BART issues statement on union leadership’s labor lawsuit "A Mistake" While Union Officials Says Lawsuit Is Solution

BART issues statement on union leadership’s labor lawsuit "A Mistake" While Union Officials Says Lawsuit Is Solution
BART issues statement on union leadership’s labor lawsuit "A Mistake"
http://www.bart.gov/news/articles/2013/news20131203
12.03.2013
BART issues statement on union leadership’s labor lawsuit "A Mistake"
http://www.bart.gov/news/articles/2013/news20131203

BART spokeswoman Alicia Trost issued the following statement on union leadership’s decision to pursue legal action:

“This unnecessary action will only delay resolution to BART’s labor contract. A lawsuit is not needed to correct a mistake. When mistakes are made in contract negotiations they are corrected administratively by the parties, acting in good faith. Fortunately this mistake was caught in time before the mistaken language was brought before the District's Board for ratification.

For the sake of BART’s riders, union leadership should allow workers to vote on the corrected agreement so BART can move forward with a renewed focus on providing safe, reliable and convenient transportation under a fair labor contract.

This mistake would give BART union employees an additional six weeks of paid leave per year. This additional six weeks of paid leave comes on top of the 3-6 weeks of vacation, 13 paid holidays and 12 sick days that employees already receive annually. District negotiators would never have knowingly agreed to such a financially backbreaking proposal. The union’s proposal for six additional weeks of paid leave was twice rejected by the District and then withdrawn by the unions. That withdrawal was reaffirmed by the District. After that point, it was never discussed again.

BART will review the lawsuit over the next several days.”

- See more at: http://www.bart.gov/news/articles/2013/news20131203#sthash.62fNZrb3.dpuf

From: info@atu1555.net
Date: December 3, 2013, 10:31:51 PST
Subject: FAQ regarding Unions' lawsuit

10 Frequently Asked Questions Regarding Unions’ December 3, 2013 Lawsuit

1. What was illegal about the BART Board of Director’s November 21, 2013 motion “to authorize the general manager to enter into these tentative agreements as written minus section 4.8 and if SEIU and/or ATU ratifies such agreements minus 4.8, she may execute them in behalf of the District,” or BART’s related actions?

It is unlawful for BART to refuse to ratify the agreement, and to amend the terms of a final agreement without the Unions’ consent. A deal is a deal. That is true for individual tentative agreements like Section 4.8, and it is certainly true of a total package agreement which finalizes all of the tentative agreements. BART and its two largest Unions settled on a total package agreement – a final agreement – on October 21, 2013, ending the unfair labor practice strike.

The parties do each have the right and obligation to ratify the final agreement. The Unions did so on November 1st, after receiving BART managers’ repeated confirmation that we were in agreement about the scope of the final agreement, including written confirmation from BART that Section 4.8, as signed by all three parties months earlier, was included.

BART’s Chief Negotiator, Assistant General Manager and Labor Relations Director each signed the agreement on Section 4.8, and presumably read what they signed. In addition, after the parties reached a total package agreement and ended the strike, they reviewed the list of the individual agreements and confirmed the total package. During that process, the Unions and management identified issues that needed to be clarified in the final agreement and the parties worked together and made clarifications per mutual agreement as needed. BART never raised any concern about Section 4.8, however. Instead, BART put it in writing that Section 4.8 was part of the final agreement, and did so before the members voted to ratify the agreement.

The BART Board of Directors is obligated to honor the agreement reached by its representatives or secure the Unions’ agreement on an alternative. It did neither. Instead, the BART Board of Directors unilaterally changed the terms of the total package agreement and urged the Unions to submit the unilaterally amended package to the Union members for a new vote. The BART Board of Directors had no legal basis or authority for its actions. The Unions had already relied on BART’s repeated assurances that we had a complete and final agreement. At this point, BART needs to honor the agreement and execute the contract. We are asking the court to compel BART to do so.

2. Doesn’t the Board of Directors have the right to reject a tentative agreement?

Not in these unique circumstances, see No. 1 on the prior page.

3. Why do the Unions name the individual members of the Board of Directors in this lawsuit?

The individual members of the Board of Directors were personally involved at every step of the process. On November 21, 2013, they acted beyond their authority and must be held legally accountable for repudiating a total package agreement without good cause, for failing to execute a final agreement, and unilaterally changing the terms of a total package agreement and directing the Unions to accept the modified terms on a take-it-or-leave-it basis. The individual Directors cannot hide behind a majority vote of the Board. Each and every Director has violated the law by failing to honor the final agreement.

4. When are the Unions expecting a ruling on this lawsuit, and what outcome are you expecting?

The Unions will not receive a ruling on this lawsuit anytime soon, but they will actively litigate it. A superior court judge will ultimately decide the case, unless the parties are able to informally resolve the dispute through a settlement agreement of some kind.

5. In the Board’s November 21, 2013 motion, the Board seemed to urge the Unions to take that modified package agreement back to their members for a vote. Will the Unions take that modified package agreement back to its members for a vote, and if not why not?

