Pago Pago, AMERICAN SAMOA — One of the three members of the federal Occupational Safety and Health Review Commission who reviewed the violations issued against locally based Manua’s Inc., dba Manua’s Discount Store, didn’t fully concur with the Commission’s decision to affirm a judge’s order.

Commissioner James J. Sullivan Jr. appeared to have reservations with putting all the blame of a deadly incident on Manua’s, which hired Asia Pacific Engineering & Construction Service (APECS) to oversee the unloading of containers at the company’s Tafuna Industrial Park location, where three Manua’s employees were electrocuted — and died — on Jan. 14, 2017.

The US Occupational Safety and Health Administration had issued four “serious” violations, with total penalties of $35,492 against Manua’s, which challenged the violations. The US Secretary of Labor, on behalf of OSHA took the case to Chief Administrative Law Judge Covette Rooney, who in July this year, granted summary judgment on all four violations and assessed penalties against Manua’s.

The company disagreed with Rooney’s order, and petitioned the Commission for Discretionary Review, arguing that the judge erred in granting summary judgment. The Commission issued its decision in September, affirming the judge’s order, but only two Commissioners —  Heather L. MacDougal (chairperson) and Cynthia L. Attwood — fully agreed with Rooney on all four violations.

Sullivan, however, concurred in part and dissented in part, with his fellow commissioners, according to the Commission’s decision.

“While I agree with my two colleagues that Respondent failed to properly train its employees on the hazards of working near a power line in violation [of federal regulations] and the judge’s decision should be affirmed with regard to that violation, I dissent from their affirmance of summary judgment on the other alleged violations,” Sullivan wrote in the Commission’s decision.

It is Sullivan’s view that Respondent — Manua’s — is entitled to a hearing to determine whether, as to those alleged violations, it reasonably relied upon a specialty contractor — APECS — pursuant to the Sasser Electric case decided by the Commission several decades ago.

“The Commission historically has not favored summary judgment,” and “to grant it, the case must be very clear cut. I do not consider this to be such a case.”

He noted that there are “genuine issues of material fact that remain unresolved” and said the depositions of six of Manua’s employees and an APECS employee provide substantial evidence that Respondent chose to rely on APECS because of its:

•    expertise in boom truck operations;

•    experience dealing with the power company;

•    knowledge of the process and methods for signaling a crane operator; and

•    familiarity with addressing electrical hazards when operating a crane around a power line.

“Respondent also presented substantial evidence through deposition testimony that it had determined it needed to consult with APECS to ensure that the contractor could safely unload the containers using the boom truck… And that Respondent did so because it had no experience with planning an unloading operation with a boom truck and did not know anything about a boom truck’s operation,” he pointed out.

According to Sullivan, the APECS employee’s testimony that the agreement between APECS and Manua’s did not contemplate APECS supervising the work was directly challenged by the testimony of two employees with authority to speak for Manua’s— its owner and human resources manager.

Accordingly, he said, there are clearly material facts in dispute:

•    whether Respondent made it clear to APECS that it was not familiar with the boom truck operation or the hazards involved; and

•    that it understood APECS would make an assessment of the electrical hazards involved prior to the first day of unloading.

“These facts are not capable of being conclusively determined based on the APECS employee’s apparent denial that Respondent took such actions,” he said. “They are also clearly material to the resolution of the issue in the case: whether Respondent reasonably relied upon APECS’ expertise.”

“These are not theoretical facts. To the contrary, these disputed facts elicited in the depositions are material in that they can facilitate the resolution of a critical issue in the case,” he said. For example, did Respondent inform APECS that it was unfamiliar with the operation and the hazards involved?

Furthermore, the length and extent of the prior work relationship between these two employers, and whether Respondent’s reliance on APECS was in fact reasonable remains unknown.

According to Sullivan, the “only way to properly determine whether Respondent’s reliance was justified based on its prior experience with APECS is to hear direct and cross-examination of witnesses at a hearing, which, unfortunately, is a path my colleagues decline to pursue.”

Sullivan argued that a retail business owner, such as the Respondent, with experience in only the retail industry, should not be expected to ask a crane specialist like APECS whether the boom truck could get closer than 20 feet from a power line, or whether the area needed to be demarcated.

“How would any retail industry owner, its supervisors, or its employees know to ask these questions? The crane expert in this case, APECS, should certainly have known about these issues,” he said.

“My colleagues may ultimately be correct that Respondent’s reliance here was unreasonable, but before reaching any such conclusion, Respondent is entitled to a hearing where there is direct and cross-examination of witnesses, not merely excerpts of certain deposition testimony,” he said.

Manua’s has petitioned the US Court of Appeals in Washington D.C., to review the Commission’s decision, which affirmed Rooney’s order, granting summary judgment against the company.

The appeals court last week set dates — in late December and early January 2019 — for both sides to submit specific documents and motions.