Union head calls for criminal investigation of 2 BART workers struck by train during strike

SAN FRANCISCO – Bay Area Rapid Transit officials were grilled about the agency’s safety record during a four-hour legislative hearing Thursday that included a call from a workers’ union for a criminal probe into the deaths of two track inspectors who were struck by a train while BART workers were on strike.

George Popyack, executive director of American Federation of State, County and Municipal Employees Council 57, called for law enforcement involvement in the probe of the Oct. 19 accident while testifying at a legislative committee hearing in San Francisco. The state Assembly Committee on Labor and Employment convened the meeting to investigate the accident.

Popyack didn’t say whether anyone specifically should be targeted for possible criminal charges.

Much of the attention on the accident centres on the transit agency’s “simple approval” policy that makes workers completely responsible for their safety while working on the tracks.

Since the October accident, BART has permanently ended that policy while it works on updating its safety procedures, BART Assistant General Manager Paul Oversier testified Thursday.

The California Department of Occupational Safety and Health found that the policy had contributed to the death of track inspector James Strickland in 2008 when it issued BART four citations and fined it $28,000. BART has been appealing those citations. BART’s fine has risen to slightly more than $100,000 along the appellate process.

After Strickland’s death, BART began to require that a minimum of two workers attend to problems on the track, with one acting as a lookout.

Popyack said that the task the two workers were undertaking — inspecting a dip in the rail — when they were killed required the attention of both and neither could watch for trains. He blamed the “simple approval” policy, which he said BART knew put workers in danger and that’s why criminal charges should be considered.

Oversier said current safety protocols now require three-way communications between train drivers, controllers in Oakland and workers on the track. Trains are also now required to slow down or stop when they approach work zones.

“I am deeply troubled that this policy wasn’t changed earlier,” said Assemblyman Roger Hernandez, D-West Covina, the chair of the labour committee.

Cal OSHA and the National Transportation Safety Board are investigating the deaths of the two inspectors, Christopher Sheppard, 58, and Laurence Daniels, 66.

Either agency can refer the case to prosecutors for possible criminal charges. Cal OSHA and NTSB officials declined to comment on an ongoing investigation.

Oversier told the Assembly committee that NTSB officials have directed BART to refrain from discussing specifics about the accident, but he did say that the train that killed the workers was being operated by a manager on a combined training and maintenance run. Oversier said it was training managers to operate trains during the strike, initially for maintenance with the possibility of commercial operation if the strike was prolonged. The strike ended in its fifth day and managers weren’t called upon to operate trains that carry commuters.

Unions approved a new four-year contract last week. BART’s board of directors still needs to vote on the deal at its next meeting, which the agency said would happen “soon.”

The fatal Oct. 19 accident was the central focus of the committee hearing held in San Francisco, though several committee members also expressed concern that BART managers automatically fight citations for safety violations rather than concede changes need to be made in its safety policies.

By its own count, BART has received 45 citations from Cal OSHA over the last 12 years. Cal OSHA officials testified earlier in the day that BART appeals most of them.

“The BART experience with Cal OSHA is that the investigation doesn’t begin until you appeal,” Oversier said. “It’s the appeal process that allows us to bring closure.”