BART was slammed by legislators and its workers today for refusing to make a key worker safety improvement demanded by state regulators since a 2008 fatality, instead choosing to aggressively defend the “simple approval” process that contributed to two more fatalities on Oct. 19, after which the district finally made the change.
The Assembly Committee on Labor and Employment had already planned today’s San Francisco hearing into why BART spent years appealing rulings by the California Occupational Safety and Health Administrations before the recent tragedy, but that incident sharpened criticism of the district for valuing efficiency over safety.
“The culture of safety at BART must change,” said BART train operator Jesse Hunt, who gave dramatic testimony about the callous culture at BART that led to the Oct. 19 tragedy. “It’s not a single incident, it’s a pattern of disregard for safety.”
The hearing also delved into why BART had an uncertified trainee at the helm of the train that killed Christopher Sheppard and Laurence Daniels on Oct. 19, despite warnings by its unions that district preparations to run limited service during the strike would be unsafe.
“Simple approval” made employees doing work on the tracks responsible to avoid being hit by trains moving silently at up to 80mph. When BART exhausted its administrative appeals of Cal-OSHA’s rulings in June, it filed a lawsuit in Alameda County Superior Court and continued to defend the practice, which its unions had long sought to end.
“BART challenged that citation and continues to do so to this day,” Chair Roger Hernandez (D-West Covina) said in his opening remarks, noting that it took two recent fatalities for BART to drop its stance. “I’m deeply troubled this decision wasn’t made much earlier.”
For BART, the hearing only went downhill from there as state regulators testified to the district’s litigious refusal to adopt important safety precautions, employees painted a picture of a district hostile to them and their safety concerns, and legislators chastised BART managers for not having reasonable answers to their questions.
In response, BART Assistant General Manager of Operations Paul Oversier denied the district undervalues safety and said that it defended the simple approval process because it had been used tens of thousand of times and, “We had a track record in mind of a procedure that was working well.”
Asked whether he continues to defend it after the Oct. 19 incident, Oversier said, “Irrespective of what our opinion might be, we suspended the simple approval process,” a decision that he said could disrupt service, increase costs, and “that may cause us to look at what our hours of operation are.”
That suggestion drew murmurs of outrage from the union members that packed the hearing, including those who had just testified about how the district refuses to work collaboratively with its workers, who even had to learn of the district’s decision to end simple approval from evening news reports rather than directly.
“Shifting the burden from people in the field to the control center is not a long term solution,” testified Sal Cruz, a BART train controller of 15 years who was on the contract bargaining team. “Time and time again, we’re never really involved in these decision-making processes.”
Christine Baker, director of the Department of Industrial Relations, and Juliann Sum, acting director of its Division of Occupational Safety and Health (better known as Cal-OSHA), testified as to their agency’s long, trying history of getting BART to comply with its rulings, with Baker calling the resistance to reform “clearly an issue of grave concern.”
Legislators probed why that might be the case, asking whether abating the problems might be seen as an admission of liability to either the agency and a victim and whether it was the norm for those cited. Baker said no to both questions: “It is not an admission of guilt if they abate…Many employers abate as soon as there is a citation.”
So why is it standard practice at BART to avoid correcting the 40 violations it received from Cal-OSHA in the last 12 years?
“In most cases, the district has acted in good faith to try to abate the citations,” Oversier testified, but he said that BART often disagreed with Cal-OSHA’s findings and that “the investigation doesn’t really start until you appeal.” He said BART has paid just 22 percent of what it has intially been fined by OSHA, casting that as smart stewardship of ratepayer money and saying, “It’s the appeal process that brings closure to the process.”
Meanwhile, Baker, Sum, and Cal-OSHA attorney Amy Martin said they are currently investigating the Oct. 19 incident for both civil violations and penalties and the possibility of criminal prosecution of BART officials if “they intentionally took the action that led to the fatality,” Martin said.
