SAN FRANCISCO -- Deflecting a flurry of criticism over their agency's safety record, BART managers at a special legislative hearing Thursday said train operating hours may shrink thanks to new track maintenance rules adopted in the wake of a recent fatal accident.

"We face a major challenge ahead of us," BART assistant general manager Paul Oversier told the Assembly Committee on Labor and Employment. "It's going to be more disruptive to service, our budget and our hours of operation."

Since the Oct. 19 accident in which two track workers were killed by a train, BART employees have performed track maintenance under "work orders," physically keeping trains away from work sites to bolster safety. This, however, can slow the whole system down, Oversier told Thursday's panel; a more permanent solution, he said, will likely mean moving work previously done during the day to night.

That, he said, could lead to reduced operating hours.

"We've been at work every single day since we revoked the policy to find alternatives," Oversier said.

The Assembly committee on Thursday excoriated BART, its safety culture and its policies leading up to the Oct. 19 accident. The investigative hearing focused on a controversial BART safety practice, "simple approval," that left it largely up to ground workers to avoid oncoming trains. The panel hammered BART managers on why simple approval wasn't eliminated after it contributed to track worker deaths in 2001 and 2008, and over why BART fought Cal-OSHA's citations and recommendations to end that policy.

Simple approval was finally eliminated after Oct. 19, when a BART worker and a contractor were hit as they inspected a reported "dip" in the track between the Walnut Creek and Pleasant Hill stations.

"I'm deeply troubled that the decision was not made earlier," said committee chairman Assemblyman Roger Hernández, D-West Covina.

Assemblyman Phil Ting, D-San Francisco, asked for the meeting months before the latest deaths but postponed the hearing given BART's labor strife at the time.

"I want to know why BART is spending time appealing violations rather than addressing these issues," said Ting, adding he was confounded by BART's simple approval practice he said was "in conflict with California state law," which places the onus of safety on the employer.

The panel drilled down on the transit agency's five-year, ongoing battle with Cal-OSHA, which started in 2008 after track inspector James Strickland was hit and killed by a train.

"BART's experience with the Cal-OSHA process is the investigation doesn't really start until you appeal," Oversier told the panel. A "majority" of BART's 45 Cal-OSHA citations over a 12-year period were appealed, managers said, because they "want to engage in dialogue." Through those appeals, fines and settlements of $361,610 over that time period were cut by about 80 percent.

A BART patron awaits a train at the MacArthur station in Oakland.
A BART patron awaits a train at the MacArthur station in Oakland. (Kristopher Skinner/Bay Area News Group)

Juliann Sum, the acting director of Cal-OSHA, testified most employers correct problems upon being cited. But that, she said, does not prevent them from appealing.

Oversier said major changes made to simple approval following the 2001 and 2008 deaths were considered abatement.

Gov. Jerry Brown this year vetoed Assembly Bill 1165, which attempted to close a labor code loophole by requiring employers -- even if they appeal -- to follow Cal-OSHA abatement recommendations if employees were endangered. Brown said the bill's language contained an additional appeal process, potentially slowing the process down.

George Popyack, executive director of the American Federation of State, County and Municipal Employees, said Thursday he has asked Cal-OSHA for a criminal investigation into the Oct. 19 deaths. Neither the 2001 and 2008 worker deaths were forwarded for criminal cases; Cal-OSHA's Sum said it would take "reckless disregard or close to direct intent" to reach a criminal threshold.

Eight current and former BART employees, members of three unions, told Thursday's panel the transit agency has placed on-time performance above safety.

"It's a top-down drive for on-time performance," said train operator Jesse Hunt.

They testified that simple approval was used by management to maintain its 95 percent on-time performance rating and to avoid liability in worker injuries and deaths.

BART averaged 8,500 simple approvals a year, said Oversier, calling that procedure "the norm in our industry." Before 2001, the agency went more than 27 years without a train hitting a worker, he added.

Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.