Clark v. City of Seattle

• Citation: 899 F.3d 802
• Decision Date: 09 August 2018
• Docket Number: No. 17-35693,17-35693
• Parties: Dan CLARK; Tami Dunlad; Ali Hassan; Jennifer Immel; Gary Kunze; Elisabeth Lowe; Dale Montz; Abdi Motan; Fredrick Rice ; Michael Riebs; Firew Teshome, Plaintiffs-Appellants, v. CITY OF SEATTLE; Seattle Department of Finance and Administrative Services; Fred Podesta, in his official capacity as Director of the Seattle Department of Finance and Administrative Services, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

899 F.3d 802

Dan CLARK; Tami Dunlad; Ali Hassan; Jennifer Immel; Gary Kunze; Elisabeth Lowe; Dale Montz; Abdi Motan; Fredrick Rice ; Michael Riebs; Firew Teshome, Plaintiffs-Appellants,

v.CITY OF SEATTLE; Seattle Department of Finance and Administrative Services; Fred Podesta, in his official capacity as Director of the Seattle Department of Finance and Administrative Services, Defendants-Appellees.

No. 17-35693

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2018 Seattle, Washington

Filed August 9, 2018

William L. Messenger (argued) and Amanda K. Freeman, National Right to Work Legal Defense Foundation Inc., Springfield, Massachusetts; James G. Abernathy, Freedom Foundation, Olympia, Washington; for Plaintiffs-Appellants.

P. Casey Pitts (argued), Peder J. Thoreen, Stacey M. Leyton, and Stephen P. Berzon, Altshuler Berzon LLP, San Francisco, California; Josh Johnson, Sara O’Connor-Kriss, Michael K. Ryan, and Gregory C. Narver, Assistant City Attorneys; Peter S. Holmes, City Attorney; Seattle City Attorney’s Office, Seattle, Washington; for Defendants-Appellees.

Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, California, for Amicus Curiae Pacific Legal Foundation.

Catherine L. Fisk, Berkeley, California; Charlotte Garden, Fred T. Korematsu Center for Law & Equality, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington, for Amici Curiae Labor Law Professors.

Before: MILAN D. SMITH, JR. and MARY H. MURGUIA, Circuit Judges, and EDUARDO C. ROBRENO,^* District Judge.

M. SMITH, Circuit Judge:

In December 2015, the Seattle City Council passed Ordinance 124968, an Ordinance Relating to Taxicab, Transportation Network Company, and For-Hire Vehicle Drivers (Ordinance). Chamber of Commerce of the U.S. v. City of Seattle , 890 F.3d 769, 775 (9th Cir. 2018). The Ordinance establishes a multistep collective-bargaining process between "driver coordinators," such as Uber Technologies (Uber) and Lyft, Inc. (Lyft), and for-hire drivers who contract with those companies. Id.

Plaintiffs-Appellants Dan Clark, Tami Dunlap, Ali Hassan, Jennifer Immel, Gary Kunze, Elisabeth Lowe, Dale Montz, Abdi Motan, Fredrick Rice, Michael Riebs, and Firew Teshome (collectively, the Drivers), are for-hire drivers who contract with Uber and Lyft. Together, the Drivers filed suit against Defendants-Appellees the City of Seattle, the Seattle Department of Finance and Administrative Services (the Department), and the Department’s Director, Fred Podesta (collectively, the City), challenging the Ordinance on federal law grounds. On appeal, the Drivers contend that the Ordinance is preempted by sections 8(b)(4) and 8(e) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158, and that the Ordinance violates the Drivers’ First Amendment rights.

The district court dismissed the Drivers’ action as unripe, without reaching the merits of the Drivers’ claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Ordinance¹

The Ordinance establishes a complex collective-bargaining process between driver coordinators and for-hire drivers.² Seattle, Wash., Ordinance 124968 § 1(I). The process begins with the election of a "qualified driver representative" (QDR). Seattle, Wash., Municipal Code §§ 6.310.110, 6.310.735(C). An entity seeking to represent for-hire drivers operating within Seattle first applies to the Director for designation as a QDR. Id. § 6.310.735(C). The entity must submit its application within thirty days of the "commencement date" promulgated by the Director. Id. The Director then provides the entity with written notice of his determination within fourteen days of the application. Id.

Within fourteen days of its designation as a QDR, the QDR notifies the driver coordinator of its intent to represent that driver coordinator’s for-hire drivers. Id. § 6.310.735(C)(2). After receiving notice from the QDR, the driver coordinator must, within seventy-five days of the commencement date, disclose to the QDR the names, addresses, email addresses, and phone numbers of all of its "qualifying drivers." Id. § 6.310.735(D). To be a qualifying driver, a for-hire driver must have "dr[iven] at least 52 trips originating or ending within the Seattle city limits for a particular Driver Coordinator during any three-month period in the 12 months preceding the commencement date." Seattle, Wash., Qualifying Driver and Lists of Qualifying Drivers, Rule FHDR-1.

