HOUSE DOCKET, NO. 1308        FILED ON: 2/5/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1953

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Marjorie C. Decker

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing collective bargaining rights for TNC drivers.

_______________

PETITION OF:

HOUSE DOCKET, NO. 1308        FILED ON: 2/5/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1953

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Second General Court
(2021-2022)

_______________

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, as appearing in the 2018 Official Edition, is hereby amended by inserting after section 11 the following sections:-

Section 11(a).  - Findings and Policy

The legislature finds and declares that:

a. Privately operated Transportation Network Companies and the drivers who work with them are vital parts of the transportation system of the state, and the well-being of the drivers who operate vehicles that enable the Transportation Network Companies, and the safety, reliability, and stability of the services offered by privately operated Transportation Network Companies are matters of statewide importance;

b. For these reasons, it is the public policy of the state of Massachusetts to exempt from federal antitrust laws, and replace from the competition requirements of those laws with regulations imposed by the executive office and for the executive office to have an ongoing supervisory role in ensuring that these regulations are implemented by Transportation Network Companies and their associated drives in a way that encourages the safety, reliability and stability of the services offered.

c. Furthermore, because collective negotiations between Transportation Network Companies and their respective drivers, and the resulting collectively negotiated recommendations concerning the terms and conditions of work for drivers is likely to improve the regulations promulgated by the executive office, the state of Massachusetts will establish a process through which Transportation Network Companies and their drivers collectively negotiate in an industry council to make recommendations that will enable more stable and sustainable working conditions and better ensure that drivers can perform their services in a safe, reliable, stable, cost-effective, and economically viable manner, and thereby promote the welfare of the people who rely on safe and reliable transportation and delivery services to meet their needs;

All the provisions of this article shall be liberally construed for the accomplishment of these purposes.

This article shall be deemed an exercise of the police power of the state for the protection of the public welfare, prosperity, health and peace of the people of the state.

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 negotiating with Transportation Network Companies 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 has performed one hundred and twenty (120) requests through the transportation network company’s platform in the last ninety (90) days.

“Industry council” means the body comprised of member transportation network companies, when their drivers are represented by an exclusive driver representative, and their respective exclusive driver representative.

(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  agreements with Transportation Network Companies related to recommendations to the executive office concerning the terms and conditions of work.

(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 10% 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, electronic authorization, 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 the executive office determines that they are sufficient, the associated transportation network company may voluntarily recognize the drivers representative as the exclusive drivers representative for the purpose of joining the industry council and commencing negotiations under this article.  If the company fails to voluntarily recognize the driver representative, or if an organization wishes to take the place of an exclusive drivers representative for the workers of a transportation network company, the organization may do so by presenting proof of interest from thirty percent (30%) of qualifying drivers with that company under the same terms and conditions described above, at which point the executive office shall hold an election to determine if the qualifying drivers wish to be represented by the drivers representative.  An exclusive drivers representative that has been voluntarily recognized by their associated transportation network company may choose to gather statements of interest from 30% of their qualifying drivers and trigger the vote described in this section as well.  Any exclusive drivers representative that has won an election under this subsection may only be removed or displaced through the decertification process described in section j below.

(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 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 required 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, the transportation network company and their associated exclusive driver representative will  join the industry council.  The transportation network companies and the exclusive driver representatives shall each have votes on the industry council equal to their share of the overall market the transportation network company they are connected with had in the previous calendar year.

(g)  Upon formation with the first transportation network company and their associated exclusive driver representative, and at least 90 days before expiration of any existing agreement, the industry council shall meet and negotiate in good faith certain specified subjects.  Any agreed upon recommendations must include

(i) The provision of occupational accident coverage or other insurance coverage for drivers. This coverage shall include, at no cost to the drivers, benefits for drivers reasonably equal to benefits of this type provided required under the laws related to workers compensation coverage in Massachusetts. 

(ii) Written affirmation of anti-discrimination rights provided to drivers. Such rights shall be no less restrictive upon the network transportation company than the anti-discrimination laws of {the MA human rights law cited here}.

(iii) Benefits for drivers which may include health, retirement, and other benefits.  Such benefits will be administered by a non-profit entity controlled by the driver representatives on the Industry Council.

(iv)  Wage regulations that have the effect of providing a minimum wage not lower than the existing state regulation when wait time and expenses are considered.

(v)  The imposition of a 0.5% surcharge on every ride to be provided to the exclusive drivers representatives to provide representation, training benefits, and services for their members.

(vi) Other issues 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 set of recommendations.

If an agreement concerning such recommendations is reached, the exclusive driver representative(s) shall put the recommendations to a vote of their members.  If a majority of the voting members approves the recommendations,  the industry council shall transmit the recommendations to the executive office. The executive office shall have 30 days upon receipt of such recommendations to determine if the agreement complies with this section and the public policy intent of section 11(a) and to notify the industry council of the determination in writing. If the executive office finds the recommendations compliant, the recommendations shall be considered final and binding on all network transportation companies operating in the state of Massachusetts.If the executive office finds that the recommendations fail to comply with this section, the executive office shall remand it to the industry council with a written explanation.

(g) If the industry council fails to reach a set of recommendations that are then approved by the members of the drivers representative(s) within 90 days of the creation of the industry council or within 90 days after the expiration of an existing agreement, either the transportation network company(ies) or the exclusive driver representative(s)  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 the transportation network companies and the exclusive driver representatives may each 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 recommendations to the executive office for review for compliance with the provisions of this section and section 11(a). 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 recommendations compliant, the recommendations shall be considered final and binding on all transportation network companies in the state of Massachusetts.  No recommendations approved by a vote of the qualifying drivers shall be approved for a period longer than four (4) years.  No recommendations made by an arbitrator shall be approved for a period of longer than two (2) years. If the executive office finds that the agreement fails to comply with this section and/or section 11(a), 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)  During the term of any binding terms and conditions of work, the executive office shall have an ongoing supervisory role to ensure that their implementation satisfies the minimum requirements and purposes set out in section 11(a) and advances the public policy goals set forth in this article.  The executive office shall have the authority to withdraw approval of the recommendations if the executive office determines that the recommended terms and conditions no longer adhere to the provisions of this section or that they no longer promote the public policy goals set forth in this article. The executive office may withdraw approval only after providing the industry council with written notice of the proposed withdrawal of approval, the grounds therefore, and an opportunity to be heard regarding the proposed withdrawal. The executive office’s withdrawal of approval shall be effective only upon the issuance of a written explanation of the reasons why the approved terms and conditions no longer adhere to the provisions of this article. If the executive office withdraws approval of an existing set of binding terms and conditions of work, the industry council may submit a new set of agreed-upon recommendations for consideration within three (3) months’ time.

(i) 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.

(j) 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.  The transportation network company whose exclusive driver representative has been decertified may not vote on the industry council until a new exclusive driver representative is chosen.

(k) 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 $100,000 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 $100,000 shall accrue until the violation is cured.

(l) 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.