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. 12-1287 

CSA EQUIPMENT COMPANY, LLC,

Respondent

APPEARANCES:

Carla M. Casas, Attorney; Christopher D. Helms, Counsel; Stanley E. Keen, Regional 

Solicitor; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Atlanta, GA

 For the Complainant 

McCord Wilson, Attorney, Rader & Campbell, P.C.; Ron Signorino, Consultant, The 

Blueoceana Company, Inc.

 For the Respondent 

REMAND ORDER 

Before: ROGERS, Chairman; ATTWOOD, Commissioner. 

BY THE COMMISSION:

CSA Equipment Company, LLC, a stevedoring company, handles cargo at the Port of 

Mobile, Alabama. CSA’s work includes unloading cargo from vessels, as well as checking and 

transferring large steel coils. On December 29, 2011, a CSA employee was struck by a forklift

while checking a coil and later died from his injuries. At that time, CSA used a process whereby 

the coils were unloaded from a vessel and delivered by forklift to the doors of a CSA warehouse

where an employee, known as a “checker,” was stationed. The checker would check the coil, 

and then signal for a forklift to come and move it to a location inside the warehouse. 

Following an inspection, the Occupational Safety and Health Administration issued CSA 

a one-item serious citation alleging a violation of section 5(a)(1) of the Occupational Safety and 
Health Act of 1970, 29 U.S.C. §§ 654 (a)(1).1

 The citation alleged that CSA “failed to provide a 

clear view of the designated path of travel for the powered industrial trucks, exposing employees 

to crushing hazards while materials are checked into the warehouse,” and listed three alternative

abatement methods. After a hearing, Administrative Law Judge Sharon D. Calhoun issued a 

decision in which she affirmed the citation. She did not address the first two abatement methods

proposed by the Secretary in the citation, but concluded that the third method—setting up a 

separate “safe area” where employees could check coils free from forklift struck-by hazards—

was feasible, because she found that CSA had already implemented that method when it moved 

its coil-checking operation from the warehouse to the dock after the accident. In its petition for 

review, CSA contends that the judge erred in concluding that this is a feasible method of abating 

the cited hazard.2 For the following reasons, we remand this case to the judge for further 

proceedings consistent with this opinion. 

A method of abatement is feasible under section 5(a)(1) if the Secretary “demonstrate[s] 

both that the measure[] [is] capable of being put into effect and that [it] would be effective in 

materially reducing the incidence of the hazard.” Beverly Enters., Inc., 19 BNA OSHC 1161, 

1190, 2000 CCH OSHD ¶ 32,227, p. 48,981 (No. 91-3344, 2000) (consolidated) (emphasis 

added); see Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979) (“It is the 

Secretary’s burden to show that demonstrably feasible measures would materially reduce the 

likelihood that such injury as that which resulted from the cited hazard would have occurred.”). 

The Secretary is not required to show that the proposed abatement would completely eliminate 

the hazard. Acme Energy Servs., 23 BNA OSHC 2121, 2127, 2009-2012 CCH OSHD ¶ 33,236, 

p. 56,129 (No. 08-0088, 2012), aff’d, 542 F. App’x. 356 (5th Cir. 2013); Morrison-Knudsen 

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122, 1993-1995 CCH OSHD ¶ 30,048, p. 

1 Section 5(a)(1) of the Act requires that each employer “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.” 29 U.S.C. § 654(a)(1). 

To prove a violation of this provision, known as the “general duty clause,” the Secretary must 

show that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its 

industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; 

and (4) a feasible means existed to eliminate or materially reduce the hazard. Pegasus Tower, 21 

BNA OSHC 1190, 1191, 2004-2009 CCH OSHD ¶ 32,861, p. 53,077 (No. 01-0547, 2005). 

2 The other three elements the Secretary must establish to prove a violation of the Act’s general 

duty clause are not in dispute. CSA recognized that its employees were exposed to the hazard of 

being struck by a forklift, and that the hazard was likely to cause death or serious physical harm. 

2 

 
41,279 (No. 88-572, 1993). But if the proposed abatement “creates additional hazards rather 

than reducing or eliminating the alleged hazard, the citation must be vacated for failure to prove 

feasibility . . . .” Kokosing Constr. Co., 17 BNA OSHC 1869, 1875 n.19, 1995-1997 CCH 

OSHD ¶ 31,207, p. 43,727 n.19 (No. 92-2596, 1996); Royal Logging Co., 7 BNA OSHC 1744, 

1751, 1979 CCH OSHD ¶ 23,914, p. 28,997-98 (No. 15169, 1979) (finding it proper to reject 

proposed abatement methods that “cause consequences so adverse as to render their use 

infeasible”), aff’d, 645 F.2d 822 (9th Cir. 1981)). 

