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Appeals court denies petition for review in Manu’a Inc. case

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Pago Pago, AMERICAN SAMOA — The U.S Court of Appeals in Washington D.C. has “denied” a petition by locally-based Manu’a Inc., dba Manua’s Discount Store, to review the “final order” issued more than a year ago by the US Occupational Safety & Health Review Commission.

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

In its appeal, Manua’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.”

Through federal attorneys, the US Secretary of Labor asked the appeals court to deny review of petition and affirm a final order issued last by the Commission. “The undisputed record evidence establishes that Manu’a’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 USDOL’s long list of arguments.

Oral arguments were heard late last year before a three-panel circuit court judges with an 11-page decision issued yesterday, written by US Circuit Court Judge Judith W. Rogers who notes that Manu’a’s contends that the Commission erred in failing to rule that the company was not responsible for the cited violations because it reasonably relied on APECS.

(Manu’a’s based this argument on the Sasser Electric case, decided by the Commission several decades ago.)

However, “we disagree” with the petition, said Rogers, recalling background information on Manu’a’s work and planning to recruit APECS  up to the day of the incident as well as the investigation by the US Occupational Safety Health Administration (OSHA).

Manu’a’s “makes several arguments, none of which is persuasive on this record,” said Rogers. Manu’a’s had argued that the Commission erred as a matter of law in failing to treat the Sasser case as controlling the outcome here, rendering the Commission’s decision arbitrary and capricious.

Manu’a’s points to several factual similarities with the Sasser case. In both cases, a crane operator was hired “under a broad and undefined scope of work”, Rogers points out, adding that neither Sasser nor Manu’a’s “inquired about the safety measures that would be used, and the respective agreements with the crane operators did not mention safety measures.”
Employees of both Sasser and Manu’a’s worked on the job at the direction of the crane operator.

Rogers noted that the Commission found that Manu’a’s employees were more “intimately involved in the work” and “Manu’a’s and its employees shared responsibility for safety.”

The Commission explained that, unlike the Sasser case, this was the first time Manu’a’s  hired APECS to perform crane work, so “there was no history of safe crane practices in compliance with the Act upon which to base reasonable reliance.”  Further, the “potential duration of exposure to the violative condition was different,” Rogers continued, and noted that in Sasser, the worksite was compliant with OSHA regulations until the moment the crane came into contact with the power line.

In Manu’a’s case, “there were several violative conditions — the failure from the outset of the project to identify the work zone or to determine whether the boom truck could come within twenty feet of a power line,” Rogers wrote. Also, in Sasser, only two employees were assisting the contractor, while in Manu’a’s case, the company “had assigned a crew consisting of approximately a dozen employees” who “were integrally involved in the rigging and unloading” to work with APECS for two days.

The Commission reasoned that “when very few employees are involved for only a brief period, the[ir] work is likely to be incidental in nature and a more limited inquiry by the employer may be reasonable,” but “those were not the circumstances in the instant case,” the appeals court said.

Manu’a’s had argued that the Commission misapplied the summary judgment standard by failing to acknowledge genuine disputes of material fact. Summary judgment, said Rogers, is appropriate only when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law.

Manu’a’s contends that the Commission disregarded disputed material facts regarding the scope of its agreement with APECS, whether its prior dealings with APECS were sufficient to render its reliance reasonable, who was responsible for determining the position of the shipping containers, and whether the safe completion of the first day of work justified the Company’s reliance on APECS.

“But there is no genuine dispute about the scope of the agreement between [Manu’a’s] and APECS,” said Rogers. “Rather, the evidence shows, at most, that [Manu’a’s] had a unilateral and unjustified expectation — not an agreement — that APECS would be responsible for the safety of the project.”

Similarly, Manu’a’s prior dealings with APECS and the fact that the work proceeded without incident on the first day are not disputed factual issues; rather, the Company simply objects to the significance the Commission attached to undisputed evidence.

“Accordingly, because the Commission reasonably distinguished Sasser and properly applied the summary judgment standard, we deny the Company’s petition for review,” Rogers concluded.

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

For APECS, the company’s total civil penalty was $14,197 under a formal settlement with OSHA.