On
Appeal from Superior Court, Orange Unit, Civil Division
Michael J. Harris, J.
Annika
Green, Department of Labor, Montpelier, for
Petitioner-Appellee.
Pietro
J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman &
Manitsky, P.C., Burlington, for Respondent-Appellant
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
ROBINSON, J.
¶
1. Following a workplace accident involving one of its
trucks, Eustis Cable Enterprises, LTD (Eustis) appeals the
civil division's affirmance of the Vermont Occupational
Safety and Health Act (VOSHA) review board's
determination that Eustis failed to meet VOSHA's
motor-vehicle requirements and the resulting assessment of a
fine for the violations. We conclude that the evidence and
findings do not support the board's conclusion that
Eustis was on notice of the violation and accordingly reverse
and strike the citation alleging a violation of 29 C.F.R.
1926.601(b)(14) and associated penalty.
¶
2. During road-construction operations on March 11, 2016, a
truck owned or operated by Eustis, which was participating in
the construction activity, struck and killed a flagger for
Green Mountain Flaggers. The truck hit the flagger when the
driver began backing it up in the southbound breakdown lane
on Route 7 in Middlebury. In response to the accident, the
Commissioner of Labor investigated and ultimately cited
Eustis for two alleged violations of 29 C.F.R. §
1926.601: a failure to ensure that the vehicle's backup
alarm was audible above the surrounding noise level, pursuant
to § 1926.601(b)(4); and a failure to assure the safety
devices were in a safe condition at the beginning of each
shift, pursuant to § 1926.601(b)(14).[1] The Commissioner
assessed $11, 340 in fines ($5670 for each violation).
¶
3. At the hearing in April 2017, the VOSHA hearing officer
dismissed the first alleged violation of §
1926.601(b)(4) (failure to ensure that the backup alarm was
audible) on the basis that VOSHA's evidence on this point
was insufficient. But the hearing officer affirmed the second
violation of § 1926.601(b)(14), finding that Eustis knew
or should have known that the truck was not checked at the
beginning of the shift to assure that safety devices,
including the backup alarm, were in a safe operating
condition. The officer assessed a $5670 penalty. Notably,
with respect to Eustis's knowledge of the driver's
failure to conduct the requisite safety check on the day in
question, the hearing officer wrote the following:
While an argument could be made that constructive knowledge
of the violation could be imputed to Eustis by virtue of
Carrier's status as foreman, it is unnecessary to do so
here. Carrier's failure to prepare and submit
"Driver Vehicle Inspection Reports" for six of the
thirty-four workdays preceding the accident should have put
Eustis on notice of something amiss.
The
hearing officer based this conclusion on the fact that, for a
six-week period in 2016, Eustis submitted a completed
"Driver Vehicle Inspection Report" for each workday
except for six.
¶
4. Eustis filed a petition for discretionary review by the
VOSHA review board, challenging the hearing officer's
determinations that the truck was "off-highway"
under 29 C.F.R. § 1926.601(a), that Eustis failed to
conduct an inspection of the truck, and that Eustis knew of
the violation. On the first point, Eustis argued that because
the truck was operating in the breakdown lane of a public
highway, it was not operating within an "off-highway
jobsite, not open to public traffic" and thus did not
qualify as a "motor vehicle" for purposes of the
OSHA regulation. It further argued that VOSHA's evidence
that the Eustis driver had failed to conduct a daily safety
check, which was based primarily on the absence of a written
record of the check, was insufficient where no written record
is required, and the driver testified that he would have
conducted a check that morning. Finally, Eustis argued that
its failure to provide Driver Vehicle Inspection Reports for
the six days in question meant nothing because the driver at
issue did not work on all those dates.
¶
5. In July 2017, the VOSHA review board upheld the hearing
officer's findings and conclusions and denied
Eustis's request for discretionary review. The VOSHA
review board concluded that because the jobsite was closed to
public traffic, it was an "off-highway jobsite"
subject to 29 C.F.R. § 1926.601(a). It determined that
the hearing officer's conclusion that the driver had
failed to conduct the daily inspection was supported by the
absence of written documentation of the daily check, in
contrast to other days, and that the hearing officer could
reasonably conclude that the driver's testimony was
vague. Finally, with respect to Eustis's liability for
its driver's conduct, the board rejected Eustis's
argument that the absence of Driver Vehicle Inspection
Reports for the six days in question meant nothing because
the driver did not work on those dates. The board explained,
"this argument is based on facts and evidence not
considered or admitted at the hearing, so cannot be
introduced, created, or relied upon after the hearing to
support an argument to grant the petition for review."
It thus concluded that "the decision of the Hearing
Officer in this matter . . . becomes a final order of the
Review Board."
¶
6. Eustis appealed the board's decision to the civil
division, asserting that: (1) the Eustis truck was not a
motor vehicle covered by 29 C.F.R. § 1926.601 at the
time of the accident because the vehicle was located on a
highway, and therefore did not fall within §
1926.601(a); (2) the evidence did not support the conclusion
that Eustis's driver failed to conduct a safety
inspection; and (3) the evidence did not establish that
Eustis had knowledge of the violation. The civil division
affirmed.
¶
7. Eustis now makes the same arguments to this Court. We
conclude that the board's conclusion that the
driver's violation can be imputed to Eustis is not
supported by the record, and thus the Commissioner's case
against Eustis cannot stand. We therefore need not decide
whether Eustis's truck was a motor vehicle covered by 29
C.F.R. § 1926.601, or whether there was sufficient
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