> 00:46:00.400
of the union and can't stop those deductions except by
771
00:46:00.440 --> 00:46:02.559
the terms of the union agreement, which usually say you
772
00:46:02.559 --> 00:46:05.559
can only stop deductions during every ten or fifteen days
773
00:46:05.559 --> 00:46:09.039
per year. Mandatory terms of the sectoral Bargaining Order have
774
00:46:09.159 --> 00:46:12.480
to include terms that compassation or fees to the union
775
00:46:12.519 --> 00:46:17.079
for administering benefits and things of that, labor management partnerships,
776
00:46:17.119 --> 00:46:19.480
which are usually just another way for companies to sort
777
00:46:19.480 --> 00:46:23.360
of fund sort of union activities. It also includes provisions
778
00:46:23.360 --> 00:46:26.400
which make it lawful for the Uber and Lyft to
779
00:46:26.440 --> 00:46:31.079
pay union representatives to represent drivers, and to give the
780
00:46:31.159 --> 00:46:34.199
union access to communications. You'd give the union access to
781
00:46:34.239 --> 00:46:37.039
employer premises. So there's just a whole range of things
782
00:46:37.079 --> 00:46:39.079
where you can see the union, you know, sort of
783
00:46:39.159 --> 00:46:42.400
using this as sort of a rent seeking vehicle, you know,
784
00:46:43.039 --> 00:46:45.119
to exploit and get what it wants out of this bill.
785
00:46:45.880 --> 00:46:48.199
And this kind of laws, and so that itself becomes
786
00:46:48.199 --> 00:46:51.199
a drag, you know, on this entire system by giving
787
00:46:51.239 --> 00:46:54.239
sort of unions this privileged position and a sort of
788
00:46:54.239 --> 00:46:57.599
a regulatory system for an industry.
789
00:46:57.599 --> 00:46:59.960
Got it. We've actually done a lot of good questions
790
00:47:00.039 --> 00:47:01.719
from the audience. So I'm going to stick with audience
791
00:47:01.800 --> 00:47:04.199
questions for just a moment. I'm going to rephrase this
792
00:47:04.239 --> 00:47:06.599
one a little bit. Some questions have come in about
793
00:47:07.280 --> 00:47:11.760
and I trust overlays and sort of the collective centralization
794
00:47:12.079 --> 00:47:17.280
of bargaining and this labor relationship data. Here's for you,
795
00:47:17.400 --> 00:47:21.199
But it's something that I've struggled with too. For years,
796
00:47:21.719 --> 00:47:25.920
much of the discourse was around the fissured workplace and
797
00:47:25.960 --> 00:47:30.159
the problem was that we were we were becoming you know,
798
00:47:30.320 --> 00:47:32.320
the workplaces were being broken up, and that was making
799
00:47:32.360 --> 00:47:35.760
it difficult to organize workers and do effect with collective bargaining.
800
00:47:35.800 --> 00:47:39.360
But then in recent years you've had people, uh like
801
00:47:39.599 --> 00:47:41.920
Professor Poser and a few others who have talked with
802
00:47:42.039 --> 00:47:46.000
the real problem is, uh, the monopson where we have
803
00:47:46.039 --> 00:47:48.840
employers who are too large. And I wonder, you know
804
00:47:49.159 --> 00:47:51.639
something that I thought of, and I appreciate your perspective
805
00:47:52.320 --> 00:47:55.480
that by centralizing the bargaining process in this way, Are
806
00:47:55.480 --> 00:48:00.159
we perhaps creating some risks of even greater centralization in
807
00:48:00.239 --> 00:48:03.840
an optionate power? Are we now flipping back to the
808
00:48:03.920 --> 00:48:08.519
narrative that the real problem is too the eployers are
809
00:48:08.559 --> 00:48:11.360
too small, that we have fission workplaces. How does this
810
00:48:12.760 --> 00:48:17.400
policy slot into that debate? Do you have a fault
811
00:48:17.400 --> 00:48:17.679
on that?
812
00:48:19.159 --> 00:48:21.840
Yeah, so I do, and in fact I appreciate you
813
00:48:21.880 --> 00:48:25.559
bringing up sort of these slightly competing versions of what
814
00:48:25.679 --> 00:48:29.480
is happening to employment relationships, the sort of concentration view
815
00:48:29.639 --> 00:48:33.119
or the fissuring and in my view, actually both are happening.
