United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 14-0812

MOORHEAD BROTHERS, INC.,

Respondent.

Appearances: Wayne P. Marta, Esq.

U.S. Department of Labor, Office of the Solicitor, Cleveland, Ohio,

For the Complainant

Corey V. Crognale, Esq.

Ice Miller LLP, Columbus, Ohio, 

For the Respondent

Before: William S. Coleman

Administrative Law Judge

DECISION AND ORDER

On January 13, 2014, a truck owned and operated by the Respondent, Moorhead 

Brothers, Inc. (MBI), was backing up on a two-lane rural road near London, Ohio, when it struck 

and killed an MBI employee who was on foot. 

The Occupational Safety and Health Administration (OSHA) conducted an inspection 

and on April 8, 2014, issued a one-item Citation and Notification of Penalty (Citation) to MBI 
2

that alleged a serious violation of the construction industry standard at 29 C.F.R. 

§ 1926.601(b)(4)(ii). Section 1926.601(b)(4) provides:

No employer shall use any motor vehicle equipment having an 

obstructed view to the rear unless: 

(i) the vehicle has a reverse signal alarm audible above the 

surrounding noise level or: 

(ii) the vehicle is backed up only when an observer signals that it is 

safe to do so.

The Citation alleged that MBI violated this standard because the truck’s “operator did not have 

an unobstructed view to the rear of his vehicle and was not directed during the backing operation 

by an observer.”

1

 1 Section 1926.601(b)(4) is a specification standard that prescribes two alternative means 

of compliance. The Citation, which the Secretary’s complaint incorporated by reference, 

expressly addressed only one alternative (use of an observer) and not the other (a reverse signal 

alarm). Nevertheless, the issues actually tried at the hearing included whether MBI had 

successfully employed either alternative – the use of an observer or the audibility of the truck’s

alarm. 

MBI has not argued that the Citation’s description of the alleged violation is flawed by 

failing to expressly allege a failure to comply with the reverse signal alarm alternative. All the 

same, the record would amply support the conclusion that a post-hearing amendment would not 

be inappropriate, because the parties consented to trying the issue of whether MBI complied with 

the cited standard through that alternative. See McWilliams Forge Co., Inc., 11 BNA OSHC 

2128, 2129 (No. 80-5868, 1984) (finding post-hearing amendment of pleadings pursuant to Fed. 

R. Civ. P. Rule 15(b) “is proper only if two findings can be made – that the parties tried an 

unpleaded issue and that they consented to do so”) (emphasis in original). 

The issue of the compliance with the reverse signal alarm alternative was first clearly 

joined by MBI’s motion for summary judgment, which was filed over three months before the 

hearing. MBI sought summary judgment on the ground that there was no genuine dispute of 

material fact that the truck’s reverse signal alarm was operable on the day of the accident. (By 

order issued about six weeks before the hearing, the undersigned denied that motion, concluding 

that dispute of fact existed as to (1) whether the vehicle’s reverse alarm sounded, or (2) that if it 

did sound, whether it was audible above the surrounding noise level.) Further, in MBI’s 

prehearing statement filed about two weeks before the hearing, the attorney for MBI identified 

the operability of the reverse signal alarm as being a focus of the testimony that MBI intended to 

present at the hearing. (Respondent’s Prehearing Submission, p. 2). And in his opening 

statement at the hearing, MBI’s attorney focused on anticipated evidence regarding the 
3

MBI timely contested the Citation, and the Executive Secretary of the Occupational 

Safety and Health Review Commission (Commission) docketed the matter on May 30, 2014. 

The Commission’s Chief Judge thereafter assigned the matter to the undersigned for hearing and 

decision. The undersigned conducted an evidentiary hearing in Columbus, Ohio, on April 21 &

22, 2015. The parties thereafter simultaneously filed post-hearing principal briefs as well as 

reply briefs, with briefing completed on July 10, 2015. 

The truck involved in the accident was equipped with a reverse signal alarm. The 

determinative issue is whether the Secretary satisfied his burden to prove by a preponderance of 

the evidence that the truck’s reverse signal alarm was not operating properly such that it was not 

audible above the surrounding noise level. As described below, the evidence on that issue is in 

equipoise, and consequently the quantum of evidence falls short of what the Secretary needs to 

meet his burden. The Citation is accordingly vacated.

FINDINGS OF FACT

A preponderance of the evidence established the following:

1. MBI is a site-clearing contractor headquartered in Blacksburg, South Carolina. MBI 

also has a business location in Cambridge, Ohio. MBI specializes in site development and rightof-way clearing for railroads, power lines, and gas pipeline easements. (T. 359). MBI employs 

between 40 and 100 employees depending on its projects at any given time. (T. 360). MBI’s 

business affects interstate commerce. 

2. In late 2013, a utility company contracted with MBI to clear a 40-mile long right-ofway for the erection of a new electricity transmission line in Madison County, Ohio. This

project was known as the London-Tangy Project. (T. 202, 361). About two miles of the 40-mile 

 

operability of the reverse signal alarm. (T. 20-25). Finally, a central theme of the post-hearing 

briefs of both parties was compliance with the cited standard’s reverse signal alarm alternative.
4

right-of-way entailed the widening of an existing utility easement, while the remainder involved 

the initial clearing of a newly established utility easement. (T. 122-23, 202, 261, 361-63). 

