Bloggers Unions and Organizing Online Workers
by Shai Sachs, Sun Aug 12, 2007 at 11:40:40 AM EDT
One of the more interesting outcomes of YearlyKos was the discussion about organizing a blogger's union. The idea was seeded by a post on Susie Madrak's blog, where she discussed her efforts to establish "a non-profit to help progressive bloggers". The panel at YearlyKos, which I unfortunately had to miss, moved this idea a bit further down the field by discussing methods to pool together resources for health benefits, and things like that. (Incidentally, if you were at the panel, please chime in with more notes on the panel - I'm kicking myself for missing it as I type this.)
And here's how Tom Blumer over at Newsbusters ("Exposing and combating liberal media bias") reacted to the affair: "Maybe I'm missing something, but when you want to form a union, isn't it sort of necessary that there be a mean, oppressive employer, or a group of them?"
... and a reasonably even-handed defense of Madrak's idea:
Susie Madrak ... understands that bloggers aren't employed by anyone, and that consequently collective bargaining wouldn't work. What Madrak is organizing, instead, is very different: a kind of grass-roots insurance pool to pay for health emergencies of progressive bloggers
So far, so good. Madrak's idea is preceded by similar ideas housed at the Freelancer's Union, the National Writer's Union, and, coming soon, Qvisory. It's a pretty good idea, but it's not really about unionization so much as insurance purchasing.
But it's worth thinking through the concept of unionizing bloggers. Is it really such a ridiculous idea, or is there something to it? More over the flip...
Bloggers and online workers
Bloggers are actually part of a much larger economic phenomnenon: the rise of online workers, composed of individuals whose primary economic output is generated by interaction with online web applications. I discussed this phenomenon, and the challenge of organizing these workers, a few weeks ago in my post on Organizing online workers. Although it's hard to pin down an exact definition of this group, we can approximately include within it bloggers who attempt to monetize their blogging; eBay auctioneers; super-social networkers (like Joe Anthony, who organized the 160,000-person Obama MySpace page); super-social media creators (like lonelygirl15 and Tay Zonday); World of Warcraft gold-farmers; and Second Life vendors. We could also extend the concept to include Amazon developers, and participants in idea marketplaces like InnoCentive. I can't even pretend to estimate the size of this group, but with a reported 700,000 eBay auctioneers in the US, I think it's safe to estimate that there are around 1 million online workers in the US. If you include all bloggers, social networkers, and social media creators, then clearly the group grows to well over 100 million. Anyway you slice it, this is a very large group of people, which would form a sizable presence in the labor movement if organized.
When I wrote about the idea in June, my thoughts were essentially similar to those Madrak had been floating - that online workers should form a voluntary association of individuals, who pool their resources in order to purchase health insurance and other benefits, and possibly to gain some clout in their "workplace", whether it be eBay or YouTube. Basically, my thoughts were that it would be too difficult to create a union - both for practical/logistical reasons (online workers are geographically dispersed; there's no factory gate) and, in light of some very insightful comments on that post, for legal reasons (online workers are essentially independent contractors of their respective online environments; if they were to collaborate to fix prices, they would be violating anti-trust laws.)
However, I'm beginning to have second thoughts about some of those assumptions, and I want to think through, a bit more carefully, the concept of organizing online workers into a proper union.
What would an online workers union look like, and why couldn't it be created today?
An online workers union
To get a picture of an online workers union, let's imagine a sufficiently segmented group of online workers: eBay auctioneers who sell computer parts. Hypothetically, such a union would include all eBay users who sell computer parts; anyone who fit that criteria would be required to join the union. The initial organizing drive could have the same structure as an existing NLRB election campaign - that is, once the union collected union cards from one-third of eBay computer part auctioneers, eBay would be forced to hold an NLRB-monitored election. If over half of the auctioneers voted for the union, a legal bargaining unit would be created, and the unit would collectively bargain with eBay over the terms and conditions governing the auctioneers' relationship with eBay. The bargaining could cover any number of terms: the cost of participating in the marketplace, rules of behavior, etc. Union dues would be drawn from payments made to the auctioneer by eBay customers, perhaps graduated to accomodate varying income levels among the auctioneers.
The concept is a little harder to extend to bloggers, since there isn't a single economic relationship which defines bloggers the way the relationship with eBay defines auctioneers. However, bloggers who publish Google Ads could form a bargaining unit; so could bloggers who participate in hives on BlogAds, or who syndicate their content to Gather.com. It might, theoretically, be possible to create a union for bloggers, which regulates their participation in a wide array of such publishing arrangements, somewhat similar to the way some construction unions act as hiring halls for workers.
How would the bargaining units be composed, i.e. how would the online workers be segmented? Any way the workers want to segment themselves. Current labor law allows any reasonably cohesive group of workers to be organized as a bargaining unit, and that clause of labor law is sometimes a crucial factor in the ultimate success of the organizing campaign. So we can imagine a union composed only of progressive bloggers; or only bloggers from Chicago; or only fashion bloggers; or whatever.
