§ 6 — Bargaining, Impasse resolution procedures, and final determination by the Secretary of Labor

[ Text of section added by 2024, 252 effective December 5, 2024.]Section 6. [Bargaining, Impasse resolution procedures, and final determination by the Secretary of Labor]A. Once the board determines that a TND organization is the exclusive bargaining representative for the bargaining unit, the board shall notify all TNCs, and all TNCs shall be required to bargain with the exclusive bargaining representative concerning wages, benefits, and terms and conditions of work. The terms and conditions to be bargained include, but are not limited to, the criteria for deactivating a TND and a dispute resolution procedure for resolving claims alleging unjust deactivation. To facilitate negotiations, the TNCs may form an industry association to negotiate on their behalf. If the TNCs choose not to form an association, any recommended agreement must be approved by (i) at least two industry member TNCs and (ii) member TNCs representing at least eighty percent of the market share of that industry in Massachusetts, with votes determined in proportion to the number of rides completed by TNDs contracting directly with the TNC in the two calendar quarters preceding the recognition of the certified representative.B. Once the TND organization and the TNCs have reached a set of negotiated recommendations for the industry, the negotiated recommendations shall be submitted by the TND organization to a vote by all TNDs in the industry who have completed at least one hundred trips in the previous quarter. If approved by a majority of TNDs who vote, the negotiated recommendations shall be submitted to the Secretary of Labor for approval. If a majority of valid votes cast by the TNDs are not in favor of the negotiated recommendations, the transportation network worker organization and the TNCs will resume bargaining.C. For purposes of this section, an impasse may be deemed to exist if the TNCs and exclusive bargaining representative fail to achieve agreement by the end of a one hundred eighty 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 as provided for in paragraph F, below.D. Upon impasse, any of the affected TNCs or the exclusive bargaining representative may request the board to render assistance as provided in this section.E. Upon receiving a timely request from an exclusive bargaining representative for commencement of an impasse proceeding, the board shall aid the parties as follows:1. To assist the parties to effect a voluntary resolution of the dispute, the board shall appoint a mediator from a list of qualified persons maintained by the board; the parties shall be free to select a mediator satisfactory to them or to decline such selection.2. If the mediator is unable to achieve agreement between the parties concerning an appropriate resolution within thirty days after the board has provided the parties the list of mediators, any party may petition the board to refer the dispute to an arbitrator.3. Upon timely petition of either party, the board shall refer the dispute to an arbitrator as hereinafter provided.(a) Prior to submitting the dispute to an arbitrator, the board shall conduct an election among all TNDs in the industry who have completed at least one hundred trips in the previous quarter. The TNDs will choose between submitting the dispute to the arbitrator 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 regulations shall remain in place until they expire as provided in paragraph F below.(b) If a majority of TNDs who vote choose to have an arbitrator appointed, the exclusive bargaining representative shall notify the board of the need to appoint an arbitrator, and the board shall notify the TNCs of this request. 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 arbitrator and each of the two groups shall share equally the cost of the arbitrator. If the parties are unable to agree upon the arbitrator within seven days after the board notifies the TNCs of the need to appoint an arbitrator, the board shall submit to the parties a list of qualified, disinterested persons for the selection of an 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 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 board's appointment of the arbitrator upon such failure. The striking process shall be completed within five days of receipt of the board's list. The representatives who undertake the striking shall notify the board of the designated arbitrator. In the event the parties are unable to select the arbitrator within five days following receipt of this list, the board shall appoint the arbitrator.(c) The arbitrator 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 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;(d) The parties, including all TNCs engaging at least fifty TNDs in the bargaining unit and the exclusive bargaining representative affected, may present, either orally or in writing, or both, 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 production of such additional evidence, either oral or written as she or he may desire from the parties and shall provide at the request of either group of parties that a full and complete record be kept 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.(e) Any TNC engaging less than fifty TNDs in the bargaining unit shall have the opportunity to make a written submission to the arbitrator.(f) The arbitrator 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 arbitrator shall specify the basis for his or her findings, taking into consideration, in addition to any factors recommended by the parties that the arbitrator finds to be consistent with this chapter, including the following:i. whether the wages, benefits, hours, and conditions of work of the TNDs achieve the policy goals set forth subdivision A of Section I. 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;ii. 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;iii. 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 companies;iv. 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; andv. 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.F. Any recommendations agreed upon between TNCs and a TND organization acting as exclusive bargaining representative of TNDs in the bargaining unit and/or any determination reached by an arbitrator under this chapter shall be subject to review and approval by the Secretary of Labor. In deciding whether to grant approval to the arbitrator's recommendations, the Secretary of Labor's decision shall be based on the factors specified in paragraph E(3)(f), above, and the policies set forth in section I. In deciding whether to approve such agreement or determination, the Secretary of Labor shall afford the exclusive representative, all TNCs, and TNDs no more than thirty days to submit comments and arguments concerning whether approval is warranted. Within sixty days of the deadline for submitting comments, the Secretary of Labor shall approve or disapprove the agreement or determination. In the event of disapproval, the Secretary of Labor may make recommendations for amendments to the agreement or determination that would cause the Secretary of Labor to approve and afford the parties an opportunity to respond to those recommendations. The final determination by the Secretary of Labor shall include a date following which new terms may be set for the bargaining unit which date shall not be more than three years following the date of the issuance of the determination. If during the three year period (or any lesser period that the Secretary of Labor sets as a duration for the final determination), the Secretary of Labor determines that market conditions have changed, the Secretary of Labor shall give the exclusive bargaining representative, all TNCs, and TNDs the opportunity to submit comments and arguments concerning whether the final determination should be modified, and after receiving those comments, the Secretary of Labor may modify the final determination.