Widow and coworker of Jeff Garrard locked out of MOSH conference
Sherman
Hagerstown MOSH office on Wednesday, August 18. I'm sure I have some
parts of the conversations out of sequence but I have not
intentionally left anything out.]
Earlier today Grace Garrard, the widow of ATC technician Jeff Garrard,
my wife Pati, and I went to Hagerstown to attend the 'informal
conference' at the MOSH office regarding the citations MOSH issued to
WMATA as a result of the MOSH investigations into the deaths of Sung
Oh and Jeff Garrard, as well as the death of Michael Nash.
We arrived early and parked on North Potomac Street near what we
thought was the Elizabeth Hagen Center. As we approached the
building, the only address we saw was 149. There was another door on
the same building further south, but without an address. We
approached that door and found a notice that the building had been
condemned.
We should have recognized that as a sign.
I called Deloris Carbaugh at the MOSH office (301-791-4699, x100) and
she told me the address is 14_R_, not 145. How someone got a 5 from a
R is a good question (see the notice below). Then she transferred me
to her boss (I did not get his name) who gave us directions. It was
just one block south.
He met us outside and as we walked into their offices (which are
protected by a key code lock) he asked us, "Who do you represent?".
IIRC, Grace said she represented Jeff Garrard and I said I represented
myself. It seemed like an odd question, but I figured it was his way
of asking who we were -- why we had an interest in the conference.
Things went south from there.
Once he realized that Grace and Pati are not Metro employees and that
Grace is Jeff's widow, he started acting strange. I don't know how to
describe it. It was like a weird bureaucratic trance. He was sort of
mumbling, leaning against the wall, talking to himself, say something
like, "Hmm, I'm not sure how we're going to handle this...so you're a
family member...I don't know...let me talk with my supervisor...you
might not be able to attend the conference...this is highly
irregular...
He left us there and went to another room. I imagine (if he actually
spoke with anyone) he told them the bad news -- "Some people actually
showed up, and one of them is the widow of one of the Metro employees
who was killed. How can I get rid of them?!"
When he came back he started to say that since none of us are Local
689 officers that we couldn't attend, but that he would have a meeting
with us afterward and tell us "everything that was said". We pointed
out that at a minimum I should be allowed to attend since I am an
active Metro employee and the "NOTICE TO EMPLOYEES OF INFORMAL
CONFERENCE" (below) is directed specifically at _employees_, and/or
their representatives, and clearly states that we have a _right_ to
attend!
That didn't seem to faze him. He kept suggesting that only Local 689
officers were allowed to participate. He stuck with that story for a
while.
Then he switched gears and said that since Metro requested the
conference (which may not even be true), they have the right to decide
who attends.
When I questioned that, he suggested that there might be some
liability issues. Grace and I pointed out that Grace couldn't sue
because Metro carries WC insurance (sorry about your dead husband, buh-
bye!). He reluctantly agreed (he seemed surprised that we were aware
of that), but said that he's seen people sue (unsuccessfully) anyway.
At that point Grace and I pointed out that _if_ that was the case
(liability concerns, Metro prerogative) then the MOSH notice should
clearly state that. In fact, the notice contains no stipulations,
restrictions, fine print, etc. It simply gives the location, date,
and time, and notifies employees that they have a RIGHT to attend.
Period. I have included it below.
This back and forth went on for about a half hour. Finally, around
11:30 am the WMATA people showed up. The main guy was Dorsey Adams,
Manager, Rail & Facilities Safety. His phone # is 202-962-1473, cell
# is 202-465-5950. Email: dma...@wmata.com.
Mr. Adams was very polite but said that he would have to check with
his boss as to whether any of us would be allowed to attend the
conference. As you might imagine, that turned into a flurry of phone
calls and CYA statements. Adams' boss contacted the WMATA legal dept.
and they claimed to be concerned that some details of the ongoing NTSB
investigation (which is being held jointly with MOSH) might be
disclosed. Then Adams and the MOSH employee said they were concerned
that we might repeat those NTSB investigation details and that they
and the other WMATA guy would be hauled out of their offices in
handcuffs and thrown in jail and charged with a federal offense.
