Opinion

‘They Ought to Slap the Cuffs on Them’

His son crushed to death on the job, a father demands enforcement of the Westray Act. Latest in series.

By Tom Sandborn 1 Dec 2016 | TheTyee.ca

Tom Sandborn, a Vancouver-based journalist, poet and activist, covered labour for The Tyee for 12 years.

[Editor's note: This series republishes “Hell’s History: The USW’s fight to prevent workplace deaths and injuries from the 1992 Westray Mine disaster through 2016,” commissioned by the United Steelworkers union and downloadable for free as a PDF here.]

“They ought to slap the cuffs on them,” Brian Fitzpatrick said. The tall, rugged former logger and heavy equipment operator was talking about the Peter Kiewit Sons Co. managers and supervisors who he holds responsible for his son Sam’s death.

I first met Fitzpatrick in the summer of 2012, when he and nearly a dozen family members of other workers killed on the job formed a delegation, organized by the BC Federation of Labour, to meet in Vancouver with two provincial ministers to press demands that employers who take management risks that kill or injure their employees face real and effective legal sanctions, up to and including imprisonment.

According to the brief the family members delivered to the BC Liberal government ministers that summer:

“It is our firm conviction that until corporate criminal negligence is taken seriously; until corporate representatives are sentenced to jail time due to their criminal negligence; these preventable and tragic deaths and serious injuries will continue to occur.”

Sam was crushed by a falling boulder at a work site on Toba Inlet in 2009, in an incident that a WorkSafeBC inspector said reflected “reckless and grossly negligent” decision-making by company management who had ordered heavy equipment to operate upslope from where Sam and his brother Arlen were working, despite an incident the previous day in which a huge rock came down the slope and barely missed workers below.

Fitzpatrick and the other family members urged the provincial politicians to support a series of reforms designed by the United Steelworkers as part of its “Stop the Killing, Enforce the Law” campaign. They included:

1. Dedicate a Crown prosecutor to deal with workplace fatality and serious injury cases

The dedicated prosecutor will become an expert in reviewing these investigations against section 217.1 of the Criminal Code and, therefore, more accurately determining the likelihood of conviction.

2. Train police services on section 217.1 of the Criminal Code

This will ensure that police understand the law and know what to look for in workplace fatality and serious injury cases in order to collect the best evidence to support the Crown counsel’s decision-making. (See the Canadian Labour Congress guide “A Criminal Code Offence: Death & Injury at Work.”)

3. Mandatory police investigations of all workplace fatalities and serious injuries

“Kill a worker, go to jail, should be the rule,” Stephen Hunt of the United Steelworkers who was part of the meeting with ministers, told me in a phone conversation on Aug. 23, 2012. (To date, more than 50 Canadian towns and cities have endorsed the demands of the USW “Stop the Killing, Enforce the Law” campaign.)

“In just one ugly moment, Sam was killed,” Brian Fitzpatrick told me. “His hopes, dreams and joy of life smashed out of him. Arlen’s days as a young man, looking forward with youthful enthusiasm to the future, were ripped away from him in the same ugly moment. In that horrible instant, the colour left his world. Sam and Arlen relied on each other for many things and were closer than twins on many levels spiritually and emotionally.”

Death in the afternoon

Bent over the rock he was drilling, focused on the noisy, high-power tool, working without a radio and shut off from hearing any shouted warning by the ear protection he wore, Sam Fitzpatrick may not have even seen the boulder that killed him.

On the clear, cold morning of Feb. 22, 2009, two young B.C. brothers went to work together at a construction project on Toba Inlet north of Powell River. Before the end of their shift, one of the men, Arlen Fitzpatrick, had watched in horror as an enormous stone rolled down the hill and crushed the life out of his brother Sam.

Peter Kiewit Sons Co., the Fitzpatrick brothers’ employer at the time of Sam’s death, is a huge U.S.-based multinational firm that does a lot of work for the B.C. government and other clients in the province. The firm, implicated in seven other B.C. worker deaths, has also been fined for safety breaches leading to worker death and injury in the U.S., and accused of shoddy workmanship on at least two major U.S. public works projects. Kiewit veterans describe a dangerous corporate culture of speed-up and corner cutting on company sites, but the B.C. government says it is entirely happy with Kiewit’s work. Kiewit has been a significant donor to the BC Liberals over the past decade.

According to a WorkSafeBC inspection report, the Fitzpatrick brothers, employed by the construction giant Kiewit as rock scalers on Plutonic Power’s run-of-the-river project at the head of Toba Inlet, had raised safety concerns with their supervisor about their work assignment that morning, pointing out that the day before, heavy equipment working uphill from them had knocked down a boulder that tore through the construction area and damaged a piece of equipment.

Despite the explicit commitment made the day before by Kiewit management that workers would not be assigned to work downhill from heavy equipment, the Fitzpatrick brothers were being ordered back into the same dangerous situation.

Over the morning the clear weather turned ugly, bringing a steady, moderate rainfall that may have further destabilized the uncleared piles of debris above the Fitzpatrick brothers. Or perhaps the excavator operator, working above them, inadvertently displaced the killer boulder. At least that’s what Sam and Arlen’s father Brian Fitzpatrick thinks happened. A ruling by a government appeals tribunal, however, says the source of the fatal boulder is still undetermined.

