Craney v. Attorney General

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-13572

PAUL D. CRANEY & others1 vs. ATTORNEY GENERAL & others.2

Suffolk. May 6, 2024. - June 27, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,

& Wolohojian, JJ.

Initiative. Constitutional Law, Initiative petition. Attorney

General. Network Companies. Labor, Collective bargaining.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on February 14, 2024.

The case was reported by Georges, J.

Kevin M. McGinty (Daniel J. Goodrich also present) for the

plaintiffs.

M. Patrick Moore, Jr., Assistant Attorney General, for the

Attorney General & another.

Thomas O. Bean, for the interveners, was present but did

not argue.

Stacey M. Leyton, of California, & Nicole M. Rothgeb, for

Kate Andrias & others, amici curiae, submitted a brief.

1 Kristen Arute and Michael Hruby.

2 Secretary of the Commonwealth; Marcelo Cordoba, Juan

Garcia, Martin Pitney, and Roxana Lorena Rivera, interveners.

2

WOLOHOJIAN, J. At issue is whether the Attorney General

properly certified Initiative Petition 23-35, "An Act Giving

Transportation Network Drivers the Option to Form a Union and

Bargain Collectively" (petition), as satisfying the requirements

of art. 48 of the Amendments to the Massachusetts Constitution.

The plaintiffs argue that the petition should not have been so

certified because it does not meet art. 48's requirement that it

contain only related subjects. More specifically, they contend

that the petition's provisions allowing transportation network

drivers (drivers) to organize and collectively bargain with

transportation network companies (companies) are unrelated to

its provisions subjecting the results of any collective

bargaining to supervision, review, and approval by the

Commonwealth's Secretary of Labor. We conclude that the

petition seeks to establish a multistep collective bargaining

scheme in which the Secretary of Labor's role is an integrated

component and, therefore, that the subjects of the petition are

related for purposes of art. 48. We accordingly affirm the

Attorney General's certification of the petition.3

3 We acknowledge the amicus brief submitted by twenty-two

law professors, the Center for American Progress, and the

Chinese Progressive Association.

3

Background.4 The petition proposes to add a new chapter to

the General Laws, c. 150F, which would "create[] the opportunity

for workers in the digital transportation industry to form

[driver] organizations and to negotiate on an industry-wide

basis with companies in this industry on recommendations to the

commonwealth that raise standards for the terms and conditions

of work in this industry."5 The proposed law would expressly

provide drivers the right

"of self-organization, to form, join, or assist [driver]

organizations, to bargain collectively through

representatives of their own choosing, and to engage in

concerted activities, for the purpose of collective

bargaining or other mutual aid or protection free from

interference, restraint, or coercion by [the companies],

and . . . to refrain from any of these activities."

4 This matter is before us on the single justice's

reservation and report of the plaintiffs' amended complaint,

which was filed in the Supreme Judicial Court for Suffolk County

and sought a declaration that the petition does not satisfy the

related subjects requirement of art. 48, and an order enjoining

the Secretary of the Commonwealth from placing the petition on

the Statewide election ballot.

5 Although workers defined as "employees" under the National

Labor Relations Act (NLRA) already have the right to bargain

collectively with their employers, it has not been resolved

whether drivers are employees under the NLRA. See 29 U.S.C.

§ 157; Chamber of Commerce of the United States of Am. v.

Seattle, 890 F.3d 769, 795 (9th Cir. 2018) (Seattle). The

proposed law would define drivers as exclusive of individuals

"who, with respect to the provision of services through a

[company's] online enabled-application or platform, [are

employees] within the meaning of [the NLRA]." Thus, if the

proposed law is enacted, it would create a scheme whereby

drivers could collectively bargain under the NLRA if they are

deemed employees for purposes of that statute or, if they are

not so deemed, could collectively bargain under the proposed

law.

4

The proposed law would protect these rights by preventing the

companies from engaging in conduct that would interfere with

drivers' unionization and collective bargaining efforts.

The proposed law contains detailed procedures to be

utilized by drivers wishing to organize and to bargain

collectively. For example, it contains procedures by which to

designate a bargaining representative. It also includes

procedures for conducting negotiations, and those to be followed

should negotiations reach an impasse. If such an impasse

occurs, the proposed law details a resolution process consisting

of mediation followed by arbitration. It also identifies

specific factors the arbitrator must consider in reaching a

decision. Finally, of particular significance for purposes of

this case, the proposed law provides that -- whether reached by

agreement or by an arbitrator -- the outcome of the collective

bargaining process must be reviewed and approved by the

Secretary of Labor. The Secretary of Labor is required to take

into consideration the same factors as the arbitrator in

reaching a decision.

