June 30, 2022

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Nursery, labor contractor fined $6,300 in Marion County farmworker’s heat death

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Oregon’s workplace safety agency determined Ernst Nursery and Farms and Brother Farm Labor Contractor failed to train workers about heat-related hazards. That was the finding of an investigation into the June 2021 death of Sebastian Francisco-Perez on a day when temperatures soared to 104 degrees.

An irrigation system in a Marion County agricultural field (Amanda Loman/Salem Reporter)

Oregon’s workplace safety agency fined a St. Paul nursery and Woodburn-based labor contractor a total of $6,300, saying both companies failed to keep employees safe from the triple-digit temperatures that led to the death of a worker laying irrigation pipe last June.

An Oregon Occupational Safety and Health Administration investigation found Ernst Nursery and Farms did not inform workers of heat-related hazards or take steps like additional rest breaks to mitigate the danger on a day when temperatures topped 104 degrees.

DOCUMENT: Oregon OSHA citation and report

OSHA cited Ernst for two serious violations: failing to take safety measures and failing to inform workers assigned to the field irrigation crew about staying protected from extreme heat. The agency fined the nursery a total of $4,200.

The agency also concluded Brother Farm Labor Contractor failed to train workers about heat hazards and mitigation. It listed the violation as serious and fined the company $2,100.

The state reports give a more complete picture of the events that led to the death of Sebastian Francisco-Perez, 39, a Guatemalan migrant farmworker found unresponsive in the field shortly after 3:30 p.m. on June 26, 2021.

Agency investigators inspected the worksite in June, interviewed other workers and management at both companies and issued its report Dec. 17, 2021.

Salem Reporter obtained the investigation report through a public records request.

Francisco-Perez’s death led to an outcry among farmworker advocacy groups which had been pushing for years for the state to enact rules covering field work in extreme heat.

The week after his death, Gov. Kate Brown ordered OSHA to enact emergency rules.

The agency proposed permanent rules on heat and wildfire smoke exposure in February. Among other changes, they would require employers to give workers a minimum of 15 minutes of rest per hour when the heat index exceeds 100 degrees.

Ernst has not paid either of its $2,100 fines, OSHA spokesman Aaron Corvin said Wednesday.

The nursery is appealing both citations, disputing OSHA’s conclusions that they didn’t provide workers safety measures in extreme heat and didn’t inform them about ways to protect themselves. On Jan. 17, they requested an informal conference with OSHA to negotiate a potential settlement, the report showed.

Ernst did not return multiple calls seeking comment.

Manuel Lucas, the owner of Brother Farm, said his company made significant changes following Francisco-Perez’s death. The company did not appeal the citation.

“We’re more organized, we’re doing a lot more things so this doesn’t happen again,” he said, speaking in Spanish.

That includes bringing water to workers in the field, visiting crews more frequently to check in and talking to them about conditions.

“We’re more attentive to the people,” he said.

He said his company paid the fine shortly after receiving the citation, though OSHA spokesman Corvin said as of March 3, the agency had not received payment.

In response to subsequent questions from Salem Reporter, a woman contacted on a company phone number who identified herself as a Brother Farm employee said she would contact OSHA directly to resolve the payment issue.

The report said an irrigation crew of five workers began laying pipe in a field at 7358 Champoeg Road N.E. in Saint Paul around 5 a.m., taking a break at 10 a.m. and lunch around noon.

At both breaks, Francisco-Perez “was present and appeared to be healthy with no complaints of illness,” the report said.

Workers walked back to their area after lunch, working at different areas in the field spread apart, and Francisco-Perez was last seen around 2 p.m. 

After each worker finished moving their line of piping and walked over to the parked van around 3 p.m., they noticed Francisco-Perez wasn’t there. They tried calling his cell phone only to realize it was in the van.

The crew walked about a quarter mile to the northeast area of the field where Francisco-Perez had been working, where they found him face-down and unresponsive in the nursery field.

They called their lead, Pedro Lucas of Brother Farm Labor Contractor, and called 911.

Workers OSHA interviewed said the work was routine and consistent with the nine-to-10-hour work days they had been performing on the site since that May.

With a 104 degree temperature and 22% relative humidity, the report said the day’s heat was in the “extreme caution/danger zone” under federal heat index guidelines.

At those temperatures, the American Conference of Governmental Industrial Hygienists recommends employees work 25% of their time and rest 75%, the report said.

The report said Francisco-Perez died from cardiovascular and respiratory system failure caused by heat exhaustion and dehydration.

OSHA determined that Ernst provided water in 5-gallon jugs but no ice, and employees could fill their own containers and coolers by tap on the property near the sales office. Trees on the property also provide shade, and the crew that day was within 100 feet of a tree line with shade.

Ernst employees received heat-related training onsite that April, the report said, but Francisco-Perez and the rest of the crew he was working with had not been trained on heat-related health hazards.

Brother Farm provided the agency with records of its monthly safety trainings, which covered Covid protocols like social distancing, as well as information about the importance of drinking water and rest breaks, but did not specifically detail heat hazards or how to avoid them.

OSHA found Ernst was responsible for the crew’s day-to-day operations, providing direction on work to be done.

Management from Brother Farm Labor Contractor were not onsite the day Francisco-Perez was found unresponsive, according to the report.

Ernst didn’t provide OSHA with a contract outlining each employers’ responsibilities for scheduling, training and work tasks as requested. The nursery didn’t  share information showing measures in place to mitigate the danger of extreme heat, the report said.

Oregon OSHA previously cited the nursery in 2014 for failing to provide water for workers, the Oregonian reported.

Contact reporter Ardeshir Tabrizian: [email protected] or 503-929-3053. Contact reporter Rachel Alexander: [email protected] or 503-575-1241.

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https://www.salemreporter.com/posts/6187/nursery-labor-contractor-fined-6-300-in-marion-county-farmworkers-heat-death

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