Here, the judge found that “[s]ince CSA implemented the abatement method without 

technological, economic, or other adverse consequences, the issue of abatement feasibility is 

essentially rendered moot.” She also found that “[f]or the same reason, CSA’s greater hazard 

defense fails.” In concluding that implementation of this abatement method resulted in no 

“adverse consequences,” the judge refused to consider testimony from CSA’s expert, John Faulk, 

who testified that implementing the abatement method exposed CSA employees to other hazards. 

She found Faulk’s testimony on this point “unreliable” because she viewed his testimony that 

“you couldn’t conduct cargo handling operations unless you had people on the ground and you 

had machines in the immediate area[,]” as in conflict with her factual finding that CSA had “in 

fact” completely separated the checkers from the forklifts while they check the coils at the dock. 

But Faulk did not testify that this abatement method could not be implemented nor did he 

suggest that CSA had not already done so. On the contrary, when the Secretary questioned Faulk 

about this specific method, he responded: “Reluctantly I believe they have [implemented it]. 

Yes.” Rather, according to Faulk, there are two “adverse consequences” to using this method: 

(1) checkers are still exposed to the “immediate area” where the forklifts operate, and (2) 

checking coils on the dock presents additional hazards—specifically, increased traffic from other 

moving vehicles such as small forklifts, 18-wheeler trucks, and road trucks, as well as hazards 

posed by overhead crane loads. 

In determining whether this proposed abatement method “will cause consequences so 

adverse as to render [its] use infeasible[,]” Royal Logging Co., 7 BNA OSHC at 1751, 1979

CCH OSHD at p. 28,997-98, the judge should have considered Faulk’s testimony in this regard, 

along with other evidence indicating that the proposed abatement method fails to materially 

reduce the cited hazard and in fact, introduces other hazards to which the checkers are exposed. 

See also Kokosing, 17 BNA OSHC at 1875 n.19, 1995-1997 CCH OSHD at p. 43,727 n.19

3 
(Secretary has the burden of rebutting evidence that abatement method presented a greater 

hazard); Western Mass. Electric Co., 9 BNA OSHC 1940, 1945 n.11, 1981 CCH OSHD 

¶ 25,470, p. 31,766 n.11 (No. 76-1174, 1981) (referring to principle articulated in Royal Logging

Co. that there is no greater hazard defense per se in case arising under section 5(a)(1), i.e., 

“evidence which would be relevant to the affirmative defense of ‘greater hazard’ under § 5(a)(2) 

is properly treated as rebuttal evidence to the Secretary’s case [for a § 5(a)(1) violation].”). 

Accordingly, on remand, the judge shall determine, based on all of the evidence in the 

record, whether the method of separating the checkers and the forklifts proposed by the Secretary 

will materially reduce or eliminate the cited hazard, taking into account whether implementing 

that method of abatement would create safety consequences so adverse as to render its use 

infeasible. If the judge concludes that the Secretary did not establish this as a feasible method of 

abatement, she shall determine whether the two other methods of abatement proposed by the 

Secretary are feasible.3 

 

SO ORDERED.

/s/ 

Thomasina V. Rogers 

Chairman

/s/ 

Cynthia L. Attwood 

Dated: March 26, 2014 Commissioner

3 The other two proposed (alternative) methods of abatement listed in the citation are: (1) the 

installation of mirrors on the forklift to allow an unobstructed view to the rear during backing; 

and (2) providing spotters to “safely marshal the forklifts to the rear so that a clear view of the 

path of travel can be maintained” and allow the operator to observe other traffic, personnel and 

safe clearances as prescribed by the “Safety Standard for Low Lift and High Lift Trucks” ANSI 

B56.1-2009, paragraph 5.3.6 (2007). 

4 

 
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 12-1287

CSA Equipment Company, LLC, 

 Respondent.

