A day after Gov. Jerry Brown ordered BART employees to stay on the job for a week to avert another maddening rail shutdown, it became clearer Monday that trains will likely keep rolling for at least another two months.
Late Sunday, as BART's labor contract was about to expire, Brown barred employees from striking as he appointed a three-member panel to investigate the negotiations, the first legal step required before he can declare a two-month cooling-off period.
If history is any guide, it seems likely he will make the declaration later this week.
In each of the last five BART labor disputes where governors intervened -- between 1988 and 2001 -- the script was the same.
In every instance, as the deadline for a deal approached, the governor appointed a three-member "fact-finding" committee to forestall a strike for a week while the panel investigated whether both sides were bargaining in good faith. By the end of the week, the governor -- citing the board's findings -- declared the strike would "endanger the public's health, safety or welfare," as the law requires, and secured an injunction from a judge to halt a BART shutdown for 60 days.
"I would think we're heading toward more of the same," said William Gould, a Stanford emeritus professor of law who specializes in labor issues. The seven-day delay "never works. We have to look at the record, and the record is not promising."
A longer postponement would be a short-term comfort for the 200,000 people who ride BART round trip each day and Bay Area drivers who feared more traffic gridlock. But it could set up another round of anxiety in October as the cooling-off period expires. Neither side has shown any willingness to cave, or meet in the middle, raising the specter of a possible repeat of 1997, when workers went on strike following a two-month truce.
Brown is expected to receive the group's public report, which will not make any recommendations, on Friday. He has until Sunday evening to make his determination. Both sides in the BART dispute will present the panel with written and oral testimony that is supposed to focus on the facts -- such as documentation to support arguments for wage increases -- instead of the public posturing that has at times dominated the talks in the past few months.
According to officials involved with the board, Brown will have to weigh whether the latest offers from each side show they are so far apart that a strike is likely -- as management and unions continued to contend Monday.
"The whole point is to really get to why there isn't a contract yet," said Susan Gard, spokeswoman for San Francisco Human Resources Director Micki Callahan, one of the three panel members. If Brown decides a strike is likely and wants to issue a court-ordered injunction, "I don't think there's any sense that a judge will deny him."
The task force, which also includes ex-labor leader Robert Balgenorth and is chaired by Brown adviser Jacob Applesmith, is expected to hold a public hearing on Wednesday.
Harley Shaiken, a UC Berkeley professor who specializes in labor issues, said while a 60-day cooling off is likely, he warned it might not solve the disagreement.
"They've shown they can go 30 days and make no progress -- they can easily do 60 days and make no progress," Shaiken said. "And then they're facing real consequences."
Though both sides have remained optimistic of reaching a deal, it is not clear whether another two months of talks would prove to be enough to avert another strike in mid-October, which is historically BART's busiest month.
The last strike before this year, a six-day shutdown in 1997, followed a 60-day cooling off that proved to be fruitless. In the other years where the governor delayed strikes, however -- 2001, 1994, 1991 and 1988 -- no strike was held. Governors did not intervene in the last two contract talks, in 2005 and 2009, when no strike occurred.
In the coming week, both sides can negotiate, but state mediators overseeing the talks had not scheduled any bargaining sessions as of Monday as they awaited a timeline for the state panel's investigation. As has been the case since the first 4½-day shutdown ended on July 5 with a 30-day contract extension, the key issues remain pay and contributions to health care and pensions.
During a rally at the Lake Merritt station in Oakland on Monday, union leaders representing BART's 2,300 blue-collar workers blamed management for stalling.
"Whether we have 60 days or seven days, management must bargain with us seriously or nothing is going to get done," said John Arantes, president of the local Service Employees International Union.
BART spokeswoman Alicia Trost said the biggest disagreement is over salaries, though BART said over the weekend it kicked in another 1 percent pay bump, bringing its total four-year offer to 9 percent. Unions, which have declined to release their latest offer, had previously proposed more than 20 percent pay increases over three years. Current blue-collar workers earn $76,500 in gross pay annually.
"Every day, we inch closer," Trost said. During a cool-down, "the biggest fear is that it slows down the negotiations. But everyone seems eager to not let that happen."
Staff writer Denis Cuff contributed to this report. Contact Mike Rosenberg at 408-920-5705. Follow him at twitter.com/RosenbergMerc.
What: State panel's public hearing on BART labor negotiations
Where: 1515 Clay St. in Oakland; second floor, room 1
When: 10:30 a.m. Wednesday
Why: Gov. Jerry Brown will use the panel's report to decide on a 60-day cooling-off period.