OAKLAND -- In the latest twist in BART's tortured labor negotiations, the transit agency's directors on Thursday risked another strike by rejecting a costly paid family leave provision that they say was mistakenly included in the final contract. Union leaders slammed the move but were mum on whether they would walk off the job for the third time since July.

The BART Board of Directors voted 8-1 to accept the contract only if the unions vote to approve a revised package without the family leave perk.

No deal, countered leaders with the Amalgamated Transit and Service Employees International unions, whose members already approved the contract with the leave. They don't buy the "mistake" argument and called the board's vote illegal.

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)
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)

"Our members didn't have the opportunity to pick and choose what parts of the contract they liked and what they didn't like," ATU President Antonette Bryant said.

The unions aren't yet saying how they will challenge BART and what that means for the 200,000 people who ride its trains every day.

Employees have been working under the terms of the old contract since it expired June 30. But with no labor agreement, they could walk off the job for a third time. Others suggest the unions could take BART to court.

"We will be discussing the options with our attorney, and we will be in discussions with our members," said SEIU Chief Negotiator Josie Mooney after the board's decision. "How we proceed will be made public once we have had some time to consider what options are available."

Public agencies hardly ever reject contracts agreed to by their own negotiators -- in whole or part -- after union members have ratified them.

But BART officials said the agency simply couldn't afford to live with this mistake.

The transit system estimates the paid leave provision would cost it 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 in increased compensation of the overall contract -- without the family leave clause -- at $67 million.

BART board Vice President Joel Keller, of Antioch, led the move to seek a contract without the offending provision, and seven of his eight colleagues ultimately voted with him.

If he becomes board chairman in December, as expected, he said he will also appoint a board subcommittee to investigate the agency's labor negotiations process.

Neither side got everything it wanted, but the bulk of the deal "is affordable, sustainable and fair," Keller said. "We ended on a sloppy note, and that is regrettable. This turmoil could and should have been avoided."

Only BART Director Zakhary Mallett dissented in the vote, saying the contract was too generous even without the family leave provision.

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 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."

United Public Workers for Action founder Steve Zeltzer accused the BART board of union busting and predicted the contract 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.

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

The agency says its negotiators repeatedly rejected the idea, but later 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 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 part of the contract.

As written, it provides workers at no charge 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.

Contact Lisa Vorderbrueggen at 925-945-4773 and¿ follow her at 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. Workers pay the same flat fee no matter how many dependents.
  • 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 number 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.