BART Strike Tactics: What's a 'Last, Best and Final Offer'?

During months and months of negotiations, BART management and its biggest labor unions moved slowly, acrimoniously and messily closer together in their contract talks. For example, the unions started out seeking something like a 23 percent wage increase over four years, while the agency countered with a 4 percent offer. Hard to see how that gap would be closed, right? But those were opening positions in the weeks before workers struck for five days in July.

After a 30-day extension of talks and a 60-day cooling-off period, several more strike deadlines and a couple of slow-motion rounds of on-again, off-again talks, the landscape looks a little different. By the end of last week, management had upped its offer to a bit more than 10 percent over four year; the unions had come down to 12 percent over three years. That by itself wasn't enough to get a deal done, but it does demonstrate some force of compromise at work.

Fast forward to yesterday, as BART and the unions worked against their latest deadline. There was virtually nothing to report — and by report, I mean blog what I was distilling from tweets and various newscast nuggets — except meal deliveries to the negotiating site. Then at 10 p.m., a contingent of state legislators emerged from the talks and announced that discussions had been stopped cold six hours earlier when BART management had presented a "last, best and final offer" to the unions. The way the legislators and union leaders described it — and what BART General Manager Grace Crunican seemed to confirm — the proposal amounted to a take-it-or-leave it offer. Although the unions agreed to keep talking through today, a strike suddenly seemed not only possible, but likely.

But what exactly is a "last, best and final offer" and how might it fit into the overall tactics of the BART negotiations? KQED's Mina Kim talked to Paul Roose, a professional mediator who oversaw difficult BART negotiations in 2009, about BART's bargaining strategy. He described the agency's move as "a strong bargaining signal and it should be taken seriously by everybody involved." He added the offer could be a prelude to even tougher action by BART:

A last best and final offer on a legal standpoint is a basis for the employer to implement terms and conditions on the unions should they be unable to reach an agreement. But it doesn't mean that the efforts to get a tentative agreement acceptable to both sides has stopped.

On a historical note, close observers of the BART negotiations point out that BART announced a "last, best and final offer" in talks with the Amalgamated Transit Union during talks in 2009. Then, the principal dispute was over a long list of concessions the transit agency wanted from the union. The BART "final" offer prompted the ATU to issue a strike notice. But the two sides kept talking and eventually settled without an imposed contract or a walkout.

Here's all of Mina Kim's conversation with Paul Roose, accompanied by a full transcript.

Mina Kim: Will there be a BART strike tomorrow? That's the question on many commuters' minds, as yet another walkout deadline nears. BART representatives and union leaders are currently hunkered down in talks in Oakland, and details of the negotiation are thin, as both parties seem to be honoring a media blackout.

Talks appeared to skid to a halt yesterday, when BART General Manager Grace Crunican presented the unions with a "last, best and final offer."

Here to help us understand the latest developments is Paul Roose, a professional mediator who oversaw BART negotiations in 2009.

Mr. Roose, "last, best and final offer" suggests that BART management is done bargaining. Yet, the two sides still seem to be talking? What should we make of that?

Paul Roose: The fact that they're still talking is a good sign. A "last, best and final offer" on a legal standpoint is a basis for the employer to implement terms and conditions on the unions should they be unable to reach an agreement, but it doesn't necessarily mean that the efforts to get a tentative agreement acceptable to both sides has stopped.

Kim: I see. So it's sort of like a shot across the bow?

Roose: It is a strong bargaining signal, and it should be taken seriously by everybody involved. This "last, best and final offer" is the best it's going to get. It's not going to get any better than that unless they can reach an agreement with the union that the union will put out and recommend a "yes" vote.

Kim: Few details of the final offer have emerged, but BART's website did mention it included a 12 percent raise over four years. What are the unions' options now?

Roose: The union can continue to try to keep BART in the bargaining process, and the way they can do that is to continue to move from their positions — soften some of their positions and give BART an incentive to stay in the process. The unions have also kept the strike option on the table, as everyone is concerned about. And a third option they have is to take the "last, best and final offer" — put it out to a vote of their membership without a recommendation, or with a negative recommendation — and the most likely outcome of that is that the union's members will vote it down, and they will then go back to the bargaining table where the process will renew in some way.

Kim: So many people in the Bay Area, their very livelihoods rely on the transit system. It just would be a lose-lose for all sides, including the public.

Roose: A strike has no winners. The public certainly is inconvenienced in a great way. The union members lose a day of pay for every day of the strike. The ridership goes down, and it's very difficult for management to recover that. So, it would not be a good outcome or a good development at this point for anyone involved.

Kim: What will you be watching for in the next few hours? We talked last week about hopeful signs. Are you seeing any now?

Roose: The fact that they're still talking. Although there is a formal offer out there, they're not really talking about their positions that they may have exchanged informally. The fact that there has been more involvement from the local elected officials, the BART board, the general manager. Those are all hopeful signs. The national head of the federal mediation service has gotten involved. I think it's all pointing toward some hopeful signs for a settlement.

Kim: Mr. Roose, thank you for talking to us.

Roose: You're very welcome, and thank you.

Kim: Paul Roose is a mediator with Golden Gate Dispute Resolution who oversaw previous BART negotiations.

Don Clyde and Chad McClymonds contributed to this report.