The hearing was called by Assemblymember Phil Ting, D-SF, who said in his opening remarks, “I was very concerned to read many of the OSHA findings, that it found BART was in violation of California state law,” which prohibits employers from making workers responsible for their own safety in dangerous situations.
Later, Ting questioned BART Chief Safety Officer Jeff Lau — whose testimony came almost entirely from prepared statements he read, in a way that didn’t inspire much confidence in the material — about how many of OSHA’s safety violations it had taken steps to correct versus how many it continues to resist. Lau said that he couldn’t answer the question, even though Ting noted that he first called this hearing back in June and Lau should have been prepared to answer that central question.
“I’m extraordinarily disappointed in your response,” Ting told Lau, demanding that he prepare a detailed written response to the questions and submit it to the committee, which plans to revisit the issue once more details emerge from the NTSA investigation of the Oct. 19 incident.
Most of the panel criticized BART’s foot dragging and called for reforms.
“This latest accident, a terrible tragedy, could have been avoided,” said Assemblymember Bob Wieckowski (D-Fremont), decrying Gov. Jerry Brown’s recent veto of Assembly Bill 1165 by Assemblymember Nancy Skinner (D-Oakland), which would have expedited Cal-OSHA appeals and perhaps required BART to fix the problems pending its appeal.
Assemblymember Tom Ammiano (S-SF) recounted his own history of difficult dealings with intransigent BART officials, from trying to improve station safety when he was a supervisor starting in the mid-‘90s to his work as a legislator trying to provide some oversight of the BART Police after the Oscar Grant shooting.
“I feel like it still has a long way to go. Transparency and accountability will be very important around this issue,” Ammiano said.
Later, Ammiano asked Cruz whether the ill-fated Oct. 19 train should have been traveling slower than 60-70mph, and Cruz responded, “With knowledge of people being wayside [a term that means on the tracks], you would think that.”
The most scathing and dramatic testimony came from the nine workers called to testify at the hearing, three from each of BART’s three unions, all of which had made safety reforms a big part of their recent contract negotiations, with varying degrees of success.
“We are dealing with a culture at BART that doesn’t take workers seriously or the safety of workers seriously,” began AFSCME District Council 57 Executive Director George Popyack. “Our objective today is to make BART a better and safer place to work.”
Several workers said the district’s main imperatives are to cut costs and keep the trains on time, which causes safety compromises on an almost daily basis. “We’re so pushed to keep that schedule sometimes we push on the edge,” said train controller Ken Perez.
While BART officials refused to discuss details of the Oct. 19 incident, as per a gag order from the NTSB, union members that testified said it’s clear that the district’s disregard for safety and its desire to break the strike are what led to the tragedy.
“BART was planning to run a limited service with people not trained to run those trains and that was connected to this accident,” ATU Local 1555 President Antonette Bryant testified.
“The train that hit the workers was a manager being trained to run the train in the event of an extended strike,” Poyyack said, noting how irresponsible it was to be running a train at what the NTSB said was 60-70mph on the one line where there were workers on the track. He and others said there was no good reason for the district to do so, calling it an example of the district’s flagrant disregard for safety.
“The culture of BART is a significant contributor to the incident,” said BART train operator Jesse Hunt. “The culture is one of gambling with worker and rider safety.”
Hunt said BART’s safety culture directly caused the Oct. 19 tragedy: “There was no reason for a trainee train to be operated or for employees to be on the ground.”
John Arantes, president of the BART Professional Chapter of SEIU Local 1021, said the district took an extremely aggressive posture in labor negotiations — “a scorched earth strategy encouraged by directors like Zachary Mallet,” the newest elected member and one critical of unions in the press — forcing the strike and the unnecessary Oct. 19 tragedy.
And he posed a question that remains unanswered, despite the hearing and the Guardian’s attempts to get an answer: “Who authorized the training exercise and to what extent were the BART directors involved?”