Writers Leave UAW, but Pledge to Keep Fighting for Freelancers’ Rights

Members of the National Writers Union proclaiming their UAW affiliation in happier times. (photo © Thomas Altfather Good)

The National Writers Union—which represents independent journalists, in addition to authors, playwrights and screenwriters—is disaffiliating from the United Auto Workers, which it has been part of since 1992. And the reason for the divorce raises concerns about how to advance labor rights in the media industry, which is notorious for its reliance on freelancers.

Tension has been building for a while. As the NWU said in a statement:

In December 2018, we were informed by the UAW legal department that a voluntary agreement we had reached with The Nation was a violation of the Sherman Act and an antitrust violation. We were told not to renew this agreement, and not to negotiate any new agreements. Despite getting three legal opinions supporting our work, the UAW legal department declined any further discussions.

NWU president Larry Goldbetter: “I almost welcome a challenge.” (photo © Thomas Altfather Good)

The timing was curious. As NWU president Larry Goldbetter told FAIR, this came as the union was set to reestablish these types of agreements with publications, and to embark on a mass organizing project for freelancers. He said:

Previously, we had 18 of these agreements going back a decade ago. Then the union hit a rough time, a health insurance debacle, lost members, got put into trusteeship, and these agreements either lapsed or these employers went out of business. So we started renewing them. The Nation was the first one. We wanted to find friendly places, and knock out a string of them. The Nation was tremendously cooperative and accommodating. Then we got one with In These Times and then Jacobin, and at the end of 2018, we were ordered to stop.

Goldbetter believes the NWU—which is talking to other big unions about re-affiliating—will continue to settle more of these types of agreements, despite the UAW’s expressed concern that, because freelancers function as independent contractors, they may run afoul of the Sherman Antitrust Act, which prohibits “price-fixing.” As Goldbetter sees it, there are all sorts of independent workers who are also covered by collective-bargaining agreements, like professional athletes and movie directors. “There’s decades of cases, and there are certainly rulings against people trying to organize, but there are more rulings in favor than there are against,” Goldbetter said. “We’re confident that if we do get challenged, we would win. I almost welcome a challenge.”

The legal issues the UAW brought up aren’t out of nowhere, and they can create headaches for labor. Sanjukta Paul, a labor law professor at Wayne State University, wrote in an article abstract for the Loyola University Chicago Law Journal (8/21/15):

The threat that organizing for decent wages and working conditions will be prosecuted as price-fixing is a powerful constraint upon [freelance] workers’ ability to take action to change their circumstances…. The default rule that workers and other less-powerful economic actors are subject to the heavy hammer of the price-fixing doctrine for cooperation in pursuit of a decent livelihood ought to be revisited.

The UAW may be touchy about legalities because it’s under federal scrutiny (New York Times, 3/5/20).

And the UAW has reason to be worried about legal issues. The New York Times (3/5/20) reported that a federal corruption probe into the union has widened. Given the anti-union tendencies of the current administration, it’s not out of the question that it would pursue an antitrust case against the NWU. Such charges might not hold up in court at the end of the day, but such legal action—or the threat of it—is a good way to hinder and harass a union. Goldbetter believes the UAW’s antitrust concerns stem from the Department of Justice’s interest in UAW corruption.

Rideshare apps like Uber have invoked the antitrust argument to keep their drivers from organizing. But Sam Estreicher, a labor law professor at New York University, argued in Bloomberg (1/16/18) that this line of thinking is “based on a failure to understand why concerted activity by workers is protected against antitrust liability,” and that “labor’s antitrust shield was established by the 1914 Clayton Act.”

Hiba Hafiz, a labor and antitrust law professor at Boston College, told FAIR that agreements between independent workers and an employer that merely sets pay rates, just like they would for staff workers, are typically viewed as legitimate labor agreements in the eyes of antitrust law, as long as agreements don’t affect product markets. But, she noted, because employers have used the antitrust line against freelancer organizing, it can make worker advocates nervous. “There are extreme remedies under antitrust law; it’s treble damages,” Hafiz said in a phone interview. “They don’t want to take on that risk. It’s a litigation risk and a budgetary decision.”

For freelance media workers, it’s going to be incredibly important for the NWU to navigate the media terrain and remain unhindered by legal obstacles. As has been pointed out, while there has been much fanfare about the success of the Writers Guild of American East and the NewsGuild organizing new media companies as well as traditional newsrooms (FAIR.org, 6/18/19, 12/18/18), these stories are about traditional employees. Union agreements of those sorts don’t do much for the freelancers who provide an enormous amount of journalism.

Goldbetter is determined to establish more agreements with media outlets. “The content of the agreements sets minimum rates,” he said. “To set a floor where there is none.”

Featured image: National Writers Union members marching under the standard of the UAW in the 2015 NYC Labor Day parade. (photo © Thomas Altfather Good)