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by Mark Scaramella, January 22, 2013
When grapes were grown to make vino ordinaire for regular people to drink with dinner, the vine rows were typically seven or eight feet apart for easy access with a conventional everyday tractor for inspection, pruning, picking and weeding. For millenia, no pesticides were applied, and when they began to be widely applied that everyday farm tractor pulled a clunky spray rig.
Nowadays, we're talking industrial grape production, with most grapes grown as a cash crop. The fancy wines are a sort of byproduct much in vogue with the nouveau pretentious. To increase tonnage per acre, modern viticulture crams almost twice as many grapevines into the same acreage, planting the vines much closer together and in every possible nook and cranny. The squeeze requires more water, more pesticides, and more labor per acre.
The increased water is delivered by what some still think of as a conservation device: drip irrigation. (Which it might be if the number of vines wasn’t doubled.) Frequently, that “water” includes a variety of chemicals such as fertilizers, pesticides and insecticides delivered by computer-assisted pumping systems from huge holding ponds. Each vine has its own feeding tube. The primary plumbing for the drip irrigation is frequently the same plumbing that occasionally delivers frost protection water from the pond or directly from a nearby river or creek, much to the detriment of struggling fish populations.
To keep labor costs down, more and more customized equipment is being used to maneuver in the vineyards, and the operators of that equipment frequently work alone.
To get those higher yields, vineyard rows are much narrower, lately less than four feet for the larger industrial scale plantings; your standard farm tractor is way too big to travel up and down today’s tight rows of grapes.
* * *
Enter the ASV Posi-Track, a snow-plow-turned-vineyard tractor which runs on tracks like a tank, not on wheels like a tractor. The Posi-Track and several other similarly narrow models from other manufacturers have been designed specifically for modern vineyards.
(Pictures of ASV Posi-Track)
To enter the Posi-Track the operator must climb over the bucket (or whatever else is attached to the front of the tractor) or step on the tread, and wedge him or herself into a tiny cage with almost no visibility to the rear and very limited visibility to the sides. If the Posi-Track is being used to apply pesticides, the operator may be wearing a bulky moonsuit, and the sides of the vehicle may also carry tanks of pesticide, its plumbing, and the shafts which pull the spray apparatus.
There you are, driving one of these “designed for confined space” things, hunkered down inside a heavy wire cage, surrounded in back and on the sides by thick steel mesh, plumbing, rods and shafts. Outside of your cage you're surrounded by grapevines on both sides that almost touch your tractor treads. Not only is your vision limited to what’s directly in front of you, but you're virtually invisible yourself as you slowly drive hour upon hour, up and down the endless rows of industrial-strength grapevines.
Often, these contraptions operate early in the day in the fog or the murk of early morning. Some vineyards run the things at night under floodlights.
Factor in vineyard slopes, mud, tight turn-arounds at the ends of the rows, rocks, rough or uneven terrain, grapevines sticking out into your path, glare, dust, the wind blowing pesticides into the cab, supervisors, co-workers, and a multitude of other on-the-ground hazards.
Then add the various controls and operating switches, levers, knobs, indicators, gages and lights inside the modern cab along with separate spray rig controls, if that’s today’s job, some of which are custom made or modified by the owner of the tractor, which can require non-standard or ad hoc techniques to work properly.
Clearly, driving a Posi-Track in a jam-packed vineyard is not a job for the inattentive or the mechanically challenged.
* * *
On January 22, 2011, for reasons not entirely clear, the operator of one of those Posi-Tracks, a Mr. Jose Antonio Ambriz-Luquin, 37, apparently noticed a problem with the pesticide delivery plumbing as he was spraying a large vineyard off Piner Road in Santa Rosa. So he put his tractor in neutral and began to climb out the front. Somehow, as he was maneuvering out of the cab, his clothing got caught on a screw and Mr. Ambriz-Luquin lost his balance and grabbed for the nearest object which, OSHA investigators later concluded, was probably the throttle lever. The tractor lurched forward and crushed Mr. Ambriz-Luquin. He died several days later in a Santa Rosa hospital.
OSHA investigators also determined that the “accident” should not have happened.
The Posi-Tracks are equipped with a “kill switch” under the seat, also known as a “seat switch” or an “operator presence switch” or, more ominously, a “deadman switch.” The switch, like the one under your car seat that makes your seatbelt alarm beep if your belt’s not fastened if you’re in the seat, is supposed to “kill” the engine when the operator’s not sitting where he's supposed to be — the operator's seat. If the switch was in place and working properly, the tractor’s engine would have stopped when Mr. Ambriz-Luquin got up to get out and he would be alive today to continue driving his Posi-Track for his employer, a Lodi-based vineyard management company called Vino Farms.