3. On the morning of January 13, 2014, an MBI crew went to a location on Simpson 

Road (Township Road 104) near London, Ohio, that was to serve as a staging point for MBI’s 

heavy equipment. Simpson Road is a two-lane paved road about two miles long that meanders 

through farmland on a northwest to southeast axis, with termini at U.S. Route 42 to the northwest 

and State Road 142 to the southeast. At the location of the fatal accident, Simpson Road is about 

22 feet wide, with grassy shoulders that slope down to form drainage ditches on both sides. 

(Exs. C-4, C-5, C-6, C-7 & C-8; T. 28-32). 

4. Four MBI employees arrived at the Simpson Road site around 7:30 a.m. These four 

employees were the crew Foreman (Nick Yurgevich), a newly hired Laborer (Ryan Godby) who 

was designated to assist the Foreman, and two other workers (Brent Garner and Alvaro 

Gutierrez) who were to serve as Flaggers for controlling public traffic on Simpson Road. (T. 

118, 201-02, 203-04, 207, 211-12, 221; Ex. C-20; Ex C-12, p. 1). The Foreman was the 

employee who was killed later that morning.

5. Among the initial activities of these four employees was the placement of about ten 

used tires to the side of the road at the staging point. (Ex. C-12, p. 2). (MBI would later be 

delivering tracked vehicles to the staging point -- the used tires would be laid down on the road 

for the tracked vehicles to drive over in order to avoid damaging the pavement (Ex. C-12, pp. 2-

3; T. 259).)

6. At about 8:30 a.m., two other MBI employees arrived at the site in separate vehicles

-- the Driver of the truck involved in the fatal accident (Thomas Davis), and the Project Manager 

(Alan Vuchak). (T. 118, 201-02, 203-04, 207, 211-12, 221; Ex. C-20; Ex C-12, p. 1).
5

7. The vehicle involved in the fatal accident was a 2002 Sterling model LT9500 threeaxle flatbed straight truck that was equipped with a knuckle-boom truck crane. (Exs. C-9, C-14; 

T. 257). The truck was equipped with a reverse signal alarm that was designed to emit a high 

pitched beeping sound whenever the truck was put in reverse gear. (T. 345-46, 350).

8. Before the day of the accident, ten timber mats had been loaded onto the truck’s 

flatbed in Cambridge. (Ex. C-15, p. 1; T. 288-89). A single timber mat consists of about five or 

six pieces of hardwood lumber that are bolted together to create a mat that is about sixteen feet 

long, four feet wide, and eight inches high. (T. 277-78). (The photographs at Exhibits C-9 and 

C-10, show the ten timber mats on the truck’s flatbed. (T. 284).) During clearing operations, the 

timber mats are placed over ditches, gullies, wetland areas and the like for heavy equipment to 

drive over to avoid damaging the earth. (T. 123).

9. Before departing Cambridge for Simpson Road on the day of the accident, the Driver 

was required to conduct a pre-trip inspection of the truck. As part of that pre-trip inspection, the 

Driver was required to inspect the truck’s reverse signal alarm. The Driver prepared a written 

record of his inspection that indicated that he had inspected the vehicle and that no deficiencies 

had been identified. (Ex. C-23, p. 6; T. 292-94). The Driver departed Cambridge about 6:30 

a.m. on the approximate 100-mile trip to the staging point on Simpson Road. 

10. When the Driver arrived at the staging point, the Foreman instructed him to drive the 

truck to where the loose tires had been placed on the side of the road and to prepare to offload 

the timber mats there. (Ex. C-15, p. 2; T. 257, 278-79). The Driver complied and drove 

southeast on Simpson Road, stopping the truck at the location identified. Both the Foreman and 

the Laborer who was assisting the Foreman were on foot near where the truck stopped. (Ex. C11).
6

11. After the truck stopped, the two Flaggers took their respective positions on Simpson 

Road to control traffic. The Flaggers were positioned about 300 feet away from the truck in 

opposite directions on the road. (Ex. C-15, p. 2). 

12. The Flaggers, Foreman, and Driver all were able to communicate by radio. (Ex. C11; T. 231-32). To transmit from an individual radio, a user had to depress the transmission 

button, but no manipulation was required to receive and hear transmissions. (T. 119, 231-32). 

13. After stopping the truck, the Driver exited the truck to untie the straps that had 

secured the timber mats to the flatbed. 

14. As part of the operation of offloading the timber mats by using the truck’s 

knuckleboom, two stabilizers (or outriggers) located on either side of the truck would have to be 

deployed to stabilize the truck. Deployment of the stabilizers would immobilize the truck on the 

roadway. (T. 279). The Flaggers would “close the road down to through traffic” during 

offloading of the timber mats. (T. 206-7, 195-96, 257). 

15. With the two Flaggers in place and the truck stopped on the road, but before the 

Driver had begun offloading the timber mats, the Project Manager arrived at the worksite in his 

personal vehicle. (T. 209-11). He drove past the Flagger stationed to the southeast and drove his 

vehicle to where the truck was stopped, where he spoke with the Foreman and the Driver. (T. 