The QDR contacts the qualifying drivers to solicit their interest in being represented by the QDR. Seattle, Wash., Municipal Code § 6.310.735(E). The QDR then submits to the Director signed statements of interest from qualifying drivers indicating that they wish to be represented by the QDR in negotiations with the driver coordinator. Id. § 6.310.735(F)(1). The QDR must submit the statements of interest to the Director within 120 days of receiving the qualifying drivers’ contact information. Id.

The Director then makes a determination within thirty days of receiving the statements of interest. Id. § 6.310.735(F)(2). If a majority of qualifying drivers consent to representation by the QDR, the Director certifies the QDR as the "exclusive driver representative" (EDR) for all for-hire drivers for that particular driver coordinator. Id. If more than one QDR is able to demonstrate that a majority of qualifying drivers wish to be represented by that QDR, the Director will designate the QDR with the largest number of statements of interest to be the EDR. Id.

If no QDR has successfully garnered the support of a majority of qualifying drivers, the Director will announce that no QDR has met the threshold for EDR certification. Id. § 6.310.735(F)(3). In the event no EDR is certified for a driver coordinator, "the Director shall, upon the written request from a designated QDR or from an entity that seeks to be designated as a QDR, promulgate a new commencement date applicable to that driver coordinator that is no later than 90 days after the request." Id. § 6.310.735(G). Following the promulgation of a new commencement date, the QDR, or another entity that wishes to be designated as the EDR, will then repeat the steps outlined above. Id. In any event, the Ordinance provides that "no driver coordinator shall be subject to the [EDR certification] requirements of Section 6.310.735 more than once in any 12-month period." Id.

After the Director certifies the EDR,

the driver coordinator and the EDR shall meet and negotiate in good faith certain subjects to be specified in rules or regulations promulgated by the Director, including, but not limited to, best practices regarding vehicle equipment standards; safe driving practices; the manner in which the driver coordinator will conduct criminal background checks of all prospective drivers; the nature and amount of payments to be made by, or withheld from, the driver coordinator to or by the drivers; minimum hours of work, conditions of work, and applicable rules.

Id. § 6.310.735(H)(1). In the event they reach an agreement, the driver coordinator and the EDR submit the agreement to the Director for review. Id. § 6.310.735(H)(2). The Director reviews the agreement for compliance with the Ordinance and Chapter 6.310 of the Seattle Municipal Code, which governs taxicabs and for-hire vehicles. Id. In conducting his review, the Director may seek and consider additional evidence, including by conducting public hearings or requesting more information from the parties. Id.

The agreement becomes final and binding on all parties only if the Director finds the agreement compliant. Id. § 6.310.735(H)(2)(a). The agreement does not take effect until the Director makes an affirmative compliance determination. Id. § 6.310.735(H)(2)(c). If the Director deems the agreement noncompliant, the Director remands it to the parties with a written explanation of the agreement’s failures, and may offer recommendations for remedying the agreement’s inadequacies. Id. § 6.310.735(H)(2)(b).

If the driver coordinator and the EDR fail to reach an agreement within 90 days of the EDR’s certification, "either party must submit to interest arbitration upon the request of the other," in accordance with the procedures and criteria specified in the Ordinance. Id. § 6.310.735(I). The interest arbitrator then proposes an agreement compliant with Chapter 6.310 and the City’s public policy goals. Id. § 6.310.735(I)(2). The interest arbitrator’s proposed agreement undergoes the same review process as an agreement proposed by the parties. Id. § 6.310.735(I)(3).

The Ordinance also specifies various amendment procedures that may be invoked after an agreement becomes final. The parties may propose amendments to an approved agreement, subject to the Director’s review and approval. Id. § 6.310.735(J). The Director can withdraw approval of an agreement during its term if the Director finds that the agreement no longer complies with the Ordinance or furthers the City’s public policy goals. Id. § 6.310.735(J)(1). Finally, an EDR may be decertified through a driver-initiated petition process. Id. § 6.310.735(L).

B. The Drivers

The Drivers are for-hire drivers who contract with Uber. Two of the Drivers, Clark and Lowe, also contract with Lyft. All of the Drivers, with the exception of Clark and Dunlap, are qualifying drivers under the terms of the Ordinance. The Drivers object to the Ordinance and the prospect of representation by Teamsters Local 117 (Local 117): They do not wish to become members of, or be represented by, Local 117, and they do not wish to be bound by any future agreement Local 117 may reach with Uber or Lyft.

C. Procedural History

Because the present case has proceeded in parallel with the Chamber of Commerce of the United States of America’s (the Chamber) lawsuit challenging the same Ordinance, we briefly recount the procedural history of both cases.

After the Ordinance took effect on January 22, 2016, the Chamber filed suit on March 3, 2016, challenging the Ordinance...