Appearances: 

Carla M. Casas, Esquire, U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia

 For the Complainant

Ronald L. Signorino, Consultant, The Blueoceana Company, Inc., Basking Ridge, New Jersey

For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun 

DECISION AND ORDER

CSA Equipment Company (CSA) is a Mobile, Alabama, based stevedoring company 

which engages in cargo handling at the Port of Mobile. On January 30, 2012, an Occupational 

Safety and Health Administration (OSHA) Compliance Safety and Health Officer (CSHO) 

conducted an inspection of CSA’s facility located at 55 State Docks Road, Mobile, Alabama.

The inspection was initiated due to the death of an employee which occurred on January 29, 

2012. The employee’s death resulted from injuries he sustained in an accident on December 29, 

2011. The employee was crushed while engaging in the steel coil operation at the facility. As a 

result of the inspection, the Secretary issued a serious citation to CSA on June 4, 2012. 

The serious citation alleges CSA violated the general duty clause set out at § 5(a)(1) of 

the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (Act) by failing to 

provide a clear view of the designated path of travel for powered industrial trucks. This failure 

exposed employees to crushing hazards as they checked materials into the warehouse. The 

Secretary proposed three feasible means of abatement which included installing mirrors on the 

forklift, providing spotters, and establishing a safe area separate from the forklift operating areas

5 
for checker/clerk4 employees to work in. The Secretary proposed a penalty of $6,300.00 for this 

alleged violation. 

CSA timely contested the citation. It contends the Secretary did not meet her burden of 

proof for the alleged general duty clause violation and that the general duty clause is 

inappropriately cited because a specific standard is applicable. CSA also argues that the methods 

of abatement proposed by the Secretary for the alleged general duty clause violation are not 

feasible. The undersigned held a hearing in this matter on December 20, 2012 and January 23, 

2013, in Mobile, Alabama. The parties filed post-hearing briefs on April 1, 2013. 

For the reasons discussed below, the citation is affirmed as serious and a penalty of 

$6,300.00 is assessed. 

Jurisdiction

At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the 

Commission pursuant to Section 10(c) of the Act. The parties also stipulated at the hearing that 

at all times relevant to this action, CSA was an employer engaged in a business affecting 

interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 10-

11). 

Background 

CSA is a stevedoring company which engages in cargo handling at the Port of Mobile in 

Mobile, Alabama. CSA’s employees are union employees provided by the International 

Longshoremen’s Association (ILA) Local 1410. The longshoremen provided by ILA include lift 

drivers, crane operators, and labor workers (Tr. 22, 122, 123). Some of the longshoreman 

employed by CSA work as cargo handlers who load and unload ships, railcars, trucks, and 

trailers on the marine terminal (Tr. 21). 

On December 29, 2011, one of CSA’s longshoremen working as a checker was injured 

when he was struck by a forklift and crushed between the counterweight of the forklift and a 

steel coil (Tr. 178). The employee succumbed to his injuries on January 29, 2012 (Tr. 230-231). 

OSHA initiated its inspection of the jobsite the next day, January 30, 2012. OSHA’s inspection 

was conducted by OSHA Compliance Officer Eliseo Hernandez (Tr. 177). During the

inspection, Hernandez was informed by CSA management that the deceased employee had been

4 The job titles “checker” and “clerk” will be used interchangeably in this decision. During the hearing, both terms 

were used to refer to employees tasked with the duties of checking the steel coils, although the job duties of the clerk 

appear to differ from those of the checker in that clerks performed administrative tasks. 

6 

 
struck by the rear end of a forklift and was caught between the rear end of the forklift and the 

steel coil (Tr. 178). 

The forklift believed to be involved in the accident is Forklift 16744, manufactured by 

Taylor (Tr. 29-30; Exh. C-3). It is a 30,000 pound machine (Tr. 31). Standard operating 

procedure when transferring steel coils was for the forklift operators to operate the forklift in 

reverse for better driver visibility (Tr. 33-34). Although visibility was better in reverse, the area 

directly behind the counterweight on the forklift posed an obstruction for the operator, creating a 

blind spot (Tr. 34). An alarm on the forklift sounds constantly when operating the forklift in 

reverse (Tr. 35). Checker interviews revealed that they were briefed to be aware of the blind 

spot behind the forklift and to be aware of, or to avoid, the rear of the forklift (Tr. 187). 

