Bargaining and Impasse Procedures in the Rideshare Industry

(1) Any person acting as a mediator, including conciliators and interest arbitrators, shall not be required by any administrative, arbitration, or non-criminal judicial tribunal to disclose any files, records, documents, notes, or other papers or be required to testifywith regard to anyinformation obtained while functioning in a mediatory capacity. The Department shall maintain a list of mediators, including conciliators and interest arbitrators, qualified under 456 CMR 24.00. In order to be qualified under 456 CMR 24.00 and eligible for the Department’s list, such mediators shall successfullycomplete a Department-approved training in alternate dispute resolution in the rideshare industry. (2) Initiation of Interest Mediation. (a) If individual TNCs or a TNC industry association and the TND Organization have negotiated for a 180-day period from the date a TND Organization has been designated as the exclusive bargaining representative or from the expiration date of a prior determination by the Secretary of Labor and Workforce Development and an impasse exists over one or more issues arising out of the negotiations, any of the affected TNCs or the TNC industry association or the TND Organization, or the parties jointly, may file a Petition for Mediation with the Department, in accordance with 456 CMR 12.12: Filing with the Department (b) A petitioning party proceeding unilaterally shall serve the petition on the principal representatives of the TND Organization and TNCs in accordance with 456 CMR 12.02: Service: When Required. The petition shall state in the appropriate place that a copy of the petition has been served on the other party in accordance with the requirements of 456 CMR 12.02. Failure to so state shall suspend the processing of the petition. (c) At any time during bargaining, whether or not a Petition for Mediation has been filed, the TNCs or TNC industry association and the TND Organization may jointly request mediation assistance in resolving a collective bargaining dispute. The Department shall provide mediators for this purpose. (3) Appointment of a Mediator. (a) Investigation. Upon receipt of a petition for mediation, the Department shall commence an investigation to determine if the parties have negotiated for a reasonable period of time and if an impasse exists. If the Department determines that the parties are not at impasse, it shall notify the parties of this determination within 14 days. (b) If an impasse is not deemed to exist, the Department shall appoint a conciliator to assist the parties in reducing the number of issues in dispute or bargaining to resolution. 1. The conciliator will control the conciliation process and may limit the number of persons who may attend conciliation sessions. 2. After assisting the parties with bargaining after a reasonable time, the conciliator may recommend an impasse determination to the Department. (c) Appointment. Upon determination of an impasse, the Department shall appoint a mediator from a list of qualified and available persons to help the parties resolve the impasse, unless within 48 hours of receipt of the list, the parties notify the Department that they have selected a mediator satisfactory to them. (d) Disqualification or Withdrawal of the Mediator. Prior to accepting an appointment, the mediator shall disclose to the Department any circumstances likely to create a presumption of bias, or which the mediator believes might disqualify them as an impartial mediator. (e) Fees. The filing fee for a Petition for Mediation filed pursuant to 456 CMR 24.12(2) is the amount established for interest mediation by the Department in 801 CMR 4.02: Fees of Licenses, Permits, and Services to Be Charged by State Agencies. The cost of the filing fee shall be equally divided between the parties. The cost of an outside mediator, selected by the parties, shall be equally divided between the parties unless the parties agree otherwise. (4) Mediator’s Function. (a) The function of a mediator is to assist the TNCs and the TND Organization in reaching a voluntary agreement. A mediator may hold separate or joint meetings for this purpose. The mediator shall consult with each party concerning the time, date, and place of each mediation session; however, the mediator shall make the final decision on scheduling. (b) The mediator may order the parties to provide specific representatives authorized to enter into a collective bargaining agreement to be present at meetings held for the purpose of resolving the impasse and negotiating such an agreement. (5) Public Access. There shall be no public access to mediation sessions. (6) Mediator’s Report. After concluding mediation, the staff or outside mediator shall report in writing to the Department the results of the efforts to resolve the impasse. The report is confidential and shall contain at least the following information: (a) The names of the parties; (b) A