SUBWAY DEATH PROBE; GRAND JURY REVIEWING '97 INCIDENT.

Byline: Lee Condon and David Bloom Daily News Staff Writers Copyright 1998, Daily News

The Los Angeles County grand jury is conducting a criminal investigation into the death 11 months ago of subway construction worker Jaime Pasillas, the first of three workers killed last year, officials said Tuesday.

State and MTA safety inspectors confirmed that they have been asked by the District Attorney's Office to testify before the grand jury today. The issue is whether there was negligence in the death of the 52-year-old East Los Angeles man Feb. 15, according to an MTA official.

``The District Attorney's Office has requested some of our district personnel to provide evidence for the grand jury,'' said Dean Fryer, a spokesman for the California Division of Occupational Safety and Health, or Cal-OSHA.

``They are looking at whether or not to present criminal charges,'' Fryer said.

Officials with the District Attorney's Office declined to comment. Spokeswoman Sandi Gibbons said the office does not discuss grand jury proceedings, which are secret.

Pasillas, an employee of Sylmar-based contractor Tutor-Saliba Corp., was killed when an undersized chain holding aloft more than 2 tons of construction debris snapped, sending the debris container crashing into his head.

Tutor-Saliba President Ron Tutor declined comment.

MTA spokesman Marc Littman said the agency generally doesn't comment on pending legal matters.

But an MTA official who declined to be identified said several MTA safety inspectors are scheduled to appear today before the grand jury.

They are being asked to outline the MTA's responsibility and oversight of the tunneling job beneath Hollywood Boulevard where Pasillas was killed, the official said.

``They want to get some questions about how the programs work, what's the responsibility,'' said the MTA official. ``We don't have direct responsibility or control over the job site. That's the contractor's responsibility.''

About 10 Tutor-Saliba employees had been scheduled to be deposed in a civil wrongful death suit filed by Pasillas' family against the MTA and construction manager JMA Inc. but taking of their sworn statements was canceled just before Christmas because of the criminal investigation, said Pasillas family attorney Patrick McNicholas.

``We had depositions pending for the Tutor employees, and now they're not going to produce the witnesses,'' McNicholas said.

The depositions were canceled to protect the employees' Fifth Amendment rights against self-incrimination because even the civil case depositions are done under oath and would be admissible as evidence in a criminal trial, he said.

The list of Tutor employees included company President Ron Tutor and several managers, McNicholas said.

Last summer, Cal-OSHA's Bureau of Investigations sent the District Attorney's Office a confidential report on its criminal investigation into Pasillas' death in the subway tunnel beneath Hollywood Boulevard. The agency conducts a criminal investigation of all fatalities, Fryer said.

``The District Attorney's Office then makes a determination of whether they will follow through with a prosecution,'' Fryer said.

Pasillas was killed instantly when a steel bin, or ``muck box,'' full of debris swung into his head after one of two chains holding it aloft in a rolling gantry snapped.

Cal-OSHA fined Tutor-Saliba $70,500 for 14 violations, seven deemed ``serious,'' of worker safety laws in connection with Pasillas' death. Cal-OSHA inspectors concluded that the contractor used a substandard chain for the heavy load that killed Pasillas.

Pasillas was the first MTA rail worker to die on the job in 10 years of construction. But since his death, two others, including Tutor worker Eleazar Montes, also have been killed on the job.

Fryer and the MTA official said safety inspectors have been asked to testify only about the Pasillas incident.

``This whole investigation is regarding that first worker (Pasillas),'' Fryer said.

The grand jury, a judge-appointed panel of 23 private citizens, works as a watchdog issuing an annual efficiency review of local government operations and as an investigatory body taking testimony in criminal matters.

The grand jury can pursue its own long-term investigations and oversee cases presented by the district attorney. The district attorney is conducting the Pasillas investigation, and has been since the day Pasillas died, officials said.

Fryer declined to comment on the recommendations Cal-OSHA officials made in their part of the Pasillas investigation. Cal-OSHA also investigated the deaths of Montes and Brian W. Bailey, an employee of Traylor Bros./Frontier-Kemper who died in October.

Cal-OSHA's Bureau of Investigations has forwarded its Montes report to the District Attorney's Office, but is not done with the Bailey case, Fryer said.

The Pasillas family suit was filed against the MTA and the job's construction manager, JMA Inc., because state law forbids worker safety suits against employers, McNicholas said.

The civil suit accuses the MTA of ``highballing'' its subway contracts, purposely ignoring safety considerations to ensure that nothing would slow down construction work, as part of a desperate effort to keep the projects on schedule, and federal and state rail construction money flowing into MTA coffers, McNicholas said.

``They were responsible for Tutor . . . the MTA put safety behind production considerations,'' McNicholas said.