BART board rejects family leave clause in labor deal

BART board rejects family leave clause in labor deal
http://www.contracostatimes.com/news/ci_24570046/bart-board-set-vote-dis...
By Lisa Vorderbrueggen
Contra Costa Times
POSTED: 11/21/2013 07:15:11 AM PST | UPDATED: 16 MIN. AGO

OAKLAND -- In the latest twist in BART's tortured labor negotiations, the transit agency's directors on Thursday rejected a costly paid family leave provision that they say was inadvertently included in the final contract that its two biggest unions have already ratified.

The board directed General Manager Grace Crunican to attempt to ratify the remainder of the contract with the unions, but the unions had made clear earlier that they would not accept the deal hammered out over months of talks -- and two strikes -- without the paid leave provision. The question now is whether the unions will go on strike for a third time or try to settle the matter through negotiations.

Workers walk the picket line at the Lake Merritt BART station in Oakland, Calif., on Monday, Oct. 21, 2013. (Kristopher Skinner/Bay Area News Group)
The board vote Thursday morning was 8-1, with Director Zakhary Mallett dissenting. Mallett had opposed the entire contract as too generous even without the leave provision.

Union leaders said after the vote that they would review their options and release a statement later. They would not speculate on the possibility of another strike but said they believed the board's decision to reject a portion of the contract was illegal.

Before the board went into closed session shortly after 10 a.m. to discuss the contract, union members and others implored directors to ratify it with the family leave provision.

"I implore you to live up to your agreement because you cannot imagine the difficulties you will experience ... and the devastation (rejection) will have on morale and the relationship between management and employees going forward," said Larry Williams, who was BART's chief labor negotiator from 1977-1997. "If you don't ratify this agreement, you ain't seen nothing yet."

Public agencies hardly ever vote down contracts after union members have ratified them. And in a joint statement issued late Wednesday, labor leaders urged BART to honor the contract and said they were willing to meet with a mediator and discuss implementation and costs of the family leave provision.

"It is our expectation that the board of directors will honor the agreement that their chief negotiator, assistant manager and labor relations manager made with the unions," Amalgamated Transit and Service Employees International unions wrote in an email statement. "We expect the board to meet their responsibility to the workers and to the riders and approve this contract."

ATU Local 155 President Antonette Bryant told the board Thursday morning, "We are not able to take this back piecemeal ... it's all or nothing."

The unions appear to have little support on the board and few options other than walking off the job for a third time.

BART estimates the paid leave provision would cost the district between $5.8 million and $44.2 million over the four years of the contract depending on how many workers take it. The lower figure is based on the number of people who took the unpaid version last year, while the higher is if a third of the staff signed up.

Even at the bottom of the range, the dollars would mean a substantial hike in what BART put on the table in the new contract. The agency puts the cost of the overall contract -- without the family leave clause -- at $67 million.

"We just can't do it," Director Gail Murray said before the meeting. "The (family leave clause) has too much potential liability. The unions already have a contract the public is already upset about and that was the absolute outside cap on the money we were going to spend. There is no more money."

The agency's legal team advised the board to turn down the contract with the family leave provision.

"I had assumed that you would recognize this for the error that it clearly is," BART general counsel Vicki Nuetzel wrote in an email sent to ATU's lawyers. "As I have stated, given the unions' positions, the district cannot ratify the contract.

"It is most unfortunate that the efforts made by all parties to reach what we believed to be a fair resolution will be wasted, but there is no choice."

Both sides agree the unions put forward the paid family leave provision in the spring, but the stories quickly diverge.

The agency says its negotiators repeatedly rejected the idea, but a temporary employee erroneously prepared a tentative agreement document in July titled "Section 4.8: Family medical leave."

Eight people -- three from BART management and five from the unions -- would later sign the document that BART contends was mistakenly included.

BART staffers say they discovered the "mistake" during a document review on Nov. 4, three days after the union members ratified the contract.

The unions dispute BART's account and insist the agency agreed to the provision and knew it was there. Josie Mooney, a negotiator for Service Employees International Union Local 1021, told the board Thursday morning that it was "insulting" for BART to attribute the provision to a "clerical error."

As written, it provides workers six weeks of full pay for approved leave for baby bonding or to care for a sick or injured family member in addition to their vacation and sick leave.

By comparison, participants in the state disability program receive up to 55 percent of their wages, or $1,067 per week, whichever is less, for six weeks. Most employers require workers to first use accrued vacation and sick leave, and workers pay premiums for the insurance through payroll deductions.

United Public Workers for Action founder Steve Zeltzer accused the BART board Thursday morning of going after unions and predicted a rejection would spur public employees throughout the Bay Area and the state into action. That could include AC Transit, where management and unions are midway through a cooling-off period after threatening a strike.

"If you reject this contract, you are telling every other agency that they can do the same, have negotiators come up with a deal and then say, the hell with it, we don't have to follow it," Zeltzer told the board.

As soon as BART and its unions settle their protracted contract dispute -- which they have to do eventually -- the focus will likely shift onto holding someone responsible for the embarrassing and potentially costly mistake.

The first name on the list is BART's chief negotiator, Thomas Hock, who was hired to oversee the contract talks process for up to $399,000. The board recently directed Crunican to investigate whether the agency had grounds to file insurance claims or taken legal action in the matter.