211). The Project Manager informed them that the adjacent property owner wanted MBI to 

access his property about 50 yards behind where the truck was stopped, and that the Driver 

would need to back up the truck “a little bit” to offload the timber mats there. (T. 213-14; Ex. C11, pp. 3-4; Ex. C-12, p. 2; Ex. C-15, p. 2; Ex. C-18). 
7

16. The Project Manager then drove away from where the truck was stopped and 

traveled the approximate 300 feet to where the northwest Flagger was stationed. (T. 221-23, 

211-14). 

17. After the Project Manager had driven away, the Foreman instructed the Driver to 

back up the truck to the point that the Project Manager had identified. (Ex. C-15, p. 2). The 

Foreman also instructed the Laborer who was assisting the Foreman to move some of the used 

tires on the side of the road to that same area. (Ex. C-12, p. 2).

18. When the Driver last saw the Foreman before the accident, the Foreman was on the 

side of the road, in front and to the right of the truck, and he was picking up two of the loose 

tires. (Ex. C-11, p. 4; Ex. C-15, pp. 2-3). When the Laborer helping the Foreman last saw the 

Foreman before the accident, the Foreman was in front of the truck and was rolling loose tires. 

(T. 119; Ex. C-12, p. 3).

19. The truck had an obstructed view to the rear. (T. 20, 108; Ex. C-10). The 

temperature was about 40oF, it was windy, and there was no precipitation. (T. 256; Ex. C-4; Ex. 

C-12, p. 3; Ex. C-24, p. 19). The windows of the truck’s cab were closed. (Ex. C-15, p. 5). 

There was no public traffic, construction equipment, farm equipment, or any other extraneous 

noise source in the vicinity of the truck. (T. 255-56). 

20. No one was acting as an observer to instruct the Driver that it was safe to move the 

truck in reverse, and the Driver did not raise any concern that there was no observer. The Driver 

looked alternately in both side mirrors and did not see any person or any vehicular traffic. He

put the truck in reverse and began to back up the truck, continuing to alternate his view out the 

two side mirrors. (Ex. C-11, p. 6-7; Ex. C-15, p. 3). The truck struck the Foreman after 

traveling in reverse for about 25 feet, while the Foreman was in the roadway moving loose tires. 
8

(Ex. C-11, pp. 6-7). The Foreman had not transmitted by his radio or otherwise informed the 

Driver that he had moved to behind the truck, and the Driver was unaware that the Foreman had 

moved from in front of the truck to behind it. (Ex. C-11, p. 9). 

21. When the Driver realized he had run over something he stopped the truck, exited the 

truck and saw the Foreman and the loose tires that the Foreman had been moving under the 

truck’s four left rear wheels. (Exs. C-11 & C-15; T. 313). The Foreman died before he could be 

extricated from under the truck. (T. 90).

22. The Driver could not recall the speed at which the truck was moving when it struck 

the Foreman. (Ex. C-11, p. 7). The Driver did not recall hearing the reverse signal alarm while 

the vehicle was in reverse. (Ex. C-11, p. 9; Ex. C-15, p. 5).

23. The Laborer helping the Foreman move the loose tires did not see the accident and 

he did not recall hearing anything before the accident. (Ex. C-12, pp. 3-4). 

24. At the time of the accident, the Project Manager and the two Flaggers were all about

300 feet away from the truck. None of them recalled hearing the truck’s reverse signal alarm 

before the accident. (Ex. C-11; T. 221-22, 228, 254-55).

25. The Project Manager believed that the Foreman had the responsibility to serve as the 

observer for the Driver whenever the truck was moving in reverse. (T. 230-33, 281-82).

26. Trooper Frost of the Ohio State Highway Patrol arrived at the accident scene and 

interviewed the Driver as part of the state’s investigation. The trooper asked the Driver, “Does 

your truck have an audible warning when in reverse?” The Driver responded, “Yes, but 

sometimes it doesn’t work.” The trooper then asked the Driver whether MBI was “aware of this 

problem.” The Driver replied, “No, because they only fix the big problems.” (Ex. C-11, p. 6; T. 

47). The trooper then asked the Driver 16 more questions that were unrelated to the operation of 
9

the reverse signal alarm, and then the trooper asked the Driver, “Did [the Foreman] yell or did 

you hear anything” before he felt the truck impact the Foreman. The Driver responded simply, 

“No.” (Ex. C.11, p. 9). The Driver never said to Trooper Frost that the reverse signal alarm was 

not working on the day of the accident. (T. 64). 

27. Trooper Brian Alloy of the Ohio State Highway Patrol was also involved in the 

state’s accident investigation. Trooper Alloy is designated as a Motor Carrier Enforcement 

Officer, and in that capacity he is involved in enforcing state and federal department of 

transportation (DOT) motor carrier safety regulations for commercial vehicles. (T. 72). Trooper 

Alloy inspected the truck for compliance with applicable DOT regulations at the scene of the 

accident between 11:05 a.m. and 12:21 p.m. (T. 76). 

