Pago Pago, AMERICAN SAMOA — Through federal attorneys, US Secretary of Labor, R. Alexander Acosta, has asked the federal appeals court in Washington D.C. to deny the review of a petition filed by American Samoa based, Manu’a’s Inc., dba Manu’a’s Discount Store, and affirm a final order issued last year by the Occupational Safety and Health Review Commission.

“The undisputed record evidence establishes that Manua’s failed to assess its worksite for power line safety or identify a crane’s work zone,” which resulted in violation of federal labor law, and Manu’a’s “did not train its employees on safety procedures when working with cranes around power lines,” according to an 85-page briefing filed Tuesday by a USDOL attorney on behalf of Acosta.

The ongoing legal dispute is in connection with the deaths of three men, who were electrocuted at Manu’a’s compound at the Tafuna industrial Park back in January 2017. One other man was hospitalized with serious injuries resulting from electrocution.

Manu’a’s is appealing the 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 (ALJ), who upheld citations imposed on Manu’a’s by OSHA for four alleged violations of the Cranes and Derricks in Construction standard.

In its appeal filed April this year, Manu’a’s argued, among other things, that the Commission “failed to apply or meaningfully distinguish controlling precedent of the Commission and this Court that justified Manu’a’s reliance upon Jersey Corporation dba Asia-Pacific Engineering and Construction Services, Inc. (APECS) to address the crane safety standards at issue.”

Manu’a’s asked the appeals court to reverse the Commission’s decision, and order that the Commission remand this case back to the ALJ for a trial on the merits, and take such other steps as are consistent with this Court’s determination. (See Samoa News May 1 edition for details)

Manu’a’s contracted locally based APECS to provide crane service during the company’s expansion project at the Industrial Park. US Occupational Safety and Health Administration (OSHA) reached a “formal settlement” in June 2018 with APECS. Total civil penalty is $14,197.

USDOL RESPONSE

Statements of the issues, according to USDOL attorneys, is whether the Commission properly affirmed the ALJ’s grant of summary judgment in favor of the Secretary where Manua’s admits that it failed to assess its worksite for power line safety or identify a crane’s work zone, a violation provision of federal law.

USDOL claims that the “undisputed material facts establish that Manu’a’s unreasonably relied on crane contractor APECS to ensure the safety of Manu’a’s employees.”

Additionally, before using APECS for crane work for the first time, Manu’a’s made no inquiries into APEC’s safety precautions and Manu’a’s assigned 12 employees, who were given no safety training or instruction to assist the crane operator in the unloading and rigging of steel beams, resulting in the electrocution deaths of three Manu’a’s employees after the crane touched an energized power line.

According to USDOL, “Manu’a’s never discussed responsibility for safety or supervision with APECS. Manua’s did not ask if APECS was going to take care of safety matters or whether APECS would provide training, and did not discuss whether APECS would perform a hazard assessment.”

Furthermore, there was no written contract between Manu’a’s and APECS that defined the scope of the work or which entity was responsible for safety matters, training, and supervision, according to USDOL filings, which also provided a long-summary detail of what happened that day, and led to the “fatal electrocution of three Manu’a’s employees assisting in construction work.”

USDOL argued that the Commission properly upheld the ALJ’s grant of summary judgment in favor of the Labor Secretary “because undisputed record evidence established that Manu’a’s violated” provision of federal law, “when it instructed its employees to perform crane work under the direction of APECS without taking any steps to ensure that the work would be performed safely and in accordance with the cited standards."

USDOL also pointed out that Manu’a’s “did not deny” the cited violations, but instead “claimed that it was not responsible for the violations because it had relied on APECS to comply with the relevant safety standards.”

“This contention is without merit,” USDOL further argued, noting that the Commission “correctly found that Manu’a’s reliance was not reasonable. Manua’s made no inquiries about employee safety or training.”

“Manu’a’s knew the crane work was dangerous and its employees were unqualified to do it, but took no steps to ensure their safety while engaged in crane work,” USDOL said.

“Instead, Manu’a’s completely abdicated any safety efforts, and relied on an unfounded belief that APECS would assume Manu’a’s responsibility under the OSH Act without any communication of that expectation to APECS or agreement from APECS to do so,” USDOL pointed out.

“Because the undisputed material facts establish that the Secretary was entitled to judgment as a matter of law, the Commission properly affirmed the violations,” USDOL argues.