CSA checkers are responsible for checking the cargo as it comes off the vessel. The 

cargo was large, consisting of steel coils, rolls of plump paper, and bundles (Tr. 79). The coils 

range in height from knee high to taller than a checker (Tr. 80, 100). Checking the cargo 

involves retrieving the identification number from coils unloaded from the vessel and checking it 

with the bill of lading, manifest or check sheet. In order to obtain the identification number, 

sometimes checkers would have to bend or crouch to be able to read the label (Tr. 37). When 

checkers were bent down, they could not be seen by the forklift operator due to the counter 

weight. The checkers also check the coil to ascertain its condition by walking around the coil 

looking for gouges or dents in the metal (Tr. 36, 79, 80). After checking for damage, the 

checkers use a magic marker to write the location of the coil’s destination on the coil, so the 

forklift operators will know where to place the coils in the warehouse (Tr. 81). This coil 

checking procedure underwent changes before and after the accident. 

The coil checking procedure in place at the facility prior to the accident involved using a 

forklift to remove the steel coils from the ship and taking them to the door of the warehouse 

where a checker would be standing at the opening near the yellow safety posts. The forklift 

operator placed the steel coil on the ground for the checker (Tr. 131). The steel coils were 

delivered to the checker one at a time. The checker would then check the steel coil as described 

above. Once the checker finished, he or she would signal for a forklift operating inside the 

warehouse to retrieve the steel coil and take it to the proper place in the warehouse (Tr. 131, 135-

136, 179-180). The forklift inside the warehouse could not retrieve the steel coil until the 

checker let the operator know where the coil was to be placed. This procedure was changed in 

7 
December 2010 in response to the needs of a customer who wanted to have steel coils unloaded 

more quickly (Tr. 137-140, 143). 

The new procedure implemented in December 2010 was in use on the day of the 

accident. With the new procedure, clerks continued to be stationed by the doorway. However, 

once a coil was transported by the forklift to the doorway where the checker was located and

placed on the ground, the forklift operator immediately returned to the vessel to retrieve another 

coil and bring it to the checker (Tr. 39-40). With this new procedure, at times there were several 

coils (ten or more) in the area of the checker. Accumulations of ten coils occurred often (Tr. 98). 

The procedure resulted in forklifts being operated in the area where coils already delivered to the 

warehouse door were being checked (Tr. 84). There were no barriers to separate or protect the 

clerks from the forklift traffic, and there were no designated paths for the forklifts in the 

warehouse (Tr. 47-48, 322). The forklift route depended on the load, the way the warehouse was 

stacked, and where the checkers were in proximity to the forklifts (Tr. 187-188). CSA relied on 

the forklift operator and the clerk to communicate during the process. CSA also relied on 

employees staying out of the way and making sure they were not hit by the forklift (Tr. 323). 

After the accident the procedure was changed so that the coils are handled on the dock 

(Tr. 99). With this procedure, clerks are located shipside, outside of the warehouse. As soon as 

the coils are lowered from the ship to the ground by the crane and the crane moves away, the 

checker goes over to check the coils (Tr. 115-116). After the checking is completed shipside, the 

checkers walk to where the other longshoremen are located (Tr. 114). Forklifts do not approach 

to move the coils until all the coils are checked and the checkers have moved away (Tr. 95, 97). 

During the inspection, Hernandez took measurements which included measuring the 

blind spot created by the design of the Taylor 330, 30,000 pound forklift (Tr. 180, 186). The 

height of the counterweight in the rear of the forklift was measured to be 5.1 feet (Tr. 185; Exh. 

C-14). The smallest coil was measured to be 3.8 feet (Tr. 182; Exh. C-11).

As a result of Hernandez’s inspection, the Secretary issued the citation that gave rise to 

the instant case. 

8 
The Citation 

The citation alleges a serious violation of the general duty clause, § 5(a)(1) of the Act. 

Section 5(a)(1) requires each employer 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.” 29 U.S.C. § 654(a)(1). The citation 

alleges a violation of § 5(a)(1) as follows:

In warehouse North “A”: On or about December 29, 2011 and at times prior to; 

the employer failed to provide a clear view of the designated path of travel for the 

powered industrial trucks, exposing employees to crushing hazards while 

materials are checked into the warehouse.