statement of the dates of first contact with both the TNCs and the TND Organization; (c) A brief description of the unresolved issues which existed at the beginning of the mediation effort; (d) A statement of the issues that have been resolved through the mediation effort; and (e) A statement of the issues that are still unresolved, if any. (7) Petition for Interest Arbitration. (a) Petition for Arbitration. If the mediator is unable to achieve agreement between the parties concerning an appropriate resolution within 30 days after the Department has provided the parties with the list of mediators, any party may petition the Department to refer the dispute to arbitration. Mediation shall continue while the arbitration petition is pending. The arbitration shall be conducted by a tripartite panel comprised of one neutral arbitrator, and one representative selected by each of the parties to serve as a partisan arbitrator in accordance with the following procedures. 1. Prior to submitting the dispute to arbitration, the Department shall conduct an election among all TNDs in the industry who have completed at least 100 trips in the previous quarter. Upon request by the Department, the TNCs shall within 14 days from the date of the request provide the name, telephone number, driver’s license number, email address, and mailing address for any TND who has completed 100 or more rides that originated in the Commonwealth of Massachusetts in the previous quarter. The eligible TNDs will choose between submitting the dispute to arbitration or decertifying the exclusive bargaining representative. If the majority of eligible votes cast are for decertification, the exclusive bargaining representative shall be decertified and any existing recommendations shall remain in place until they expire as provided in M.G.L. c. 150F, § 6F. 2. Mediation will be held in abeyance when the Department issues the notice of an election to determine whether the dispute will be submitted to arbitration or decertification. Mediation shall be removed from abeyance upon certification of the results of the election. Mediation shall resume if the TNDs determine by election that the dispute will be submitted to arbitration. Mediation shall cease upon decertification of the exclusive bargaining representative. 3. If a majority of TNDs who vote choose to have the dispute submitted to arbitration, the exclusive bargaining representative shall notifythe Department of the need to appoint a neutral arbitrator, and the Department shall notify the TNCs of this request. 4. Each of the two groups of affected parties (affected TNCs being one group, and the exclusive bargaining representative being the other group) shall have an equal say in the selection of the neutral arbitrator and each of the two groups shall share equally the cost of the arbitrator. 5. If the parties are unable to agree upon the neutral arbitrator within seven days after the Department notifies the TNCs of the need to appoint a neutral arbitrator, the Department shall submit to the parties a list of qualified, disinterested persons for the selection of a neutral arbitrator. A representative of each of the two groups shall alternately strike from the list one of the names with the order of striking determined by lot, until the remaining one person shall be designated as the neutral arbitrator. Each group shall select its representative for this purpose, as it sees fit. A group’s failure to agree upon the designation of its representative shall result in the failure of the striking procedure but shall not impede the Department’s appointment of the neutral arbitrator upon such failure. The striking process shall be completed within five days after receipt of the Department’s list. The representatives who undertake the striking shall notify the Department of the designated neutral arbitrator. In the event the parties are unable to select the neutral arbitrator within five days following receipt of this list, the Department shall appoint the neutral arbitrator. 6. Each group shall also select a representative to serve as a partisan arbitrator on the tripartite arbitration panel and shall inform the Department of its selection. In the event that a party is unable to select a partisan arbitrator, the Department shall take steps to facilitate agreement, and if necessary, the Department shall appoint such arbitrator from the list described in 456 CMR 24.12(1). (b) Letter of Appointment. After a neutral arbitrator has been selected or appointed, the Department shall promptly send a letter of appointment and a copy of the petition to the neutral arbitrator, and a copy of the letter to both parties. The neutral arbitrator shall promptly notify the Department whether the neutral arbitrator accepts the appointment. (c) Disqualification or Withdrawal of the Neutral Arbitrator. If the neutral arbitrator has represented a TNC or the TND Organization within the last 12 months, the appointment shall be revoked by the