The Ninth Circuit Court of Appeals is contemplating the fate of Seattle’s ordinance granting TNC drivers collective bargaining rights. That ordinance, passed in 2015, allows drivers to elect to be represented by a qualified “driver representative.” If a representative enrolls most of those driving for a specific TNC, it can be certified as the exclusive representative for all drivers with that TNC. It’s controversial even among drivers, because it pits the interests of full-time drivers against those of part-timers.
Two challenges have been filed in federal court. One brought jointly by the U.S. Chamber of Commerce and Uber argues that the ordinance violates antitrust law and that the National Labor Relations Act (NLRA) prohibits independent contractors from organizing. The other, filed by a group of Uber drivers, contends that certifying an exclusive driver coordinator would violate the NLRA’s ban on coercive acts and restrict the drivers’ First Amendment freedom of expression.
Since no such representative has been certified yet — and perhaps never will be — the lower court found that the drivers’ case was not yet “ripe” for adjudication. But the chamber’s case raises meaty questions for the courts. As sovereign entities, states are exempt from federal antitrust law, but it’s unclear which steps Washington’s Legislature must take to delegate that exemption to Seattle. Equally vague is whether the NLRA’s silence on the rights of independent contractors should be read as a prohibition on organizing or the opposite.
The appeals court will issue its ruling later this year, but it is almost certain that it won’t have the last word. Both sides have signaled their intentions to take the case to the U.S. Supreme Court.