Santos Amador Chacon Geminiano was killed at a construction site on Jan. 3, 2022 after he was run over by a loader that didn't have functioning brakes. He was 56.

Santos Amador Chacon Geminiano and a coworker were compacting gravel at the bottom of a sloped street in West Linn on Jan. 3 when the driver of a heavy-duty loader bringing gravel to the two men realized neither the brakes nor horn were working.

The driver desperately jerked the wheel to the right in an attempt to avoid the two workers as the 16-ton vehicle rolled down the hill. The two men didn’t see it coming until it was too late.

State officials believe the loader may have hit a nearby excavator, whose bucket swung out and struck the two workers. They believe the loader then ran over 56-year-old Chacon Geminiano, killing him. His coworker, Oleg Sevostianov, was taken to the hospital and treated for a broken cheek bone.

After a six-month investigation, Oregon workplace safety officials cited Munitor Construction, the Portland-based excavation company hired to prepare the three-lot partition for a private development, for failing to ensure that the machine was inspected by a competent person or that it had a functioning horn and brakes. The division concluded that those violations could lead to a high probability of death and that “with reasonable diligence, (the) employer could have known that the loader’s brakes and horn were not operating properly.”

It marked the fourth time since 2017 that the Oregon Occupational Safety and Health Division had cited Munitor for serious safety violations and came as the Oregon Bureau of Labor and Industries is considering barring the company from receiving public works contracts for failing to pay thousands of dollars in wages to workers in 2019 – a factor that the safety division, known as Oregon OSHA, could have taken into consideration.

But despite its findings and the company’s past violations, Oregon OSHA imposed only a $5,400 fine in the wake of Chacon Geminiano’s death.

The case illustrates the limited consequences that Oregon employers often face for failing to protect workers from injury or death and raises questions about whether the state is doing enough to disincentivize employers from skirting safety standards.

Had Munitor Construction done more to prioritize worker safety, Fatima Chacon Martinez, 27, said she believes her father would still be alive.

“I think there definitely was a lot of negligence.”

In 1997, Chacon Geminiano left Oaxaca in search of a better life for him and his family. They settled in Woodburn.

Chacon Martinez remembers both her parents working two jobs to pay the bills, with her dad going from construction sites during the day to washing dishes at a restaurant at night. Despite the long days, he could always be found singing to himself before and after work, she said. In his free time, he built most of the furniture that now occupies his family’s home and learned English by avidly reading the Magic Tree House series with his daughter. Up until his death, he and his wife of 35 years could often be found sitting together holding hands.

“I think if he would have gotten the opportunity to go to school, he would have been a great engineer,” Chacon Martinez said. “He was incredibly hard working. He was kind. He was a loving husband and he openly showed affection, which is rare in Latino culture. He was always singing.”

For 15 years, Chacon Geminiano worked for a manufacturing company before it folded and he lost his job. As an undocumented immigrant, he struggled to find work. So, when Munitor Construction hired him in 2017, he felt indebted to the company, Chacon Martinez said.

“It was some sort of job security,” she said. “A lot of undocumented men go into construction because it pays well, but it’s dangerous.”

The job security prompted Chacon Geminiano to stay at Munitor even after they failed to pay him on several occasions, Chacon Martinez said. In response to a series of complaints, the Oregon Bureau of Labor and Industries concluded in 2019 that Munitor had withheld thousands of dollars from six workers. As a result, the agency is now preparing to recommend that the state bar Munitor from taking on public works projects.

Agency documents also show that the bureau found substantial evidence that Munitor retaliated against a heavy equipment operator who worked for the company in 2019 after he tried to apply for workers’ compensation following an on-job injury. The worker is currently suing Munitor.

Over a five-year span before Chacon Geminiano’s death, the company was also cited three times by Oregon OSHA for serious safety violations, according to division documents.

In 2018, it was fined $11,200 for failing to create a protective system to avoid cave-ins in a trench where laborers were working or provide workers with a means of exiting the trench in an emergency. Oregon OSHA determined that because of the violations there was a high probability of a cave-in and potential for death. The citation came after Munitor was fined $100 in 2017 because an employee using an aerial boom lift didn’t have his harness clipped to the machine.

Munitor was also fined $1,500 earlier this year for failing to ensure that the appropriate precautions were taken when workers were digging around a known natural gas utility line. An excavator made contact with the line, damaging it and releasing flammable gas into the air. The incident occurred a month before Chacon Geminiano’s death at the same three-lot partition.

Harley Meservey, the owner of Munitor Construction, did not respond to an email and phone call from The Oregonian/OregonLive.

Santos Amador Chacon Geminiano (right), celebrates the graduation of his daughter, Fatima Chacon Martinez, with his wife, Gloria Martinez. Chacon Geminiano was killed while working at a construction site on Jan. 3, 2022.

AMONG THE LOWEST FINES IN THE NATION

Aaron Corvin, a spokesperson for Oregon OSHA, says the division takes a company’s past history and whether they’ve made good faith efforts to comply with safety standards into consideration when issuing fines.

Investigation files show the division found Munitor to have an “average” history and willingness to comply with safety rules following Chacon Geminiano’s death and did not adjust the fine based on those factors. However, Oregon OSHA automatically reduced the fine by 60% because Munitor has under 25 employees.