28. Before Trooper Alloy began his vehicle inspection, he learned from Trooper Frost 

that the Driver had said that the truck’s reverse alarm did not always work. (T. 49). This 

prompted Trooper Alloy to check the operability of the reverse signal alarm, even though the 

state and federal regulations that he is involved in enforcing do not require commercial vehicles 

to be equipped with operable reverse signal alarms. (T. 79, 290, 292). During his inspection, 

Trooper Alloy observed that when the truck was put in reverse gear, its white backup lights 

illuminated and its reverse signal alarm sounded. (T. 81, 85-88). He annotated his written 

inspection report consistent with these observations, as follows: “Back up/reverse lights and 

audible warning operable.” (Ex. R-6, p. 2). 

29. The state highway patrol completed its accident investigation and cleared the 

accident site around 12:21 p.m. (Ex. R-5, p. 1). The Driver was driven back to Cambridge in 

another vehicle by MBI’s Safety Manager (Kiley Mullinax), who had driven to the worksite 

from Cambridge after learning of the accident. (Ex. C-15, p. 5). 
10

30. On January 13, 2014, after the truck’s return to MBI’s Cambridge location, the 

Safety Manager tested the truck’s reverse signal alarm and it was operable. (T. 347). 

31. While the Ohio State Highway Patrol was conducting its accident investigation, it 

notified the OSHA Area Office in Columbus of the fatal accident. (T. 64-65). Compliance 

officer (CO) Stanley Kauchak was dispatched to investigate. The CO arrived at Simpson Road 

at about 12:30 p.m., only minutes after the highway patrol had cleared the accident site and 

everyone had departed. (T. 168; Ex. R. 5, p. 1). A local farmer showed the CO the location on 

Simpson Road where the accident had occurred, and the CO went there and took some 

photographs of the scene. (Exs. C-4 through C-8 inclusive). The CO then undertook to contact 

personnel from MBI in an effort to formally open an inspection with MBI that day. (T. 127-28; 

Ex. R-1, ¶4).

32. The CO was able to reach MBI’s Project Coordinator (Shawn Greer) by telephone

sometime that afternoon and informed him that he wanted to open an inspection. (Ex. C-2, p. 2). 

The Project Coordinator responded that he would check with his supervisor and that he would 

telephone the CO after having done so. After some time passed without hearing back, the CO 

telephoned the Project Coordinator. The Project Coordinator then told the CO that he and all the 

other MBI personnel were traveling back to Cambridge after “a rough day for the company,” and 

that they would not reverse course to meet with the CO that day. (T. 127-28; Ex. C-2, p. 2). 

33. The following day, January 14, 2014, the CO spoke by telephone with the President 

of MBI, who was in South Carolina, to discuss the matter of formally opening an inspection with 

MBI. The President told the CO that if he went to MBI’s office in Cambridge the personnel 

there would give the CO “full cooperation.” (T. 128-29). As a result, the CO again spoke with 

the Project Coordinator by phone. The Project Coordinator suggested that the CO travel to 
11

MBI’s office in Cambridge that day, and he told the CO that MBI would cooperate fully in the

CO’s investigation. As a result, the CO traveled to MBI’s location in Cambridge that day.

34. Before the CO arrived at MBI’s Cambridge location on January 14, 2014, MBI’s 

Safety Manager again tested the vehicle’s reverse signal alarm, and again determined that it was 

operable. (T. 347).

35. The CO arrived at MBI’s Cambridge office on January 14, 2014, and formally 

opened the OSHA inspection. The CO interviewed some of the MBI employees who had been at 

the worksite at the time of the fatal accident, but he did not interview the Driver, who had been 

admitted to the hospital due to mental health concerns arising out of the fatal accident. (T. 129-

30, 184; Ex. R-1, ¶5). The CO took photographs of the truck involved in the fatal accident. 

(Exs. C-9 & C-10). The CO did not request that the operation of the reverse signal alarm be 

demonstrated. 

36. At the time of his visit to Cambridge on January 14, 2014, the CO did not know that 

the Driver had told Trooper Frost that the reverse alarm sometimes did not work. The CO also 

did not know that Trooper Alloy had tested the alarm and found it to be operable. (T. 193). 

During the CO’s visit on January 14, 2014, no one from MBI volunteered that the Safety 

Manager had twice tested the reverse signal alarm at Cambridge, once on January 13 and again

on January 14, 2014, and that it had been operable both times. (T. 175-78, 194-95). At the 

conclusion of the CO’s visit, the Safety Manager asked the CO whether MBI could return the 

truck to service, and the CO responded affirmatively. (T. 347). 

37. After formally opening the inspection on January 14, 2014, the CO contacted the 

Ohio State Highway Patrol and requested the reports that the state patrol had completed in 

connection with its investigation. Sometime before January 27, 2014, the CO received from the 
12

highway patrol the written records of the statement that the Driver provided to Trooper Frost, 

when the Driver said that the reverse signal alarm did not always work. The CO also received a 

one-page vehicle inspection report that Trooper Alloy had prepared, which bore the pagination

“Page 1 of 1.” (Ex. C-13). That one-page document did not contain any reference to Trooper 

Alloy having tested the reverse alarm as part of his inspection. (Ex. C-13). 