816
00:48:33.679 --> 00:48:38.480
That the employers are becoming or the lead firm is
817
00:48:38.519 --> 00:48:42.360
becoming more concentrating and more powerful. At the same time,
818
00:48:42.440 --> 00:48:46.599
the way the worker experiences it is becoming more and
819
00:48:46.679 --> 00:48:50.760
more fissure. They have less sort of contact with the
820
00:48:51.280 --> 00:48:55.039
employer that makes the real decision that I actually think
821
00:48:55.280 --> 00:48:59.840
the right share is sort of a case example concentration.
822
00:49:00.119 --> 00:49:04.679
Basically it's over and left, it really is. That's pretty concentrated. Yeah, okay,
823
00:49:04.679 --> 00:49:07.480
there's a few small taxi players in some cities, but
824
00:49:07.519 --> 00:49:11.280
it's pretty concentrated industry. At the same time, it's fissier
825
00:49:11.280 --> 00:49:14.280
because they're claiming they're not employers. They're hiring all these
826
00:49:14.320 --> 00:49:17.079
independent contractors that they're telling exactly what the drive, how
827
00:49:17.119 --> 00:49:21.840
to drive, what route. They're controlling the system in every
828
00:49:21.840 --> 00:49:24.000
which way. We're going to deactivate you in this touch
829
00:49:24.000 --> 00:49:29.559
of a button. So that's the both concentration and fissuring
830
00:49:29.679 --> 00:49:32.920
I think are occurring at the same time. How would
831
00:49:32.920 --> 00:49:35.719
this I actually think this is this kind of sectoral
832
00:49:35.719 --> 00:49:38.159
model is one of the few things able to handle
833
00:49:38.519 --> 00:49:44.440
both truths. From the worker's perspective, it gives them some
834
00:49:44.559 --> 00:49:49.519
ability to deal with the individual the challenges at their
835
00:49:49.559 --> 00:49:54.400
work site level, but also handle the major power players
836
00:49:54.480 --> 00:49:58.320
in their industry to negotiate to have higher standards. So
837
00:49:58.519 --> 00:50:02.599
ultimately this is actually, I think be more accurate reflection
838
00:50:02.719 --> 00:50:06.519
of what's happening. And there's pretty good research from around
839
00:50:06.519 --> 00:50:08.599
the world that if you want workers covered by collective
840
00:50:08.639 --> 00:50:12.760
bargaining agreements in these kind of work challenging industries, the
841
00:50:12.800 --> 00:50:16.719
sectoral model is much more effective.
842
00:50:16.719 --> 00:50:18.440
Bill, I'll give you a chance of that one too.
843
00:50:18.480 --> 00:50:22.159
I mean, just from a do you have any concerns
844
00:50:22.159 --> 00:50:28.280
of somebody who represents workers of consolidating the bargaining process
845
00:50:28.280 --> 00:50:31.519
and sort of sort of locating it in a centralized areas.
846
00:50:31.559 --> 00:50:35.599
There's some risk to workers that you're concerned about. Are
847
00:50:35.639 --> 00:50:39.440
there other risks that you see from collecting this process
848
00:50:39.440 --> 00:50:46.480
and a central point, whether that's economic or just something
849
00:50:46.480 --> 00:50:48.840
that happens in the relationship between the workers, is their
850
00:50:48.960 --> 00:50:53.440
imbalance of bargaining power. What's your perspective on that?
851
00:50:54.440 --> 00:50:57.199
Sure wealth of centralization, what you'll get as an ossification,
852
00:50:57.480 --> 00:50:59.639
you know of sort of what's going on the existing
853
00:50:59.719 --> 00:51:03.280
frame work as you sort of lock in the way
854
00:51:03.320 --> 00:51:05.440
things are. And of course, one of the great advantages
855
00:51:05.480 --> 00:51:08.679
the American economy has always been it's dynamism. Things change,
856
00:51:08.760 --> 00:51:11.639
new players come up and down. Uh, and that's part
857
00:51:12.199 --> 00:51:15.719
primarily because of sort of our wide open system. But
858
00:51:15.760 --> 00:51:19.719
if you start locking in you know, these basically cartels
859
00:51:20.400 --> 00:51:23.880
setting how entire industries run across the board, especially with
860
00:51:23.920 --> 00:51:26.599
the government involved, you're naturally going to get a process
861
00:51:26.639 --> 00:51:30.239
where it's not a dynamic one is. And once it,
862
00:51:30.440 --> 00:51:34.280
you know, industries lose their efficiency, stop being dynamics, stop
863
00:51:34.360 --> 00:51:36.920
being competitive, you know, sort of on the world stage.
