Workplace

Big fine slashed for Blue Springs company where employee died working in unsafe trench

Mother recalls tragic trench death of son last year in Belton

Theresa O'Hare recalls the day in December 2016 that her son, Donald J. Meyer, died in a trench accident in Belton. Video by Shane Keyser, The Kansas City Star.
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Theresa O'Hare recalls the day in December 2016 that her son, Donald J. Meyer, died in a trench accident in Belton. Video by Shane Keyser, The Kansas City Star.

An initial fine imposed on a Blue Springs plumbing company for letting employees risk their lives in unprotected trenches, even after a worker suffocated beneath tons of loose soil, has been slashed by two thirds.

The $714,000 penalty that the Occupational Safety and Health Administration initially imposed on Arrow Plumbing LLC was one of the 10 largest handed down for workplace safety violations against any company in any industry last year.

In a June 19, 2017, news release announcing the penalties, the Department of Labor said Arrow failed to provide basic safeguards to prevent trench collapse, which the department said is among the most dangerous yet preventable hazards in the construction industry.

The agency initially fined Arrow $294,000 in connection with the Dec. 15, 2016, death of 33-year-old backhoe operator D.J. Meyer, whose body was recovered from the bottom of a 12-foot trench in Belton.

Another $420,000 in penalties were levied after an OSHA inspector caught another Arrow employee a month later working in a trench in Kansas City that also had not been shored to prevent a possible cave-in.

“OSHA found similar violations at both work sites, “ according to the government’s 2017 news release. “They included the company’s failure to install a support system to protect employees in an approximate 12-foot-deep trench from caving in, training workers on how to identify hazards in trenching and excavation work, and providing a ladder at all times so employees could leave a trench.”

Arrow admitted wrongdoing, but when the high-profile case was finally settled out of court this fall, the final penalty had been lowered by nearly a half million dollars — to $225,000 — which the company will be allowed to pay off in installments over the next four years.

The Department of Labor declined through a spokesman to comment on the reason for the steep reduction. Arrow Plumbing LLC, now renamed R2 Plumbing LLC, could not be reached and its attorney did not respond to phone and email messages requesting comment.

But the 11-page stipulation and settlement agreement obtained by The Star suggests that Arrow’s inability to pay the higher penalty was a key reason, as well as a re-evaluation of the evidence and unspecified “statutory factors.”

Jordan Barab, who ran OSHA during all eight years of the Obama administration and now blogs on workplace safety issues, said it’s not unusual for such settlements to occur in cases involving large fines. In exchange for agreeing to lower the fine, he said, OSHA avoids the risk of losing an expensive court challenge and forces employers to rectify unsafe work conditions or practices quicker.

What sets this case apart, he said, is that during the Obama administration OSHA tried to limit fine reductions to no less than half of the original amount; sustain one or more of the most egregious claims, known as willful violations; “and get the employer to agree to measures beyond just compliance with the violated standard(s).”

Under the Trump administration, OSHA appears to have achieved the last two goals in this case. Arrow Plumbing agreed with the government that it committed five willful violations and nine serious ones, and acknowledged that it would be subject to a series of restrictions and requirements on the company’s future operations.

However, the 68 percent decrease in the proposed monetary penalty means the final amount is less than a third of the initial fine.

That set the case apart. Of the 10 top penalties for workplace safety violations assessed in 2017, four are still being contested by the companies that were cited. But of the six that were finalized, Arrow saw the steepest reduction, based on The Star’s review of OSHA records.

The other five companies either saw no reduction or were close to the 50 percent floor Barab cited. A Texas pottery company saw a 34 percent reduction for violations associated with the death of an assistant plant manager who was trapped in a kiln that began operating automatically. A 50 percent reduction was awarded a Wisconsin shipyard where workers were exposed to large levels of lead.

Arrow’s reductions on each of 14 violations, Barab said, “seem to be much greater than we would probably have agreed to.”

Under Trump, OSHA’s staff has been cut, which critics fear is in keeping with the more business-friendly approach he has promised when it comes to regulation. However, the results have been mixed.

An automatic increase in the fine schedule was allowed to go into effect, while the agency still has no permanent administrator in charge two years into the administration. Both business and workplace safety groups are uncertain about the agency’s direction.

While Arrow Plumbing got a big financial break, the settlement’s costs aren’t limited to the fine. The company must contract for three years with a third party, which will develop and monitor a trench safety program.

The three-year agreement also sets out a number of other requirements. Arrow must instruct employees that they can refuse to work in unsafe conditions without fear or reprisal. Also, the company must for the next three years let OSHA’s Kansas City area office know each Friday where its crews will be working the following week. Those job sites will also be subject to increased inspections.

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