38. The Ohio State Highway Patrol also generated another version of Trooper Alloy’s 

report that was comprised of three pages, not just one page like the version of the report provided 

to the CO. The CO did not receive a copy of this three-page version of the report during the 

course of his investigation. The third page of the three-page version of that report contains

Trooper Alloy’s observation that the reverse signal alarm was operable. (T. 131-34, 173; Exs. C13 & C-14; Ex. R-1, ¶7; Ex. R-5, p. 3). 

39. On January 27, 2014, the CO returned to MBI’s Cambridge office and interviewed 

the Driver. (T. 136; Ex. C-15). The CO asked the Driver about the operability of the truck’s 

reverse signal alarm, and the Driver said that “sometimes he hears the alarm and sometimes he 

doesn’t,” and then added that the reason he might not have heard the alarm was that “[i]n 

summer he runs [with] windows down and in winter the windows are left up.” (Ex. C-15, pp. 4-

5; T. 177-78). The Driver told the CO that he did not remember hearing the alarm on the day of 

the accident (Ex. C-15, pp. 4-5), but he never said that the reverse signal alarm had not worked

on the day of the accident. (T. 181). The Driver also told the CO that no one had ever served as 

a spotter or observer for him when he backed up the truck. (Ex. C-15, p. 3; T. 138-39). The CO 

did not ask the Driver whether he had performed a pre-trip inspection of the truck on the day of 

the fatal accident, and did not ask whether he had tested the operability of the reverse signal 

alarm as part of any such pre-trip inspection. (Ex. C-15). 
13

40. Also while in Cambridge on January 27, 2014, the CO asked MBI’s Safety Manager

to demonstrate the truck’s reverse signal alarm for him. The Safety Manager put the truck in 

reverse and twice backed it up a short distance. The CO was standing to the rear of the truck,

and he did not hear the reverse alarm sound either time. (T. 191-93). From his position in the 

cab of the truck, the Safety Manager also did not hear the alarm sound. (T. 333-34). The Safety 

Manager then exited the cab and moved “up and under the back end of the truck” near the 

speaker, and from that nearby position he was able to hear the alarm, but it was emitting only a 

“very faint sound.”

2

 (T. 333-36). The temperature at the time was about 17°F, with winds 

making it feel near zero degrees, and there was ice on the alarm’s speaker, which led the Safety 

Manager to conclude that the speaker could not vibrate and emit noise at its normal volume

because it had “frozen up” after having been returned to service on January 14, 2014. (T. 198, 

333-36, 348-51). MBI replaced the truck’s reverse signal alarm later that day. (T. 337).

41. The Driver never reported to MBI that the reverse signal alarm sometimes did not 

operate. (Ex. C-11). The Driver had a commercial driver’s license and he knew that if safety 

equipment did not work consistently, that it was his responsibility to report it for repair. (T. 

343). 

42. On December 16, 2014, the attorney for MBI secured an affidavit from Trooper 

Alloy that included a copy of the trooper’s three-page vehicle investigation report that included 

the trooper’s note, “Back up/reverse lights and audible warning operable.” (Ex. R-7). The 

existence of the trooper’s three-page report first became known to the CO and to the attorney for

the Secretary in the course of the CO’s deposition on December 17, 2014. (T. 172-73). 

 2 In an affidavit that had been filed in support of MBI’s motion for summary judgment,

the Safety Manager stated that the reverse alarm had been “barely audible” during the 

demonstration on January 27, 2014. (Mullinax Affidavit dated 1/15/2015, ¶ 9). 
14

DISCUSSION

The parties have stipulated to facts that establish the jurisdiction of the Occupational 

Safety and Health Review Commission (Commission) and coverage of the Occupational Safety 

and Health Act of 1970, 29 U.S.C. §§ 651-678 (the Act). (T. 13-14). The evidence of record is

consistent with those stipulations. 

To prove a violation of an OSHA safety or health standard promulgated under § 5(a)(2) 

of the Act, the Secretary must establish by a preponderance of the evidence that (1) the cited 

standard applies, (2) there was a failure to comply with the cited standard, (3) employees had 

access to the violative condition, and (4) the employer knew or could have known of the 

condition with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 

2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980). 

A preponderance of the evidence is “that quantum of evidence which is sufficient to 

convince the trier of fact that the facts asserted by a proponent are more probably true than 

false.” Id., 9 BNA OSHC at 2131, n. 17. Circumstantial evidence may be sufficiently probative 

to establish a fact by a preponderance of the evidence. See, e.g., Okland Constr. Co., 3 BNA 

OSHC 2023, 2024 (No. 3395, 1976) (deferring to Commission judge’s finding of fact where the 

circumstantial evidence supported both the judge’s reasonable inference as well as a contrary 

reasonable inference). Indeed, “[c]ircumstantial evidence is not only sufficient, but may also be 

more certain, satisfying and persuasive than direct evidence.” Desert Palace, Inc. v. Costa, 539 

U.S. 90, 100 (2003) (internal quotation marks omitted), quoting Rogers v. Mo. Pac. R. R. Co., 

352 U.S. 500, 508, n. 17 (1957).
15

Applicability of § 1926.601(b)(4)

The cited standard, § 1926.601(b)(4), is in 29 C.F.R. part 1926. Part 1926 is applicable 

to construction work. The record evidence establishes that MBI’s work on the London-Tangy 

Project was “construction work,” so that the standards of part 1926 were generally applicable. 