In any event, around 1 p.m., the excavator operator first observed a boulder rolling downhill toward the brothers and radioed a warning. Arlen, who had walked down to the hoe drill (a piece of heavy equipment) below where Sam was working, heard the radioed warning and tried to alert his brother. But Sam didn’t hear the desperate shouts and by the time Arlen had run uphill to where the boulder had struck, his brother was dead.

Barbara Deschenes, the WorkSafeBC inspector who investigated Sam’s death, faulted Kiewit in her report for “deficient safety planning and supervision” and “lack of effective risk assessment.” The report led to the company being assessed a record-level quarter-million-dollar fine.*

In mid-March, 2013, the Workers’ Compensation Appeals Tribunal (WCAT) ruled on a Kiewit appeal against that record-setting “presidential” fine. In the ruling, the WCAT officers reiterated many of the earlier WorkSafeBC criticisms of Kiewit. They said that while they could not find that the boulder that killed Fitzpatrick was dislodged by the heavy equipment operating above the Fitzpatricks, they could confirm that Kiewit “committed high-risk violations with reckless disregard.” The tribunal reduced the fine originally assessed against Kiewit to a ‘Class A’ penalty just under $100,000.

Although the tribunal ruled that it could not with certainty say that the boulder that killed Fitzpatrick came from the work site, it did say:

“In these circumstances, we would describe it as ‘heedless,’ ‘wanton,’ ‘extreme,’ ‘gross,’ and ‘highly irresponsible’ for the employer to have known that there was a potential for rocks to roll through the work site but not take adequate steps to contain this risk by way of a detailed and carefully monitored scaling program.”

Peter Louvros, an expert at rock scaling and slope stabilization, worked for Kiewit on its Sea to Sky Highway project before the 2010 Olympics. He told me in 2012 that he came to be very critical of the company and what he saw as its safety shortfalls. Kiewit hired Louvros as a contractor to complete the Toba rock slope work after the Fitzpatrick death. Louvros provided the Fitzpatrick family with a document detailing both his negative experiences with Kiewit management on the Sea to Sky and his assessment of what factors led to Sam Fitzpatrick’s death.

The document was filed with WCAT as evidence in the tribunal’s review of the Kiewit penalty, but the tribunal declined to treat Louvros as an expert witness because he was viewed as evincing insufficient neutrality. Be that as it may, Louvros was, like the original WorkSafeBC inspector, critical of Kiewit’s safety procedures. Describing his frustrations while working for Kiewit on the Sea to Sky, Louvros wrote:

“When scheduled maintenance of slopes (rock scaling after blasts or excavation operations) management and the general superintendents would direct machinery to proceed with work in the safety perimeter of scaling operations being performed, resulting in scaling operations being suspended by myself due to the unsafe environment.”

Louvros says that he quit his position with Kiewit’s Sea to Sky project because of his safety concerns.

“When I walked into the manager’s office and personally handed him my resignation, I stated to him ‘you will one day kill someone if you keep operating in this manner,’” he writes in the document submitted to the WCAT hearing.

Louvros is equally scathing in his assessment of the company’s role in Sam Fitzpatrick’s death. “If I were to rate the management support for worker and public safety, with 1 being poor and 10 being excellent, I would be required to rate their support as 1,” he writes in his conclusions, after citing multiple instances during his contract work for Kiewit in which the company continued to order his scaling crew to work downslope from heavy equipment or to otherwise endanger his workers.

Sam Fitzpatrick was not the only worker to die in connection with Kiewit’s Toba Inlet project. Only a few months before Sam’s death, a pilot and six workers (five of them Kiewit employees) being flown to Toba Inlet died in a plane crash that federal investigators linked to ongoing company pressure for the shuttle planes to fly under unsafe conditions.

Although the Federal Transportation Safety Board report on the crash cautiously said it found no evidence of “overt” pressure on the pilot to fly on the day of the accident, it did note that Kiewit’s travel coordinator had previously pressured the airline to ignore safety concerns, and that such pressure continued to be applied after the fatal crash.

Kiewit Construction is a multinational corporation headquartered in Omaha, Nebraska. Its divisions and joint-venture structures to which the company belongs have been penalized for worker deaths in Boston and Texas by a U.S. government agency.

Brian Fitzpatrick told me in 2013 that the company ought to be banned from work in Canada because of its flawed safety record. Fitzpatrick also said that Kiewit management figures ought to be charged criminally under the seldom-enforced federal Westray law that allows for prosecutions against bosses who endanger their workers.

Last year the RCMP finally did open an investigation into Sam Fitzpatrick’s death and indicated they are looking into the possibility of Westray charges against Kiewit and some of its managers.

