§ 4 — Unfair work practices

Massachusetts § 4

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title XXI: LABOR AND INDUSTRIES
• Ch. 150F: TRANSPORTATION NETWORK DRIVERS UNIONIZATION AND COLLECTIVE BARGAINING

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[ Text of section added by 2024, 252 effective December 5, 2024.]Section 4. [Unfair work practices]A. It shall be an unfair work practice for a TNC to:1. fail or refuse to provide the board with an accurate list of the names, trips made, and contact information for TNDs, as required by this chapter;2. refuse to negotiate in good faith with a certified or recognized TND organization representing TNDs engaged with such TNC concerning wages, hours, or terms and conditions of work. Since the obligation to negotiate in good faith includes an obligation to provide requested information that has a bearing on the bargaining process, it is also an unfair work practice for a TNC to refuse to provide a certified or recognized TND organization with relevant information requested by the TND organization for the performance of its duties as the TND's bargaining representative;3. refuse to provide a TND organization with a list of the names, addresses and telephone numbers of TNDs where the provision of such list is required by this chapter;4. refuse to continue all the terms of a determination of terms and conditions of work prescribed by the Secretary of Labor pursuant to this chapter until a new determination is prescribed;5. lockout TNDs. The term "lockout'' shall mean, for the purposes of this section, a refusal by a TNC to permit a TND normal access to the TNC's means of connecting TNDs to individuals seeking transportation service as a result of a dispute with such workers or a TND organization representing such workers that affects wages, hours and other terms and conditions of work of such workers, provided, however, that a lockout shall not include a termination of engagement of a worker for good cause that does not involve such worker exercising any rights guaranteed by this chapter6. To spy upon or keep under surveillance, whether directly or through agents or any other person, any activities of TNDs, those workers' representatives, or any other person, or any activities of such workers or those workers' representatives in the exercise of the rights guaranteed by this chapter.7. To dominate or interfere with the formation, existence, or administration of any TND organization, or to contribute financial or other support to any such organization, directly or indirectly, unless required to by this chapter or by any regulations implementing this chapter, including but not limited to the following:(a) by participating or assisting in, supervising, or controlling (i) the initiation or creation of any such organization or (ii) the meetings, management, operation, elections, formulation or amendment of constitution, rules or policies, of any such organization(b) by offering incentives to TNDs to join any such organization;(c) by donating free services, equipment, materials, office or meeting space or anything else of value for the use of any such organization; provided that a TNC shall not be prohibited from permitting workers to perform representational work protected under this chapter during working hours without loss of time or pay or from allowing agents of a TND organization that is the exclusive representative of its network workers from meeting with workers on its premises.8. To require a TND to join any company union or TND organization or to require a TND to refrain from forming, or joining or assisting a TND organization of their own choosing.9. To encourage membership in any company union or discourage membership in any TND organization, by discrimination in regard to hire, tenure, or in any term or condition of employment or engagement.10. To discharge or otherwise discriminate against a TND because they have signed or filed any affidavit, petition or complaint or given any information or testimony under this chapter.11. To distribute or circulate any blacklist of individuals exercising any right created or confirmed by this chapter or of members of a TND organization, or to inform any person of the exercise by any individual of such right, or of the membership of any individual in a TND organization for the purpose of preventing individuals so blacklisted or so named from obtaining or retaining opportunities for remuneration.12. To do any acts, other than those already enumerated in this section, which interfere with, restrain or coerce TNDs in the exercise of the rights guaranteed by this chapter.B. It shall be an unfair work practice for a TND organization to:1. refuse to collectively bargain in good faith with a TNC, provided it is the certified or recognized representative of the company's workers. Since the obligation to negotiate in good faith includes an obligation to provide requested information that relates to the bargaining process, it is also an unfair work practice for a certified or recognized TND to refuse to provide information requested by a TNC organization that is relevant to the bargaining process;2. restrain or coerce TNDs in the exercise of the rights guaranteed by this chapter; provided, however, that this paragraph shall not impair the right of a TND organization to prescribe its own rules with respect to the acquisition or retention of membership in the organization;3. fail to fulfill its duty of fair representation toward TNDs where it is the exclusive bargaining representative by acts or omissions that are arbitrary, discriminatory, or in bad faith.4. restrain or coerce a TNC in the selection of its representatives for the purpose of bargaining or the adjustment of grievances.C. Prevention of unfair work practices.1. The board is empowered and directed, as hereinafter provided, to prevent any TNC and any TND organization, from engaging in any unfair work practice described in this chapter. This power shall not be affected or impaired by any means of adjustment, mediation or conciliation in labor disputes that have been or may hereafter be established by law or by the determination provided for in section 6(F), below. To prevent unfair work practices, each TNC shall, at least once each year, send a text message and an email to each of its active TNDs in a form determined by the board notifying the TNDs of their rights under this chapter, and the procedure for filing an unfair work practice charge. The board shall also post a copy of this notice on its website.2. Whenever it is charged that any TNC or TND organization has engaged in or is engaging in any such unfair work practice, the board, or any agent or agency designated by the board for such purposes, shall have power to issue and cause to be served upon such TNC or TND organization, a complaint stating the charges in that respect, and containing a notice of hearing before the board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after service of said complaint. Any such complaint may be amended by the member, agent or agency conducting the hearing or the board in its discretion at any time prior to the issuance of an order based thereon. The TNC or TND organization so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member, agent or agency conducting the hearing or the board, any other person may be allowed to intervene in the said proceeding and to present testimony. In any such proceeding, the rules of evidence prevailing