WEBVTT

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<v ->SJC-13572,</v>

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Paul D. Craney, et al, versus Andrea J. Campbell,

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Attorney General, et al.

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<v ->Are we missing?</v>

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<v ->Are we missing somebody?</v>

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<v ->Pat Moore.
(everyone laughing)</v>

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<v ->Mr. Moore is there.</v>

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<v ->Oh, here he comes. Here he comes, okay.</v>

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Come on up. Thank you.

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Okay, attorney McGinty.

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<v ->Good morning.</v>

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May it please the court, Kevin McGinty

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and with me, Dan Goodrich for the plaintiff's appellants.

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And also present

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in the courtroom is plaintiff appellant, Paul Craney.

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We ask this court to de-certify petition number 2335,

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titled an Act Giving Transportation Network Drivers,

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the Option to Form a Union and Bargain.

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And we ask this for failure

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to satisfy the relatedness requirements of Article 48.

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Article 48 was designed to guard against abuses

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of the petition process, including packaging of inconsistent

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and unrelated provisions together in a misleading way.

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We think this happens here.

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This petition yolks together two unrelated means

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of regulating the transportation network drivers,

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on the one hand, collective bargaining, on the other hand,

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government control of wages, benefits

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and working conditions.

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<v ->But isn't the relatedness</v>

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of those two pieces captured in the NLRA?

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I mean, isn't it, if they are independent contractors,

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then they can't collectively bargain

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unless there is a state supervision?

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<v ->So I think your honor's question hits on what,</v>

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for us, is frankly the main problem with this.

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What they want to do is illegal, so in order

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to make it legal, they can't do it.

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They promise collective bargaining,

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but ultimately what happens as a result

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of government control is not really collective bargaining

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because the object of collective bargaining would, commonly,

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be understood by the voters

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of the commonwealth is that workers get to control

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through a bargaining process the ability to-

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<v ->But that seems to be an argument that you might make</v>

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to the public about whether

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or not this is actually gonna deliver on the promise

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of letting these drivers unionize

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and determine for themselves what benefits

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and rights they will have in this relationship.

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<v ->I would say that's not the case, your honor.</v>

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And the reason why is I think

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that if you look at this court's jurisprudence

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on what it means for provisions in a statute

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to be mutually dependent, one of the things

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that is necessary, we argue,

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and I think the case has beared this out, is

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that they support each other.

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I would point to Anderson.

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<v ->Which said that that relatedness</v>

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in mutual dependence are, you know, two sides

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of the same coin.

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<v ->Yes, yes, and I think</v>

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that the way this coin flip would come out is

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against it based on that because I look at Anderson,

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and Anderson starts by parsing Article 48

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by looking at the dictionary definition of the terms

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of mutuality and relatedness.

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And I think there in particular, very instructive language,

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it talks about dependence.

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It says dependence is when one is sustained by the other

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or relies on the other for support.

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And what we would argue is that a provision that

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on the one hand sets up in theory collective bargaining,

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although not really, and then the other takes

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away the object of collective, the fundamental object

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of collective bargaining is taken away by the second point.

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We would argue that they're not in any logical

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or legal sense dependent when you have that opposition

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between the two provisions.

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<v ->How is it taken away?</v>

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<v ->The reason it's taken away is</v>

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because collective bargaining is a process

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whereby workers organize and then they bargain,

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and the bargain connotes that they enter into an agreement

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that then controls what they do.

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Here, that doesn't happen because the statute

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in section 6F says that all they have is a recommendation.

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And then what happens instead is that the secretary

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of labor in the exercise of discretion gets

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to decide whether to approve, deny,

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or modify those provisions.

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<v ->Except it's using the same criteria</v>

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that the arbitrator's supposed

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to use, if I read this correctly, right?

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And you're not challenging the provision, you don't say

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that the provision requiring arbitration is unrelated.

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<v ->No, not at all.</v>

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<v ->Oh, so how is it if the secretary</v>

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of labor is using the identical provisions

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and standards that the arbitrators to use,

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that the secretary of labor's review is unrelated,

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but the arbitrator's is related?

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<v ->So we are not arguing</v>

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that the secretary's exercising standard list discretion,

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there is standards set forth in the statute,

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is there typically are, when there is a government power

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that's granted here.

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What we're saying is

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that the power to exercise that discretion and by doing so,

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take away, override,

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negate the collectively bargained outcome,

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it basically transfers the power to make

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that decision from the workers to the government.

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<v ->But that's the same power</v>

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to the extent it's being transferred,

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that's being transferred to an arbitrator.

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<v ->Yeah but the arbitration is an ordinary incident</v>

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of collective bargaining.

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<v ->Yeah, but so I don't know that ordinary</v>

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and unordinary is the same as related and unrelated.

