-: SJC-13572,
Paul D. Craney, et al, versus Andrea J. Campbell,
Attorney General, et al.
-: Are we missing?
-: Are we missing somebody?
-: Pat Moore. (everyone laughing)
-: Mr. Moore is there.
-: Oh, here he comes. Here he comes, okay.
Come on up. Thank you.
Okay, attorney McGinty.
-: Good morning.
May it please the court, Kevin McGinty
and with me, Dan Goodrich for the plaintiff's appellants.
And also present
in the courtroom is plaintiff appellant, Paul Craney.
We ask this court to de-certify petition number 2335,
titled an Act Giving Transportation Network Drivers,
the Option to Form a Union and Bargain.
And we ask this for failure
to satisfy the relatedness requirements of Article 48.
Article 48 was designed to guard against abuses
of the petition process, including packaging of inconsistent
and unrelated provisions together in a misleading way.
We think this happens here.
This petition yolks together two unrelated means
of regulating the transportation network drivers,
on the one hand, collective bargaining, on the other hand,
government control of wages, benefits
and working conditions.
-: But isn't the relatedness
of those two pieces captured in the NLRA?
I mean, isn't it, if they are independent contractors,
then they can't collectively bargain
unless there is a state supervision?
-: So I think your honor's question hits on what,
for us, is frankly the main problem with this.
What they want to do is illegal, so in order
to make it legal, they can't do it.
They promise collective bargaining,
but ultimately what happens as a result
of government control is not really collective bargaining
because the object of collective bargaining would, commonly,
be understood by the voters
of the commonwealth is that workers get to control
through a bargaining process the ability to-
-: But that seems to be an argument that you might make
to the public about whether
or not this is actually gonna deliver on the promise
of letting these drivers unionize
and determine for themselves what benefits
and rights they will have in this relationship.
-: I would say that's not the case, your honor.
And the reason why is I think
that if you look at this court's jurisprudence
on what it means for provisions in a statute
to be mutually dependent, one of the things
that is necessary, we argue,
and I think the case has beared this out, is
that they support each other.
I would point to Anderson.
-: Which said that that relatedness
in mutual dependence are, you know, two sides
of the same coin.
-: Yes, yes, and I think
that the way this coin flip would come out is
against it based on that because I look at Anderson,
and Anderson starts by parsing Article 48
by looking at the dictionary definition of the terms
of mutuality and relatedness.
And I think there in particular, very instructive language,
it talks about dependence.
It says dependence is when one is sustained by the other
or relies on the other for support.
And what we would argue is that a provision that
on the one hand sets up in theory collective bargaining,
although not really, and then the other takes
away the object of collective, the fundamental object
of collective bargaining is taken away by the second point.
We would argue that they're not in any logical
or legal sense dependent when you have that opposition
between the two provisions.
-: How is it taken away?
-: The reason it's taken away is
because collective bargaining is a process
whereby workers organize and then they bargain,
and the bargain connotes that they enter into an agreement
that then controls what they do.
Here, that doesn't happen because the statute
in section 6F says that all they have is a recommendation.
And then what happens instead is that the secretary
of labor in the exercise of discretion gets
to decide whether to approve, deny,
or modify those provisions.
-: Except it's using the same criteria
that the arbitrator's supposed
to use, if I read this correctly, right?
And you're not challenging the provision, you don't say
that the provision requiring arbitration is unrelated.
-: No, not at all.
-: Oh, so how is it if the secretary
of labor is using the identical provisions
and standards that the arbitrators to use,
that the secretary of labor's review is unrelated,
but the arbitrator's is related?
-: So we are not arguing
that the secretary's exercising standard list discretion,
there is standards set forth in the statute,
is there typically are, when there is a government power
that's granted here.
What we're saying is
that the power to exercise that discretion and by doing so,
take away, override,
negate the collectively bargained outcome,
it basically transfers the power to make
that decision from the workers to the government.
-: But that's the same power
to the extent it's being transferred,
that's being transferred to an arbitrator.
-: Yeah but the arbitration is an ordinary incident
of collective bargaining.
-: Yeah, but so I don't know that ordinary
and unordinary is the same as related and unrelated.
-: Well I think it is, your honor,
because one of the fundamental purposes
of the relatedness doctrine, as elucidated in Carney
and in a through line in the cases since then, is
that provisions that are related at a high level
of abstraction can be unrelated if they essentially group
together provisions that are different from each other
in a way that can be confusing and misleading to the voters.
Here, you have a statute
that the title makes no reference at all
to that government power.
-: It doesn't make any reference
to the arbitrator's power either,
but you're not arguing that that makes it unrelated.
-: But that is an ordinary part of collective bargaining,
whereas government control and over that process is not.
-: But this isn't ordinary.
I mean, you were here for the previous cases.
