Tunnel crew members consult lawyer about their legal options

With the help of a liberal watchdog group, the 10-man tunnel crew recently consulted with a lawyer about the workers’ legal options against the Architect of the Capitol (AoC), which they have accused of letting them work in dangerous conditions.

Laura MacCleery, the director of Public Citizen’s Congress Watch, confirmed that the group had organized a meeting between the crew and a top New York litigator, but she declined to comment further on the meeting.

Members of the tunnel team were seeking advice because they believe the AoC failed to protect them from exposure to extremely high levels of asbestos that are prevalent inside the tunnels structures. John Thayer, the supervisor of the crew, declined to comment further about the meeting, which occurred two weeks ago.

Thayer and his crew maintain the utility tunnels, which house pipes carrying chilled water and steam from the Capitol Power Plant to the Capitol complex.

The AoC, the legislative-branch agency responsible for maintaining Capitol facilities, was notified about the dangerous conditions, including the presence of asbestos inside the tunnels, six years ago, according to testimony to Senate appropriators May 24 by Office of Compliance (OoC) General Counsel Peter Eveleth.

During a meeting with Public Citizen on June 7, Thayer told the crew and congressional staff members present that routine tests for asbestos only began after the crew wrote a letter alerting members of Congress to the dangerous working conditions.

“The samples [from asbestos tests] we were getting ... were 30 times over the legal limit,” Thayer said during the meeting. “I’ve been there for 22 years. I’ve never worn a respirator until March 16, 2006. I have had problems with my lungs.”

Thayer and several members of his crew have been treated for respiratory illnesses. Thayer has been diagnosed with scarring of the lungs, a symptom of asbestosis, a respiratory disease caused by asbestos exposure. Asbestos exposure has also been linked to mesothelioma, a deadly lung cancer that can develop 20-40 years after inhalation of the fibers.

Suing the AoC is not unprecedented. In 2001, more than 350 female custodial workers won the first-ever class-action settlement against the AoC for gender discrimination. The cash value of the settlement was an estimated $2 million, and the women’s increased retirement benefits totaled between $3 million and $4 million, according to Barbara Kraft, a lawyer involved in the case.

However, before an employee or group can file a suit against the legislative branch, each individual must first exhaust all administrative remedies within the OoC, she said. The OoC is charged with enforcing health and safety provisions mandated by the Congressional Accountability Act (CAA).

Kraft said the CAA does not mention class actions, so each member of the tunnel crew would need to file an individual complaint. In the custodial workers’ case, each of 350-plus women involved was required to file a separate complaint with the OoC.

Tamara Chrisler, the acting executive director of the OoC, confirmed that employees who wish to file a complaint in federal court must exhaust the mediation and counseling process the OoC offers. She also confirmed that the CAA does not mention class actions and that such suits can only be filed at the district court level.

She would not comment on whether any member of the tunnel crew had filed a complaint, citing the agency’s confidentiality policy.

During the class-action lawsuit, the Department of Justice defended the AoC, which may have created a separation-of-powers issue because the AoC is a legislative-branch agency. But AoC spokeswoman Eva Malecki denied that such a conflict existed, without explanation.

“It is not a separation-of-powers issue for the Department of Justice to represent the AoC,” she said.

Malecki added that the agency is unaware of any OoC complaints filed by member of the tunnel crew or any potential lawsuits.