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<v ->Well I think it is, your honor,</v>

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because one of the fundamental purposes

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of the relatedness doctrine, as elucidated in Carney

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and in a through line in the cases since then, is

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that provisions that are related at a high level

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of abstraction can be unrelated if they essentially group

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together provisions that are different from each other

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in a way that can be confusing and misleading to the voters.

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Here, you have a statute

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that the title makes no reference at all

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to that government power.

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<v ->It doesn't make any reference</v>

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to the arbitrator's power either,

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but you're not arguing that that makes it unrelated.

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<v ->But that is an ordinary part of collective bargaining,</v>

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whereas government control and over that process is not.

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<v ->But this isn't ordinary.</v>

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I mean, you were here for the previous cases.

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The ride share companies are trying

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to change the relationship,

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and they're saying they're neither employees

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nor, you know, they're independent contractors.

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And this seems to be, what's good

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for the goose is good for the gander.

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You've got an ability

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to set up a collective bargaining system

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for these type of people.

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But if they're private sector employees,

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the NLRA precludes it.

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If they're public sector employees,

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they should be in the state system.

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This is creating a new system.

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And in order for that new system to be legal, it has

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to satisfy any trust provisions.

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So why isn't that related and mutually dependent?

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It's mutually dependent as a matter of law.

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I just don't see why this is a problem,

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particularly if the other things are all permissible.

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<v ->Well, and I think where I would differ with that,</v>

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<v Kafker>Go ahead.</v>
<v ->Your Honor,</v>

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is that what is being set up essentially is something

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that in a way that's not obvious from the title,

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it's not obvious from the summary,

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it's not obvious from the first 15 pages

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of the petition is something different.

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<v ->It's something new, something new.</v>

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The ride share companies believe in a new relationship,

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this new relationship we're gonna create.

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The people respond to this saying, "Okay, you may win,

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but this new relationship can have a collective,

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bargaining component."

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And that's all that they're saying, that in order for that

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to be legal, they have

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to have this government oversight or it's illegal.

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<v ->I think the problem is</v>

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that what is offered is collective bargaining isn't

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in I think two-

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<v ->Well it isn't traditional collective bargaining,</v>

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but it's a version of collective bargaining.

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The same way the drivers,

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the ride share companies are creating a new,

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employment category.

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<v ->But I think the fact that it's different matters.</v>

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<v Kafker>Why?</v>

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<v ->And it matters from a perspective</v>

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of what the ordinary voter,

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as we heard in the last argument,

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would understand about what this question means.

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They would ordinarily understand

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that collective bargaining means what it typically means.

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If they're in a union, they would understand,

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it means that we get to get together

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and negotiate a contract and that controls

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and the government can't bigfoot our decision.

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They would understand that the ability

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to participate in the union applies to all workers.

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Here, you wouldn't know without reading 15 pages,

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actually more, 19 pages into the petition,

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that actually not all workers can participate.

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Only half of them can actually decide whether to do this.

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And then a minority

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of them can control the decision to organize.

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<v ->It's clearly something new.</v>

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But is it like the marijuana,

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is it a creating a new world that's unified?

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They're saying, okay, I'm voting on these other initiatives

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to say I'm not an employee, but I want some power.

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And this is the counterbalance to that.

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<v ->So I think that the Hensley case,</v>

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the marijuana case is, actually,

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an interesting counter example

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because there was actually the same problem in Hensley

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that the petitioners here confronted,

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which is that there was a federal prohibition, still is,

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that essentially, you know,

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marijuana is a federally scheduled substance.

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Perhaps it will be changed soon by the Biden administration,

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but at the time, it was illegal.

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And essentially the petition was able

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to put forward this unified consistent program

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of regulation and legalization because-

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<v ->Isn't that sort of like what's going on here?</v>

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You know, they're doing a slalom course

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between what's legal and what's not.

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<v ->The problem is, is that this slalom course takes them,</v>

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into the slalom pole

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or into the barrier because as I said at the beginning,

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in order to do what they wanna do, they can't do it.

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It really ends up not being collected as bargaining.

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<v ->In California, why aren't the grape grower,</v>

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the grape workers or the farm workers example,

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very comparable to this,

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that the farm workers would not be traditional employees

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'cause they moved from place to place,

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but they legalized a collective bargaining structure

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for them in California

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because they were powerless and different.

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<v ->Well I take your example, your honor.</v>

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And I think if we look at the amicus brief here

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from the labor law professors, they're of the opinion

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that it isn't necessary to do this two step process

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that gives a watered down,

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not really collective bargaining thing

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that summons into effect a government control.

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They basically say in their reading of the labor laws,

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the state could just do it,

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that the petition could just say, we hereby declare

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that ride share drivers,

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that transportation network drivers,

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can organize collectively and bargain,

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and they say it's legal to do so.

