Bill S.1090

SENATE DOCKET, NO. 52 FILED ON: 1/4/2019

SENATE . . . . . . . . . . . . . . No. 1090

By Mr. Lewis, a petition (accompanied by bill, Senate, No. 1090) of Jason M. Lewis, Steven Ultrino, Michelle M. DuBois and David Henry Argosky LeBoeuf for legislation to establish collective bargaining rights for TNC drivers. Labor and Workforce Development.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1022 OF 2017-2018.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act establishing collective bargaining rights for TNC drivers.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 159A1/2 of the General Laws is hereby amended by inserting after section 11 the following section:-

Section 12. (a) For the purposes of this section, the following words shall have the following meanings:-

“Commencement date” means a calendar date set by the executive office of labor and workforce development for the purpose of initiating certain processes pursuant to Section 6.310.735 and establishing timelines and deadlines associated with them.

“Executive office”, the executive office of labor and workforce development

“Exclusive driver representative”, a driver representative, certified by the executive office to be the sole and exclusive representative of all licensed for-hire drivers operating within the commonwealth for a particular transportation network company.

“Driver representative”, an entity that can assist drivers in reaching consensus on desired terms of work and negotiate those terms on their behalf with transportation network companies.

“Qualifying driver,” means a for-hire driver who drives for a transportation network company and who satisfies the conditions established by the executive office with regard to the length, frequency, total number of trips, or average number of trips in a given time period.

(b) The process of designating a driver representative shall be prescribed by executive office and shall be based on, but not limited to, consideration of the following factors: (i) organization bylaws that give drivers the right to be members of the organization and participate in the democratic control of the organization; and (ii) experience in assisting stakeholders in reaching consensus agreements with, or related to, employers and contractors.

An entity wishing to be considered as a driver representative for drivers in an appropriate unit, as prescribed by executive office, must submit a request to the executive office within 30 days of the commencement date. Within 14 days of the receipt the request, the executive office shall notify the applicant in writing of its determination.

(c) Transportation network companies who have hired, contracted with, or partnered with 50 or more drivers at any one time in the 30 days prior to the commencement date in the unit, other than in the context of an employer-employee relationship must, within 60 days of the commencement date, provide all driver representatives seeking to represent their drivers the names, addresses, email addresses, and phone numbers, of all qualifying drivers they hire, contract with, or partner with in the unit.

Driver representatives shall use driver contact information for the sole purpose of contacting drivers to solicit their interest in being represented by the driver representative. The driver representative shall not sell, publish, or otherwise disseminate the driver contact information.

(d) The executive office shall certify a driver representative as the exclusive driver representative for all qualifying drivers contracted with a particular transportation network company in the unit, according to the following:

(1) Within 120 days of receiving the driver contact information, a driver representative shall submit statements of interest to the executive office from a majority of qualifying drivers from the list described in subsection (c). Each statement of interest shall be signed, dated, and clearly state that the driver wants to be represented by the driver representative for the purpose of collective bargaining. The executive office shall determine the procedures for submitting and verifying statements of interest by drivers choosing an exclusive driver representative. The methods for submitting and verifying statements of interest by drivers choosing an exclusive driver representative may include, but not be limited to: signature verification, unique personal identification number verification, statistical methods, or third party verification.

(2) Within 30 days of receiving such statements of interest, the executive office shall determine if they are sufficient to designate the driver representative as the exclusive driver representative for all qualifying drivers for that particular transportation network company in the unit. If more than one driver representative establishes that a majority of drivers have expressed interest in being represented by that driver representative, the executive office shall designate the driver representative that received the largest number of verified affirmative statements of interest to be the exclusive driver representative.

(3) Within 30 days of receiving submissions from all driver representatives for a particular transportation network company, the executive office shall either certify one to be the exclusive driver representative or announce that no driver representative met the majority threshold for certification.

(e) If no exclusive driver representative is certified for a transportation network company in the unit, the executive office shall promulgate a new commencement date that is no earlier than 180 days and no later than 360 days from the determination that no driver representative met the majority threshold, provided that no transportation network company shall be subject to the requirements of this section more than once in any calendar year. The affected exclusive driver representative and transportation network company may repeat the processes set forth in subsections (c) and (d). If the executive office again fails to certify an exclusive driver representative, all driver representatives shall lose their certification, and the processes in subsections (c) and (d) shall end until the executive office establishes a new commencement date.

(f) Upon certification of the exclusive driver representative by the executive office, and at least 90 days before expiration of any existing agreement, the transportation network company and the exclusive driver representative shall meet and negotiate in good faith certain specified subjects, including, but not limited to, best practices regarding vehicle equipment standards, safe driving practices, the nature and amount of payments to be made by, or withheld from, the transportation network company to or by the drivers, minimum hours of work, conditions of work and applicable rules, and any other subject prescribed by the executive office and shall reduce their discussion to a written agreement.