I'm not convinced that their professed concern over the top-secret
details of the NTSB investigation was genuine. Up to that point, the
MOSH employee seemed to be grasping at straws -- desperately trying to
think of some reason why we couldn't participate in the conference.
Even if they were sincere, the conference was being held to discuss
the citations MOSH issued to WMATA -- if we stuck to the facts as
written on the citations themselves (which are public) I would think
that would have been safe.
Even if the NTSB investigation were a legitimate concern, there's no
reason they couldn't have anyone attending the conference sign a non-
disclosure agreement. I mentioned this as we were leaving and both
Adams and the MOSH employee agreed that that might be an option and
said they would mention it to their attorneys.
They all finally decided to postpone the conference to allow the
lawyers time to figure out how to handle it.
We all are wondering whether they didn't go ahead and have the
conference after we left, but I did ask Adams and the MOSH employee
point-blank if they were still going to have a conference there today
and they both replied no, that it was being postponed.
The MOSH employee told us that the re-scheduled conference might be in
Laurel or Hunt Valley (apparently MOSH is in the process of moving
their offices from Laurel to Hunt Valley). It was unclear why they
wouldn't reschedule at the Hagerstown office. The MOSH employee said
the conference was being held in Hagerstown because that's the office
the accident investigators work out of.
That's about all I can remember.
Let me know if you have any questions.
Sherman
#####
[The notice below was copied and pasted directly from page 4 of a pdf
file of the MOSH "Citation and Notification of Penalty". The address,
date, and time were written in by hand but easily readable. I've done
my best to correct typos that were created in the copy&paste process
and accurately represent page 4 in it's entirety.]:
Department of Labor, Licensing and Regulation
Division of Labor and Industry
Maryland Occupational Safety and Health
1100 N. Eutaw Street, Room 613
Baltimore, MD 21201
Phone: (410) 767-2215 FAX: (410) 767-2003
NOTICE TO EMPLOYEES OF INFORMAL CONFERENCE
An informal conference has been scheduled with MOSH to discuss the
citation(s) issued on
07/22/2010. The conference will be held at: Region 5 Office 145 North
Potomac Street, Elizabeth Hagen Center, Hagerstown, MD, 21740
(location)
on 8/18/10 (date) at 11 am. (Time)
Employees and/or representatives of employees have a right to attend
an informal conference.
NOTICE TO EMPLOYEES - Any Employee or representative of employees who
believes that any period of time
fixed in this Citation for the correction of a violation is
unreasonable has the right to contest such time for
correction by submitting a letter to the Commissioner at the address
shown above within 15 work days (excluding
weekends and state holidays) of the issuance of this citation.
EMPLOYER DISCRIMINATION UNLAWFUL - The law prohibits discrimination by
an employer against an
employee for filing a complaint or for exercising any rights under the
Maryland Occupational Safety and Health
Act. An employee who believes that he or she has been discriminated
against may file a complaint with the
Commissioner at the address shown above no later than 30 days after
the discrimination.
Citation and Notification of
Penalty Page 4 of
9 LLRlDLIIMDOSH-2(Rev.
6194)
Christopher Jerry
Christopher Jerry
"Remember that not getting what you want is sometimes a wonderful stroke of luck."