The ride share companies are trying
to change the relationship,
and they're saying they're neither employees
nor, you know, they're independent contractors.
And this seems to be, what's good
for the goose is good for the gander.
You've got an ability
to set up a collective bargaining system
for these type of people.
But if they're private sector employees,
the NLRA precludes it.
If they're public sector employees,
they should be in the state system.
This is creating a new system.
And in order for that new system to be legal, it has
to satisfy any trust provisions.
So why isn't that related and mutually dependent?
It's mutually dependent as a matter of law.
I just don't see why this is a problem,
particularly if the other things are all permissible.
-: Well, and I think where I would differ with that,
Kafker: Go ahead. -: Your Honor,
is that what is being set up essentially is something
that in a way that's not obvious from the title,
it's not obvious from the summary,
it's not obvious from the first 15 pages
of the petition is something different.
-: It's something new, something new.
The ride share companies believe in a new relationship,
this new relationship we're gonna create.
The people respond to this saying, "Okay, you may win,
but this new relationship can have a collective,
bargaining component."
And that's all that they're saying, that in order for that
to be legal, they have
to have this government oversight or it's illegal.
-: I think the problem is
that what is offered is collective bargaining isn't
in I think two-
-: Well it isn't traditional collective bargaining,
but it's a version of collective bargaining.
The same way the drivers,
the ride share companies are creating a new,
employment category.
-: But I think the fact that it's different matters.
Kafker: Why?
-: And it matters from a perspective
of what the ordinary voter,
as we heard in the last argument,
would understand about what this question means.
They would ordinarily understand
that collective bargaining means what it typically means.
If they're in a union, they would understand,
it means that we get to get together
and negotiate a contract and that controls
and the government can't bigfoot our decision.
They would understand that the ability
to participate in the union applies to all workers.
Here, you wouldn't know without reading 15 pages,
actually more, 19 pages into the petition,
that actually not all workers can participate.
Only half of them can actually decide whether to do this.
And then a minority
of them can control the decision to organize.
-: It's clearly something new.
But is it like the marijuana,
is it a creating a new world that's unified?
They're saying, okay, I'm voting on these other initiatives
to say I'm not an employee, but I want some power.
And this is the counterbalance to that.
-: So I think that the Hensley case,
the marijuana case is, actually,
an interesting counter example
because there was actually the same problem in Hensley
that the petitioners here confronted,
which is that there was a federal prohibition, still is,
that essentially, you know,
marijuana is a federally scheduled substance.
Perhaps it will be changed soon by the Biden administration,
but at the time, it was illegal.
And essentially the petition was able
to put forward this unified consistent program
of regulation and legalization because-
-: Isn't that sort of like what's going on here?
You know, they're doing a slalom course
between what's legal and what's not.
-: The problem is, is that this slalom course takes them,
into the slalom pole
or into the barrier because as I said at the beginning,
in order to do what they wanna do, they can't do it.
It really ends up not being collected as bargaining.
-: In California, why aren't the grape grower,
the grape workers or the farm workers example,
very comparable to this,
that the farm workers would not be traditional employees
'cause they moved from place to place,
but they legalized a collective bargaining structure
for them in California
because they were powerless and different.
-: Well I take your example, your honor.
And I think if we look at the amicus brief here
from the labor law professors, they're of the opinion
that it isn't necessary to do this two step process
that gives a watered down,
not really collective bargaining thing
that summons into effect a government control.
They basically say in their reading of the labor laws,
the state could just do it,
that the petition could just say, we hereby declare
that ride share drivers,
that transportation network drivers,
can organize collectively and bargain,
and they say it's legal to do so.
Candidly, that's a stronger basis to go forward
than you would've had in Hensley.
-: But then they're taking a big risk
that it's gonna be preempted by the NLRA
or the antitrust laws, aren't they?
-: Well, I mean it's a choice they made.
But the problem is, is that by trying to avoid that problem,
they created a statute that's at war
with itself that's incoherent.
Counsel, can I ask you a question?
Because I still struggled in reading your briefs
to find, when does this actually, the exercise
of discretion ever not have this circular effect?
Because they're out of NLRB
and the only way to avoid antitrust issues is
to have some state supervision.
But to read your brief,
any state supervision would nullify
the underlying provision.
So is there some continuum you could point us to
and say, how much oversight is enough
to make this all lawful?
Because according to what I read, at least in your brief,
this would never be lawful.
This would never be legal.
-: I think the challenge you have is that you can't,
at least the way they've structured it,
you don't really have collective bargaining,
so they nullify themselves essentially.
They render the collective bargaining provision of it.
-: Well, that's what I'm getting at.
So I'm asking you a specific answer.
So they bargain with the ride shares
and they say, here's the suite of things
that we think we can all agree to.
They send it off and they say, well, you know,
these couple of things really bother us
so we want you to either modify this back
to the drawing board or here's a potential workaround
from the state's view.