Discussion. As we have already noted, the Attorney General

certified that the petition was in proper form for submission to

Massachusetts voters, and, among other things, "that it contains

only subjects that are related or are mutually dependent." Art.

5

48, The Initiative, II, § 3, as amended by art. 74. The

plaintiffs challenge the certification on the ground that the

petition's provisions pertaining to the Secretary of Labor's

supervisory role are not related to the remainder of the

petition. We review the Attorney General's certification de

novo. Anderson v. Attorney Gen., 479 Mass. 780, 785 (2018). In

conducting this review, we are guided by the "firmly established

principle that art. 48 is to be construed to support the

people's prerogative to initiate and adopt laws" (citation

omitted), Abdow v. Attorney Gen., 468 Mass. 478, 487 (2014),

while keeping in mind that we are "obligated to safeguard the

integrity of the initiative petition process by requiring that

those seeking to change the law strictly comply with art. 48,"

Anderson, 479 Mass. at 785-786.

To determine whether an initiative petition contains only

related subjects, we ask whether "one can identify a common

purpose to which each subject of an initiative petition can

reasonably be said to be germane." Massachusetts Teachers Ass'n

v. Secretary of the Commonwealth, 384 Mass. 209, 219-220 (1981).

"At some high level of abstraction, any two laws may be said to

share a 'common purpose,'" Carney v. Attorney Gen., 447 Mass.

218, 226 (2006), S.C., 451 Mass. 803 (2008), but "the related

subjects requirement is not satisfied by a conceptual or

abstract bond," Gray v. Attorney Gen., 474 Mass. 638, 648

6

(2016). "There is no bright-line rule to follow in making such

a determination. Rather, the question is a matter of degree."

Colpack v. Attorney Gen., 489 Mass. 810, 814 (2022).

"[I]n addition to considering whether the subjects of an

initiative petition share a common purpose, we have examined two

more specific questions." Colpack, 489 Mass. at 815. First, we

consider whether

"'the similarities of an initiative's provisions dominate

what each segment provides separately so that the petition

is sufficiently coherent to be voted on "yes" or "no" by

the voters,' [and s]econd, we consider whether the proposed

initiative 'express[es] an operational relatedness among

its substantive parts that would permit a reasonable voter

to affirm or reject the entire petition as a unified

statement of public policy'" (citation omitted).

Id., quoting Hensley v. Attorney Gen., 474 Mass. 651, 658

(2016). "[I]nitiative petitions containing multiple provisions

involving a variety of different regulatory issues . . . may

meet the related subjects requirement of art. 48, so long as the

provisions are part of an 'integrated scheme' of regulation."

Colpack, 489 Mass. at 816.

The petition at issue here would establish an integrated

scheme by which drivers may organize and collectively bargain

with companies. The scheme extends from selection of an

exclusive bargaining representative for the drivers, through the

timeline and process of negotiations with the companies, to

approval by the Secretary of Labor of either a negotiated

7

agreement (if one is reached) or (in the case of an impasse) an

arbitrator's determination.

We are unpersuaded by the plaintiffs' argument that the

Secretary of Labor's role in the collective bargaining process

is not part of this integrated scheme. The last step in the

collective bargaining process (approval by the Secretary of

Labor) is no less connected to the scheme than any preceding

step. Indeed, there is an explicit relationship between the

Secretary of Labor's approval and the arbitrator's determination

because the Secretary of Labor must review the arbitrator's

determination using the same factors employed by the arbitrator.

In the circumstances, approval by the Secretary of Labor is

merely one requirement of many that "determine[s] how

[collective bargaining] will be implemented." See Oberlies v.

Attorney Gen., 479 Mass. 823, 832 (2018).

Our conclusion that the Secretary of Labor's supervisory

role is part of the petition's integrated scheme is buttressed

by the fact that it is designed to "anticipate[] and address[] a

potential consequence" of the collective bargaining process the

petition seeks to create. Oberlies, 479 Mass. at 832

(operational relatedness where workforce reduction provision

addressed potential response by hospitals to nurse-patient ratio

requirement). Specifically, the proponents of the petition

foresee a legal challenge that the collective bargaining process

8

would be preempted by Federal antitrust law.6 See 15 U.S.C. § 1.

By giving the Secretary of Labor a supervisory role over that

process, the proponents of the petition hope to place it outside

the reach of Federal antitrust regulation. States are permitted

to displace competition due to "the sovereign capacity of the

States to regulate their economies." Federal Trade Comm'n v.

Phoebe Putney Health Sys., Inc., 568 U.S. 216, 224 (2013),

citing Parker v. Brown, 317 U.S. 341, 350, 352 (1943). Non-

State actors engaging in anticompetitive conduct may also obtain

State action immunity where "the challenged restraint [is] one

clearly articulated and affirmatively expressed as [S]tate

policy" and "the policy [is] actively supervised by the State."