But the kill switch had been removed from Mr. Ambriz-Luquin’s Posi-Track. So the engine was running when he got out of the cab which meant that grabbing the throttle could be deadly, and was in his case.
OSHA concluded that the Windsor-based site manager for Vino Farms, a Mr. James Poole, 61, had “ordered the safety device [the kill switch] removed from the tractor seat.”
Not only that, but Mr. Poole had replaced the seats in the other three of his four-unit fleet of Posi-Tracks with after-market seats that did not have kill switches.
Several months later, after the investigation was complete, armed with the OSHA report, the Sonoma County District Attorney’s office, specifically prosecutor Ann Gallagher White, filed misdemeanor charges alleging a violation of the state’s Labor Code which prohibits the removal of a safety device from job-related vehicles and equipment.
Labor Code Section 6403: “No employer shall fail or neglect to … provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.”
Labor Code Section 6406. “No person shall … remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment.” Nor “interfere in any way with the use thereof by any other person.” Nor “interfere with the use of any method or process adopted for the protection of any employee, including himself, in such employment, or place of employment.” Nor “fail or neglect to do every other thing reasonably necessary to protect the life, safety, and health of employees.”
According to prosecutor White, the violation of this code section can be charged as a misdemeanor or a felony. Even though the violation lead to the death of an employee, Ms. White elected to charge the violation as a misdemeanor. We assume Mr. Poole didn’t mean to kill Mr. Ambriz-Luquin, but he sure didn’t care much for Mr. Ambriz-Luquin’s safety.
Why would Mr. Poole remove the kill switch from his Posi-Tracks?
Mr. Poole’s defense attorney, Sonoma County’s most prominent and expensive defense attorney, Chris Andrian, said the kill switch was removed because “the seats got so hot, no one could ride them (the tractors).” Mr. Andrian said that Mr. Poole and his crew “tried to fix the problem, to no avail, so the kill switch was disconnected.” Andrian added that “the devices are not required by law, and there was a legal question whether someone is required to use a safety feature that doesn't work.”
Totally untrue. So untrue, that one can only speculate on what the real reason for removing the safety switch was.
There’s no way a low-current kill switch — they use less than one-tenth the amps of a standard 60-watt light bulb — could become “too hot,” much less for what little “heat” might be transmitted to the operator’s behind through a padded seat. Nor did Mr. Andrian explain what Mr. Poole had done to “try to fix the problem,” nor what he meant by “doesn’t work.” (The only thing the switch is supposed to do is shut off the engine when the operator leaves the seat. Nobody said it didn’t do that.)
Did Mr. Poole or his bosses contact the manufacturer to report the problem? Did they call the company who sold the tractor to ask a maintenance rep fix it?
We asked Ms. Gallagher-White for a copy of the OSHA report which, she said, was “two thick binders full of papers.”
She can’t give it to us, she said.
Labor Code Section 6412: “No report of injury or illness required by subdivision (a) of Section 6409.1 shall be open to public inspection or made public, nor shall those reports be admissible as evidence in any adversary proceeding before the Workers' Compensation Appeals Board. However, the reports required of physicians by subdivision (a) of Section 6409 shall be admissible as evidence in the proceeding, except that no physician's report shall be admissible as evidence to bar proceedings for the collection of compensation, and the portion of any physician' s report completed by an employee shall not be admissible as evidence in any proceeding before the Workers' Compensation Appeals Board.”
The safety investigation and report is a secret. The only way it (or parts of it) might have become public would have been if the case had gone to trial.
But it won’t go to trial. Mr. Poole plead no contest last week.
“The reason they didn't fight the case is they cared so much about the guy and felt terrible about it,” Mr. Andrian said, and so Vino Farms agreed to pay $100,000 in restitution to the family of the victim. Andrian said Poole and Ambriz-Luquin were good friends “and cared deeply for each other.”
As part of the plea agreement, Vino Farms agreed to pay the $100,000 to the victim's family. The company was ordered to pay another $75,000 to the state of California, as well as $25,000 to Ag Safe, an organization dedicated to worker safety. An additional $75,000 penalty was suspended, pending successful completion of two years of informal probation by Vino Farms.
“Informal probation” is unsupervised, unreviewed probation. The company says they’ll “change some of their procedures to comply with worker safety laws and strengthen some of their policies to ensure that its workers will be able to get emergency help when working alone.” Vino says they’ll now implement a “buddy system” so that if accidents happen somebody is supposed to be there to take some kind of action.
