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Oral arguments hearing set for next month in Manu’a Inc. petition

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Case stems from three electrocution deaths at Manu’a’s compound in Jan. 2017

Pago Pago, AMERICAN SAMOA — The federal appeals court in Washington D.C. has scheduled an oral arguments hearing early next month, for the American Samoa based, Manu’a’s Inc., dba Manu’a’s Discount Store petition against the US Secretary of Labor.

Manu’a’s is appealing the US Occupational Safety and Health Review Commission’s decision last year, affirming a grant of summary judgment against the company, handed down in July 2018 by an Administrative Law Judge (ALJ), upholding citations imposed on Manu’a’s by the US Occupational Safety and Health Administration (OSHA) for four alleged violations of the Cranes and Derricks in Construction standard.

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

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 contracted locally based APECS to provide crane service during the company’s expansion project at the Industrial Park. OSHA reached a “formal settlement” in June 2018 with APECS - total civil penalty was $14,197

The US Secretary of Labor - through federal attorneys - asked the court in July to deny the review of Manu’a’s petition and affirm a final order issued by the Commission.

US Labor Department attorneys contend that 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.”

Manu’a’s responded recently in two separate filings, arguing - among other things - that this proceeding hinges on the question of whether Manu’a’s “reasonably relied” on APECS to address crane safety hazards during a January 14, 2017 unloading operation.

The company says it had presented to the ALJ, the Commission, and now the court, “substantial evidence demonstrating the applicability of the Commission’s precedent” in a 1985 case - Sasser Electronic and “showing the reasonableness of Manua’s reliance on its specialty contractor, APECS, to address the crane safety hazards underlying this case,” according to the latest 42-page court filings.

One of the three members of the Commission, who “argued in dissent” believes Manua’s is entitled to a hearing to determine whether the alleged violations is reasonably relied upon APECS — pursuant to the Sasser Electric case.

 (The main focus of the Commission’s 1984 case on Sasser: “holding employer not responsible for independent contractor’s violation of standard requiring clearance distance of ten feet between power line and crane and load,” according to federal online records.)

Manua’s argues that the Secretary of Labor - like the ALJ and Commission - “still fails to meaningfully distinguish “Sasser [case]” from the present case, continues to instead rely upon inapposite precedent, and glosses over the substantial evidence that should have precluded summary judgment.”

Additionally, the Secretary of Labor “fails to demonstrate that Manu’a’s reliance on APECS was unreasonable as a matter of law, again drawing from inapposite case law in the face of Sasser and substantial record evidence.

 “In all, the Secretary is unpersuasive in his attempt to justify the Commission’s failure to correctly apply Sasser [case] or the summary judgment standard to afford Manu’a’s a full evidentiary hearing,” the company said.

Manu’a’s requests the court to reverse the Commission’s decision and vacate the ALJ’s summary judgement order “so Manu’a’s may proceed to hearing,” according to court filings.

Court records show that oral arguments will be heard Nov. 4th before a three-judge panel.