Phoebe Putney Health Sys., Inc., 568 U.S. at 224-225, quoting

California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc.,

445 U.S. 97, 105 (1980). The petition seeks to meet these two

requirements by clearly articulating and affirmatively

expressing that the Commonwealth's policy is to allow drivers to

organize and collectively bargain, and by providing active

supervision of those activities by the Secretary of Labor.7

6 An antitrust challenge has been brought against a similar

law and has survived a motion to dismiss. See Seattle, 890 F.3d

at 775-776.

7 We need not -- and do not -- decide whether the proposed

law would, in fact, satisfy the requirements for State action

immunity. See Oberlies, 479 Mass. at 835, quoting Abdow, 468

Mass. at 508 ("In circumstances like these, the proper time for

9

Three further arguments bear brief mention. First, the

plaintiffs argue that the petition allows the Secretary of Labor

to "dictate" the terms and conditions of the drivers'

relationship with the companies and that this role is not

related to the petition's stated purpose of empowering drivers

to bargain for themselves the terms and conditions of their

work. But the Secretary of Labor's role is not so expansive;

instead, it is largely confined to reviewing and approving or

disapproving -- while employing defined considerations -- the

agreement reached by the drivers and the companies after

negotiation or, in the event of an impasse, the arbitrator's

determination. Although the Secretary of Labor would be

permitted to set some terms and conditions in limited

circumstances (which we set out in the margin),8 the petition

deciding definitively whether the measure has the desired legal

effect will come if and when the measure is passed"). We only

decide that the provision giving the Secretary of Labor a

supervisory role over the collective bargaining process "seeks

to address" a potential challenge to that scheme. See Oberlies,

479 Mass. at 833.

8 For example, the Secretary of Labor may recommend

modifications to the terms and conditions if she disapproves of

the submitted version, but those modifications must be approved

by the drivers and the companies. Additionally, if the

Secretary of Labor approves terms and conditions that

incorporate her own modifications or terms and conditions

determined by an arbitrator, she may "modify" such terms and

conditions when "market conditions have changed." This is an

exception to the rule, however, and does not "obliterate" the

10

does not empower the Secretary of Labor to impose terms and

conditions without restraint. And, absent State oversight, the

entire scheme for collective bargaining might face an antitrust

challenge, thwarting the petition's purpose.

Second, although it is true, as the plaintiffs point out,

that the Secretary of Labor's supervisory role would mean that

the drivers' right to bargain collectively would be constrained

by State oversight, this does not in and of itself cause the

petition to fail the related subjects requirement. An

initiative petition may simultaneously broaden and restrict an

entitlement (in this case, the right to organize and

collectively bargain). See Colpack, 489 Mass. at 819 ("an

initiative petition need not focus solely on loosening [or

tightening] restrictions in order to meet the related subjects

requirement of art. 48"); Weiner v. Attorney Gen., 484 Mass.

687, 694 (2020), quoting Mazzone v. Attorney Gen., 432 Mass.

515, 528-529 (2000) ("The provisions of an initiative petition

need not be 'drafted with strict internal consistency'"). The

question is not whether the subjects are congruous but whether

they are related.

drivers' ability to collectively bargain as the plaintiffs

contend.

11

Third, the plaintiffs argue that the complexity of the

petition's scheme, combined with the fact that the Secretary of

Labor's role in it is "buried" on the twenty-ninth page of the

thirty-two page petition, will lead to voter confusion. The

entire petition is roughly organized in chronological sequence

of the labor and bargaining activities it seeks to establish and

regulate. Given that the Secretary of Labor's role comes at the

end of that process, it is hardly surprising that it is

described towards the end of the petition, just as it is equally

unsurprising that the arbitrator's role is described immediately

before that. No confusion can arise from placing the provision

in proper sequence with all the other steps of the collective

bargaining process. Moreover, the Secretary of Labor's role is

described with sufficiently clear and straightforward language9

that, contrary to the plaintiffs' contention otherwise, the

petition here does not present the concerns raised by the

petition at issue in El Koussa v. Attorney Gen., 489 Mass. 823,

838-839 (2022) (voter confusion was concern where unrelated

subject was buried at end of proposed law in "murky language"

9 The provision states: "Any recommendations agreed upon

between [the companies] and a [driver] organization acting as

exclusive bargaining representative of [the drivers] 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."

12

such that voters "may not even be aware they are making [a]

second, unrelated policy decision").

Conclusion. The matter is remanded to the county court for

entry of a judgment declaring that the Attorney General's

certification of Initiative Petition 23-35 complies with the

requirements of art. 48.

So ordered.