The starting point for determining whether an employer is engaged in construction work 

is 29 C.F.R. § 1910.12. Paragraph (a) of that section provides that the “standards in part 1926 of 

this chapter are adopted as occupational safety and health standards under section 6 of the Act 

and shall apply, according to the provisions thereof, to every employment and place of 

employment of every employee engaged in construction work.” Paragraph (b) of that section 

defines the term “construction work” in part as follows: “For purposes of this section, 

Construction work means work for construction, alteration, and/or repair, including painting and 

decorating.” Paragraph (d) of § 1910.12 further defines the term “construction work” to 

“include[ ] the erection of new electric transmission and distribution lines and equipment, and 

the alteration, conversion, and improvement of the existing transmission and distribution lines 

and equipment.”

The London-Tangy Project involved the erection of a new electric transmission line, and 

thus falls squarely within the definition of “construction work” set forth in § 1910.12(d). 

Commission precedent holds that “Part 1926 applies ... to employers who are actually 

engaged in construction work or who are engaged in operations that are an integral and necessary 

part of construction work.” Snyder Well Serv., Inc., 10 BNA OSHC 1371, 1373 (No. 77-1334, 

1982); see also Nat’l Eng’g & Contracting Co. v. OSHRC, 838 F.2d 815, 818 (6th Cir. 1987)

(citing Snyder Well in upholding Commission’s determination that employer was engaged in 

construction work). MBI’s work in clearing the right-of-way in preparation for the erection of 

the new electricity transmission line was an integral and necessary part of the London-Tangy 
16

Project. MBI’s work on that project was thus “construction work” as defined in § 1910.12, so 

that the standards prescribed in 29 C.F.R. part 1926 applied to that work.

Paragraph (a) of § 1926.601 limits the scope of the cited standard to motor vehicles “that 

operate within an off-highway jobsite site, not open to public traffic.” MBI contends that the 

standard does not apply because the fatal accident occurred when the truck was backing up on a 

public road, and thus was not operating “within an off-highway jobsite, not open to public 

traffic.” (Resp’t Br., 10). This argument is rejected. 

After the truck came to a stop, the Flaggers were set up to control public traffic. As part 

of the unloading of the timber mats, the truck’s stabilizers would have to be deployed, which 

would immobilize the truck in the roadway. The Flaggers would halt all public traffic while the 

truck was immobilized in the road and the Driver unloaded the timber mats to the side of the 

road (off the pavement) by using the truck’s knuckle boom. (T. 206-7, 195-96, 257, 279). 

Because the truck’s delivery of the timber mats would involve closing the road to public traffic at 

least temporarily, the truck would necessarily be operating within an “off-highway jobsite, not 

open to public traffic” within the meaning of § 1926.601(a). Moreover, because the truck’s 

knuckle boom was to transfer the timber mats to the side of the road, and thus off the public 

road, the truck was operating within an “off-highway jobsite.” It does not matter that at the time 

of the accident, the Flaggers had apparently not yet temporarily closed the road to public traffic, 

and the truck was not yet actually offloading the mats to an off-highway location. All that 

matters is that the vehicle involved in the fatal accident at times operates on off-highway jobsites 

not open to public traffic. Gerard Leone & Sons, Inc., 9 BNA OSHC 1819, 1820-21 (No. 76-

4105, 1981) (concluding that § 1926.601 “applies to trucks that operate off highway even if they 

do not operate exclusively off highway, regardless of where they are generally operated or where 
17

they are operated at a particular time,” and holding that “section 1926.601 applies to motor 

vehicles ... used on construction sites regardless of whether they are being used on or off 

highway at any particular time”); see also AIC Marianas, 24 BNA OSHC 1716, 1720 (No. 12-

0484, 2012) (ALJ) (concluding that where worksite adjacent to public roadway was cordoned off 

with traffic cones so that there was no public traffic, worksite was “off-highway” and “not open 

to public traffic” under § 1926.601(a)). 

Because the truck is a motor vehicle with an obstructed view to the rear that operates

within an off-highway construction site, § 1926.601(b)(4) applies.

Proof of Non-compliance with § 1926.601(b)(4)

It is worth noting at the outset that while the “circumstances of an accident may provide 

probative evidence of whether a standard was violated,” Williams Enters. Inc., 13 BNA OSHC 

1249, 1253 (No. 85-355, 1987), “the mere occurrence of an accident does not compel the 

conclusion that a standard had been breached.” Concrete Constr. Corp., 4 BNA OSHC 1133, 

1135, n. 3 (No. 2490, 1976). 

To establish non-compliance with § 1926.601(b)(4), the Secretary must prove that MBI 

did not comply with either of the alternative means of compliance the standard allows. E.g., 

H. B. Zachry Co. (Int’l), 8 BNA OSHC 1669, 1675 (No. 76-2617, 1980). MBI asserts that it 

complied with both alternative means of compliance.