Kiewit’s big business in BC

Few B.C. taxpayers know how much public work is done in this province by Peter Kiewit Sons Co. and joint-venture structures in which Kiewit participates. For the $2.46-billion Port Mann/Highway One project, Kiewit is part of the Kiewit-Flatiron General Partnership. In various other corporate incarnations, Kiewit has been a major player in the taxpayer-funded development of the SkyTrain system, the pre-Olympic Sea to Sky Highway expansion and the $600-million, 196-megawatt Toba Inlet/Montrose Plutonic Power run-of-the-river hydroelectric project (which stands to garner up to $73 million in federal subsidies over its lifetime, according to media reports).

Plutonic is now doing business as Alterra Power Corp.

The local Kiewit office, like headquarters in Omaha, did not choose to respond directly to requests for comment. However, after my request went to the B.C. office, I did receive an email from Greg Johnson, Manager, Communications, for the Port Mann/Highway One project, the Transportation Investment Corporation.

Johnson speaks for Transportation Investment Corporation, the public agency in charge of the project. The email read in part:

“TI Corp. is very pleased with the performance of Kiewit/Flatiron in the delivery of the Port Mann/Highway 1 Improvement Project. We have the highest confidence in Kiewit/Flatiron’s work and they adhere to strict and multilayered quality assurance processes to ensure all construction meets design and quality criteria.”

Some Kiewit veterans don’t share the government’s confidence in the firm.

Mike Pearson, who contacted Brian Fitzpatrick when he read early media accounts of Sam’s death and Kiewit’s appeal against the penalty assessed by WorkSafeBC, was a blasting superintendent for Kiewit on the Sea to Sky highway project. He told me he felt he had to speak out about what he knows about the company.

“There is no way they should get away with this,” he said when he and Brian Fitzpatrick met with me at a coffee shop. “When I worked for Kiewit, we got asked to do stupid, dangerous things.”

Another worker who had been with Kiewit since he got out of high school was unwilling to be quoted by name, for fear of retaliation from the company, but he did confirm Pearson’s account of being told to do dangerous things on Kiewit sites.

“They’re hypocrites,” the young man said. “They make a lot of noise about safety in public, but then they tell you to do unsafe work on the job. When I got hurt doing something by hand we should have had a crane for, they pressured me not to report it to WCB. Now I’m sorry I didn’t.”

American investigative journalists have reported that Kiewit-associated joint ventures operating in California regularly paid workers on a Bay Bridge project not to report injuries. The state’s safety agency eventually fined the contractor for failing to record or inaccurately recording as many as 13 worker injuries, some serious.

Before the Westray mine blew, workers there were bribed and pressured not to report workplace injuries. This policy of hiding injuries from government regulators paid off for Westray Mine — until disaster struck. In the weeks before the mine blew up, it was awarded the Canadian Institute of Mining, Metallurgy and Petroleum’s prestigious John T. Ryan safety award, given to the mine each year that has the fewest injuries reported to provincial regulators. Ironically, the Westray miner who attended the safety award ceremony to accept the honour on behalf of his company died only weeks later in a preventable accident. The institute rescinded the award in 1998, announcing that Westray had conspired to hide injuries that occurred at the mine.

No comment on deaths from Kiewit

Curious about the relationship between Kiewit and the provincial government, I spoke in 2012 with a knowledgeable observer who has decades of experience both within the Ministry of Transportation and in the heavy construction industry. The ministry awards a lot of its largest contracts to Kiewit. The observer, who asked to remain anonymous, told me that Kiewit is “the biggest road-and-bridge building presence in the province. They do good work, but they are notorious for how belligerent they are with front-line provincial employees.”

The source said that front-line staff are well aware that Kiewit is a powerful company with direct access to heavy hitters within the BC Liberals and to senior officials throughout the provincial government. (According to Elections BC, Kiewit donated $96,575 to the BC Liberals between 2005 and 2011.)

As mentioned earlier, in the U.S., a number of Kiewit-worker deaths and injuries have been blamed on company failures to enforce safety procedures. In 2012, I asked B.C.’s then Minister of Transportation, Mary Polak, if she was aware of Kiewit’s spotty safety and performance record in the U.S. and whether it gave her any concern about the firm doing so much business with the province. She replied by email, saying:

“Every life lost in the workplace is tragic and government, ministries and contractors work very hard to ensure the safety of workers on all our projects.

“I cannot speak to what has occurred in other jurisdictions, but I am confident that for the Port Mann Highway 1 Project, TI Corp. has the necessary oversights in place to ensure that Kiewit meets the safety and performance expectations, and that all B.C. regulations are adhered to — as is the case with all ministry projects undertaken in B.C.”

I contacted Kiewit’s head office in the U.S. to invite company comment on worker deaths and claims of bad corporate behaviour heard from a number of sources, but despite repeated requests and calls to Kiewit’s B.C. headquarters, no one from the company made themselves available for an interview. The company also failed to respond to my requests for clarification on connections between the Omaha headquarters of Kiewit and various corporate entities and joint ventures cited for safety and quality problems in the U.S. and B.C.

Tomorrow: Twin, deadly explosions of BC interior sawmills bear eerie similarities to the Westray disaster.

*Story correction, Monday, Dec. 5: A previous version of this article included a quote from a news article in the Province newspaper which, after publication, published a retraction and removed the quote. Upon learning this today, The Tyee has done the same.  [Tyee]

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