- Dalai Lama
--
www.atulocal689.org
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Sherman Johnson
gives the employers immunity from lawsuits. Kill an employee or two (or 10)
through gross negligence? No problem! You have WC insurance! Even
employees responsible cannot be sued if they were acting in their 'official
capacity' -- if what they were doing is part of their job description. The
Tri-State Compact of 1967 gives WMATA extraordinary autonomy ("we don't need
no stinkin' badges!") but this is unrelated to that. My understanding is
that _any_ employer who has WC insurance cannot be sued by either their
employees or the family/dependants of their employees. It's a great deal --
for businesses. The only advantage to employees is that in the case of
injuries, particularly injuries that were partially or entirely the fault of
the employee, there are guaranteed benefits. There is no need to sue -- the
employer's WC insurance covers their expenses automatically. That may be
alright for the majority of accidents, but employees should have the
_choice_ of whether to accept WC insurance benefits or sue. As it is,
American workers and their families have all forfeited the right to sue
their employers -- and many do not realize it (I didn't, until after Jeff
and Sung were killed).
FYI, railroad workers _do_ have the right to sue, because they are not
covered by WC insurance.
My understanding is that the NTSB treats their accident investigations like
criminal investigations -- they keep most of what they learn secret until
they announce their findings (which is often a year after the accident).
There are exceptions, for example, when the NTSB found that the likely cause
of the track circuit malfunction at B06 was parasitic oscillation they
notified WMATA so that ATC could develop a test procedure and check all of
the other GRS modules without waiting for months for the NTSB to issue their
findings. Most of the time though, they play things close to the vest.
Still, if secrecy is an issue, there are several actions that MOSH and/or
the NTSB could take:
1) Have everyone sign non-disclosure agreements.
2) Do not allow any audio or video recording devices in the conference room.
3) As the MOSH employee mentioned, sometimes they do not even record
'minutes' of a closed meeting.
4) In this particular case, it may be possible to discuss the info in the
MOSH citations (which are public) without disclosing any NTSB info.
5) At the very least, if none of the above are possible, then MOSH should
not issue a "Notice to Employees of Informal Conference" which not only
invites us to attend but says that we have the RIGHT to attend -- and then
turn us away.
In my opinion, attendance at these 'informal conferences' should not be
limited to "employees and/or their representatives". Why should the
widow(er) of a Metro employee killed on the job be locked out? Shouldn't
_any_ concerned citizen be allowed in? Are reporters and journalists
allowed to attend? If not, why? From the "Maryland Open Meetings Act
Manual":
"The Act does not contain an intermediate
category of 'partially open' meetings, to which some members of the public
are admitted
and others excluded .... Accordingly, a public body may not bar reporters
from an open
meeting."2"
And:
"the Act's statement of public policy refers to "[t]he ability
of the public, its representatives, and the media to attend, report on, and
broadcast
meetings of public bodies ...." �10-501(b)(1)."
Was the press notified of this 'informal conference'?
It goes on:
"If a meeting is within the scope of the Open Meetings Act, it must be open
unless
one of the specific reasons for closing it can legitimately be identified. A
public body
may not avoid an open meeting merely because a topic is controversial or
potentially
embarrassing.10"
One more:
"Nothing in the Open Meetings Act itself requires a public body to invoke an
exception; unless some other confidentiality law applies, it may meet in
open session
even if, under the Act, it could legally meet in closed session.11 When a
public body
does invoke one of these exceptions, it must limit its discussion to that
topic only. If the
public body wishes to discuss other matters, it must return to open session,
either to
discuss the additional matter in public or vote to close the session based
on another
applicable exception."
Needless to say, I'm not an attorney but it would seem that MOSH may be in
violation of one or more sections of the Open Meetings Act.
I'm interested in seeing how this all works out. If they actually schedule
another informal conference and if so, who will be allowed to attend and
why.
----- Original Message -----
From: "Mark Potler" <markp...@verizon.net>
To: "Sherman" <mrnat...@comcast.net>; "ATU Local 689"
<atu-lo...@googlegroups.com>
Sent: Friday, August 20, 2010 5:19 AM
Subject: Re: [Local 689] Widow and coworker of Jeff Garrard locked out of
MOSH conference
> This would be funny if not so sad.
> As to the NTSB, I thought they make public their investigations. Also, why
> can't WMATA be sued? WC insurance aside, if their is gross negligence?