864
00:51:37.000 --> 00:51:41.280
That harms everybody, you know, especially workers. H David mentioned earlier.
865
00:51:41.320 --> 00:51:44.760
You know, pattern bargaining, you know, by the uaw among
866
00:51:44.800 --> 00:51:46.639
the big three. You know, look with that well, you
867
00:51:46.679 --> 00:51:49.599
know rock for us. You know, the American auto industry
868
00:51:49.639 --> 00:51:52.800
ultimately became uncompetitive, and god, it's you know, uh it
869
00:51:52.920 --> 00:51:56.760
was very much uh out competed, you know, by others
870
00:51:56.760 --> 00:51:57.840
for a very long time.
871
00:51:58.480 --> 00:52:01.199
So doing this cross the board, I think this is.
872
00:52:01.199 --> 00:52:04.440
Going to lead to economic inefficiencies and ultimately make American
873
00:52:04.679 --> 00:52:06.199
companies and workers un competitive.
874
00:52:09.760 --> 00:52:12.519
I just respond really quickly to that last Auto point.
875
00:52:13.480 --> 00:52:16.119
It just I think the evidence is pretty clear that
876
00:52:16.119 --> 00:52:19.480
it was largely poor management that led the American auto
877
00:52:19.480 --> 00:52:25.800
companies to their struggle and demise. The auto workers did
878
00:52:25.800 --> 00:52:29.960
not have any control over what to invest in, what
879
00:52:30.079 --> 00:52:32.800
kind of product design, any of those kind of things.
880
00:52:33.000 --> 00:52:36.920
Their wages at the time were lower than in certain
881
00:52:36.960 --> 00:52:41.000
other countries, like in Germany. They were simply bargaining for
882
00:52:41.039 --> 00:52:44.719
a high standard as they as the unions lost their
883
00:52:44.760 --> 00:52:52.519
ability to to as the companies weakened, their competitive position fell.
884
00:52:52.840 --> 00:52:56.320
It was not about the union having high standards, as
885
00:52:56.360 --> 00:52:59.760
I said, other countries with higher standards did quite well,
886
00:53:01.000 --> 00:53:05.199
simply mostly about poor management. Blameless. I'm sure the unions
887
00:53:05.239 --> 00:53:07.000
are not blameless. I'm sure there were some about dumb
888
00:53:07.039 --> 00:53:08.800
things they are bargaining over. I'm sure all of that,
889
00:53:08.840 --> 00:53:13.039
but the basic idea of high standards being incompatible and
890
00:53:13.320 --> 00:53:16.199
a sectoral high standard of being incompatible with competition, I
891
00:53:16.199 --> 00:53:17.440
think is not accurate.
892
00:53:20.000 --> 00:53:23.320
I'd like to if I can introduce one more element.
893
00:53:23.360 --> 00:53:25.320
And it's another question from the honest I think this
894
00:53:25.480 --> 00:53:29.559
was asked a joking, but I think it's a serious question.
895
00:53:30.000 --> 00:53:33.400
So when we talk about higher labor costs, often one
896
00:53:33.480 --> 00:53:38.159
response from the firms is higher investments in capital. And
897
00:53:38.239 --> 00:53:40.760
what we've all read about in the newspapers, whether it's
898
00:53:40.800 --> 00:53:43.840
you know, accurate or fantasy or science fiction or not,
899
00:53:44.639 --> 00:53:48.400
is an increase in driverless cars. And you know it
900
00:53:48.559 --> 00:53:52.679
strikes me appreciate both of your thoughts on this. Whether
901
00:53:53.159 --> 00:53:57.400
a law like this that does increase or is likely
902
00:53:57.440 --> 00:53:59.639
to I don't think we can say absolutely, but it's
903
00:53:59.719 --> 00:54:03.840
very likely to increase. Labor costs could accelerate and move
904
00:54:03.920 --> 00:54:06.880
toward driverless cars. I mean, one of one of the
905
00:54:06.920 --> 00:54:10.480
barriers to that kind of technology is the initial cost investment.
