Last week the Seattle Finance and Administrative Services department published their proposed rules for the process of unionizing the drivers of Uber, Lyft, and other Transportation Network Companies (aka TNCs or “Driver Coordinators”).
The rules are in four pieces:
Determining who is a “qualifying driver” and thus is eligible for collective representation (though whether they actually opt to be represented is a separate issue).
The application and certification process for a Qualified Driver Representative (QDR), whom drivers may choose to represent them.
The certification of an Exclusive Driver Representative (EDR), who will gain the right to represent all Seattle drivers of a particular Driver Coordinator.
The subjects of bargaining between a Driver Coordinator and an EDR.
The sixty-four thousand dollar question, of course, lies in the first set of rules: which drivers can choose to be represented. This has been the subject of heated arguments, as full-time and part-time drivers have different interests — and many part-time drivers are uninterested in collective bargaining. The full-time drivers have argued that only they should be eligible to choose to be represented; the rest have argued that ALL drivers should be eligible to participate — even those who only drive a few trips a month. And the TNCs, eager to sow division within the ranks of their drivers, have come down on the side of qualifying all drivers.
FAS split the difference: under its proposed rule, any driver who has been signed up continuously with a Driver Coordinator from October 19, 2016 to January 17, 2017, and has driven at least 52 trips originating or ending within the Seattle city limits for a single Driver Coordinator during any 3-month period between January 17, 2016 and January 17, 2017, is a Qualified Driver.
52 trips in a 3-month period is an average of 4 trips per week. That’s a pretty low bar; a full-time driver can easily meet that mark in less than a week. There are some very occasional drivers who won’t hit the mark, but it will certainly include the majority of Uber’s part-time drivers today.
Uber and other Driver Coordinators will be required to compile a list of its Qualified Drivers and deliver it securely to any and all QDR’s who request it, so that they may try to arrange representation. FAS’s rules specify the severe restrictions upon what a QDR may do with that list, and the ordinance specifies the penalties for breaking those restrictions. Nevertheless, Uber and other companies will likely sue in order to prevent the release of this data.
Any organization wishing to be designated as a QDR must meet several qualifications:
- it must be registered as a nonprofit;
- it must have bylaws that give drivers the right to be members and participate in democratic control over it;
- it must have either experience in or a demonstrated commitment to assisting in a collective bargaining process;
- it must not interfere with, restrain or coerce drivers;
- it must not be dominated or controlled by and current Driver Coordinator, nor receive any financial support from one.
Any organization meeting these criteria can apply to the city to be certified as a QDR for 30 days starting on January 17, and the city will approve or reject the application within 14 calendar days. Approved QDRs then have 14 days to notify Driver Coordinators of its intent to represent their drivers, and the Driver Coordinators must then give the QDR its list of qualifying drivers.
Then the horse race begins, as QDRs compete to see who can collect the greatest number of “statements of interest” from qualifying drivers, because if one can get a majority (50% + 1) of drivers to support it, then it can be certified as the Exclusive Driver Representative (EDR) for that Driver Coordinator. Drivers can support more than one QDR, though, and if more than one collects majority support, then whichever one gets the most will be certified as the EDR.
But the horse race has rules too. A QDR can collect statements of interest electronically or on paper, but not both. Also, if in electronic form that means the QDR will need to provide details of its electronic signature system and how to verify the signatures. And if paper-based, then the QDR needs to provide electronic scans of all signatures on paper. Also, there is a process for drivers to revoke their statement of interest. And there are processes for challenging EDR certification or denial.
Finally, FAS has made a list of mandatory subjects of bargaining by an EDR with a Driver Coordinator:
- Best practices regarding vehicle equipment standards;
- Safe driving training and/or practices;
- The manner in which the Driver Coordinator will conduct criminal background checks of all prospective drivers;
- The nature and amount of payments to be made by, or withheld from, the driver coordinator to or by the drivers;
- Minimum hours of work;
- Drivers’ conditions of work;
- Rules that apply to drivers including discipline, termination or deactivation;
- whether drivers will be required to become members of or make other payments to an EDR.
All other subjects, except those that would be illegal, are “permissive subjects” that are fair game for collective bargaining (though not required).
Minimum hours of work will be a sore point, likely a wedge issue between the part-time and full-time drivers. Full-time drivers will want to be guaranteed a minimum number of hours, and the Driver Coordinators will want a commitment to work that number of hours in return. Part-time drivers who appreciate their freedom and flexibility — and who are not trying to maximize hours — will not want to commit to a minimum number of hours.
The FAS rules require bargaining in good faith, and specify that “parties may not refuse to reach an agreement within 90 calendar days of certification of an EDR based on disagreement about a permissive subject.” The FAS Director is the arbiter of whether either an EDR or a Driver Coordinator has negotiated in bad faith or broken the 90-day negotiation requirement, and is authorized to assess penalties of up to $10,000 per day until resolved.
FAS announced that they will hold a public hearing on these proposed rules on December 6, from 1:30 to 4:30 in the Bertha Knight Landes Room in City Hall. Expect more arguing over who is a Qualified Driver. Expect another presentation on the topic to the Education, Equity and Governance Committee before the rules are finalized and take effect on January 17. And expect it eventually to be back in court.