Department. The neutral arbitrator is required to disclose to the Department and the parties anycircumstances likely to create a presumption of bias, or which the neutral arbitrator believes might be disqualifying as animpartial neutral arbitrator. The Department shall provide the disclosure to all participating parties. Following such a disclosure, the Department shall revoke the neutral arbitrator’s appointment unless both parties waive this presumptive disqualification. If a neutral arbitrator is disqualified, resigns, withdraws, or otherwise becomes unavailable for the arbitration duties, the Department shall appoint another neutral arbitrator in accordance with 456 CMR 24.12. Withdrawal of Arbitration Petition. An arbitration petition may be withdrawn by the petitioning party in the case of a unilateral filing, or by agreement of both parties in the case of a joint filing, at any time prior to the appointment of a neutral arbitrator. After the appointment of a neutral arbitrator, an arbitration petition may be withdrawn only by joint agreement of the parties. The parties shall compensate the neutral arbitrator for services performed in accordance with 456 CMR 24.12(13). (9) Neutral Arbitrator’s Responsibilities. (a) Authority. The appointed neutral arbitrator shall have the authority and responsibility for the conduct of the arbitration proceedings and shall have sole discretion in deciding any issues of procedure. (b) Scheduling of Conferences and Hearings. The neutral arbitrator shall consult with each party concerning the time, date, and place of each meeting or hearing. (10) Mediation During Arbitration. (a) Authority. The neutral arbitrator or mediator has the authority to mediate the dispute. (b) Report to the Department. If the dispute is settled through mediation by the neutral arbitrator, the neutral arbitrator shall promptly notify the Department of the date and terms of the settlement and the parties shall otherwise proceed with submission of the recommendation to the Secretary of Labor and Workforce Development in accordance with M.G.L. c. 150F, § 6F. (11) Hearing Before the Arbitration Panel, Subpoenas. (a) Hearing Before the Arbitration Panel. The arbitration panel shall hold hearings on all matters related to the dispute. The parties may be heard either in person, by counsel, or by other representatives, as they may respectively designate. The neutral arbitrator shall determine the order of presentation by the parties and shall have discretion and authority to decide all procedural issues that may be raised. (b) Order of Proceedings. The parties, including all TNCs engaging at least 50 TNDs in the bargaining unit and exclusive bargaining representative, may present oral and/or written statements of fact, supporting witnesses and other evidence, and argument of their respective positions with respect to each case. The arbitrator shall have authority to require the respective positions with respect to each case. The arbitrator shall have authority to require the production of such additional evidence, either oral or written, from the parties and shall provide at the request of either party a full and complete record of any such hearings, the cost of such record to be borne by the requesting party. If such record is created, it shall be shared with all parties regardless of which party paid for it. (c) Written Submissions. AnyTNC engaging less than 50 TNDs in the bargaining unit shall have the opportunity to make a written submission to the arbitrator. (d) Neutral Arbitrator’s Authority to Issue Subpoenas and Administer Oaths. The neutral arbitrator shall have the authority, upon delegation of the Department, to administer oaths, take the testimony of any person under oath, and issue subpoenas to compel the attendance of witnesses or the production of documents. A request for a subpoena shall be allowed unless it is overbroad, oppressive, or otherwise legally defective. (e) Briefs. Upon the close of the hearing, each party has the right to make an oral argument or to file a brief. The time limits on submission of briefs shall be established by the neutral arbitrator after consultation with the parties. Should the parties wish to make oral arguments, the order of proceeding shall be at the discretion of the neutral arbitrator. (12) Arbitration Panel Recommendation. (a) The arbitration panel shall make a just and reasonable determination of the matters in dispute and shall issue a determination that shall apply to all TNCs and the exclusive bargaining representative. In arriving at such determination, the arbitration panel shall specify the basis for their findings, taking into consideration, in addition to any factors recommended by the parties that the arbitration panel finds to be consistent with 456 CMR 24.00, including the following: 1. whether the wages, benefits, hours, and conditions of work of the TNDs achieve the policy goals set forth M.G.L. c. 150F, § 1A. Findings and Policy. This amount