What level of interaction is lawful in your world/
Because it seems to suggest
that anything other than a rubber stamp
from the state wouldn't suffice.
-: I think anything other
but a rubber stamp makes it not collective bargaining,
which is why we say they're inconsistent.
-: So I'm asking the same question.
When would this ever be lawful?
What article 48 question could they propose
that in your world would never be okay?
-: We think there's three ways that this could be done.
One is to be very straightforward about it
and have the mirror image of the question
that this court just heard,
which is we hereby declare these workers
to be employees, and when they're employees,
then they would fall within the ambit
of the National Labor Relations Act
and they could then organize collectively,
be very simple issues and straightforward.
-: But we don't control whether the feds think
that's correct or not.
We can say that and the feds can say,
they got their own tests for whether you're an employee
and they're not prone to being pushed around by us.
-: Well, and that's a potential objection
to the second basis, which I've already discussed
with, your honor, which is they could just be like Hensley
and say, we're just going to legalize this.
And they're on stronger grounds in Hensley
because if you believe the amicus brief, there are arguments
that they could advance that would say that
that would be a legal basis on which to organize.
And then the third thing is, you get rid
of the performative organizing process
that really just, the main purpose
of which is to summon into effect, this government authority
and just say, declare the secretary of labor
through whatever agency we're going to establish.
We'll establish the terms and conditions for these workers,
using exactly the same criteria
that are set forth in section six.
So there's three different ways you could do that,
that avoids this complicated
and incoherent meshing together of unrelated provisions.
-: Just wanna understand, your argument
about relatedness hinges only on section 6F?
-: Yes.
Wolohojian: Section 6F.
-: I would say that's on 6F, yes.
Although I would say that
in understanding the article 48 issue overall,
I do think it's necessary to consider
as well the buried provisions
that dilute worker participation,
which also would be contrary
to what individuals might understand
to be the case for how collective bargaining works.
I've hit the end of my time.
Unless the court has any further questions,
we'll rest on our papers?
Wolohojian: Okay, thank you.
-: Thank you.
Okay, attorney Moore,
-: Good morning, your honors.
May it please the court, my name is Patrick Moore
on behalf of the Attorney General and the secretary.
I appreciate the court's indulgence
for my embarrassing lateness in returning from the break.
The proposal here to allow ride share drivers to unionize
and collectively bargain, while actively supervised
by the commonwealth, is consistent
with the related subjects' requirement.
As a general matter, a policy proposal
and state oversight of that policy is a common feature
of ballot initiatives.
This court has seen it in Clark, where the division
of insurance oversaw medical loss ratio
and dental insurance plans.
It has seen it in Hensley
where a cannabis control commission was created
to oversee recreational marijuana.
Voters have seen it in initiatives that have gone
to the ballot without passing through this court.
Right to repair is enforced
by the Attorney General's office, medical aid
and dying, which did not pass, but was to be, had it passed,
enforced by the Department of Public Health.
This petition is even more related than those
because here, the state oversight
that has been proposed furthers the policy proposal.
Here, the policy proposal is to provide
for collective action
by drivers so that drivers may use that collective action
to improve the terms and conditions of their work.
Here, state action furthers that
because it allows the proposal to be harmonized
by federal law.
Challenger's argument, as I understand it, is
that state supervision is inconsistent
with collective bargaining
because collective bargaining gives workers power
and state supervision takes that power
and gives it to the state.
Have we ever said that mutual dependence is, I mean,
your argument is these things which seem,
you know, they're legally compelled.
Have we ever said that mutual dependence is satisfied
by legal dependence?
I just don't know the answer to that.
-: Not expressly.
So, your Honor, although a petition
that navigates existing law is a common feature
of the initiative process, that's true in practice.
It's true in the case law,
and it's certainly true in the history
of the constitutional convention.
So beginning with case law, we see in Dunn, for example,
Dunn dealt with farm animal treatment
and had a provision in it to avoid preemption
by the Federal Meat Inspection Act.
That provision wasn't even challenged.
Obviously, Hensley inherited a federal legal regime
through which it tried to navigate
by not conflicting too much with federal law,
and a state legal regime
where there was medicinal marijuana.
And it navigated that
by basically allowing the medicinal marijuana dispensaries
to wrap into the recreational marijuana system
that was created in that case.
In Abdo, the petition sought to pose to voters was,
should expanded gaming be repealed?
And that begged the question of what would remain,
and the petition dealt with existing law
in that setting as well.
But here, the purpose is
to facilitate collective action by drivers.
The state oversight is in furtherance of that purpose.
It is meant to give effect to the petition.
My brother postulated a handful
of different other options here.
First, of course-
-: Before you go to his,
can I ask, if theirs doesn't pass, say we approve theirs
and the other five of them,
which will be one eventually, they're not employees, right?