The primary legal obstacle to this form of a labor union is the classification of online workers. Most, if not all, online workers are not classified as employers of their respective work environments; usually, they are classified as consumers. US labor law doesn't protect groups of consumers. In fact, there's reason to believe that a group of consumers working together to fix prices could be prosecuted under anti-trust act.
Most online worker-workplace relationships are defined as service provider relationships; the service provider (for example, eBay) allows the worker to use some set of services; the worker uses that service, usually for free or at low cost; sometimes, the worker gets compensation. Because the workplace is providing a service, it has a wide degree of latitude in deciding which terms and conditions to offer, and who should be allowed to use the service. So even if groups of online workers could collaborate to fix prices, online service providers could always summarily deny service to workers who had organized.
The legal relationship between online workplaces and online workers today is in some ways similar to the legal relationship between industrial workplaces and workers in the early 20th century. A series of stiff penalties handed down by federal courts in cases involving striking or boycotting workers cast unions as groups of independent economic agents colluding to fix the price of a commodity (labor), thereby ruling that they were violating anti-trust law. It wasn't until Congress passed a string of pro-labor laws, most notably the Wagner Act and the Norris-LaGuardia Act, that workers gained the legal power to bargain collectively. These documents were remarkable, because they overthrew such a large chunk of common law, and because they fundamentally redrew the boundaries of employer/employee relationships. The Wagner Act, in particular, formally created a new democratic space for US workers, and thereby expanded the way citizens learned about and practiced democratic skills.
Is it possible to create a modern-day Wagner Act, to create new organizing rights for online workers, or indeed, for all consumers? Would it be possible to force the hands of service providers, forcing them to respect certain kinds of bargaining arrangements about the terms and conditions of those services? Could such an act pass constitutional muster? I don't have anything like the legal training needed to answer this question, but I think it's an interesting puzzle for labor-friendly legal minds to turn over.
The other major obstacle to the formation of an online workers union is the social obstacle. Perhaps due to their geographically dispersed nature, I'd have to wager that most online workers have never given a moment's thought to their relationship with their service provider. Online workers don't interact with one another often, and they almost never meet in person. It's hard to imagine developing an ethos of mutual aid and solidarity among such a group, let alone an agreement by which each individual in the group agreed to suspend their activity in order to bargain for better terms. Perhaps the major exception to this rule is small subsets of bloggers, especially bloggers within a small geographic area. Many of these groups do have dense interactions and even occasional face-to-face meetings.
Even if these kinds of social obstacles were surmountable, there is a simpler and frustratingly thorny problem which organizers would have to contend with: who is in the bargaining unit? Depending on the way the bargaining unit is defined, it could be devilishly difficult to draw up a list of all of the workers in the unit, and thereby to determine how many union cards are needed to compel an election, and how many votes are needed to compel recognition of the bargaining unit. More than that, the pace of account activity on online workplaces (i.e., the pace at which accounts are created and abandoned) far outstrips the typical pace of hiring and firing in the offline world. Managing every segment of the online bargaining unit's life - card check, election, and contract enforcement - would be much more difficult than the similar tasks involved in an offline unit. In other words, how would the business agents of an online workers union identify workers who had joined the workplace after contracting was complete, and how would the agents make sure that the service provider was duly enforcing the contract for those workers, and that those workers were in solidarity with the rest of the unit? Clearly, some level of cooperation from the service provider would be necessary - e.g., the provider would have to provide the union with some slice of its user database. Consequently, an online service provider would have no trouble at all busting an online workers union.
The legal and social obstacles to creating a formal bargaining unit for online workers are ridiculously high. I think it's fairly clear that this won't happen for a long, long time, if at all.
But does that mean that the best we can do for online workers is form voluntary associations, like Madrak describes? I think unions might be able to do better for online workers, but that it will take considerable legal and organizational creativity. Unions will have to work backward from the idea of a formal bargaining unit, until they have something which comes reasonably close but is able to overcome the legal and social obstacles I've described here.
Here is the kind of thing I'm thinking of. What if someone were to form a company which hired a narrowly targeted group of online workers; the workers would agree to provide the company with their revenue, and only to work online using terms and conditions drawn up by the company. The company could negotiate with the service provider for terms and conditions on behalf of the workers, and could purchase health insurance and other benefits for its employees, in addition to providing a steady salary. If the service provider didn't agree to negotiated terms and conditions, the company's employees would suspend their online activity, in a kind of strike. The online workers could then form a union within their company under the Wagner Act, or the company could be employee-owned.
The main obstacles to the creation of such a company, I think, would be the social obstacles - would the online workers agree to such a deal? Would eBay agree to negotiate with such a company? I'd imagine that, at best, it would be very tough to establish this kind of organization. But if it were possible to aggregate a sufficiently large and/or important segment of online workers - say, all of the top 100 video producers on YouTube - then the service provider might be forced to negotiate.
Realistically speaking, I'd be very surprised if this idea ever saw the light of day. But I think it's important to push boundaries, and to imagine new ways of organizing power and supporting workers. So, if you have some feedback on this idea, or thoughts about why the obstacles I listed above aren't really so high (or that they're even higher than I imagined), or your own thoughts about organizing online workers, please, feel free to drop them in the comments. If nothing else, it's an interesting thought experiment.