906
00:54:10.480 --> 00:54:13.719
But as the cost of traditional labor arises, perhaps you
907
00:54:13.760 --> 00:54:15.760
find companies who are looking at this as a more
908
00:54:15.920 --> 00:54:23.000
serious competitive option to invest in driver less technology. I'll
909
00:54:23.000 --> 00:54:25.960
start with you, Bill, I mean, what's your perspective on
910
00:54:25.960 --> 00:54:29.079
that is, is it possible that we could see that
911
00:54:29.199 --> 00:54:32.360
as a response from the regulated firms that they would
912
00:54:32.880 --> 00:54:36.320
put more money into this driver less technology. Is that
913
00:54:36.360 --> 00:54:37.880
a real possibility in your mind?
914
00:54:38.960 --> 00:54:41.119
Yes, I mean think sort of the analogy to taxis
915
00:54:41.320 --> 00:54:42.480
sort of shows visa v.
916
00:54:42.599 --> 00:54:42.880
Uber.
917
00:54:43.159 --> 00:54:45.960
There you had a very regulated industry which failed to
918
00:54:46.599 --> 00:54:49.320
really evolve for a long time, and then somebody came in.
919
00:54:49.360 --> 00:54:51.719
It was new, it wasn't a taxi, it was Uber
920
00:54:51.719 --> 00:54:54.599
and Lyft and really supplanted them because they weren't covered
921
00:54:54.960 --> 00:54:58.239
by all the same sort of layers of regulation that
922
00:54:58.280 --> 00:55:00.920
the taxis companies are sort of dealing with. You can
923
00:55:00.960 --> 00:55:03.119
see that if Uberlyft are subject to the sort of
924
00:55:03.119 --> 00:55:05.679
the same you know, lock them in so they can't
925
00:55:05.719 --> 00:55:08.800
really evolve kind of system naturally, that will lead to
926
00:55:08.840 --> 00:55:11.599
others who are outside of that system, who aren't TNCs
927
00:55:11.679 --> 00:55:15.000
within the meetings of these laws coming in. So, for example,
928
00:55:15.199 --> 00:55:18.559
companies like Weymo that don't have drivers, or other companies
929
00:55:18.599 --> 00:55:22.159
that choose to do autonomous vehicles, and then companies that
930
00:55:22.199 --> 00:55:25.719
are sort of stuck under you know, this sectoral bargaining.
931
00:55:26.000 --> 00:55:28.639
You know kind of system are unable to compete and evolve,
932
00:55:29.039 --> 00:55:32.719
you know, to deal with new entries that are under the.
933
00:55:32.679 --> 00:55:34.960
Sector and then sort of follow up.
934
00:55:34.960 --> 00:55:36.760
Another sort of example of that we could see the
935
00:55:36.760 --> 00:55:41.079
inefficiencies is, you know, David alluded earlier to sometimes under
936
00:55:41.119 --> 00:55:43.559
the National Labor Relations Act the Wagner Act, you.
937
00:55:43.599 --> 00:55:45.199
Have multi employer bargaining.
938
00:55:45.639 --> 00:55:50.039
Sometimes construction industry is done voluntarily, it's not compelled. But
939
00:55:50.079 --> 00:55:51.760
where you see instances of that, you see a lot
940
00:55:51.760 --> 00:55:55.880
of inefficiencies. Take the longshoreman and our ports. That's basically
941
00:55:55.880 --> 00:55:58.880
sectoral bargaining on each port just because of the way
942
00:55:59.280 --> 00:56:01.599
things are set up in America's ports as a result
943
00:56:01.639 --> 00:56:03.719
or some of the most inefficient in the world, you know,
944
00:56:03.760 --> 00:56:05.880
as a result of some of the things that those
945
00:56:06.840 --> 00:56:10.039
agreements and the longshore and sort of locked into place
946
00:56:10.119 --> 00:56:13.280
fighting against sort of any kind of evolution of technology.
947
00:56:13.360 --> 00:56:14.880
Now they've been able to get away with that because
948
00:56:14.880 --> 00:56:17.239
there's only so many ports in the country. But if
949
00:56:17.280 --> 00:56:20.559
you do that to an industry that can be competed against,
950
00:56:21.079 --> 00:56:22.840
it's ultimately not going to work out well in the
951
00:56:22.880 --> 00:56:27.559
long term. As new market entries, new technologies supplant the
952
00:56:27.559 --> 00:56:31.719
firm that's sort of locked into the sectoral bargaining system.
953
00:56:32.440 --> 00:56:34.440
I'll let you take a line out until you want
954
00:56:34.480 --> 00:56:35.199
to bring us home.