MBI asserts first that the evidence establishes that MBI had designated the Foreman to 

act as the dedicated observer for the Driver, and that MBI therefore complied with the “observer” 

alternative permitted by § 1926.601(b)(4)(ii). (Resp’t Br., 9-10). While there is evidence that 

MBI had designated the Foreman to act as the observer for the Driver of the backing truck (e.g., 

T. 281, 317-18), MBI recognizes that the evidence showed that the Foreman did not perform any 

duties as a spotter/observer for the backing truck. (Resp’t Br., 9-10). Although MBI may have 
18

intended to comply with the standard by having the Foreman act as an observer, MBI’s intent to 

comply is not the equivalent of actual compliance. The only reasonable view of the evidence is 

that MBI did not comply with the standard because no person actually performed the duties of an 

observer under § 1926.601(b)(4)(ii).3 

Turning to the issue of whether MBI complied with the “audible alarm” compliance 

alternative of § 1926.601(b)(4)(i), the Secretary argues that the evidence “showed it was more 

likely than not that the back-up alarm had failed to sound” at the time of the fatal accident. 

 3 MBI raised the affirmative defense of unpreventable employee misconduct in its 

answer, and indicated at the close of the hearing that it was continuing to interpose that defense. 

(T. 387-88). 

At the close of the hearing, the undersigned cautioned both attorneys that arguments not 

made in their respective principal post-hearing briefs would be deemed abandoned. (T. 391-93). 

The undersigned expressly informed MBI’s attorney that “if in your brief in chief you fail to 

present any complete argument respecting the affirmative defense of [un]preventable employee 

misconduct, then I will at that point deem that affirmative defense to be abandoned, and ... I 

won’t address it.” (T. 391-92).

Nowhere in its two post-hearing briefs does MBI even use the term “unpreventable 

employee misconduct” or attempt to demonstrate that it established any of the four elements of 

that affirmative defense. Danis-Shook Joint Venture XXV, 319 F.3d 805, 812 (6th Cir. 2003)

(describing the elements of unpreventable employee misconduct affirmative defense); Stark 

Excavating, Inc., 24 BNA OSHC 2215, 2220 (No. 09-0004, 2014) (consolidated) (describing the 

employer’s “more rigorous” burden of proof when “unpreventable supervisory misconduct” is 

involved). 

However, MBI’s principal brief does include the following argument: “Since [the 

Foreman] failed to properly perform his duties as a spotter, so too, should the Citation be vacated 

in MBI’s favor.” (Resp’t Br., 10). This solitary sentence is the only place in MBI’s closing 

briefs that even vaguely alludes to the unpreventable employee misconduct defense. This

nebulous conclusory allusion in that single sentence is insufficient to avoid forfeiture or 

abandonment of the affirmative defense. Nat'l Oilseed Processors Ass'n v. OSHA, 769 F.3d 

1173, 1181-82 (D.C. Cir. 2014) (ruling that a claim that was mentioned in a brief “only in a 

cursory manner” was forfeited); L&L Painting Co., 23 BNA OSHC 1986, 1989, n. 5 (No. 05-

0055, 2012) (treating an issue not argued in brief to be abandoned). 

Even if the defense had not been abandoned or forfeited, the record evidence was 

insufficient to make even a prima facie case on the defense. At the close of the evidence, the 

Secretary argued there was insufficient evidence to support the affirmative defense of 

unpreventable employee misconduct, and moved to strike the defense on that ground. The 

undersigned denied that motion to strike, but erred in doing so. (T. 386-93).
19

(Sec’y Br., 15). The Secretary relies principally on (1) the Driver’s statement to Trooper Frost

on January 13, 2014, that the truck’s reverse alarm “sometimes ... doesn’t work,” and that he did 

not hear anything before the truck struck the Foreman, (2) the Driver’s statement to the CO on 

January 27, 2014, that he did not hear the alarm at the time of the fatal accident and that 

“sometimes he hears the alarm and sometimes he doesn’t,” and (3) the failure of the reverse 

alarm to emit an audible noise in the CO’s presence on January 27, 2014. (Exs. C-11 & C-15; T. 

191-93). 

The Driver did not testify at the hearing. The Secretary introduced in evidence the 

Driver’s out-of-court statements to Trooper Frost and to the CO as statements of a partyopponent pursuant to Fed. Rule Evid. 801(d)(2)(D). (T. 42-44). Rule 801(d)(2)(D) provides that 

an out-of-court statement is not hearsay evidence by definition if the statement is offered against 

a party-opponent and “was made by the party’s agent or employee on a matter within the scope 

of that relationship and while it existed.” The evaluation of the reliability of an employee’s 

statement that is admissible under Rule 801(d)(2)(D) was addressed in Regina Constr. Co., 15 

BNA OSHC 1044, 1048 (No. 87-1309, 1991), where the Commission noted that such statements 

“are not inherently reliable,” but identified several factors that may make them “likely to be 

trustworthy,” including: 

(1) the declarant does not have time to realize his own self-interest 

or feel pressure from the employer against whom the statement is 

made; (2) the statement involves a matter of the declarant's work 

about which it can be assumed the declarant is well-informed and 

not likely to speak carelessly; (3) the employer against whom the 

statement is made is expected to have access to evidence which 

explains or rebuts the matter asserted. 