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Candidly, that's a stronger basis to go forward

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than you would've had in Hensley.

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<v ->But then they're taking a big risk</v>

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that it's gonna be preempted by the NLRA

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or the antitrust laws, aren't they?

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<v ->Well, I mean it's a choice they made.</v>

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But the problem is, is that by trying to avoid that problem,

261
00:11:24.810 --> 00:11:26.280
they created a statute that's at war

262
00:11:26.280 --> 00:11:27.600
with itself that's incoherent.

263
00:11:27.600 --> 00:11:28.650
Counsel, can I ask you a question?

264
00:11:28.650 --> 00:11:32.730
Because I still struggled in reading your briefs

265
00:11:32.730 --> 00:11:37.050
to find, when does this actually, the exercise

266
00:11:37.050 --> 00:11:41.430
of discretion ever not have this circular effect?

267
00:11:41.430 --> 00:11:43.830
Because they're out of NLRB

268
00:11:43.830 --> 00:11:46.800
and the only way to avoid antitrust issues is

269
00:11:46.800 --> 00:11:49.620
to have some state supervision.

270
00:11:49.620 --> 00:11:51.840
But to read your brief,

271
00:11:51.840 --> 00:11:56.380
any state supervision would nullify

272
00:11:56.380 --> 00:11:58.530
the underlying provision.

273
00:11:58.530 --> 00:12:02.550
So is there some continuum you could point us to

274
00:12:02.550 --> 00:12:06.150
and say, how much oversight is enough

275
00:12:06.150 --> 00:12:07.560
to make this all lawful?

276
00:12:07.560 --> 00:12:10.350
Because according to what I read, at least in your brief,

277
00:12:10.350 --> 00:12:11.850
this would never be lawful.

278
00:12:11.850 --> 00:12:13.263
This would never be legal.

279
00:12:14.460 --> 00:12:18.093
<v ->I think the challenge you have is that you can't,</v>

280
00:12:19.080 --> 00:12:21.030
at least the way they've structured it,

281
00:12:22.419 --> 00:12:24.390
you don't really have collective bargaining,

282
00:12:24.390 --> 00:12:27.450
so they nullify themselves essentially.

283
00:12:27.450 --> 00:12:31.290
They render the collective bargaining provision of it.

284
00:12:31.290 --> 00:12:32.550
<v ->Well, that's what I'm getting at.</v>

285
00:12:32.550 --> 00:12:34.590
So I'm asking you a specific answer.

286
00:12:34.590 --> 00:12:38.280
So they bargain with the ride shares

287
00:12:38.280 --> 00:12:40.830
and they say, here's the suite of things

288
00:12:40.830 --> 00:12:42.660
that we think we can all agree to.

289
00:12:42.660 --> 00:12:45.630
They send it off and they say, well, you know,

290
00:12:45.630 --> 00:12:47.640
these couple of things really bother us

291
00:12:47.640 --> 00:12:49.980
so we want you to either modify this back

292
00:12:49.980 --> 00:12:54.810
to the drawing board or here's a potential workaround

293
00:12:54.810 --> 00:12:56.820
from the state's view.

294
00:12:56.820 --> 00:13:01.560
What level of interaction is lawful in your world/

295
00:13:01.560 --> 00:13:02.730
Because it seems to suggest

296
00:13:02.730 --> 00:13:05.370
that anything other than a rubber stamp

297
00:13:05.370 --> 00:13:07.800
from the state wouldn't suffice.

298
00:13:07.800 --> 00:13:08.670
<v ->I think anything other</v>

299
00:13:08.670 --> 00:13:10.980
but a rubber stamp makes it not collective bargaining,

300
00:13:10.980 --> 00:13:12.450
which is why we say they're inconsistent.

301
00:13:12.450 --> 00:13:14.733
<v ->So I'm asking the same question.</v>

302
00:13:17.130 --> 00:13:20.100
When would this ever be lawful?

303
00:13:20.100 --> 00:13:23.400
What article 48 question could they propose

304
00:13:23.400 --> 00:13:27.090
that in your world would never be okay?

305
00:13:27.090 --> 00:13:30.360
<v ->We think there's three ways that this could be done.</v>

306
00:13:30.360 --> 00:13:32.310
One is to be very straightforward about it

307
00:13:32.310 --> 00:13:35.070
and have the mirror image of the question

308
00:13:35.070 --> 00:13:36.210
that this court just heard,

309
00:13:36.210 --> 00:13:39.090
which is we hereby declare these workers

310
00:13:39.090 --> 00:13:42.120
to be employees, and when they're employees,

311
00:13:42.120 --> 00:13:43.980
then they would fall within the ambit

312
00:13:43.980 --> 00:13:45.600
of the National Labor Relations Act

313
00:13:45.600 --> 00:13:47.340
and they could then organize collectively,

314
00:13:47.340 --> 00:13:49.830
be very simple issues and straightforward.

