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Latest News - December 2013

December 13, 2013
Daniel Borenstein: BART contract fiasco far more than a clerical error.
Source: Contra Costa Times columnist
By: Daniel Borenstein

For a month, questions have swirled about how BART negotiators mistakenly signed off on a new benefit worth millions. Last week, officials explained the bungling in detail.

They previously blamed a temporary clerical worker for launching this cavalcade of miscues. It turns out that Thomas Hock, the outside lead negotiator hired under a $399,000 contract, unwittingly started it.

The clerical worker played a key role in this surreal bureaucratic fiasco. So did Kevin Alexander and Ericka Mitchell, BART labor relations representatives; Rudolph Medina, labor relations manager; Vicki Nuetzel, senior attorney; and Paul Oversier, assistant general manager for operations.

"Each one of us in our own way could have caught it, should have caught it," Oversier said. "In hindsight, we should have had a different process."

At issue is a family-leave provision added to the generous contract that members of two unions ratified in November. Fortunately, it was caught before BART directors approved it. The two sides are trying to negotiate a resolution.

The unions insist the benefit was long part of the package. The paper trail and one union's failure to tell workers about the noteworthy change before their ratification vote belie that claim.

Nevertheless, at BART the question remains: How could this happen? Oversier, Mitchell and Ravi Misra, chief information officer, provided the district's most detailed account so far.

During five months of negotiations, the two sides bargained 90 contract provisions. Typically, when they reached accord on one, BART representatives would separately review it, type it up as a "tentative agreement" and give it to labor negotiators for signature. BART negotiators would then sign it and file their copy in a master binder.

On May 30, the two sides discussed the union's family-leave proposal. On June 11, as part of a comprehensive offer, BART formally rejected the proposal. But, in July, Hock directed the clerical assistant to check BART negotiators' notes to ensure the tentative agreements were current.

Alexander had kept the union's leave proposal. He had crossed it out with a yellow marker line and written, "TA district lang(uage)."

When the clerical assistant came upon it, she recently told BART, she thought that meant it was a tentative agreement to be included, and took it upon herself to type it up without others' review. Computer forensics determined she did so July 11 and converted the document to PDF format July 18.

It's uncertain when labor representatives received the provision for signature along with other agreements, or when Oversier, Hock and Medina thoughtlessly signed it. The signed document was filed in the master binder, where it remained for months.

When negotiations broke down, BART on Oct. 17 presented the unions with a list of tentative agreements included in its final offer. The family-leave provision was not one.

Workers struck the next day. Hock had left town, so BART used just Oversier and two of its attorneys to conduct bargaining. The district had no professional negotiator as it dramatically sweetened the deal.

Following the Oct. 21 accord, BART attorney Nuetzel and labor relations specialist Mitchell met with union negotiators for "check-off" meetings.

In preparation, Mitchell compiled a list of the agreements. For that, she went to the master binder, still containing the family-leave provision. Neither Nuetzel nor Mitchell noticed its significance as they ticked off the items with the unions.

Union members voted Nov. 1 to ratify the deal. On Nov. 4, BART staff finally met to carefully review it. Credit Laura Clark, human relations attendance coordinator, for questioning the provision.

BART officials had previously credited Nuetzel. They now acknowledge that's wrong. Nuetzel is actually quite culpable. As primary attorney for negotiations, she should have watched every word.

In sum, this was far more than a clerical error. This was sloppiness mixed with completely broken procedures: Directing clerical staff to paw through negotiators' notes, no review before sending out typed tentative agreements, signing documents without reading them, no lawyer signature, no signature dates, no accurate logging of agreements, no attached fiscal analyses.

Most significantly: No public vetting. With proper procedures and full sunshine, this colossal error could, should and probably would have been caught.



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