It is entirely possible that a person in the Driver’s position would attempt to deflect 

culpability for the tragic accident in response to questions from law enforcement. It is significant 
20

that in contrast to his statement to Trooper Frost on the day of the accident, the Driver did not tell 

the CO that the alarm did not always work. Rather, he told the CO that he did not always hear 

the alarm, explaining that he keeps the truck’s windows closed in the winter.

If the Driver had testified at the hearing, he likely would have been thoroughly 

questioned about instances of the alarm malfunctioning prior to the fatal accident. He likely 

would also have been queried about the written record of the inspection of the truck that he 

signed on the day of the accident, and about what precisely he did in the conduct of that 

inspection. (Ex. C-23, p 6). Such probing questioning might well have provided significant 

evidence to support the conclusion that the alarm was not operating audibly at the time of the 

accident, but it could also have lent support to the opposite conclusion. And obviously, because 

the Driver did not testify, there was no opportunity to observe his demeanor or to assess the 

reliability or credibility of his recollections. 

It is impossible to assess what impact the Driver’s testimony might have had on the

critical issue of whether the alarm malfunctioned at the time of the accident. The Driver’s bare 

statement that the alarm “sometimes ... doesn’t work” begs many questions that have been 

neither asked nor answered. 

Credible direct evidence establishes that the alarm did not malfunction during any of the 

three separate times it was tested in the near aftermath of the accident. This evidence included 

Trooper Alloy’s testimony that the alarm was operable when he tested it during his inspection 

shortly after the accident. Although Trooper Alloy’s testimony appeared to be heavily 

influenced by the fact that his written report stated that the alarm was operable, he testified with 

confidence that “if I put in my notes that it worked, then it worked.” (T. 86-88). That testimony 

was decisive, reliable, and credible. (T. 86-88). Moreover, Trooper Alloy’s observation that the 
21

alarm was operable during his inspection is consistent with the un-contradicted and credible 

testimony of MBI’s Safety Manager that the alarm worked properly when he inspected it in 

Cambridge on both January 13 and 14, 2014. (T. 347).

There is no direct evidence that the alarm was not operating properly at the time of the 

accident. Neither the Driver nor anyone else present at the time of the accident is on record as 

stating that the reverse alarm did not sound on the day of the accident. The fact that no one 

present at the time of the accident could recall having heard the reverse alarm constitutes only 

circumstantial evidence that the alarm may have malfunctioned and was not audible above the 

surrounding noise level. 

A finding on whether the alarm was operating properly at the time of the accident turns 

wholly on circumstantial evidence. There is indeed circumstantial evidence that supports the 

reasonable inference that the alarm was not audible above the surrounding noise at the time of 

the accident, most significantly the following: (1) that moments after the accident, the Driver 

reported that the alarm “sometimes ... doesn’t work” and that he had not heard anything at the 

time of the accident; and (2) that the Driver’s report of inconsistent operation of the alarm was 

corroborated two weeks after the accident when the CO and Safety Manager experienced the 

alarm malfunction. 

However, given that the alarm was audible when tested immediately after the accident, 

and that there is no direct evidence that the alarm was not audible above the surrounding noise at 

the time of the accident, the circumstantial evidence likewise supports the reasonable inference 

that the truck’s alarm did sound and was audible above the surrounding noise.

4

 

 4 Sadly, backover fatalities at construction worksites happen even when a construction 

vehicle’s reverse alarm is functioning properly. In material that OSHA caused to be published in 

the Federal Register in 2012, OSHA noted that out of 25 construction-related backover fatalities 
22

Based upon the foregoing, the undersigned concludes that the circumstantial evidence 

that the alarm malfunctioned at the time of the fatal accident, is in equipoise with the 

circumstantial evidence that it did not malfunction. Consequently, the Secretary has failed to 

meet his burden of persuasion on that issue. See Stanley Roofing Co., Inc., 21 BNA OSHC 1462, 

1464 (No. 03-0997, 2006) (concluding that Secretary did not meet her burden of proof on a 

matter where the evidence was “essentially in equipoise”); Schaffer v. Weast, 546 U.S. 49, 56 

(2005) (observing that the “burden of persuasion” answers “which party loses if the evidence is 

closely balanced”).

The Secretary having thus failed to satisfy his burden to prove that MBI did not comply 

with § 1926.601(b)(4)(i), the Citation must be vacated.

ORDER

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Federal Rule of Civil Procedure 52(a). If any finding is in actuality a 

conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be 

deemed so, any label to the contrary notwithstanding. 

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that

Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.601(b)(4), is VACATED.

/s/

WILLIAM S. COLEMAN

Administrative Law Judge

Date: September 29, 2015

 

that were described in data compiled by NIOSH, “the backup alarm on the vehicle was 

functioning properly” in 15 of them, “suggesting that backup alarms may not be sufficient to 

prevent backover incidents.” Reinforced Concrete in Construction, and Preventing Backover 

Injuries and Fatalities, 77 Fed. Reg. 18973, 18980 (March 29, 2012).