Manua's Inc. files 'petition for review' to appeal OSHA Commission decision

Pago Pago, AMERICAN SAMOA — Manua’s Inc., dba Manua’s Discount Store, is raising certain issues in support of their appeal to the federal court in the company’s 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 handed down in July by an Administrative Law Judge, who upheld  citations imposed on Manua’s by OSHA for four alleged violations of the Cranes and Derricks in Construction standard.

In new court filings last week Friday, Manua’s outlined “issues in support of its appeal from the Commission’s decision”.

Among the issues, Manua’s alleged that the decision was “arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or otherwise contrary to law”  in that the:

•     "Commission failed to correctly apply binding Commission precedent set forth” in a 1984 case “and instead applied an inapposite standard unsupported by law in affirming summary judgment with respect to each of the four alleged violations”.

•     “Commission failed to correctly apply the governing precedent of this Court”.

•     “Commission failed to correctly apply the summary judgment standard by disregarding record evidence creating a genuine issue of material fact with respect to each of the four alleged violations”.

Total penalty assessed by OSHA and upheld by the Commission as well as Administrative Law Judge Covette Rooney against Manua’s is $34,492. OSHA documents filed in court provide specific details of each alleged violation.

According to Rooney’s order, the OSHA citations alleged that 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.

“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, Manua’s 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.

As previously reported by Samoa News, APECS was contracted for crane service for a project at Manu’a’s Store. 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.