315
00:13:49.830 --> 00:13:51.870
<v ->But we don't control whether the feds think</v>

316
00:13:51.870 --> 00:13:53.250
that's correct or not.

317
00:13:53.250 --> 00:13:55.470
We can say that and the feds can say,

318
00:13:55.470 --> 00:13:57.870
they got their own tests for whether you're an employee

319
00:13:57.870 --> 00:14:01.860
and they're not prone to being pushed around by us.

320
00:14:01.860 --> 00:14:05.310
<v ->Well, and that's a potential objection</v>

321
00:14:05.310 --> 00:14:08.580
to the second basis, which I've already discussed

322
00:14:08.580 --> 00:14:12.780
with, your honor, which is they could just be like Hensley

323
00:14:12.780 --> 00:14:15.900
and say, we're just going to legalize this.

324
00:14:15.900 --> 00:14:18.330
And they're on stronger grounds in Hensley

325
00:14:18.330 --> 00:14:21.330
because if you believe the amicus brief, there are arguments

326
00:14:21.330 --> 00:14:22.680
that they could advance that would say that

327
00:14:22.680 --> 00:14:25.170
that would be a legal basis on which to organize.

328
00:14:25.170 --> 00:14:27.810
And then the third thing is, you get rid

329
00:14:27.810 --> 00:14:31.170
of the performative organizing process

330
00:14:31.170 --> 00:14:32.910
that really just, the main purpose

331
00:14:32.910 --> 00:14:37.910
of which is to summon into effect, this government authority

332
00:14:37.980 --> 00:14:40.920
and just say, declare the secretary of labor

333
00:14:40.920 --> 00:14:44.160
through whatever agency we're going to establish.

334
00:14:44.160 --> 00:14:48.840
We'll establish the terms and conditions for these workers,

335
00:14:48.840 --> 00:14:50.820
using exactly the same criteria

336
00:14:50.820 --> 00:14:52.290
that are set forth in section six.

337
00:14:52.290 --> 00:14:54.270
So there's three different ways you could do that,

338
00:14:54.270 --> 00:14:56.220
that avoids this complicated

339
00:14:56.220 --> 00:15:00.660
and incoherent meshing together of unrelated provisions.

340
00:15:00.660 --> 00:15:04.380
<v ->Just wanna understand, your argument</v>

341
00:15:04.380 --> 00:15:09.163
about relatedness hinges only on section 6F?

342
00:15:12.129 --> 00:15:13.268
<v ->Yes.</v>

343
00:15:13.268 --> 00:15:14.101
<v Wolohojian>Section 6F.</v>

344
00:15:14.101 --> 00:15:16.350
<v ->I would say that's on 6F, yes.</v>

345
00:15:16.350 --> 00:15:17.850
Although I would say that

346
00:15:17.850 --> 00:15:22.850
in understanding the article 48 issue overall,

347
00:15:23.340 --> 00:15:25.290
I do think it's necessary to consider

348
00:15:25.290 --> 00:15:27.750
as well the buried provisions

349
00:15:27.750 --> 00:15:30.690
that dilute worker participation,

350
00:15:30.690 --> 00:15:32.550
which also would be contrary

351
00:15:32.550 --> 00:15:34.680
to what individuals might understand

352
00:15:34.680 --> 00:15:37.830
to be the case for how collective bargaining works.

353
00:15:37.830 --> 00:15:39.990
I've hit the end of my time.

354
00:15:39.990 --> 00:15:42.030
Unless the court has any further questions,

355
00:15:42.030 --> 00:15:43.254
we'll rest on our papers?

356
00:15:43.254 --> 00:15:44.087
<v Wolohojian>Okay, thank you.</v>

357
00:15:44.087 --> 00:15:45.087
<v ->Thank you.</v>

358
00:15:47.310 --> 00:15:48.360
Okay, attorney Moore,

359
00:15:56.160 --> 00:15:57.390
<v ->Good morning, your honors.</v>

360
00:15:57.390 --> 00:15:59.790
May it please the court, my name is Patrick Moore

361
00:15:59.790 --> 00:16:02.790
on behalf of the Attorney General and the secretary.

362
00:16:02.790 --> 00:16:05.020
I appreciate the court's indulgence

363
00:16:06.210 --> 00:16:09.693
for my embarrassing lateness in returning from the break.

364
00:16:11.130 --> 00:16:15.210
The proposal here to allow ride share drivers to unionize

365
00:16:15.210 --> 00:16:18.600
and collectively bargain, while actively supervised

366
00:16:18.600 --> 00:16:20.760
by the commonwealth, is consistent

367
00:16:20.760 --> 00:16:23.220
with the related subjects' requirement.

