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Manu’a’s, Inc. files brief with Feds to reverse OSHA Commission decision after crane accident that killed workers

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Says issue is “of critical and common application to American employers”

Pago Pago, AMERICAN SAMOA — American Samoa-based, Manu’a’s Inc., dba Manu’a’s Discount Store has called on the federal appeal’s court in Washington D.C. to review an issue it says is “of critical and common application to American employers.”

And that is, “whether and to what extent an employer” subject to US Occupational Safety and Health Administration (OSHA) “can rely upon a specialty contractor to comply with OSHA standards within the specialty contractor’s expertise but outside of the employer’s expertise,” said Manu’a’s in a 75-page brief filed last Friday with the US Appeals Court for D.C., which early this year, granted the company’s request to file an appeal in connection with the deaths of three men, who were electrocuted at the company’s compound at the Tafuna industrial Park in January 2017.

“More specifically, this proceeding hinges on the question of whether Manu’a’s — a retailer with no experience in crane operations — reasonably relied upon [locally based] Jersey Corporation dba Asia-Pacific Engineering and Construction Services, Inc. (APECS) an experienced, qualified crane operator — to address crane safety hazards during a January 14, 2017 unloading operation that tragically ended with the electrocution of three Manu’a’s employees,” the company further argued.

Manu’a’s is appealing the Occupational Safety and Health Review Commission’s decision dated Sept. 28, 2018, which affirmed a grant of summary judgment against the company handed down in July last year by an Administrative Law Judge, who upheld  citations imposed on Manu’a’s by OSHA for four alleged violations of the Cranes and Derricks in Construction standard.

The company’s appeal is against the US Secretary of Labor, who has jurisdiction over the Commission, OSHA and the Administrative Law Judge.

“In affirming a summary judgment” in favor of the Secretary of Labor, Manu’a’s argued in its brief documents that the Commission:

•     failed to apply or meaningfully distinguish controlling precedent of the Commission and this Court that justified Manu’a’s reliance upon APECS to address the crane safety standards at issue; and

•     misapplied the summary judgment standard by disregarding record evidence creating multiple genuine issues of material fact regarding the reasonableness of Manu’a’s reliance on APECS.

“In doing so, the Commission — like the [Administrative Law] Judge — committed reversible error and deprived Manu’a’s of its right to an evidentiary hearing,” the company contends.

One of the focus points of the company’s argument to reverse the summary judgement is that one of the three members of the Commission didn’t fully concur with the Commission’s decision to affirm a judge’s order.

In its order, the Commission concluded “that Manu’a’s reliance on APECS was not reasonable as a matter of law.”

However, “Commissioner James J. Sullivan, Jr. dissented from this conclusion regarding three of the four alleged violations, arguing that the majority disregarded the stringent summary judgment standard in depriving Manu’a’s of its day in court,” according to the appeal brief.

Additionally, Sullivan noted that the depositions of six of Manu’a’s employees and an APECS employee “provide substantial evidence that [Manu’a’s] 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.”

Manu’a’s asked the appeal’s court to reverse the Commission’s decision, and order that the Commission remand this case back to the Administrative Law Judge for a trial on the merits, and take such other steps as are consistent with this Court’s determination.

Total penalty assessed by OSHA and upheld by the Commission as well as Administrative Law Judge against Manu’a’s is $34,492. 

OSHA reached a “formal settlement” last June with APECS. Total civil penalty is $14,197.