November 16, 2013

Dear Reader:
At yesterday’s Special Meeting of the BART Board of Directors, we met to discuss the entirety of the BART labor contract, including the recent incident of a provision pertaining to paid family medical leave being added to the final contract unexpectedly.  This provision would provide our employees with up to six weeks of additional paid leave for family medical leave purposes, in addition to their standard sick and vacation time paid absences.  In a motion that came out of closed session, the Board indicated strongly its discomfort in “the potential liability that could result from the adoption of this contract provision.”  Direction was given to the General Manager to reengage in negotiations with BART’s two largest unions in an effort to overcome this obstacle.  The official motion was put in writing on the BART website.

I ended up being the sole dissenting vote on this motion.  I definitely agree that the potential liability associated with the inclusion of paid family medical leave is too costly.  My disagreement about the motion comes from the fact that we only gave staff direction to be selectively transparent (i.e., only tell part of the story) about the information surrounding this incident.  Specifically, we made sure in this motion to direct staff to post both the chronology of events during negotiations surrounding this component of the contract and a table that shows potential costs associated with the paid family medical provision (also above).  This will help the public understand that the District’s negotiating team did not agree to this during negotiations, as well as what the potential costs of the paid family leave provision are.  What the public still wants and deserves to know, though, is what exactly occurred to cause this provision to be added to the contract if it wasn’t intended to be there in the first place.  I felt that the District needed to be fully transparent by owning up to the cause of this ordeal.

Since this information (the cause of the paid family medical leave ending up in the final tentative agreement) consists of a historic and factual series of events that exist independent of closed session, I am able to reveal some of the information.  In short, a series of miscommunications and misunderstandings between BART staff and contracted parties resulted in this provision of the contract mistakenly being entered into the final tentative agreement (TA).  In addition to it being inserted into the TA, BART staff and contracted parties who were responsible for reviewing the TA before signing it failed to catch this mistake before signing the TA.  Unfortunately, the fact that this ended up in the signed TA was not found until November 4, several days after the memberships of both the ATU 1555 and SEIU 1021 unions voted to ratify the agreement.  Absent of the leaderships of both unions agreeing to take a corrected TA back to their memberships to ratify, BART’s Board of Directors would more than likely have to vote “no” on the contract in order to address this miscommunications-based clerical error.  That’s the only way to officially establish the contract as a not agreed upon contract and force both sides back to negotiations.

As I articulated in a Bay Area News Group op-ed and a recent e-newsletter, even before this hiccup was discovered, I found the contract we negotiated to be too costly and not financially sustainable for the District.  My fear now is that this incident will make a contract I already found to be too costly even more costly.  Even if we manage to negotiate the paid family leave provision out of the contract for a second round of voting by BART’s unions’ memberships, it seems almost inevitable that both unions’ negotiating teams will now demand to be compensated for removing this provision from the contract.  If my hypothesis is true, it means that the $67M cost of the contract we thought we had signed a TA for will be increased.  The lingering question is how much.

Regardless of what anyone's position on the $67M contract is/was, I think we all looked forward to this many-month process coming to an end.  This is an isolated element of the contract, so it is our hope to be able to resolve it with our unions in a timely way and without public disruptions.  As indicated in the Board motion, we are "disappointed that this error occurred and was not caught earlier. All aspects of the matter will be fully investigated and any appropriate disciplinary action will be taken. Furthermore, all of our bargaining procedures will be reviewed and improved for transparency and accuracy."

Sincerely yours,

Zakhary Mallett, MCP
Director, District 7
San Francisco Bay Area Rapid Transit District (BART)