But given the conditions in the vineyard and in the Posi-Track, how such a system would play out in the vines is far from clear. Will someone else be walking behind the tractor as it goes down the rows? Not likely.
And you read that right; Vino Farms wasn’t complying with other “worker safety laws” either. Yet we’re supposed to believe that after this tragedy, they’ve got religion. The Labor Code has a large section requiring a safety program to be in place at a workplace; it describes what it’s supposed to involve and what kinds of reports are required. The misdemeanor plea deal, in effect, will require the vineyard management outfit to comply with the law they were already supposed to comply with but didn’t. Nobody knew about any unsafe practices until Mr. Ambriz-Luquin died.
But, as Ms. Gallagher White conceded, nobody would know if Vino Farms was complying with the law anyway (other than perhaps the lack of required reports) unless somebody like a vineyard worker complained, which we all know is not likely to occur among non-unionized immigrant farm workers.
Even if you accept that Mr. Poole and Mr. Ambriz-Luquin were good friends “who cared deeply for each other,” it’s not hard to think of other reasons why Mr. Andrian would suggest that Mr. Poole take the misdemeanor plea deal.
Ms. Gallagher White said besides questions about the credibility of such things as the “hot seat” claim, that if the case had gone to trial it would have involved several pre-hearings and perhaps a jury trial which could have easily lasted two weeks. Mr. Andrian would probably have handed a substantial bill to Vino Farms, win or lose. Instead, Vino Farms Inc. will pay the fines and the payment to Mr. Ambriz-Luquin’s family as part of a Sonoma County court settlement that also calls for a 30-day jail sentence (which will of course mean more like three weeks) for Mr. Poole. Mr. Poole was also ordered to do 80 hours of community service which we hope he will spend explaining to fellow vineyard managers why it’s a bad idea to remove or disconnect safety features from already hazardous equipment.
We don’t know how much Mr. Andrian and his staff would have ended up charging, but at something like $400 or more per hour over several weeks… Well, do the math.
Mr. Andrian also said that because the accident occurred during the course of employment, the victim's family cannot bring a civil suit against the employer and is limited to seeking a remedy through the workers' compensation process, the same workers comp process which bars the admission of the secret OSHA report.
In other words, the family of Mr. Ambriz-Luquin can’t sue the vineyard management company nor can they sue the vineyard that hired Vino Farms.
The name of the vineyard wasn’t provided in any of the official reports, but the only one that meets the description — “a local winery off Piner Road in Santa Rosa” — is Battaglini Estate Winery where a small memorial appears to have been put up with flowers at the entrance. According to “The Grape Grower” magazine the 300-acre Battaglini vineyard “goes all the way back to 1885, when another Italian immigrant, Bartholomew Lagomarsino, first planted Zinfandel and Petite Sirah grapes on the property (the Battaglini family has owned it since 1988 and added Chardonnay grapes in 1996). It is noteworthy that Joe Battaglini is producing his wines (about 2,500 cases a year) from these same 125-year old vines, and with old methods using no irrigation (totally dry farmed) and no chemicals and by allowing all their wines to go through natural fermentation (no added yeasts).”
Which is interesting because prosecutor Gallagher White specifically said that Mr. Ambriz-Luquin was “apparently trying to clean out a mechanism on the tractor used to spray herbicide on the vines” when he was run over by the tractor made unsafe by his boss.
And using Google Street View from Piner Road, the Battaglini vineyard is clearly not the vineyard old man Lagomarsino planted in 1885 because the vines are in the typical high-density jam-packed tight row arrangement typical of most modern vineyards, complete with huge pond and a mansion-style home and tasting room surrounded by grapevines.
Ms. Gallagher White concluded that “the important thing is that employers out there know if there's a safety mechanism on a piece of equipment that an employee of theirs will use, it's important they don't change it, or disconnect it, because tragedy can result from doing it.”
Another important thing might be an overhaul in the way vineyards are designed and operated so that they’re not inherently unsafe for workers, neighbors or wildlife.
If that’s too much to ask, maybe at least the required safety programs could include independent health and safety inspections by independent third parties paid for by the larger wineries that profit from the dangers they impose on workers.
But that failing, as it likely will given that legislators like Mike “Wine Bottle” Thompson are in Congress and the state legislature, if nothing else comes of this tragedy, employers and supervisors should know that ignoring safety precautions comes at a price, even if it’s a relatively small one. ¥¥