They're gonna be independent contractors.
If that doesn't pass, there's an undecided issue,
whether these people are employees or not.
How does yours coexist in, if that doesn't pass,
is there a legality issue with this
and do we just put that aside?
'Cause there's a case that's coming out in July or August,
right, deciding whether these people are employees
or not, right?
-: Correct.
-: I'm just trying to get a sense
of how all this works together.
-: A multifaceted question, your honor,
and it deals with the interplay
of the various different employment tests
and also federal law.
So let's begin with the federal law, sort of super structure
because we don't have the ability to change that.
Kafker: Correct.
-: As your honor noted,
Antitrust law, generally speaking, prohibits conspiracies
to restrain trade.
There was a question for a period
of time in the early 1900s,
whether labor activity was such a conspiracy
and federal law changed through the Clayton Act,
Norse LaGuardia Act and the National Labor Relations Act
to create a labor exception to antitrust law.
At least as classically interpreted,
that labor exception is limited to employees,
but not employees as defined under state law,
employees defined under federal law, under the NLRA,
which is a 10 part multifactor test
that is quite different from the ABC test here in state law.
So at issue before the Superior Court now
and an enforcement action brought
by the Attorney General is whether the drivers are subject
to the Commonwealth's wage and hour law.
And that is answered by the ABC test.
The answer to that question does not resolve,
the federal labor issue.
And it is not at all clear that that NLRB now
or ever will recognize drivers as employees.
So this petition,
as I understand it, was drafted to both work in the event
that the industry supported petitions are passed
or if they do not pass.
And it was meant to work regardless of the outcome
of the current enforcement action.
And it does because it is seeking-
-: Just to be more precise, just one question for me.
So if the finding under this case
that's pending in Superior Court,
which obviously hasn't been appealed, everything else,
is that they're employees.
How would this coexist?
Because if they're employees, oh I guess
'cause of the conflict with federal.
Okay, I gotcha. Okay.
-: So they would need to be employees as defined
by the National Labor Relations Act to have the ability
to unionize and collectively bargain under that act.
The National Labor Relations Board has not held
that they're employees.
It is a different test.
It is a multifactor test
where no one factor is determinative.
And there are factors that are perhaps more favorable
to the companies than are the ABC factors in state law.
And there is no presumption.
Of course, there's a presumption in state law
under the ABC test that a worker is an employee
unless each factor is shown.
So a lot of ink has been spilled
on the related subject's requirement by this court.
I know the court has spent a lot of time today already
on that and will again return to the subject on Wednesday.
I would suggest to the court
that the analysis is actually relatively straightforward.
What is the policy being proposed to voters
and is it too abstract or is it something concrete
that they may understand and answer?
And then looking at each provision, does the provision A,
further the policy or B, recognize
and address a consequence of the policy?
The petition here, and particularly
as justice Wolohojian's question pointed out,
6F is what is being challenged here.
So does that further the policy?
Well yes, it helps it navigate federal law such
that collective bargaining can be in effect.
Now, can it be in effect in full
as the way the challengers have suggested?
No, but through no fault of state law.
That's a function of federal law.
The petitioners here are entitled
to take the world as they find it.
They are not forced to operate in a world of pure logic.
Unfortunately, all
of our laws don't necessarily exist in such a world,
and they're entitled to navigate that.
That's what this provision does.
It also addresses and mitigates a consequence
of the unionization structure here.
It is possible, this is sectoral bargaining.
These are all of the drivers working
for ride share companies who are negotiating
with the companies on compensation, terms of work.
There is a world in which the companies
and the drivers effectively collude
to keep other players out of the market.
The state action here addresses
and mitigates that consequence.
If I may turn just briefly
to the constitutional history here, the convention
of 1917, 1918,
which adopted the initiative petition, was doing
so largely through the advocacy.
If you read the debates, the members arguing
for the initiative are doing so
for worker treatment purposes.
Labor was a big part of it, but not entirely,
asking that workers need to be treated better
and it would have been no surprise to those proponents
of the initiative that federal law would need
to be navigated in proposed initiatives to do that.
Let us keep in mind this-
-: But you're not suggesting that a worker, a bill
that passed treated workers less well,
would not pass muster, right?
-: No, of course not.
The framers were very well aware
that people supporting their policy ideas
and people, opposing their policy ideas,
would use the initiative process.
And they put in several safeguards
of which relatedness is the most prominent to address that.
But this was the Lochner era.
The fact that you would have
to navigate federal legal issues
in a petition would have been no surprise
to the framers of Article 48, and in fact is addressed
throughout the debates on Article 48.
I know this court has perhaps more ballot initiative matters
before it, so I see that my time is running down,
though not fully up.
I'm happy to address any further questions.
Otherwise, I would ask the court to affirm the decision
to certify by the Attorney General
and we otherwise rest on our submission.