Whether going after Hock is fruitful is an open question, said San Francisco State University Labor and Employment Studies Professor John Logan.

"It may be somewhat unfair to blame Hock, as he wasn't the only person who signed off on the tentative agreements," Logan said. "But the agency was paying a great deal for Hock's services, and the public suffered a great deal as result of the adversarial nature of the negotiations.

"And now, BART is saying they are getting a terrible deal. It is a monumental train wreck. There needs to be a proper inquiry into why the process was so dysfunctional, and it needs to happen soon."

Director Joel Keller called for an internal review of the entire labor negotiations process for the transit agency.

After the contract vote, the board unanimously approved increasing a contract up to $70,000 with Bruce Conhain for his negotiating services going forward. He was earlier approved for $99,000 to provide a "labor relations strategy" for the contract negotiations.

Director Robert Raburn, before approving the payment increase, said he confirmed Conhain was "not culpable" in the disputed family medical leave provision.

Check back throughout the day for updates.

Staff writer Matthias Gafni contributed to this story. Contact Lisa Vorderbrueggen at 925-945-4773,lvorderbrueggen@bayareanewsgroup.com or Twitter.com/lvorderbrueggen.

fast facts
Of the hundreds of pages in the proposed contract between BART and members of the Amalgamated Transit and Service Employee International unions, only the family leave provision is in dispute. Here are some of the $67 million deal's financial highlights:
-- Annual pay and cost of living raises of 16.3 percent at the end of the contract. Put another way, the average union base wage will rise from $71,439 a year to $83,166.
-- Employees will contribute toward their own pension costs for the first time, starting with 1 percent in the first year and going to 4 percent by year four.
-- Health insurance costs will rise $37 a month, although the workers' contribution remains relatively low, starting at $132 a month in the first year to $144 a month in year four.
-- New hires must work for the agency 15 years before they qualify for lifetime medical benefits during retirement. The old contract was five years.
-- BART will pay $350 a month to employees who opt out of health insurance coverage -- up from $100 -- as an incentive to sign up with a spouse's employer.
-- Workers can no longer take unpaid leave during the week and then earn overtime wages by taking shifts on their days off.
Source: Bay Area News Group research

TIMELINE
Here's how BART and its two unions describe the events that unfolded in the dispute over a family leave provision the agency says was mistakenly included in the partially approved labor contracts:
May 13 -- Bargaining starts between BART and the Amalgamated Transit Union Local 1555 and Service Employees International Union Local 1021.
May 30 -- Family leave provision discussed in negotiation session.
June 5 -- Union offers to withdraw the family leave provision in exchange for approval of a larger package.
June 6 -- BART says it rejected the union's family leave provision and the larger package. Union says the family leave provision was not withdrawn.
June 24 -- BART says its chief negotiator, Thomas Hock, confirmed that the family leave provision was withdrawn. Unions dispute Hock's recollection. The unions file a lawsuit in Alameda Superior Court, alleging that BART was bargaining in bad faith and engaged in unfair labor practices.
July 1-4 -- BART employees strike.
July 11-19 -- BART says a temporary employee erroneously typed up the family leave provision under Hock's direction as an official tentative agreement -- one of many that make up the contracts as a whole -- and he signed it.
August 7 -- BART and unions present their cases to the Governor's Board of Inquiry after the agency requested a 60-day cooling off period. BART says the family leave provision was not included. The unions say it was part of the package.
Aug. 10 -- BART makes counter offer and says the family leave provision was not in the package. Unions say they "never relied" on the attachments as they "did not accurately reflect the status" of the talks.
Aug. 11-Oct. 12 -- 60-day cooling off period.
Oct. 13 -- BART makes a "last, best and final" offer and says the list of tentative agreements does not include the family leave provision. Unions say that may be true but, if so, the agency didn't inform them of their decision to withdraw the section.
Oct. 18-20 -- BART employees strike.
Oct. 21 -- BART and unions reach a deal. ATU sends email to its workers promoting 20 aspects of the deal but not what would be a new family leave provision.
Oct. 22-28 -- BART and unions hold tentative agreement checkoff sessions and exchange correspondence.
Oct. 31 -- BART provides the unions with a final set of tentative agreements, which includes the family leave provision section 4.8. It was signed by five union negotiators and three agency representatives, probably back in July. BART says its inclusion was an error. Unions say it was not.
Nov. 1 -- Union members ratify the contracts, including the disputed family leave provision.
Nov. 4 -- BART staff reviews the tentative agreement documents, discovers the family leave provision had been included and informs the unions of the error.
Nov. 7 -- BART attorney Vicki Nuetzel advises two union lawyers that the district cannot ratify the contract. "Those who were present during bargaining cannot in good faith contend that the district agreed to this proposal, and it is troubling that you have chosen to take the positions that you have," Nuetzel wrote.
Nov. 14 -- BART board votes 7-1 to send staff back into negotiations, but the unions refuse. The agency estimates the family leave provision could cost the agency over the four-year contract $5.6 million to $44 million depending on how many employees take it. The unions say the low figure is far more likely based on the numbers of workers that went on unpaid family leave in prior years.
Nov. 21 -- BART board expected to officially reject the family leave provision and send the contracts back to the unions for a new vote.