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Union leaders welcome BART dropping 'simple approval' safety protocol

Two BART union leaders said Thursday they welcomed the news that the agency is dropping a controversial safety protocol known as "simple approval" after two workers were killed on the tracks over the weekend.

"They should have done it," said Amalgamated Transit Union Local 1555 President Antonette Bryant.

"It's been a long time coming. People have died," said Bryant, whose local represents train operators, station managers and clerical workers.

SEIU Local 1021 spokesman Des Patten said, "I think it's a wonderful idea. It's far safer to work under work orders than under simple approval."

The SEIU local represents mechanics, custodians, clerical workers and professional workers such as instructors. Patten, a train control instructor, is president of the local's professional chapter.

"I personally have known employees who were nearly killed because the procedure was so risky," he said.

Under the protocol, workers doing maintenance work along the tracks were responsible for their own safety and were not guaranteed warnings when trains approached.

The procedure was in effect when BART engineer Christopher Sheppard, 58, and contractor Laurence Daniels, 66, were hit and killed by a train while they were checking on a stretch of track between the Walnut Creek and Pleasant Hill BART stations on Saturday afternoon.

BART suspended use of the procedure on Sunday and Assistant General Manager Paul Oversier told the agency's board of directors in Oakland Thursday that the staff was making the moratorium permanent.

"Upon reflection, we've decided to make this a permanent change," Oversier told BART directors.

"Given an opportunity to think about it, it's time to put an end to it and we've done that," he said.

BART said in a statement it will now use only its more restrictive work-order procedures, which require trains to stop or slow to 25 miles per

hour in areas where trackside workers may be present.

Oversier told directors the change will be a "real challenge" to implement because the simple-approval protocol had been used hundreds of times each month.

"This may require extra staff or disrupt service," or require doing more maintenance at night, Oversier said.

He said BART had used the procedure during its 42 years of existence and noted that walking along the tracks is sometimes the only way workers can reach some problem spots.

But the change "addresses the number-one issue after the incident," Oversier told the directors.

BART had made several modifications to the policy after another worker, James Strickland, 44, was struck and killed by a train while inspecting track in Concord on Oct. 14, 2008.

Two of the changes were that train operators had to be alerted in a radio announcement about any workers along the tracks, and that employees were required to work in groups of at least two, with one person acting as a lookout for oncoming trains.

Workers were still told, however, that "No protection is given or implied with a Simple Approval," and that they were "individually responsible for providing their own protection," according to BART's most recent operations manual.

They were told that in order to be authorized to use the procedure, they must be able to detect oncoming trains and clear the track within 15 seconds.

Patten said that in his experience, the procedure was originally used primarily to enable workers to get access to problem spots, but more recently it was sometimes used as well for limited maintenance jobs that did not require employees to alter tracks or work in the middle of the trackway.

Meanwhile, even as BART dropped the disputed protocol, a lawsuit by the district remained in place in Alameda County Superior Court to challenge a state board's finding that a previous version of the protocol was a "willful" violation of industrial safety regulations.

The California Occupational Safety and Health Appeals Board made that finding during a probe of the 2008 accident in which Strickland was killed. The board also ordered a $108,250 fine, which has been put on hold while BART pursues its appeal in the state court system.

A status conference on the lawsuit is scheduled for Jan. 7 in Superior Court in Oakland.

BART spokesman Jim Allison said he could not comment on whether the dropping of the simple-approval policy would have an effect on whether

BART would continue the lawsuit.

Cal/OSHA originally cited BART for four violations of state industrial safety regulations in connection with the 2008 accident and fined

the district $28,685. The violations were classified as "serious."

After two rounds of hearings before an administrative law judge and the appeals board, however, the agency reclassified two of the violations as "willful serious" and raised the fine to a total of $108,250.

One of the "willful" citations was for violating a state industrial safety regulation that requires that "Controls to safeguard personnel during railcar movement shall be instituted."

The citation said, "The Simple Approval process does not adequately safeguard employees because it does not require train operators to be notified of maintenance personnel performing work at or near the trackways, nor does Simple Approval require maintenance personnel to be

notified of trains actively entering their work areas."

BART was fined $70,000 for that citation.

The other "willful" citation was for allowing shrubbery to obstruct a path along the track where Strickland was working. It resulted in a $38,250 fine.

Another citation was dropped, and the remaining citation was deemed to overlap with the shrubbery citation.

The version of the procedure in effect in 2008 didn't have the later modifications requiring workers to have a lookout and requiring radio

announcements to be made to train operators.

But like the more recent procedure, it did contain a provision that workers were responsible for their own safety and a statement that no

protection was being officially provided.

In a ruling in 2012, the appeals board wrote, "We cannot accept that a procedure that specifically states 'No protection is provided with a Simple Approval,' per Employer's own manual, can safeguard personnel during railcar movement.

"The very terms of the procedure state it does not provide any protection to employees," the appeals board said.

The board issued its final decision denying reconsideration in June, and BART filed its lawsuit the following month.

In addition to the findings of willful violations and the fine, the Cal/OSHA citations ordered abatement, or correction, of the violations. But those orders, which may now be moot, have also been on hold during the appeal.

BART spokeswoman Alicia Trost said Wednesday that the issue in the lawsuit is the challenge to the "willful" findings, but said she could not otherwise comment on the case.

State Division of Industrial Relations spokeswoman Erika Monterroza said she could not comment on the lawsuit because the matter is in

litigation. The division is the parent agency of Cal/OSHA.

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