in courts of law or equity shall not be controlling.3. If, upon the record before them such member, agent, or agency shall determine that an unfair work practice has been committed by a TNC or TND organization named in the complaint, they shall issue and cause to be served upon the person committing the unfair work practice an order requiring such person to cease and desist from such unfair work practice, and to take such further affirmative action as will effectuate the provisions of this chapter including, but not limited to (a) withdrawal of recognition from and refraining from bargaining collectively with any organization or association, agency or plan that is either defined in this chapter as a company union, or established, maintained or assisted by any action defined in this chapter as an unfair work practice; (b) awarding back pay or other restoration of compensation, without any reduction based on the TND's interim earnings or failure to earn interim earnings, consequential damages, and an additional amount as liquidated damages equal to two times the amount of damages awarded; (c) requiring reengagement or reestablishment of the TNC's preexisting relationship with improperly, adversely affected TNDs, with or without compensation, or maintenance of a preferential list from which such worker shall be re-engaged or the relationship reestablished, and such order may further require such respondent to make reports from time to time showing the extent to which the order has been complied with; (d) requiring respondent to provide the complainant with a list of all TNDs, together with those workers' physical and e-mail addresses and known telephone numbers; and (e) requiring the TNC to recognize and bargain with a TND organization if the board determines that the unfair work practice interfered with the TND's right to form or join a TND organization. If the member, agent, or agency determines that an unfair work practice has not been committed, they shall issue an order dismissing the complaint. An order issued pursuant to this subsection shall become final and binding unless, within ten days after notice thereof, any party requests review by the full board. A review may be made upon a written statement of the case by the member, agent, or agency agreed to by the parties, or upon written statements furnished by the parties, or, if any party or the board requests, upon a transcript of the testimony taken at the hearing, if any, together with such other testimony as the board may require.If, upon the record before it, the board determines that an unfair practice has been committed it shall state its findings of fact and issue and cause to be served on the TNC or TND organization an order requiring such company or organization to cease and desist from such unfair work practice, and to take such further affirmative action as will effectuate the provisions of this chapter. If, upon the record before it, the board determines that an unfair work practice has not been committed, it shall state its findings of fact and shall issue an order dismissing this complaint.4. Until the record in a case shall have been filed in a court, as hereinafter provided, the board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.5. The board may institute appropriate proceedings in the appeals court for enforcement of its final orders.6. Any party aggrieved by a final order of the board may institute proceedings for judicial review in the appeals court within thirty days after receipt of said order. The proceedings in the appeals court shall, insofar as applicable, be governed by the provisions of section fourteen of chapter thirty A.7. Injunctive relief.(a) A party filing an unfair work practice charge under this section may petition the board to obtain injunctive relief, pending a decision on the merits of said charge by the board, upon a showing that: (i) there is reasonable cause to believe an unfair work practice has occurred, and (ii) it appears that immediate and irreparable injury, loss or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating the maintenance of, or return to, the status quo to provide meaningful relief. Such immediate and irreparable harm may include the chilling of workers in the exercise of rights provided by this chapter.(b) Within ten days of the receipt by the board of such petition, if the board determines that a charging party has made a sufficient showing both that there is reasonable cause to believe an unfair work practice has occurred and it appears that immediate and irreparable injury, loss or damage will result therefrom, rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief, the board shall petition the superior court in any county where the unfair work practice occurred upon notice to all parties for the necessary injunctive relief or, if the board determines not to seek injunctive relief, the charging party may seek injunctive relief by petition to the superior court, in which case the board must be joined as a necessary party. The board or, where applicable, the charging party, shall not be required to give any undertakings or bond and shall not be liable for any damages or costs that may have been sustained by reason of any injunctive relief ordered. If the board fails to act within ten days as provided herein, the board, for purposes of review, shall be deemed to have made a final order determining not to seek injunctive relief. In the case of a TNC's failure to provide an accurate list of names and addresses of TNDs, immediate and irreparable injury, loss, or damage shall be presumed.(c) Injunctive relief may be granted by the court, after hearing all parties, if it determines that there is reasonable cause to believe an unfair work practice has occurred and that it appears that immediate and irreparable injury, loss, or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief. Such relief shall expire on decision by the board finding no unfair work practice to have occurred, successful appeal of the grant of injunction relief, or motion by respondent to vacate or modify the injunction pursuant to the provisions of the rules of civil procedure. The board shall conclude the hearing process and issue a decision on the merits within one hundred eighty days after the imposition of such injunctive relief unless mutually agreed by the respondent and charging party.(d) A decision on the merits of the unfair work practice charge by the board finding an unfair work practice to have occurred shall continue the injunctive relief until either: (i) the respondent implements the remedy, or (ii) the respondent successfully moves in court to set aside the board's order, pursuant to provisions of Chapter 30A of the General Laws.(e) Any injunctive relief in effect pending a decision by the board (i) shall expire upon a decision by the board finding no unfair work practice to have occurred, of which the board shall notify the court within two business days, or (ii) shall remain in effect only to the extent it implements any remedial order issued by the board in its decision, of which the board shall notify the court within two business days.(f) The appeal of any order granting, denying, modifying, or vacating injunctive relief ordered by the court pursuant to this subdivision shall be made in accordance with the rules of appellate procedure.(g) Except as provided in this section, judicial review of the orders of the board shall be as provided for section 9, below.