Inspector: Tunnel Safety Efforts Blocked

A veteran safety engineer contended in a legal claim filed this week that the state’s top workplace protection agency and the Metropolitan Transportation Authority conspired to prevent him from exposing unsafe conditions in Metro Rail subway tunnels.

Henry McIntire, 65, accused his bosses at the California Division of Occupational Safety and Health of helping the MTA cover up dangerous working conditions in tunnels over the past six years, harassing him over the past three years for trying to do something about it, and demoting him in April 1995.

McIntire, a Quartz Hill resident who has worked for Cal/OSHA in Los Angeles since 1974, itemized in the complaint half a dozen instances in which he says his attempts to investigate or shut down unsafe Red Line tunneling work were stymied by Byron Ishkanian, a former supervisor. In one example, McIntire said that in retribution for his efforts to enforce the state safety code, his son was fired by an MTA contractor.

Cal/OSHA’s assistant director, Mark Carleson, said Tuesday that McIntire was relieved of his mining enforcement duties and moved to a desk job because a heart condition prevented him from doing strenuous work, not to keep him quiet.

Carleson, who is named in the complaint as a co-conspirator, said a civil service personnel board has already investigated McIntire’s complaints and ruled that the state’s actions in putting him in a new post with a pay cut were appropriate.

“I like Henry. I’ve never heard anything but that he’s a very capable safety engineer,” said Carleson. “But, candidly, his health is not good.”

An MTA spokesman said the agency had not seen the complaint and declined to comment. Ishkanian, who has retired from Cal/OSHA and now works in the construction industry, did not return phone calls.

In the complaint, McIntire asserts that Cal/OSHA had known about his heart condition for 10 years and used his need for occasional medication only as a pretext to demote him. The complaint contends that the safety agency exaggerated McIntire’s heart ailment and inflated the physical requirements of his enforcement job in an effort to prevent him from inspecting Metro Rail tunnels.

“If we found work conditions as serious and dangerous as the ones listed in the job description they wrote for me, we’d shut the operation down,” said McIntire in a quiet Texas drawl during an interview at his Van Nuys office. “My heart condition has never hindered my work.”

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McIntire’s complaint, called a governmental tort claim, is the legally required precursor to a lawsuit against a public agency. The claim gives a governmental body an opportunity to settle with a plaintiff to avoid the cost of a court battle. If it is rejected, plaintiffs can take their case to trial.

A government source who is knowledgeable about Los Angeles subway safety matters said McIntire was considered by Metro Rail tunneling workers as “the closest thing they had to a friend in power.”

The source, who declined to be identified, added: “Henry is a guy who is truly concerned about workers, and his philosophy was that enforcement of rules was the way to make contractors behave. But his boss in L.A. wanted to be buddies with the industry. That meant Henry was out of step, and had to be shunted aside.”

The source added that he believes McIntire’s heart condition was aggravated by stress from his supervisors. “Henry was healthy as a horse before this. He was not a guy who even knew the names of any doctors.”

McIntire contends in the complaint that Ishkanian repeatedly “lost, misplaced, covered up or ignored” his reports on safety violations in Metro Rail tunnels. He further contends that Ishkanian “authorized” the MTA to allow such violations as a normal course of business, in contravention of state and federal rules.

Ishkanian headed the construction safety department for the Los Angeles Rapid Transit District--which later merged with the Los Angeles County Transportation Commission to form the MTA--from 1987 to 1991, according to records. He then worked for Cal/OSHA as head of its Los Angeles-based mining and tunneling unit for three years before going on to work for Cordoba Corp., a construction management firm that has bid for MTA contracts.

In one of the most serious charges, McIntire says that he ordered a Metro Rail tunnel near Union Station closed after he discovered safety violations and hazardous conditions in the wake of a fire in July 1990. The complaint asserts that Ishkanian ordered the tunnel reopened, then “confiscated” McIntire’s field notes and photos, and removed him from the investigation. The complaint charges that no further inquiries were conducted by Cal/OSHA.

In another instance, McIntire’s complaint said, he had investigated Sylmar-based contractor Tutor-Saliba in August 1991 about improperly installing a scaffolding and not providing proper protection against falls from a train platform.

The complaint asserts that Ishkanian blocked McIntire’s order to install guard rails and instead allowed the contractor to try to prevent falls by painting warning lines 18 inches from the platform edge. A week later, according to the complaint, a worker was seriously injured in a fall from the platform. The complaint says Cal/OSHA did not investigate the incident or issue citations.

McIntire further contends that a month later he issued citations against Tutor-Saliba after a crane accident at a Union Station construction site, despite Ishkanian’s threat to have McIntire’s son fired from the job.

The complaint asserts that McIntire’s son, Nelson, was indeed fired four days later by Tutor-Saliba over charges of misconduct. The complaint says that an administrative law judge later found Nelson McIntire had been wrongfully fired; he settled a suit against Tutor-Saliba for an undisclosed sum last year.

The complaint says that the MTA and Ishkanian finally decided to “eliminate” McIntire from subway construction safety enforcement after he testified in June 1992 before a panel created by the federal Occupational Safety and Health Administration to investigate Cal/OSHA’s effectiveness on the Metro Rail project.

When McIntire suffered heart pains a few months later, according to the complaint, Cal/OSHA officials “created a paper trail indicating that he had been much sicker than he actually was.”

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Carleson, the Cal/OSHA assistant director, said it was McIntire’s own cardiologist who declined to let him return to work as a safety enforcement agent.

McIntire was transferred to Cal/OSHA’s training unit in Modesto at half his former rate of pay in 1995, according to his attorney, Pamela A. Mozer. He returned to work in the agency’s Van Nuys office this year as a duty officer, taking complaints over the phone, she said.

“Henry filed this action because he was wrongfully treated by an agency he worked for most of his life,” said Mozer. “He was trying to protect workers from serious injury or death and was removed from the Metro Rail because the MTA wanted its contractors to be able to work fast and cheap without regard to worker safety.”