The $5,400 fine was on the high side of penalties that the division has historically issued to companies in the wake of worker deaths. As The Oregonian/OregonLive has previously reported, Oregon OSHA hands out some of the lowest fines in the nation for safety violations.

The U.S. Department of Labor has warned repeatedly that Oregon OSHA’s fines are significantly below the national average, finding that the division issued an average penalty of only $620 for serious violations during the 2021 fiscal year, which was more than 73% below what the federal government considers the acceptable range of about $2,325 to $3,875. The federal government directed Oregon OSHA to submit a case file evaluating its penalties at the end of the 2022 fiscal year.

The report did not look at the division’s average penalties in the wake of worker deaths specifically, but an analysis of Oregon OSHA data by The Oregonian/OregonLive shows the division has issued an average fine of about $3,700 over the last five years to companies found to have committed safety violations that resulted in worker deaths. In comparison, data compiled by the AFL-CIO shows that investigations into worker deaths nationwide in fiscal year 2021 resulted in an average fine of $11,626.

Corvin said the division updated its penalty table in 2021 to allow it to issue fines up to $13,653 for large employers who commit non-willful serious violations. If the division determines that a violation was willful, it can issue a fine up to $135,653 and possibly refer the case for criminal prosecution. However, Corvin said to issue a willful violation, the division must determine that the employer “intentionally or knowingly” disobeyed or “recklessly” disregarded state safety standards. Data from the division shows it has issued no willful violations following a worker fatality in the last five years.

However, Corvin defended the division’s track record, noting that it conducts more inspections than other states and directs safety officials to issue penalties based on the probability that a violation could result in a worker death, even in cases where a death hasn’t occurred. Corvin credited those efforts with bringing down the worker fatality rate in Oregon. In 2002, the state’s worker fatality rate was 3.3 per 100,000 workers, but by 2020, it was 1.78 per 100,000 workers, according to Oregon OSHA. Nationally, the worker fatality rate in 2020 was 3.4 per 100,000 workers, according to the Bureau of Labor Statistics.

“We believe our relatively high enforcement presence and the penalties we issue serve as a deterrent to employers,” Corvin wrote in an email.

However, Jeff Maxwell, a former heavy machine operator for Munitor who has worked in the construction industry for decades, said Oregon OSHA’s investigation into Chacon Geminiano’s death was inadequate. He said there were signs before the accident that the loader’s brakes were having issues that Meservey, the company’s owner, should have been aware of.

Before the accident, Maxwell said, he twice saw the driver of the loader, Marty McCracken, put the machine in reverse gear before driving it forward down the hill. He said McCracken told him he was doing that to slow the loader because the brakes were weak. He said he told McCracken that was dangerous. Maxwell was one of two workers who told Oregon OSHA they had seen the loader being put in reverse going downhill, according to handwritten notes from the division.

Maxwell quit his job at Munitor several weeks after Chacon Geminiano’s death because he felt conditions at the company were unsafe. He said Oregon OSHA should have done more to hold Munitor accountable.

“I’m extremely disappointed in OSHA,” he said. “All a man’s life is worth to them is $5,000? That’s pretty sad.”

McCracken still works for Munitor and called it a safe company in a brief call with The Oregonian/OregonLive. He said the incident was a “freak accident” and that everyone misses “the hell out of (Chacon Geminiano) every single day.”

In an interview with Oregon OSHA, however, McCracken said he had noticed that the loader had a transmission fluid leak. A mechanic who had worked for the company for two months told officials he had never inspected the vehicle, according to investigation documents.

During a closing conference six months after the incident, Meservey told officials that it had been discovered the loader had no brake fluid. Corvin said Oregon OSHA determined that the brake line had corroded and had a hole in it.

After citing the company in June, Oregon OSHA directed Munitor to fix the loader immediately. But the company missed a July 22 deadline to prove it had corrected the problem before providing documents a few days later that the division said didn’t have sufficient details to show the loader had been fixed. That prompted Oregon OSHA to open a follow-up investigation into the company at the end of July. That investigation remains ongoing.

Sevostianov, the worker who suffered a broken cheekbone in the accident, said Munitor is similar to other small construction companies that he has worked for in the past. He said he always felt the company tried to address safety issues as they came up. He said he has tried to reconcile that feeling with what he read in Oregon OSHA’s report. He still works for the company.

“I honestly believe Harley and Munitor in general did all that they could, but I can’t know for sure,” Sevostianov said. “This is why OSHA exists. I defer to their judgment. … The main thing for me is I just hope Amador’s family is done right by.”

Chacon Martinez still lives with her mother in the Woodburn home where she grew up. She may never move out. She doesn’t want to leave her mother alone.

In the wake of her father’s death, she took on the responsibility of calling funeral homes and contacting her family in Mexico as her mother grappled with the grief of losing her husband. Chacon Martinez saw to it that father would be buried in Oaxaca, as he had always wished. And she was the one who picked up the phone when the medical examiner called.

“One of the hardest things I had to listen to is the medical examiner saying that my dad was one the healthiest people they saw in the autopsy room,” she said. “He drank once, maybe twice a year, he still went on 5- or 6-mile runs. There’s a lot of frustration on my end because I feel like they really shortened his life.”

— Jamie Goldberg; jgoldberg@oregonian.com; 503-221-8228; @jamiebgoldberg

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