> Clearly there are no lessons learned by WMATA or 689 here.
>> --
>> www.atulocal689.org
>>
>> You received this message because you are subscribed to the Google Groups
>> "ATU Local 689" group.
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>
>
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Sherman Johnson
I don't recall being informed that I and/or my family could not sue WMATA
simply because they carry WC insurance, but that is the deal.
It gets worse.
If you are unfortunate enough to be killed by Metro in Maryland, and your
spouse is determined to be only "partially dependent", benefits are capped
at $75,000. "Sorry about your dead husband/wife, here's $75K, now go away."
In D.C., there is no distinction made between partially and fully dependent,
and benefits are not subject to a cap. I'm not sure about VA, but I think
it is similar to MD.
There are _huge_ variations in WC benefits from state to state.
IMO, this is a HUGE story. Very few people are aware that if their employer
carries WC insurance they and their dependents cannot sue.
Of course, a Metro passenger who slips and falls and suffers an injury can
sue, and is likely to receive significantly more than the spouse of a Metro
employee who is killed on the job.
The deck is stacked. Be careful.
Sherman
----- Original Message -----
From: "Jwms" <jwm...@gmail.com>
To: "Sherman Johnson" <mrnat...@comcast.net>;
<atu-lo...@googlegroups.com>; "Mark Potler" <markp...@verizon.net>
Sent: Friday, August 20, 2010 11:45 PM
Subject: Re: [Local 689] Widow and coworker of Jeff Garrard locked out of
MOSH conference
> Hold up now at what point did I sign a paper during my employment that
> said I couldn't sue
> What U Think BlackBerry
>
> -----Original Message-----
> From: "Sherman Johnson" <mrnat...@comcast.net>
> Sender: atu-lo...@googlegroups.com
> Date: Fri, 20 Aug 2010 15:42:32
> To: Mark Potler<markp...@verizon.net>; ATU Local
> 689<atu-lo...@googlegroups.com>
> Subject: Re: [Local 689] Widow and coworker of Jeff Garrard locked out of
> MOSH conference
>
> The dirty little secret about WC insurance is that as a practical matter
> it
> gives the employers immunity from lawsuits. Kill an employee or two (or
> 10)
> through gross negligence? No problem! You have WC insurance! Even
> employees responsible cannot be sued if they were acting in their
> 'official
> capacity' -- if what they were doing is part of their job description.
> The
> Tri-State Compact of 1967 gives WMATA extraordinary autonomy ("we don't
> need
> no stinkin' badges!") but this is unrelated to that. My understanding is
> that_any_ employer who has WC insurance cannot be sued by either their
> employees or the family/dependants of their employees. It's a great
> deal --
> for businesses. The only advantage to employees is that in the case of
> injuries, particularly injuries that were partially or entirely the fault
> of
> the employee, there are guaranteed benefits. There is no need to sue --
> the
> employer's WC insurance covers their expenses automatically. That may be
> alright for the majority of accidents, but employees should have the
> _choice_ of whether to accept WC insurance benefits or sue. As it is,
> American workers and their families have all forfeited the right to sue
> their employers -- and many do not realize it (I didn't, until after Jeff
> and Sung were killed).
>
> FYI, railroad workers_do_ have the right to sue, because they are not
> meetings of public bodies ...." �10-501(b)(1)."
>>> CONFERENCE" (below) is directed specifically at_employees_, and/or
>>> their representatives, and clearly states that we have a_right_ to
>>> attend!
>>>
>>> That didn't seem to faze him. He kept suggesting that only Local 689
>>> officers were allowed to participate. He stuck with that story for a
>>> while.
>>>
>>> Then he switched gears and said that since Metro requested the
>>> conference (which may not even be true), they have the right to decide
>>> who attends.
