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When Hazards Go Unfixed: Worker Safety and Employer Responsibility

Cross-posted from Worksafe

Is there a link between Governor Brown’s veto earlier this month of AB 1165 – which would require employers to immediately abate serious hazards – and the recent deaths of two BART workers, Chris Sheppard and Laurence Daniels just last week? Could these deaths have been prevented if the law required employers cited by Cal/OSHA to fix serious hazards immediately instead of getting a reprieve for months or years while they argue in court? What track line safety rules do other transit systems follow, and how do they measure up to those used by BART?

On October 19, while working on a track during the BART strike, the two BART workers were struck by a train going as fast 70 MPH. The workers were told they were responsible for their own safety by maintaining constant vigilance for oncoming trains, thanks to BART’s “simple approval” rule.

But Cal/OSHA had previously found this rule unacceptable and cited BART for several safety violations following the investigation of the 2008 death of BART worker James Strickland.

BART officials appealed the citations and the “simple approval” rule remained in effect until last Friday, with some modifications. Read here and here for more.

Four years after Strickland’s death, the Appeals Board upheld the Cal/OSHA citations. It ruled that “the very terms of the [simple approval] procedure state it does not provide any protection to employees” and that the “employer cannot leave it up to the employee to safeguard himself.” BART officials appealed the decision yet again, and have reportedly spent as much as $300,000 in legal fees fighting this case. The case stretches on; it is scheduled for a hearing in Superior Court on January 7, 2014.

But would California legislation, vetoed on October 13, have prevented the tragedy this month? AB 1165, authored by East Bay Assemblymember Nancy Skinner and passed by the state legislature this summer, would have changed the rules so that employers could no longer get an automatic “stay” in fixing serious, willful, or repeat citations once issued by Cal/OSHA. Instead, they would have to fix the hazard or request a hearing to provide convincing evidence as to why they should get a “stay.” This is the law in some other states and under federal mine safety laws, as we previously reported.

Governor Brown vetoed the bill, stating that a new expedited review process would take care of the problem by moving cases involving serious citations to the front of the line for a hearing by the Appeals Board. But even this expedited process will take at minimum four and a half months, a long time for all of the remaining workers to face exposure to a recognized serious hazard.

Having a law like AB 1165 in place would have prevented recalcitrant employers like BART from using the system to delay fixing serious hazards. If it had been around in 2008, BART would have long ago been required to develop a safer approach to protect people working on train lines, and Chris Sheppard and Laurence Daniels might still be alive today.

That brings up the question: what is a better safety procedure to protect people working on train and subway lines? Who should be at the table to determine this?

The New York Metropolitan Transit Authority (MTA) convened a Track Safety Task Force following two worker fatalities in 2007, with major union input from Transport Workers Union Local 100. The agency conducted focus groups and surveyed over 700 workers to fully understand the problem and develop a set of interrelated recommendations, covering training, warning systems, and procedures with clear lines of responsibility. That’s the kind of thing BART should be discussing with the unions, instead of eliminating key safety positions, blaming workers for their own deaths, and using the law and our tax dollars to fight safety citations.

That is why we are currently reaching out to the unions that represent BART workers – to both show our support for their efforts around improving transit safety for employees and the public while also enlisting them in our ongoing campaign to close the legal loophole that lets companies postpone fixing serious hazards. Stay tuned for developments and contact us if you want to join us in this campaign.

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