Labor Secretary Thomas E. Perez has requested the federal court to issue an ex parte warrant to inspect the Imperial Pacific Resort construction project in Garapan after an Occupational Safety and Health Administration tried, but was denied entry, to inspect the site to investigate the alleged death of a worker and other accidents that caused serious injuries.
U.S. District Court for the NMI Chief Judge Ramona V. Manglona granted Perez’s request, but MCC International Saipan Ltd. Co., which operates a construction contracting business at the project, filed an emergency motion on Friday to quash the warrant.
The hearing was set for Friday at 5pm. The case was unsealed on Friday at about 6pm. It’s not clear yet whether Manglona granted or denied MCC’s motion to quash.
Meanwhile, Imperial Pacific International, Ltd. downplayed last Friday’s protest by more than 50 Chinese workers, saying they are not involved in the issue and it is between two parties not connected with the Hong Kong-based conglomerate.
A group of construction workers gathered late Friday afternoon beside the site where the multimillion dollar Imperial Pacific Resort is being built, demanding sub-contractor Sino Great Wall International Engineering to pay their wages.
Their protest drew attention from tourists and other residents in the Garapan area, and at the same time caused a little bit of traffic.
The protesters are demanding to get paid from the hours that they worked to build the casino-hotel. They are claiming that Sino Great Wall International Engineering has not paid their wages after months of work.
Details were limited and Sino Great Wall had not issued any statement as of press time.
IPI clarified in a statement that they are not involved in the dispute. “IPI states that the protest involves a dispute between Sino Great Wall Int’l Engr. (CNMI) Co. LLC and its employees.”
“The dispute does not involve IPI. IPI reassures the CNMI that its ongoing construction of its multimillion-dollar facility is not affected and will continue as scheduled. IPI is hopeful that the parties will resolve the dispute amicably and in a timely manner,” added IPI on its statement.
Perez, through assistant U.S. attorney James J. Benedetto, said the Labor investigation arose due to an online complaint by a doctor working at the Commonwealth Health Center’s emergency room reporting serious injuries at the project on a daily basis.
The doctor reported that employees arrived at the hospital with two instances of amputations and two instances of falls that resulted in serious fractures, said Benedetto in Perez’s memorandum in support of the ex parte application for inspection warrant.
Ex parte means an application to the court by one of the parties to the action without the other party being present or heard.
In addition, Benedetto said, MCC International Saipan Ltd. Co. reported to OSHA that an onsite worker had a heart attack and died last Dec. 4.
On Friday, MCC, through counsels Robert J. O’Connor and Joseph E. Horey, filed the emergency motion to quash the warrant for inspection.
O’Connor and Horey said the warrant application was not supported by proper administrative probable cause.
Under the fourth amendment to the U.S. Constitution, a warrant is required for non-consensual administrative searches, including OSHA inspections, O’Connor and Horey said.
The lawyers said the warrant is extremely broad and covers the entire operation and entire premises.
“MCC is unaware of the existence of any complaint or any plan sufficient to justify issuance of warrant of such scope, and it therefore appears that the warrant has been issued without sufficient probable cause and should be quashed,” O’Connor and Horey said.
MCC is a corporation that operates a construction contracting business and conducts business that affects interstate commerce by using phone lines and internet services to order materials and supplies between China and Saipan, Benedetto said. In addition, MCC buy fuel for their vehicles such as cranes, trucks, loaders, and backhoes.
MCC and its contractors employ approximately 1,800 employees.
Benedetto said that, on Dec. 6, 2016, OSHA compliance safety and health officer Rick Foster arrived at the construction project to conduct a safety and health inspection following a reported death at the worksite and a complaint reported to OSHA.
Benedetto said that, according to Foster’s declaration, he spoke with Michael Fejeran, the site safety officer, who told Foster to wait until their legal representative could be contacted in order to attend the opening conference.
After an hour, Foster began his opening conference with Fejeran, safety consultant Javier Dayat, safety consultant David Rollera, Best Sunshine regulatory and compliance officer Deb Camacho, project manager for Gold Mantis Aldon Wong, and others identified as Chan Sam Gazy, Ren Deping Jasen, Liu Yuan Xiong, and Alvin Zhem.
Benedetto said following the opening conference, Chuck McDonald, legal counsel for Imperial Pacific Resort, arrived and Foster held another brief opening conference with him.
Benedetto said McDonald asked that Foster leave the room and after 30 minutes, he informed Foster that they would need more time to determine how to proceed.
Benedetto said McDonald then asked Foster to leave and no inspection was conducted.
Benedetto said MCC through counsel for the Imperial Pacific and MCC’s site safety officer, Fejeran, have refused to permit access by OSHA to its Imperial Pacific Resort Casino construction project for the purpose of a comprehensive safety and health inspection, although assured that such inspection would be conducted during regular working hours and at other reasonable times and within reasonable limits and in a reasonable manner as provided by the Occupational Safety and Health Act.
Benedetto said typically, the Labor secretary attempts to conduct OSHA inspections without securing judicial assistance in advance of the inspection.
Should an employer object to an inspection, however, resort to judicial process is sought through an ex parte application for a warrant for inspection.
Benedetto said OSHA regulations require employers to maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment.
The employers are then required to enter each injury and illness on the log and to complete the OSHA 300 logs and summaries in the detail provided in the OSHA 300 form and instructions.
Benedetto said it is not known whether MCC International has maintained these required records because OSHA has not been permitted entry to inspect such records.
The prosecutor said failure to conduct such an investigation impedes OSHA’s ability to ascertain that the employer is fulfilling his responsibility under the general duty clause of the Act to “furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Benedetto said OSHA’s mandate, to ensure safe and healthful working conditions, depends on its ability to conduct unscheduled inspections.
Benedetto said the Labor secretary contends that the right to an ex parte warrant for inspection is necessary to the fulfillment of the secretary’s enforcement duties.
In his declaration in court on Thursday, Foster stated that last Dec. 3, OSHA received an online referral from a doctor at CHC, providing information that a large number of workers were experiencing serious injuries at the construction site, including amputations and fractures.
On Dec. 4, the employer reported that a worker on the site had a heart attack and passed away.
Foster said he went to the site on Dec. 12 to investigate and observed what appeared to be workers exposed to fall hazards.
Foster attached in his declaration a spreadsheet reflecting about 80 serious injuries from that site logged at CHC from Jan. 1 through Dec. 6, 2016.
According to the spreadsheet, of the 80 injuries reported, majority or 43 were caused by being hit by a moving/falling item, followed by 12 from injuries by a power tool, nine from a fall (1-20 meters), and others.
Foster said a report received by OSHA from a treating physician at CHC stated that a worker from the MCC site had fallen and broken his back.
Foster said the treating physician recommended that he be hospitalized and not transported, but the injured person was not allowed to be admitted, and was promptly transported to the People’s Republic of China.
Foster said during his meeting with MCC last Dec. 6, McDonald stated to him that they need more time to determine what they should do and asked him to leave. McDonald stated he would contact him later in the day. Later in that afternoon, Foster said McDonald called him, stating that he and the MCC attorney would like for him to meet them at their office on Dec. 7, 2016, at 10am to discuss the situation.
Foster said he contacted his supervisor and proceeded to explain the refusal of entry by MCC. (with Jon Perez)