must take into account the real cost of living, it may substantially exceed any statutory minimum wage, and should be a sufficient amount such that the TNDs do not need to rely upon any public benefits; 2. whether the most efficient way to provide benefits is through a portable benefits fund, and if so, how to best assess each TNC a portion of the costs of providing those benefits; 3. the financial ability of the affected TNCs to pay for the compensation and benefits in question and the impact on the delivery of services provided by the TNCs; 4. the establishment of reasonable dispute resolution mechanisms that will allow TNDs a reasonable expectation of uninterrupted work and permit TNCs to alter or terminate their relationships with workers if there is just cause for such; and 5. comparison of peculiarities in regard to other trades or professions, including specifically: a. hazards of work; b. physical qualifications; c. educational qualifications; d. mental qualifications; and e. job training and skills. (b) Service of the Recommendation. The neutral arbitrator shall send a copy of the Arbitration Panel Recommendation to the Department and to each party to the dispute. The neutral arbitrator shall send the report in accordance with 456 CMR 12.12: Filing with the Department. (13) Compensation of Neutral Arbitrator. (a) The neutral arbitrator shall be entitled to the compensation rate contained in the resume on file with the Department for each day or portion thereof spent in mediation, hearing, preparation, or issuance of the arbitration panel’s report, including clarification, if any. The neutral arbitrator shall also be entitled to reimbursement for necessaryand ordinaryexpenses. The costs for arbitration shall be equally divided between the parties unless they agree otherwise and provide evidence of such agreement to the Department. (b) The neutral arbitrator’s bill showing the amount payable by each party must accompany the arbitration panel’s report. The neutral arbitrator may submit interim bills to the parties in the course of the proceedings, copies of which shall be sent to the Department. The parties shall make payment directly to the neutral arbitrator. (14) Secretary of Labor and Workforce Development Approval or Disapproval of Parties’ Recommendations or Arbitrator’s Determination; Final Determination. (a) Any recommendations agreed upon between TNCs and a TND Organization acting as exclusive bargaining representative of TNDs in the bargaining unit or any determination reached by an arbitration panel under 456 CMR 24.00 shall be subject to review and approval or disapproval, in whole or in part, by the Secretary of Labor and Workforce Development pursuant to M.G.L. c. 150F, § 6F in accordance with the public purposes, standards and procedures referenced and described in M.G.L. c. 150F. Consistent with M.G.L. c. 150F, § 6F, such procedures shall include providing the exclusive bargaining representative, all TNCs, and TNDs the opportunity for public comment prior to approval or disapproval. (b) If the Secretary of Labor and Workforce Development disapproves in whole or in part, any agreement or arbitration determination the Secretary may make recommendations that would cause her to approve the agreement or determination. The Secretary shall afford the exclusive bargaining representative, all TNCs, and TNDs the opportunityto comment on any such recommendations. (c) Final Determination. 1. Duration. Any final determination reached by the Secretary of Labor and Workforce Development shall include a date following which new terms may be set for the bargaining unit. That date shall not be more than three years following the date of the final determination. 2. Modification. If, at any point during the stated term of the final determination, the Secretary of Labor and Workforce Development finds that market conditions have changed, the Secretary of Labor and Workforce and Development shall provide the Exclusive Bargaining Representative, all TNCs, and TNDs the opportunity to submit comments regarding the final determination. After reviewing comments, the Secretary of Labor and Workforce Development may modify the final determination. 3. The final determination by the Secretary of Labor and Workforce Development shall be conclusive against all affected TND Organizations and all TNCs unless reversed or otherwise modified in proceedings for enforcement or judicial review as provided in M.G.L. c. 150F, § 6F. (d) Agreement or Final Determination Bar. Except for good cause shown, no requests for Determination of a TND Organization pursuant to 456 CMR 24.06, Request for Election pursuant to 456 CMR 24.08, or Request for Certification Pursuant to 456 CMR 24.09 shall be entertained during the term of an existing agreement or Final Determination unless the petition seeking such request is filed no more than 180 days and no fewer than 150 days prior to the termination date of such agreement or Final Determination.