OAKLAND -- BART's two largest unions have a steep climb in their quest to retain a disputed family leave provision the agency says was mistakenly included in the now-stalled contract, says a veteran labor attorney.

"Both sides are desperately looking for some way to come to an agreement whereby both sides can save face," said Bill Gould, Stanford Law School professor emeritus and a former National Labor Relations Board attorney. "But there is no fail-safe device here. The ball is in the unions' court, and we'll have to see which avenue they pursue."

For now, BART can continue operating the busy rail system under the old contract -- it expired June 30 -- as long as the 2,100 employees in Amalgamated Transit and Service Employee International unions are willing to keep coming to work.

Antonette Bryant, president of Amalgamated Transit Union Local 1555, checks her phone during a closed session of the BART board meeting at the Kaiser
Antonette Bryant, president of Amalgamated Transit Union Local 1555, checks her phone during a closed session of the BART board meeting at the Kaiser Center Oakland on Nov. 21, 2013. (Jane Tyska/Staff file)

The unions as of Friday afternoon were still mum about how they will respond to the BART board's vote Thursday to accept the contract only if the labor groups re-ratify a package without the family leave provision.

"We consider the board's actions to be unprecedented and illegitimate, and we're considering our next steps, including possible legal action," wrote representatives of the unions, whose members ratified the contract on Nov. 1.

In the interim, the union workers cannot collect the promised pay raises -- retroactive to July 5 -- in the new contract that will net them almost 12 percent over the next four years after subtracting new contributions to their pensions and higher health care premiums.

The new contract, with its $67 million in salary hikes and other perks, is a marked improvement from 2009, when the bad economy forced the unions to take $100 million in pay and other cuts.

But the unions say BART must accept the contract with the family leave clause, which the agency estimates would cost an additional $6 million to $44 million over the life of the four-year contract, depending on how many people take it. 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.

In a highly unusual move, the board voted to neither directly approve nor reject the contract in order to "open a path toward closure of this issue," explained BART board Vice President Joel Keller.

The agency cannot legally impose a contract on its employees unless the parties declare themselves at an impasse, a legal term with specific criteria the situation doesn't yet meet, Keller said.

The unions can strike, litigate or attempt to mediate, but none guarantee success, labor attorney Gould said.

"The goal of a strike would be to put pressure on the BART board to capitulate on the family leave provision," Gould said.

The workers have walked off the job twice already when the BART board refused to budge during negotiations. The two sides only reached a tentative agreement after two workers were struck by a BART train and killed on Oct. 19.

The unions could sue and assert that BART engaged in bad faith bargaining.

In fact, the unions already have a pending 55-page lawsuit filed June 24 in Alameda County Superior Court against BART, alleging the agency failed to bargain in good faith in nine areas.

As amended Oct. 7, the lawsuit alleges that BART contract negotiators refused to talk about worker safety improvements or release requested spending, budget and job vacancy information. It also delves into grievances over changes in workers' compensation case management.

Workers walk the picket line at the Lake Merritt BART station in Oakland on Oct. 21, 2013.
Workers walk the picket line at the Lake Merritt BART station in Oakland on Oct. 21, 2013. (Kristopher Skinner/Staff file)

But attorneys for both sides on Nov. 6 -- two days after the agency notified the unions that the family leave provision had been included in error -- jointly requested a continuance to Dec. 23. They told the judge that "recent developments in the collective bargaining may result in a resolution of some portion or all of this action."

Even if a court finds BART guilty of bad faith bargaining or rejects the agency's assertion that the family leave provision was mistakenly included, Gould said the elected board still retains considerable authority over its finances.

"It seems to me that BART's argument is rooted just as much in an inability to pay as it is in it its assertion that it didn't agree to the family leave provision," Gould said.

Contact Lisa Vorderbrueggen at 925-945-4773, lvorderbrueggen@bayareanewsgroup.com or Twitter.com/lvorderbrueggen.