955
00:56:35.199 --> 00:56:39.719
With to share. Robotaxis are coming no matter what happens
956
00:56:39.760 --> 00:56:43.880
with sectoral bargaining. That is just the industry is moving
957
00:56:43.920 --> 00:56:47.320
that way. That's very clear that I think any effect
958
00:56:47.360 --> 00:56:50.079
sectoral bargain might have would be very marginal to slightly
959
00:56:50.199 --> 00:56:53.039
encourage it, possibly because you've got higher labor costs. But
960
00:56:53.559 --> 00:56:57.280
they're coming. And so that actually is why this is
961
00:56:57.320 --> 00:57:02.320
such an important experiment, because real question of whether these
962
00:57:02.360 --> 00:57:05.000
jobs will be around in ten years, but in the meantime,
963
00:57:05.079 --> 00:57:07.760
can we make them good? Can the policy affect them
964
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fast enough to actually create decent jobs out of this,
965
00:57:10.920 --> 00:57:13.239
and does that create a model that we think about
966
00:57:13.639 --> 00:57:19.360
in other places. So to me, the robotaxi sort of
967
00:57:19.639 --> 00:57:24.480
debate is really about how we think about jobs that
968
00:57:24.840 --> 00:57:27.679
have some threat from technology, which at some level is
969
00:57:27.760 --> 00:57:31.159
most all jobs now, and can we make them good
970
00:57:31.920 --> 00:57:33.920
while they still exist, and can we give the workers
971
00:57:33.920 --> 00:57:36.599
some platform to think about what their next place is.
972
00:57:36.760 --> 00:57:40.079
Possibly these they'll be even bargaining about their next jobs.
973
00:57:40.320 --> 00:57:44.320
Getting training for those that is possible in this model,
974
00:57:44.679 --> 00:57:47.800
and it's in the current model where they have nothing
975
00:57:48.559 --> 00:57:51.000
there isn't and so that's sort of actually where I
976
00:57:51.000 --> 00:57:54.559
would just leave it is. I can't imagine there's this
977
00:57:54.639 --> 00:57:56.800
is the question really is about whether you want and
978
00:57:56.920 --> 00:57:59.920
you think ride share, driving or most other jobs should
979
00:57:59.920 --> 00:58:03.440
be able to be really poorly paid, really exploitable, or
980
00:58:03.480 --> 00:58:05.480
whether we want to think about creating a better model.
981
00:58:05.679 --> 00:58:07.880
And this is one of the very few models that
982
00:58:07.920 --> 00:58:10.159
I can think of it as real potential to improve
983
00:58:10.320 --> 00:58:12.400
job quality and these kind of difficult sectors.
984
00:58:14.800 --> 00:58:17.480
Well, I think we are almost at the hour, so
985
00:58:17.519 --> 00:58:19.639
we're probably going to have to leave it there. This
986
00:58:19.760 --> 00:58:22.760
was a fantastic discussion. I really do want to thank
987
00:58:23.239 --> 00:58:27.119
you panelists for offering some really deep knowledge on this subject.
988
00:58:28.199 --> 00:58:30.639
I learned a lot today. I hope for audience learned
989
00:58:30.679 --> 00:58:33.079
something too. So thank you both very much.
990
00:58:34.400 --> 00:58:35.280
Thank you for having us.
991
00:58:36.320 --> 00:58:39.679
Thank you on behalf of the Vireless Society. Thank you
992
00:58:39.760 --> 00:58:42.920
so much to mister Madlin and to mister Messenger for
993
00:58:43.000 --> 00:58:46.639
speaking with us today, and to mister McDonald for moderating.
994
00:58:46.960 --> 00:58:49.719
We're so grateful for your time and expertise on this
995
00:58:49.800 --> 00:58:53.079
important topic. Thank you to our audience for joining us.
996
00:58:53.320 --> 00:58:57.239
We really appreciate your participation. You can also stay up
997
00:58:57.239 --> 00:59:00.480
to date with other announcements and upcoming we on ours
998
00:59:00.679 --> 00:59:03.840
on our website. Thanks dot dot org. Thank you once
999
00:59:03.920 --> 00:59:06.039
more for tuning in whom are journed.
1000
00:59:07.280 --> 00:59:09.920
Thank you for listening to this episode of fedsoc Forums,
1001
00:59:10.000 --> 00:59:13.159
a podcast of the Federal Society's Practice groups. For more
1002
00:59:13.199 --> 00:59:16.440
information about the Federal Society, the practice groups, and to
1003
00:59:16.440 --> 00:59:19.320
become a Federal Society member, please visit our website at
1004
00:59:19.360 --> 00:59:20.679
fedsoc dot org.