The Union members already voted to ratify the total package agreement. The District must honor that agreement. The District has no authority to compel Union members to re-vote a new contract that does not include key terms the parties agreed to months ago in bargaining. See No. 1 on the prior page.

6. Are the Unions willing to go back to the bargaining table to resolve the disputed section regarding family medical leave?

The Unions are and always have been willing to meet with the District to discuss establishing mutual interpretations regarding the terms of the total package agreement. We believe that the agreed upon family leave language can be implemented without posing any significant financial liability to the District as it has alleged. Thus far, however, BART managers have refused to discuss the implementation of Section 4.8 in any manner. Instead, the Board of Directors simply ordered the Unions to remove Section 4.8 from the total package agreement. The BART directors have no authority to compel Union members to vote on new contract terms that the employer has cherry-picked.

There are instances in which the parties to a collective bargaining agreement may agree to “reopen” a particular section in order to resolve a dispute – but BART would have needed to convince the Unions to do that, as it is not required. In this case, BART never even asked the Unions to return to the table, let alone assured the Unions that it would bargain in good faith. On the contrary, BART’s General Manager and Board of Directors insisted the Unions “take it or leave it.” Under these circumstances, the Unions are not inclined to reopen negotiations, but are instead seeking court enforcement of our complete, final agreement.

7. What is the status of the contract at this time?

A total package agreement was reached on October 21, 2013, and the Unions’ members ratified the total package agreement on November 1, 2013. The District must honor the terms of the final agreement, including the terms of the family medical leave provision (Section 4.8).

8. Can the riders expect another strike?

The Unions are not ruling out any options, but no strike is being called or scheduled at this time.

9. If the BART Board of Directors committed unfair labor practices, why aren’t the Unions filing a charge with the Public Employment Relations Board (PERB)?

The collective bargaining statute that applies to BART is the San Francisco Bay Area Rapid Transit District Act of 1957, Public Utilities Code § 28500-29757. PERB does not have jurisdiction over that statute so unfair labor practice claims must be filed in superior court.

10. Can the three new causes of action in the lawsuit be summarized?

The Unions are asking the court to enforce the parties’ final agreement, reached as a total package on October 21 when the Unions agreed to end their second unfair labor practice strike. To that end, we are filing three claims:

1. The BART Board of Directors violated state law when it repudiated the parties’ final agreement and refused to ratify it as a total package. Although parties negotiating a collective bargaining agreement may condition final agreement upon the ratification of their principals (such as the BART Board of Directors), the principals may not refuse to ratify without good cause. The BART Board of Directors does not have good cause to repudiate or refuse to ratify the total package agreement the District reached with the Unions. The tentative agreement regarding Section 4.8 is not a mistake; it is an agreement, signed by the authorized agents of the bargaining teams, including the attorney Tom Hock who served as the District’s Chief Negotiator. Over the course of several months, BART managers, negotiators, labor relations representatives and legal counsel affirmed, and confirmed, in writing, that the parties had a final agreement and that Section 4.8 was an integral part of that agreement. BART nonetheless claims that it made a “mistake” and should not be bound by its own actions and signatures. If any “mistake” were made, it would have been a series of purported “mistakes,” made by multiple management representatives, over the course of several months. If that were the case, the “mistakes” were caused solely by the District’s own carelessness and lack of constructive engagement at the bargaining table. That would not constitute grounds for repudiating or rescinding the parties’ contract. The District is bound by the total package agreement, including Section 4.8.

2. The BART Board of Directors violated state law when it refused to execute the final agreement. The BART Board of Directors monitored negotiations and supervised its bargaining team very closely throughout negotiations. The President of the BART Board of Directors, and other Directors, boasted publicly that they were deeply involved in the negotiations from start to finish. The BART Board of Directors met at least nine (9) times in closed session to discuss the SEIU and ATU negotiations. The BART bargaining team signed the tentative agreement regarding family leave (Section 4.8) early on in the negotiations. The BART Board of Directors serially approved the parties’ tentative agreements all along. The parties reached a total package agreement on October 21, 2013, and in reliance on that, the Unions called off the second unfair labor practice strike. On that day, each of the tentative agreements became part of a total package, which is a final agreement. Once finalized, the terms of that final agreement could only be amended by mutual agreement. BART did not seek to amend or remove Section 4.8; rather, BART managers re-affirmed, in writing, that Section 4.8 was part of the overall final agreement. With that assurance, the Unions’ members then voted to ratify the agreements on November 1, 2013. The District must rescind its November 21, 2013 action, and honor the final agreement.

3. BART’s Directors violated state law when it unilaterally changed the terms of a total package agreement and offer the modified terms to the union on a take-it-or-leave it basis. The ratification process is not an opportunity for the employer to cherry-pick the portions of a new contract that it likes and discard the others. The BART Board of Directors unlawfully removed Section 4.8 from the total package agreement, and has ordered its General Manager to execute a contract with the Unions only if Section 4.8 is removed. The District has not asked the Unions to participate in negotiations over the District’s alleged mistake. Instead, the District ordered the Unions to agree to remove Section 4.8 from the total package agreement, and has refused to ratify the total package agreement if that section remains in.