368
00:16:23.220 --> 00:16:26.160
As a general matter, a policy proposal

369
00:16:26.160 --> 00:16:29.760
and state oversight of that policy is a common feature

370
00:16:29.760 --> 00:16:31.230
of ballot initiatives.

371
00:16:31.230 --> 00:16:34.320
This court has seen it in Clark, where the division

372
00:16:34.320 --> 00:16:37.620
of insurance oversaw medical loss ratio

373
00:16:37.620 --> 00:16:39.180
and dental insurance plans.

374
00:16:39.180 --> 00:16:40.950
It has seen it in Hensley

375
00:16:40.950 --> 00:16:43.290
where a cannabis control commission was created

376
00:16:43.290 --> 00:16:45.990
to oversee recreational marijuana.

377
00:16:45.990 --> 00:16:48.660
Voters have seen it in initiatives that have gone

378
00:16:48.660 --> 00:16:51.210
to the ballot without passing through this court.

379
00:16:51.210 --> 00:16:52.770
Right to repair is enforced

380
00:16:52.770 --> 00:16:55.230
by the Attorney General's office, medical aid

381
00:16:55.230 --> 00:16:59.190
and dying, which did not pass, but was to be, had it passed,

382
00:16:59.190 --> 00:17:01.773
enforced by the Department of Public Health.

383
00:17:04.133 --> 00:17:07.200
This petition is even more related than those

384
00:17:07.200 --> 00:17:10.020
because here, the state oversight

385
00:17:10.020 --> 00:17:14.250
that has been proposed furthers the policy proposal.

386
00:17:14.250 --> 00:17:17.040
Here, the policy proposal is to provide

387
00:17:17.040 --> 00:17:18.810
for collective action

388
00:17:18.810 --> 00:17:22.500
by drivers so that drivers may use that collective action

389
00:17:22.500 --> 00:17:26.130
to improve the terms and conditions of their work.

390
00:17:26.130 --> 00:17:28.650
Here, state action furthers that

391
00:17:28.650 --> 00:17:31.920
because it allows the proposal to be harmonized

392
00:17:31.920 --> 00:17:33.390
by federal law.

393
00:17:33.390 --> 00:17:36.120
Challenger's argument, as I understand it, is

394
00:17:36.120 --> 00:17:38.280
that state supervision is inconsistent

395
00:17:38.280 --> 00:17:39.450
with collective bargaining

396
00:17:39.450 --> 00:17:43.260
because collective bargaining gives workers power

397
00:17:43.260 --> 00:17:45.990
and state supervision takes that power

398
00:17:45.990 --> 00:17:47.580
and gives it to the state.

399
00:17:47.580 --> 00:17:52.440
Have we ever said that mutual dependence is, I mean,

400
00:17:52.440 --> 00:17:56.283
your argument is these things which seem,

401
00:17:57.750 --> 00:17:59.310
you know, they're legally compelled.

402
00:17:59.310 --> 00:18:02.790
Have we ever said that mutual dependence is satisfied

403
00:18:02.790 --> 00:18:03.810
by legal dependence?

404
00:18:03.810 --> 00:18:06.180
I just don't know the answer to that.

405
00:18:06.180 --> 00:18:07.230
<v ->Not expressly.</v>

406
00:18:07.230 --> 00:18:10.680
So, your Honor, although a petition

407
00:18:10.680 --> 00:18:15.480
that navigates existing law is a common feature

408
00:18:15.480 --> 00:18:18.720
of the initiative process, that's true in practice.

409
00:18:18.720 --> 00:18:19.950
It's true in the case law,

410
00:18:19.950 --> 00:18:22.680
and it's certainly true in the history

411
00:18:22.680 --> 00:18:24.780
of the constitutional convention.

412
00:18:24.780 --> 00:18:28.830
So beginning with case law, we see in Dunn, for example,

413
00:18:28.830 --> 00:18:32.340
Dunn dealt with farm animal treatment

414
00:18:32.340 --> 00:18:35.460
and had a provision in it to avoid preemption

415
00:18:35.460 --> 00:18:37.890
by the Federal Meat Inspection Act.

416
00:18:37.890 --> 00:18:40.200
That provision wasn't even challenged.

417
00:18:40.200 --> 00:18:44.430
Obviously, Hensley inherited a federal legal regime

418
00:18:44.430 --> 00:18:45.930
through which it tried to navigate

419
00:18:45.930 --> 00:18:49.020
by not conflicting too much with federal law,

420
00:18:49.020 --> 00:18:51.090
and a state legal regime

421
00:18:51.090 --> 00:18:53.070
where there was medicinal marijuana.

422
00:18:53.070 --> 00:18:54.240
And it navigated that

423
00:18:54.240 --> 00:18:57.450
by basically allowing the medicinal marijuana dispensaries

424
00:18:57.450 --> 00:19:02.450
to wrap into the recreational marijuana system

425
00:19:03.960 --> 00:19:06.360
that was created in that case.

