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“A Lot of This is Just Theater” Says Source Close to BART Contract Flap

With BART and its unions agreeing on a nine-day extension to
contract negotiations, the fear of a strike that would incapacitate the
Bay Area's transit networks and gridlock its roads has been temporarily
alleviated, though ten days from now the entire region could be in the
same predicament if the gap between management and labor is not
bridged. What is clear is that the acrimony between those at the
bargaining table is intense and, judging from the tenor of public reaction in news reports and polls, it's clear the public has little patience
for the drama amid wider economic concerns. 

Both sides have sent a barrage of contradictory press releases, maintain competing websites, and argue that the other is not serious about making the concessions required to drive
down a 4-year, $250 million projected deficit, one that will likely
only worsen as sales-tax revenue and ridership continue to sag.

Why are they apparently so far apart?

"A lot of this is just theater," asserted a
source close to the negotiations who spoke on condition of anonymity
for fear of appearing to bargain in public. The source said that after
all the press releases and the contradictory claims, there are really
four scenarios that could happen should there still be no contract on July 9th: 

    • Keep negotiating under current contract

"The contract expires and typically what happens is you work under the
old contract until a new contract is negotiated," said our source. Hypothetically the unions wouldn't
want to work under the old contract because they want a pay
increase, but given the economic circumstances currently, working
under the old contract might be better than working under a new
contract. While the unions might see this as an incentive to forestall the new contract under
the existing conditions, BART management would have the opposite incentive: every day the unions are working under the old contract, the costs increase
on the deficit.

    • Declare an impasse

Either side at the table can declare that the situation is at an impasse, that they are too far apart and won't likely get closer, though with a state mediator now at the table, this seems less likely. If an impasse were declared, the District could unilaterally impose a contract for one year. If the district tried to declare an impasse and the unions disagreed with the situation, the unions could seek injunctive relief from a judge saying it's not an impasse. In any case, the unions still have the right to strike. "This option sounds attractive to the District, but there are risks: it doesn't preempt a strike and they would still have to bargain within a year to get a new contract."

    • BART management stops observing non-mandatory portions of contract

In this highly contentious option, both sides continue to negotiate and the unions work under their current contract, but BART management would stop observing non-mandatory portions of the contract. The agreed-upon mandatory subjects of bargaining are wages, benefits, and pensions. Non-mandatory subjects of bargaining are a grayer area. BART's lawyer in the negotiations thinks state law doesn't require things like work rules, beneficial past practices, right to define job descriptions, etc in
the contract, but the unions disagree vehemently. If management tried to exercise this option, the unions would likely sue and the matter would go to the courts.

    • Lock-out or Strike

When the contract expires the district can lock-out or the unions can strike. The governor can impose a cooling off period at this point and they would have to keep negotiating for 60 days, which has often happened during BART labor
negotiations. "The concern with cooling off on the District's part this year is the Labor Day
holiday, there's a maximum-chaos opportunity with the Bay Bridge closed for four days. It gives the unions a lot of power," said the source. There's also the possibility of running a skeleton schedule during a strike, if AFSCME and non-represented employees were to cross the picket line, which most believe to be unlikely. Because many of ASCME members are supervisors with all the training that their junior employees have, they could still run BART, albeit with far fewer trains.

Real Differences Remain

The primary issue for BART management remains how to get $100 million over four years in concessions from the unions. BART spokesperson Linton Johnson yesterday reiterated management's position that the unions haven't made any serious cost-saving offers. Although Johnson wouldn't give specifics, it is clear management wants concessions on wages, wants to eliminate the money purchase pension plan (essentially a 401k that BART pays in addition to a union's own pension), and wants employees to pay higher medical co-pays and more of their benefits.

Jesse Hunt, President of ATU Local 1555, which represents train operators and station agents, said the unions were offering $40 million in concessions over two years. He said given this, the two sides weren't "that far apart." 

When asked at the daily union media briefing what they made of negative public sentiment toward the
unions in news reports,  Jean E. Hamilton, President of AFSCME Local 3993, accused BART management of instigating
some of it with push polls and attacks.

Hunt asserted that several
station agents have been verbally and physically harassed by BART
riders and he said that an
operator's home was vandalized last week after a particularly negative
television news report. He believed the two were related, though he
wouldn't elaborate on what follow-up authorities were conducting. 

When asked if they were less inclined to strike now that they had an extension to July 9th, both Hunt and Hamilton said that a strike was never what they wanted, but that management was being particularly difficult during this contract negotiation compared to previous ones. Union press liaisons provided us with a letter from 15 California state legislators to BART management expressing concern about the divisive tenor of the negotiations [PDF]

"Our focus is really not about a work action," said Hunt, who said they
were prepared to spend the Fourth of July holiday at the bargaining
table so long as management did too. "We will be operating over Labor
Day weekend. Our intention is not to aggravate the Bay Area in any way."

"We are in favor of continuing the conversation," said Hamilton. "We do not want to strike."

She did caution however that BART's labor lawyer was moving into uncharted territory with assertions about non-mandatory subjects of bargaining and that if they tested that theory by challenging work rules, not honoring beneficial past practices, or changing station agent staffing, for example, they would face a lawsuit.

"I believe it's a legal theory their outside attorney would like to test. She'd like to make some points on that, put a feather in her cap. More than that I believe it will cause the district to go into lengthy litigation position.  It's spending money they say they don't have."

When asked whether BART management could consider simply firing all the union employees when the contract expires, as has been suggested numerous times by the public in comments to news articles, including here on Streetsblog, our source said such an option was not realistic.

I can't go down to the unemployment office and say 'Oh, I need 50 of you guys to be train operators.' That won't work. They would have to shut down the system completely until people weretrained to do some of the specialized tasks, maintenance, the trainoperators obviously need to be certified, complete a training asdetermined by the California PUC. It's not like bus drivers, every rail system is different. Training is unique to the way the system is run and to the way the various train control systems operate. A lot of the BART stuff is very BART-specific.

When asked the same question, BART's Johnson was alarmed.

We don’t want to fire these folks--these are wonderful employees. The workers here care about BART. Everybody here is here because they want to be serving the public. They're all trying to do a good job, but it's about the economy, it's not about the employee right now. The economy has taken a whack at us, as well as the rest of the world, and we need to cut down expenses right now.

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