BART Strike: Could The Governor Have Stopped It Sooner?

The Bay Area Rapid Transit (BART) strike—which began on July 1—ended on July 5 when both sides agreed to extend the expired collective bargaining agreement for 30 days. Because both sides appear to remain far apart, another strike in 30 days is a real possibility. Leading up to the strike, the big question in my mind was whether Governor Brown would impose a 60-day cooling off period. He didn’t. But that begs the question: Could Governor Brown have intervened to stop the strike?

First, it is important to note that while BART employees are “public” employees, they are not covered by the MMBA. Instead, like many other transit employees, BART employees are covered by labor relations provisions contained within the Public Utilities Code. (See, e.g., Pub. Util. Code, §28500 et. seq.) Thus, one of the things to remember when it comes to most transit strikes is that PERB does not have jurisdiction.

Another unique attribute of transit districts is that most are covered by the “Public Transportation Labor Disputes Act” (Act) which allows the Governor to call for a 60-day “cooling off” period in the event of a strike. Until last year, the Act was found in Labor Code section 1137 et. seq. However, as part of SB 1038, the bill moving the State Mediation and Conciliation Service to PERB, Labor Code 1137 et. seq. was moved to Government Code section 3610 et. seq.

In order to call for a 60-day cooling off period under the Act, the Governor must find that: 1) a strike will significantly disrupt public transportation services; and 2) that the strike will endanger the public’s health, safety, or welfare. When these elements are met, the Governor can seek to enjoin the strike for 60 days. During that time the Governor can appoint a board to investigate and issue a report on the issues involved in the labor dispute.

To my knowledge, the last time a Governor imposed a cooling off period was in 2007 when Governor Schwarzenegger intervened in a dispute involving the Orange County Transportation Agency (OCTA). After concluding that a strike by OCTA employees would endanger public health and safety, Governor Schwarzenegger formally requested that then-Attorney General Jerry Brown seek an injunction, which Attorney General Brown obtained.

The ability of a California governor to call for a cooling off period is modeled after Section 208 of the NLRA which allows the President to impose a 60-day cooling off period where a strike affects a substantial part of an industry and imperils the national health or safety. To my knowledge, Section 208 was last invoked by President George W. Bush in 2002 in connection with the west coast port and shipping labor dispute. The injunction in 2002 was issued by a federal judge in San Francisco. (See United States v. Pacific Maritime Ass’n, 229 F.Supp.2d 1008 (2002) (N.D. Cal.).) In that case, the judge relied on federal precedent to hold that “national health” includes more than physical wellness, but includes the well-being of the economy. Under that standard, the judge easily found that the west coast shipping dispute met the criteria under Section 208.

So fast forward to the recent BART strike. According to news reports, Governor Brown declined to call for a 60-day cooling off period. In an interesting twist, it was BART, and not the union, who urged the Governor not to intervene. In a letter to the Governor, BART argued that it would be less disruptive for the strike to occur now, during the summer months, than during the school year. So given that BART asked the Governor not to intervene, it’s interesting that BART agreed to a 30 day contract extension.

As for whether Governor Brown could have intervened sooner, in my opinion the answer is yes. There can be little doubt that public transportation was significantly affected. As for whether the bay area economy was affected, I think the answer is also a resounding yes. But just because Governor Brown could have intervened, doesn’t mean it would have been wise to do so. To answer that question, we would need a lot of more facts. As it stands, we’ll just have to hope that the parties reach a deal in the next 30 days.