426
00:19:06.360 --> 00:19:11.360
In Abdo, the petition sought to pose to voters was,

427
00:19:12.450 --> 00:19:15.780
should expanded gaming be repealed?

428
00:19:15.780 --> 00:19:18.360
And that begged the question of what would remain,

429
00:19:18.360 --> 00:19:20.790
and the petition dealt with existing law

430
00:19:20.790 --> 00:19:22.710
in that setting as well.

431
00:19:22.710 --> 00:19:24.420
But here, the purpose is

432
00:19:24.420 --> 00:19:27.210
to facilitate collective action by drivers.

433
00:19:27.210 --> 00:19:31.860
The state oversight is in furtherance of that purpose.

434
00:19:31.860 --> 00:19:34.890
It is meant to give effect to the petition.

435
00:19:34.890 --> 00:19:37.650
My brother postulated a handful

436
00:19:37.650 --> 00:19:39.930
of different other options here.

437
00:19:39.930 --> 00:19:41.520
First, of course-

438
00:19:41.520 --> 00:19:42.510
<v ->Before you go to his,</v>

439
00:19:42.510 --> 00:19:47.510
can I ask, if theirs doesn't pass, say we approve theirs

440
00:19:48.150 --> 00:19:50.640
and the other five of them,

441
00:19:50.640 --> 00:19:54.733
which will be one eventually, they're not employees, right?

442
00:19:57.210 --> 00:19:59.670
They're gonna be independent contractors.

443
00:19:59.670 --> 00:20:02.790
If that doesn't pass, there's an undecided issue,

444
00:20:02.790 --> 00:20:05.523
whether these people are employees or not.

445
00:20:07.410 --> 00:20:11.400
How does yours coexist in, if that doesn't pass,

446
00:20:11.400 --> 00:20:13.260
is there a legality issue with this

447
00:20:13.260 --> 00:20:15.063
and do we just put that aside?

448
00:20:16.219 --> 00:20:21.219
'Cause there's a case that's coming out in July or August,

449
00:20:21.780 --> 00:20:24.000
right, deciding whether these people are employees

450
00:20:24.000 --> 00:20:25.170
or not, right?

451
00:20:25.170 --> 00:20:26.700
<v ->Correct.</v>

452
00:20:26.700 --> 00:20:27.720
<v ->I'm just trying to get a sense</v>

453
00:20:27.720 --> 00:20:29.760
of how all this works together.

454
00:20:29.760 --> 00:20:32.220
<v ->A multifaceted question, your honor,</v>

455
00:20:32.220 --> 00:20:33.810
and it deals with the interplay

456
00:20:33.810 --> 00:20:35.730
of the various different employment tests

457
00:20:35.730 --> 00:20:37.560
and also federal law.

458
00:20:37.560 --> 00:20:40.950
So let's begin with the federal law, sort of super structure

459
00:20:40.950 --> 00:20:43.290
because we don't have the ability to change that.

460
00:20:43.290 --> 00:20:44.123
<v Kafker>Correct.</v>

461
00:20:44.123 --> 00:20:45.540
<v ->As your honor noted,</v>

462
00:20:45.540 --> 00:20:49.590
Antitrust law, generally speaking, prohibits conspiracies

463
00:20:49.590 --> 00:20:51.090
to restrain trade.

464
00:20:51.090 --> 00:20:52.620
There was a question for a period

465
00:20:52.620 --> 00:20:54.240
of time in the early 1900s,

466
00:20:54.240 --> 00:20:57.510
whether labor activity was such a conspiracy

467
00:20:57.510 --> 00:21:00.690
and federal law changed through the Clayton Act,

468
00:21:00.690 --> 00:21:03.570
Norse LaGuardia Act and the National Labor Relations Act

469
00:21:03.570 --> 00:21:07.500
to create a labor exception to antitrust law.

470
00:21:07.500 --> 00:21:10.050
At least as classically interpreted,

471
00:21:10.050 --> 00:21:12.870
that labor exception is limited to employees,

472
00:21:12.870 --> 00:21:15.990
but not employees as defined under state law,

473
00:21:15.990 --> 00:21:19.800
employees defined under federal law, under the NLRA,

474
00:21:19.800 --> 00:21:22.350
which is a 10 part multifactor test

475
00:21:22.350 --> 00:21:26.880
that is quite different from the ABC test here in state law.

476
00:21:26.880 --> 00:21:29.610
So at issue before the Superior Court now

477
00:21:29.610 --> 00:21:31.020
and an enforcement action brought

478
00:21:31.020 --> 00:21:35.670
by the Attorney General is whether the drivers are subject

479
00:21:35.670 --> 00:21:37.770
to the Commonwealth's wage and hour law.

