OSHA signs off on reduced fine against bridge painting contractor

By Don McIntosh

Two years, 10 months, and eight days after a near-fatal workplace accident under the Ross Island Bridge, Oregon OSHA closed its case against bridge painting contractor Abhe & Svoboda. The case began when bridge painter Marco Dion Lilly fell 37 feet and landed on his adopted son Christopher Montiel, sending both to the hospital with severe injuries.

In June 2017 Oregon OSHA announced fines of $189,000 against the company for knowingly and repeatedly exposing its workers to injury and death. But on Dec. 16, 2019, the agency quietly signed a final settlement of the case in which Abhe will pay just $24,500.

For Painters District Council 5, that’s an incredibly frustrating result. Leaders in the union did everything they could to draw attention to the non-union company’s safety record, including sending in a worker undercover to document conditions, and complaining to the Oregon Department of Transportation (ODOT), which oversaw the project. After the accident, the union put up a web site, abhe-exposed.com detailing Abhe’s record of safety and other violations around the country.

“We’re disappointed with the time that it took to arrive at this decision, and the amount of the fine,” said District Council 5 field representative Scott Oldham. “For such a serious incident to come down to such a small penalty, the system in place seems a bit broken.”

Based on what OSHA investigators pieced together, Lilly was using a compressed air hose to blow down debris, and Montiel was working on a platform below scraping paint. When Lilly’s hose got stuck on a bent piece of metal, he lost his balance and fell through a ladder opening. No guardrail had been installed around the opening, and though Lilly and his co-workers above had been wearing fall protection harnesses, there was nothing for them to attach to.

As reconstructed from worker interviews and OSHA records, it was an accident waiting to happen. Workers felt unsafe on the project, and Abhe & Svoboda was warned repeatedly about the very hazards that contributed to the fall — and did nothing.

In fact, OSHA itself had been out to the bridge on June 13, 2016 — investigating a complaint that there were holes employees could fall through while sandblasting and painting the bridge —but found no violations and issued no citations.

Even Lilly himself had warned a foreman two days earlier about the loose piece of metal sticking up from the platform near an unsecured ladder hole, and had asked that the hole be covered, the hole he later fell through.

And that’s not all. At least four workers have alleged they were gotten rid of after complaining about safety:

• Shane Duane Luey, hired through an ODOT employment program for tribal members, said he raised an issue at a safety meeting and was told by the company superintendent, in front of 30 co-workers, “Next time you have a problem with safety, talk to me. Then get in your car and hit the f***ing road.” Luey said he’s the one that called OSHA in June 2016, and he thinks the company figured it out it was him. “They wrote me up the next day, twice,” Luey said. “They were on me about every little thing. They were watching me, bird-dogging me.” On the Fourth of July, Luey fell off the back of a truck and broke his collarbone. When he recovered, he says the company wouldn’t take him back.
• A worker who asked to be referred to only by the initials D.R. said he was overheard by a foreman telling a co-worker that the pace of work under the bridge was going to lead to an accident, and someone would fall from the scaffolding. The next day, he was told there was no work for him on the project, which had struggled to find enough workers.
• Tywan Brown, who had traveled from Virginia to take the job, complained about safety conditions to OSHA in January 2017. Abhe & Svoboda managers accused her of being the one who called OSHA, and terminated her on Feb. 2, 2017, according to a lawsuit she filed against the company. The lawsuit was eventually settled out of court for an undisclosed amount.
• Omar Rubi, the undercover union worker, attended a safety meeting the day before the accident, at which a manager told workers that if they have safety concerns, they should come to management, not to talk to each other or to government agencies about them. Rubi objected, and told co-workers at the meeting that they have a right under federal law to talk to each other, and to government agencies, about safety concerns. He was sent home, and later terminated. In complaints with the Oregon Bureau of Labor and Industries (BOLI) and the National Labor Relations Board (NLRB), he challenged his termination as unlawful retaliation. BOLI closed the case after finding “no substantial evidence,” and the NLRB dismissed the charge, agreeing with Abhe & Svoboda’s account that Rubi was fired for violating a blanket rule against talking to co-workers.

Oregon OSHA administrator Michael Wood reached out to the Labor Press about the case settlement, and seemed frustrated by the reduction in fines.

“On a case like this, I wouldn’t be walking away from it if I thought we could prevail,” Wood said.

Most of the initial fine had resulted from OSHA’s conclusion that the violations were “willful,” meaning that the company knew it was breaking the law and did so anyway. But that can be hard to prove in front of a judge, Wood said.

“Litigation is always uncertain,” Wood said. “We were not confident that we would prevail, and we believed it was possible we could do even worse than the settlement.”

Wood said OSHA’s overall presentation of the case was weakened because the accident victims didn’t want to testify.

“We just want to drop it and live our lives,” Montiel told the Labor Press, reached by phone Jan. 7. Montiel and his father have recovered enough to return to work, he said, and are doing remodeling jobs in the Seattle area.

For Abhe & Svoboda, a fine of $24,500 might just be a cost of doing business. Under the company’s $22.3 million contract to repaint the bridge, the work was supposed to be complete Aug. 31, 2017, but the job wasn’t finished until June 15, 2018. ODOT assessed a penalty of $777,600 against the company for completing the work 288 days late. Nineteen months later, that matter too remains unresolved.

Last April, Abhe renewed its status as a pre-qualified bidder on ODOT projects.

ODOT spokesperson Don Hamilton — who was once upon a time a reporter at The Oregonian — told me in a Jan. 10 email that Abhe & Svoboda hasn’t bid on any ODOT work since its 2014 Ross Island Bridge bid. In fact, Abhe and Svoboda has bid on at least five projects just since the February 2017 bridge accident (other companies bid lower and got the work.) After I provided documents from ODOT itself showing details of several of those bids, Hamilton retracted his initial claim and provided a year-by-year summary of Abhe & Svoboda bids. The company has bid on 10 ODOT projects since 2014, and five since the accident.

Nothing in ODOT’s procurement rules requires the agency to consider a bidder’s safety record.

Oldham, the painters union rep, said he’s disgusted that the Oregon Department of Transportation continues to accept bids from Abhe & Svoboda.