>>>
>>> When I questioned that, he suggested that there might be some
>>> liability issues. Grace and I pointed out that Grace couldn't sue
>>> because Metro carries WC insurance (sorry about your dead husband, buh-
>>> bye!). He reluctantly agreed (he seemed surprised that we were aware
>>> of that), but said that he's seen people sue (unsuccessfully) anyway.
>>>
>>> At that point Grace and I pointed out that_if_ that was the case
Sherman Johnson
Corporations/businesses exist to make as much money as possible. Nothing
wrong with that, as long as they do it legally and ethically. Contrary to
the recent Supreme Court ruling, corporations are _not_ "people". They are
legal constructs that are amoral at best. Those who run corporations do not
like government regulations, labor laws, environmental laws, or restrictions
of any kind because they reduce profit. That includes workers' compensation
insurance.
In the bad old days, workers had essentially no rights or protections at
all. "Whoops! Arm cut off as a direct result of employer negligence?
Sorry 'bout that, but you're no good to them now -- they need workers with
all of their limbs. Hope you have someone to take care of you, buh-bye".
The employee could sue (if they could afford an attorney, and most could
not), but the courts usually found in favor of the employer.
Enter WC insurance. Naturally, Big Business didn't want to have to pay for
it -- the current system was working very well for them. In order to get
employers to go along (and continue bribing politicians -- I mean "funding
their campaigns") an agreement was reached whereby any employer who agreed
to carry WC insurance was granted immunity from any and all lawsuits that
might result from employee injury or death at the workplace. Pretty sweet
deal.
This has been confirmed by every attorney I've spoken with. I was told that
in order for an employer to be successfully sued the employer must say, in
court, that they "purposely targeted a specific individual employee and
intentionally injured or killed that person". IOW, they must admit to first
degree murder.
I don't see that happening anytime soon.
Anyway, that's my understanding, but I don't even play a lawyer on TV so I
would encourage anyone who is interested in this subject to research it
further. I'm just repeating what I've been told.
We should probably start a separate thread for WC insurance issues.
My main concern at this point is why MOSH invited Metro employees and/or
their reps to their 'informal conference' and then turned us away.
The best spin I can see them putting on it (and this is, in part, what the
MOSH employee said) is that they are used to doing their own independent
investigations. That this is the first time that MOSH has worked with the
NTSB and therefore their usual procedures may not be workable, or even
legal, due to concerns about the ongoing NTSB investigation.
That may be true, but that is _not_ what we were initially told. The NTSB
angle was not mentioned until after we had been there for about 45
minutes -- after WMATA's legal dept. was contacted. Prior to that we were
given a laundry list of reasons why we could not (or might not) be allowed
to attend the meeting -- none of which had anything to do with the NTSB. It
seemed as though they played the NTSB card as a last-ditch effort to come up
with a more legitimate-sounding excuse as to why we were being locked out.
In fairness, they did say the meeting will be rescheduled. It could be that
we will be welcome to that one. I'd like to see it open to everyone --
including the press and the general public. At the very least, it should be
open to family members of the deceased -- in addition to employees and/or
their reps. However, restricting attendance in that way may be in violation
of the Open Meetings Law (see below).
My best guess is that _if_ there's another informal conference it won't be
before the end of the year. The NTSB report will probably be out before
MOSH has another conference. Come to think of it, that would eliminate any
NTSB concerns.
----- Original Message -----
From: "Jwms" <jwm...@gmail.com>
To: "Sherman Johnson" <mrnat...@comcast.net>;
<atu-lo...@googlegroups.com>; "Mark Potler" <markp...@verizon.net>
Sent: Saturday, August 21, 2010 1:59 PM
Subject: Re: [Local 689] Widow and coworker of Jeff Garrard locked out of
MOSH conference
> Wow this is unbelievable we put our lives on the line for a cooperation
> that is falling apart inform them that it falling apart they do nothing
> about and chastise us when we do. So this lack of accountability is at the
> top. Were can reverse the process so that the authority will take us
> serious