Pago Pago, AMERICAN SAMOA — American Samoa-based Manua’s Inc., dba Manua’s Discount Store, has appealed to the federal court its citations, imposed by the US Occupational Safety and Health Administration in connection with the deaths of three men, who were electrocuted at the company’s compound at the Tafuna industrial Park in January 2017.

In a Nov. 19th “petition for review” motion filed with the US Court of Appeals in Washington D.C., Manua’s requested a review of the Occupational Safety and Health Review Commission decision dated Sept. 28, 2018, which affirmed a grant of summary judgment against the company.

The Commission’s decision upheld citations imposed on Manua’s by OSHA for alleged violations of the federal Cranes and Derricks in Construction rules. “Manua’s is aggrieved by the decision and appeals on the basis that it was not supported by substantial evidence and that it was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law,” the company’s attorney, Peter Karanjia — with the D.C. based law firm Davis Wright Tremaine — argued in court filings.

Included with the petition for review, is the Commission’s decision, which recalled that on Jan. 14, 2017 three Manua’s employees were fatally electrocuted when a crane operated by a subcontractor came in contact with a power line.

As previously reported by Samoa News, OSHA reached a “formal settlement” in June of this year with Jersey Corporation — which does business in American Samoa as Asia Pacific Engineering & Construction Service (APECS).

The settlement was a total civil penalty of $14,197 which was a decrease from the initial proposed penalty totaling $17,746. 

APECS was contracted for crane service for a project at Manu’a’s Store. (See Samoa News Sept. 22 edition for details).

According to the Commission's decision, it was after an inspection that OSHA issued a citation alleging four serious violations of provision of the Cranes and Derricks in Construction standard rule against Manua’s.

The decision also states that Chief Administrative Law Judge Covette Rooney had granted summary judgement on all four violations and assessed a total penalty of $34,492 against Manua’s which then filed a Petition for Discretionary Review by the Commission, arguing that the judge erred in granting summary judgement.

“Upon consideration of the record and applicable case law, we find no error in the judge’s decision,” the Commission said. “Accordingly, we affirm.”

Rooney’s order was issued July 16th in response to the motion for partial summary judgement filed Apr. 27th by the US Secretary of Labor, the Complainant, on behalf of OSHA, against Manua’s Inc., the Respondent, which also filed an opposition motion.

Rooney’s order provides new details surrounding this case. Rooney explained that the OSHA citations alleged that Respondent (Manua's) had not identified the work zone for the crane, had not determined if the crane could be within 20 feet of a power line, had not trained employees on the hazards of working near a power line, and had not ensured signal persons were adequately qualified.

Four 40-foot shipping containers of steel structural beams were delivered to the adjacent parking lot for the Manua’s construction project. Manua’s human resources manager, Connie Corpuz, contacted APECS to unload the containers.

Corpuz told APECS project manager, Glenn Sabio, they needed the containers unloaded but did not specify the services needed beyond that of a crane and crane operator.

Corpuz, who had no experience with scheduling a project of this type, assumed the hourly rate of $125 would include the crane, the operator and supervision, according to the judge, who noted that there was no written contract or specific discussion of what services APECS would provide to unload the containers.

“The parties had only specified that a crane with a crane operator would be provided for the price of $125,” the court order says, adding that Manua’s owner and chief executive officer, Genhall Manua Chen along with Corpuz “assumed other services, including training and a signal person, were included.”

Sometime after the agreement was reached, Sabio asked Manua’s to provide employees to help with strapping and guiding the beams out of the containers. The store agreed.

Jan. 11, 2017 was the first day APECS unloaded a shipping container at the parking lot of the former Checkers’ Restaurant. In addition to the crane operator, APECS had a signal person at the site, and Sabio was intermittently on site supervising the crane operator.

Sabio made a visual estimate that the power line was more than 10 feet away from the container. “Manua’s employees assisted by rigging the beams being unloaded out of the container and on to the ground,” the judge explained.

By the end of the day, Chen “was dissatisfied because the unloading process was taking too long; only one container had been unloaded”. The price was re-negotiated to a flat rate for the remaining containers.

The second day of unloading the beams with the crane was Jan. 14, 2017.

Sabio was on site at the beginning of the day and again just before the accident, around 11:00 a.m.

Several Manua’s managers and supervisors were on site that day, including Chen, and Corpuz. Additionally, twelve Manua’s employees assisted with unloading.

“One of those employees, Misi Fa’amoana, was signaling the crane operator with voice instructions for placement of the beams on the ground next to the container,” the judge said. “There was no training or instruction to Manua’s employees on crane or power line safety. Mr. Chen briefly told the employees working with the unloading to be careful.”

“At approximately 11:30 that morning, the crane touched an energized power line. Three Manua’s employees were fatally electrocuted,” the judge said.

SUMMARY JUDGEMENT

“Manua’s admits that it did not comply with the requirements of the four cited standards,” the judge said and explained that Manua’s did not assess the worksite, set up a work zone, or determine if the crane could get closer than 20 feet to a power line.

Furthermore, Manua’s did not train the employees on power line safety and Fa’amoana was not a qualified signal person.

Rather, Respondent asserts a defense that for all of the alleged violative conditions, it relied on APECS to comply with OSHA requirements for the benefit of Manua’s and Manua’s employees.

“The Commission has long held that an employer cannot simply contract away its ultimate responsibility” under federal law, “by requiring another party to perform them,” the judge said.

“An employer that has arranged for a third party to carry out its safety duties...cannot simply rely on a belief the third party will provide those services; an employer must inform itself as to the safety measures the third party has implemented,” he continued.

According to the judge, APECS informed Manua’s about the power line and Manua’s “took no affirmative action to ensure its employees would be protected while unloading the containers.

Additionally, Respondent did not provide facts to support its claim of reasonable reliance on APECS. “There is no evidence that Manua asked APECS to train its employees, assess the worksite or that Manua asked APECS for the results of its worksite assessment relative to power line contact,” the judge said.

The judge also said that Chen assumed APECS would take care of everything; however, “Chen admitted that the supervision of Manua’s employees had not been ‘previously discussed and agreed upon with APECS’.”

Corpuz, whom Chen designated as the coordinator with APECS, did not ask questions or make requests related to the safety of Manua’s employees.

Samoa News will report early next week on the Commission’s decision and other information.