480
00:21:37.770 --> 00:21:40.170
And that is answered by the ABC test.

481
00:21:40.170 --> 00:21:43.170
The answer to that question does not resolve,

482
00:21:43.170 --> 00:21:44.850
the federal labor issue.

483
00:21:44.850 --> 00:21:49.350
And it is not at all clear that that NLRB now

484
00:21:49.350 --> 00:21:53.160
or ever will recognize drivers as employees.

485
00:21:53.160 --> 00:21:56.250
So this petition,

486
00:21:56.250 --> 00:22:01.250
as I understand it, was drafted to both work in the event

487
00:22:01.440 --> 00:22:05.610
that the industry supported petitions are passed

488
00:22:05.610 --> 00:22:07.290
or if they do not pass.

489
00:22:07.290 --> 00:22:10.560
And it was meant to work regardless of the outcome

490
00:22:10.560 --> 00:22:12.300
of the current enforcement action.

491
00:22:12.300 --> 00:22:14.430
And it does because it is seeking-

492
00:22:14.430 --> 00:22:16.920
<v ->Just to be more precise, just one question for me.</v>

493
00:22:16.920 --> 00:22:20.550
So if the finding under this case

494
00:22:20.550 --> 00:22:21.990
that's pending in Superior Court,

495
00:22:21.990 --> 00:22:23.850
which obviously hasn't been appealed, everything else,

496
00:22:23.850 --> 00:22:25.533
is that they're employees.

497
00:22:27.330 --> 00:22:28.980
How would this coexist?

498
00:22:28.980 --> 00:22:32.100
Because if they're employees, oh I guess

499
00:22:32.100 --> 00:22:33.720
'cause of the conflict with federal.

500
00:22:33.720 --> 00:22:34.560
Okay, I gotcha. Okay.

501
00:22:34.560 --> 00:22:36.990
<v ->So they would need to be employees as defined</v>

502
00:22:36.990 --> 00:22:40.230
by the National Labor Relations Act to have the ability

503
00:22:40.230 --> 00:22:43.920
to unionize and collectively bargain under that act.

504
00:22:43.920 --> 00:22:46.740
The National Labor Relations Board has not held

505
00:22:46.740 --> 00:22:48.000
that they're employees.

506
00:22:48.000 --> 00:22:49.530
It is a different test.

507
00:22:49.530 --> 00:22:51.060
It is a multifactor test

508
00:22:51.060 --> 00:22:53.580
where no one factor is determinative.

509
00:22:53.580 --> 00:22:56.610
And there are factors that are perhaps more favorable

510
00:22:56.610 --> 00:23:01.610
to the companies than are the ABC factors in state law.

511
00:23:01.980 --> 00:23:03.420
And there is no presumption.

512
00:23:03.420 --> 00:23:06.090
Of course, there's a presumption in state law

513
00:23:06.090 --> 00:23:10.020
under the ABC test that a worker is an employee

514
00:23:10.020 --> 00:23:13.920
unless each factor is shown.

515
00:23:13.920 --> 00:23:17.880
So a lot of ink has been spilled

516
00:23:17.880 --> 00:23:21.180
on the related subject's requirement by this court.

517
00:23:21.180 --> 00:23:24.060
I know the court has spent a lot of time today already

518
00:23:24.060 --> 00:23:29.060
on that and will again return to the subject on Wednesday.

519
00:23:29.370 --> 00:23:30.660
I would suggest to the court

520
00:23:30.660 --> 00:23:34.833
that the analysis is actually relatively straightforward.

521
00:23:35.700 --> 00:23:39.630
What is the policy being proposed to voters

522
00:23:39.630 --> 00:23:42.540
and is it too abstract or is it something concrete

523
00:23:42.540 --> 00:23:44.493
that they may understand and answer?

524
00:23:45.390 --> 00:23:49.770
And then looking at each provision, does the provision A,

525
00:23:49.770 --> 00:23:53.040
further the policy or B, recognize

526
00:23:53.040 --> 00:23:55.563
and address a consequence of the policy?

527
00:23:56.520 --> 00:23:58.890
The petition here, and particularly

528
00:23:58.890 --> 00:24:02.010
as justice Wolohojian's question pointed out,

529
00:24:02.010 --> 00:24:04.650
6F is what is being challenged here.

530
00:24:04.650 --> 00:24:07.260
So does that further the policy?

531
00:24:07.260 --> 00:24:10.920
Well yes, it helps it navigate federal law such

532
00:24:10.920 --> 00:24:13.830
that collective bargaining can be in effect.

533
00:24:13.830 --> 00:24:17.490
Now, can it be in effect in full

534
00:24:17.490 --> 00:24:20.190
as the way the challengers have suggested?