If an agreement is reached, the parties shall transmit the agreement to the executive office. The executive office shall have 30 days upon receipt of an agreement to determine if the agreement complies with this section and to notify the parties of the determination in writing. If the executive office finds the agreement compliant, the agreement shall be considered final and binding on all parties.

If the executive office finds that the agreement fails to comply with this section, the executive office shall remand it to the parties with a written explanation.

(g) If a transportation network company and the exclusive driver representative fail to reach an agreement within 90 days of the certification of the exclusive driver representative by the executive office or within 90 days after the expiration of an existing agreement, either party must submit to interest arbitration upon the request of the other party. The arbitrator may be selected by mutual agreement of the parties. If the parties cannot agree on an arbitrator, the superior court on application of a party shall appoint the arbitrator. The court shall submit to the parties a list of 5 persons experienced in labor arbitration from which each party may delete two names and the appointment shall be made from the name or names remaining. An arbitrator so appointed shall have all the powers of an arbitrator specifically named in the agreement.

The arbitrator shall transmit any agreement to the executive office for review for compliance with the provisions of this section. The executive office shall have 30 days upon receipt of an agreement to determine its compliance and to notify the interest arbitrator of the determination in writing. If the executive office finds the agreement compliant, the agreement shall be considered final and binding on all parties. If the executive office finds that the agreement fails to comply with this section, the executive office shall remand it to the arbitrator with a written explanation. If either party refuses to enter interest arbitration, upon the request of the other, either party may pursue any available judicial remedies.

(h) It shall be a violation for a transportation network company or its agent, designee, employee, or any person or group of persons acting directly or indirectly in the interest of the transportation network company in relation to the driver to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this section including but not limited to threatening, harassing, penalizing, or otherwise discriminating against a driver because the driver has exercised the rights protected under this section.

(i) An exclusive driver representative may be decertified if the executive office receives a petition to decertify an exclusive driver representative within 30 days of the expiration of an agreement reached pursuant to this section. A decertification petition must be signed by 10 or more drivers. The executive office shall determine the procedures for submitting the decertification petition.

Once a petition has been accepted by the executive office, the executive office shall issue notice to the transportation network company and the exclusive driver representative of the decertification petition and promulgate a new commencement date. The transportation network company shall have 14 days from the commencement date to transmit the list of drivers to any petitioners. Within 90 days of receiving the driver contact information, petitioners for a decertification shall submit statements of interest from a majority of drivers represented to the executive office. The statements of interest shall be signed and dated and shall clearly indicate that the driver no longer wants to be represented by the exclusive driver representative for the purpose of collective bargaining with the transportation network company. The executive office shall determine the procedures for submitting and verifying the statements of interest of drivers.

Within 30 days of receiving such statements of interest, the executive office shall determine if they are sufficient to decertify the exclusive driver representative for that particular transportation network company. The executive office shall decertify the exclusive driver representative or declare that the decertification petition did not meet the majority threshold and reaffirm that the exclusive driver representative shall continue representing all drivers for that particular transportation network company.

If an exclusive driver representative is decertified for a particular transportation network company, the process of selecting a new exclusive driver representative may begin.

(j) The executive office is authorized to enforce and administer this section. The executive office shall investigate alleged violations. The executive office shall issue a written notice of the violation if a violation has occurred. The notice shall: (i) require the person or entity in violation to comply with the requirement; (ii) include notice that the person or entity in violation is entitled to a hearing before the labor relations commission to respond to the notice and introduce any evidence to refute or mitigate the violation; and (iii) inform the person or entity in violation that a daily penalty of up to $10,000 for every day the violator fails to cure the violation shall accrue if the violation is uncontested or found committed.

The person or entity named on the notice of violation must file with the labor relations commission the request for a hearing within 10 business days after the date of the notice of violation. The labor relations commission may affirm, modify, or reverse the executive office’s notice of violation. If the person or entity named on the notice of violation fails to timely request a hearing, the notice of violation shall be final and the daily penalty of up to $10,000 shall accrue until the violation is cured.

(k) After receipt of the decision of the labor relations commission, the aggrieved party may pursue any available judicial remedies. A plaintiff who prevails in any action to enforce this section may be awarded reasonable attorney’s fees and costs.

Name:	District/Address:
Jason M. Lewis	Fifth Middlesex
Steven Ultrino	33rd Middlesex	1/29/2019
Michelle M. DuBois	10th Plymouth	1/31/2019
David Henry Argosky LeBoeuf	17th Worcester	2/7/2019