535
00:24:20.190 --> 00:24:22.440
No, but through no fault of state law.

536
00:24:22.440 --> 00:24:24.780
That's a function of federal law.

537
00:24:24.780 --> 00:24:27.270
The petitioners here are entitled

538
00:24:27.270 --> 00:24:30.450
to take the world as they find it.

539
00:24:30.450 --> 00:24:34.050
They are not forced to operate in a world of pure logic.

540
00:24:34.050 --> 00:24:35.550
Unfortunately, all

541
00:24:35.550 --> 00:24:38.760
of our laws don't necessarily exist in such a world,

542
00:24:38.760 --> 00:24:41.580
and they're entitled to navigate that.

543
00:24:41.580 --> 00:24:43.920
That's what this provision does.

544
00:24:43.920 --> 00:24:47.850
It also addresses and mitigates a consequence

545
00:24:47.850 --> 00:24:50.250
of the unionization structure here.

546
00:24:50.250 --> 00:24:52.740
It is possible, this is sectoral bargaining.

547
00:24:52.740 --> 00:24:54.690
These are all of the drivers working

548
00:24:54.690 --> 00:24:57.450
for ride share companies who are negotiating

549
00:24:57.450 --> 00:25:01.170
with the companies on compensation, terms of work.

550
00:25:01.170 --> 00:25:03.360
There is a world in which the companies

551
00:25:03.360 --> 00:25:06.780
and the drivers effectively collude

552
00:25:06.780 --> 00:25:10.170
to keep other players out of the market.

553
00:25:10.170 --> 00:25:12.240
The state action here addresses

554
00:25:12.240 --> 00:25:14.850
and mitigates that consequence.

555
00:25:14.850 --> 00:25:16.410
If I may turn just briefly

556
00:25:16.410 --> 00:25:19.860
to the constitutional history here, the convention

557
00:25:19.860 --> 00:25:22.740
of 1917, 1918,

558
00:25:22.740 --> 00:25:25.590
which adopted the initiative petition, was doing

559
00:25:25.590 --> 00:25:29.070
so largely through the advocacy.

560
00:25:29.070 --> 00:25:32.190
If you read the debates, the members arguing

561
00:25:32.190 --> 00:25:34.140
for the initiative are doing so

562
00:25:34.140 --> 00:25:35.940
for worker treatment purposes.

563
00:25:35.940 --> 00:25:38.760
Labor was a big part of it, but not entirely,

564
00:25:38.760 --> 00:25:41.970
asking that workers need to be treated better

565
00:25:41.970 --> 00:25:45.450
and it would have been no surprise to those proponents

566
00:25:45.450 --> 00:25:47.850
of the initiative that federal law would need

567
00:25:47.850 --> 00:25:51.630
to be navigated in proposed initiatives to do that.

568
00:25:51.630 --> 00:25:52.463
Let us keep in mind this-

569
00:25:52.463 --> 00:25:55.410
<v ->But you're not suggesting that a worker, a bill</v>

570
00:25:55.410 --> 00:25:57.810
that passed treated workers less well,

571
00:25:57.810 --> 00:26:00.930
would not pass muster, right?

572
00:26:00.930 --> 00:26:02.668
<v ->No, of course not.</v>

573
00:26:02.668 --> 00:26:05.730
The framers were very well aware

574
00:26:05.730 --> 00:26:08.160
that people supporting their policy ideas

575
00:26:08.160 --> 00:26:10.260
and people, opposing their policy ideas,

576
00:26:10.260 --> 00:26:11.850
would use the initiative process.

577
00:26:11.850 --> 00:26:13.550
And they put in several safeguards

578
00:26:14.970 --> 00:26:18.870
of which relatedness is the most prominent to address that.

579
00:26:18.870 --> 00:26:20.820
But this was the Lochner era.

580
00:26:20.820 --> 00:26:22.110
The fact that you would have

581
00:26:22.110 --> 00:26:24.210
to navigate federal legal issues

582
00:26:24.210 --> 00:26:26.850
in a petition would have been no surprise

583
00:26:26.850 --> 00:26:30.960
to the framers of Article 48, and in fact is addressed

584
00:26:30.960 --> 00:26:34.413
throughout the debates on Article 48.

585
00:26:36.120 --> 00:26:41.120
I know this court has perhaps more ballot initiative matters

586
00:26:41.520 --> 00:26:45.420
before it, so I see that my time is running down,

587
00:26:45.420 --> 00:26:47.670
though not fully up.

588
00:26:47.670 --> 00:26:50.550
I'm happy to address any further questions.

589
00:26:50.550 --> 00:26:53.520
Otherwise, I would ask the court to affirm the decision

590
00:26:53.520 --> 00:26:55.650
to certify by the Attorney General

591
00:26:55.650 --> 00:26:57.753
and we otherwise rest on our submission.