As a feasible means of abatement, OSHA proposed: 

[I]nstallation of mirrors on the forklift that would allow for unobstructed vision to 

the rear during backing or to provide spotters to safely marshal the forklifts to the 

rear so that a clear view of the path of travel can be maintained and allow for the 

operator can [sic] observe for other traffic, personnel and safe clearances as 

prescribed by the ‘Safety Standard for Low Lift and High Lift Trucks’ ANSI 

 B56.1-2009, paragraph 5.3.6. Additionally, the employer could establish a safe 

area that was separate from the forklift operating areas where the checker/clerk 

 employees could perform their duties free from forklift struck-by hazards. 

 

DISCUSSION

Applicability of a Specific Standard

CSA contends that a specific standard is applicable which addresses the hazards for 

which the Secretary cites CSA. Therefore, CSA contends the Secretary has improperly cited a 

violation of § 5(a)(1) of the Act. The Secretary disagrees. It is well-settled Commission 

precedent that a citation under § 5(a)(1) of the Act is only proper if no specific standard applies. 

Applicability of a specific standard will preempt the general duty clause, with respect to 

conditions or practices expressly covered by the specific standards. Con Agra, Inc., 11 BNA 

OSHC 1141 (No. 79-1146, 1983). 

CSA contends that the standard found at § 1917.43(b)(8) is applicable and should have 

been cited in lieu of the general duty clause (CSA’s brief, p. 13). The standard found at § 

1917.43(b)(8) provides as follows regarding powered industrial trucks: 

The employer shall direct drivers to slow down and sound the horn at crossaisles 

and other locations were visibility is obstructed. 

9 
This standard is one of the Marine Terminals standards found in Part 1917. Subpart A of the 

Marine Terminals standards sets forth general provisions regarding the scope and applicability of 

these standards. Section 1917.1 provides in relevant part: 

(a) The regulations of this part apply to employment within a marine terminal as 

defined in § 1917.2, including the loading, unloading, movement or other 

handling of cargo, ship’s stores or gear within the terminal...All cargo transfer 

accomplished with the use of shore-based material handling devices shall be 

regulated by this part. 

Part 1917, therefore, is applicable to the cargo handling operations performed by CSA. Further, 

the applicability provision of § 1917.43 provides in relevant part that the “section applies to 

every type of powered industrial truck used for material or equipment handling within a marine 

terminal.” Therefore, the forklifts and other powered industrial trucks used for material handling 

by CSA, at the marine terminal, would be generally covered by the standard. But the inquiry 

does not stop there. As set forth above, in assessing the applicability, the conditions or practices 

expressly covered by the specific standard are determinative. Con Agra, Inc., id. CSA is of the 

mistaken belief that because a standard in general applies, that every subsection of the standard 

also applies regardless of the conditions or practices expressly covered by the specific standard. 

 The specific standard found at § 1917.43(b)(8) sets forth conditions and practices that 

must be considered in determining whether that standard applies. It is applicable where visibility 

is obstructed such as at crossaisles and other locations. Evidence adduced at the hearing 

addressed the meaning of the phrase “where visibility is obstructed” used in § 1917.43(b)(8). 

The Secretary’s expert, Paul Rossi, Safety and Health Specialist in the Office of Maritime 

Enforcement for OSHA, testified that the regulation did not apply because the standard applies to 

intersections or other areas where visibility is obstructed (Tr. 422). Rossi was very familiar with 

this standard because he was part of an association that submitted comments into the rule making 

record relating to Part 1917, and specifically the provisions covered in § 1917.43(b)(8) (Tr. 388, 

390-392). It is not disputed that the obstruction at issue in this case was not at a crossaisle or 

other location, but instead was due to the counterweight that was a part of the forklift. This type 

of obstructed visibility is not covered by this specific standard, and a review of Part 1917 does 

not reveal any other applicable standard which would preempt the general duty clause citation. 

The standard found at § 1917.43(b)(8) is not applicable. Section 5(a)(1) applies to the cited 

condition. 

Elements of a § 5(a)(1) Violation 

10 
Section 5(a)(1) of the Act mandates that each employer “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.” 29 U.S.C. § 654(a)(1). To establish a violation of the 

general duty clause, the Secretary must show that: (1) a condition or activity in 

the workplace presented a hazard; (2) the employer or its industry recognized the 

hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) 

a feasible means existed to eliminate or materially reduce the hazard. Pegasus 

Tower, 21 BNA OSHC 1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No. 

01-0547, 2005). 

Erickson Air-Crane, Inc., 2012 WL 762001 at *2 (No. 07-0645, 2012). 

In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary must also 

establish the employer had either actual or constructive knowledge of the hazardous condition. 

Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South 

Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHD 1089 (5th Cir. 2013). 

Whether an Activity or Condition at the site Constituted a Hazard 

The Secretary contends that when operating the forklift in reverse, the operator’s view to 

the rear was obstructed and that employees working in the area of the forklift were exposed to 

the hazard of being struck by the forklift (Secretary’s brief, p.18). The record evidence reveals 

that an employee was struck by a forklift and fatally injured. 

OSHA’s investigation revealed forklifts were operating in proximity to checkers while 

they were checking the coils. No barriers precluded the forklifts from coming into contact with 

the checkers as they performed their duties. At the time of the accident, there were six forklifts 

in operation at the facility, three inside the warehouse and three outside on the dock (Tr. 39-40, 

88, 187). While performing their tasks, checkers sometimes crouched down beside the coils and, 

while doing so, they were not visible to the forklift operators, subjecting them to being struck by 

the 30,000 pound equipment. These were the conditions at the time the checker was struck by a 

forklift on December 29, 2011. 

Michael Crimson, employed as a checker/clerk by CSA since August 2011, testified at 

the hearing. According to Crimson, whenever a forklift approached he could hear it so he tried 

to make sure he was seen (Tr. 85). At times there could be more than one forklift accessing his 

pile of coils (Tr. 86). Crimson testified that although forklifts would not come up to the coil he 

was working on, if there were other coils in his area, the forklift would come up and retrieve 

those coils (Tr. 87). Forklifts operated both forward and in reverse, in proximity to Crimson, to 

11 
retrieve coils and move them away from him (Tr. 92). The undersigned finds the conditions and 

activities at the jobsite were hazardous and that employees were exposed to the hazard of being 

struck by a forklift. 

Whether CSA or its Industry Recognized that the Activity or Condition was Hazardous

A recognized hazard is a practice, procedure or condition under the employer’s control 

that is known to be hazardous by the cited employer or the employer’s industry. Pelron Corp., 

12 BNA OSHC 1833, 1835 (No. 82-388, 1986). The Secretary contends that both CSA and the 

marine cargo handling industry recognized the hazard. 

Regarding whether CSA recognized the hazard, the evidence adduced at the hearing 

shows that CSA implemented the coil checking procedure in place at the time of the inspection, 

and was aware that there were no boundaries between the forklifts and the checkers/clerks. Its 

foremen and general superintendents attended briefings before each offloading operation during 

which the hazards of working near forklifts as well as the blind spots behind the forklifts were 

discussed (Tr. 191-192, 285-286). CSA management warned employees to watch out for the 

forklifts (Tr. 46, 51). Also, as reflected in minutes from CSA safety meetings, CSA was aware 

that forklifts hit posts during the coil operation procedure. During those meetings concern was 

expressed that if not careful, the next time a person could be struck by a forklift (Tr. 55, 57; Exh. 

C-7). Mark Bass, President of ILA Local 1410, testified that he had called CSA General 

Superintendent Miles Covington with concerns about the procedure which was in place at the 

time of the accident. He told Covington he was concerned that the clerks and checkers were in 

harms way (Tr. 140). CSHO Hernandez determined that at least three CSA employees were 

exposed to the hazard (Tr. 194). Undoubtedly, CSA recognized there was a hazard of employees 

being struck by a forklift as employees were in proximity to the forklifts while they were 

engaged in the coil checking procedure. 

In addition to CSA’s recognition of the hazard, the record supports a finding that the 

marine cargo handling industry also recognized the hazard. Paul Rossi, OSHA’s Office of 

Maritime Enforcement Safety and Health Specialist, was qualified as an expert in the field of 

safety and marine cargo handling operations to testify whether the industry recognizes struck-by 

hazards and whether CSA should have protected its employees from said hazards (Tr. 335, 347). 

Rossi referred to Exhibit C-18 as demonstrating the industries’ recognition of the hazard. Rossi 

testified that Exhibit C-18 was not produced by OSHA, but instead was developed by the 

12 
Maritime Advisory Committee which is comprised of various experts and others in the marine 

cargo handling industry as well as the shipyard industry. According to Rossi, the document 

addresses how to prevent accidents, particularly involving container handling (Tr. 350-352). 

Rossi testified that the marine cargo handling industry recognized the hazard of employees being 

struck by mobile equipment when working in proximity to the equipment (Tr. 360-361). The 

undersigned finds that both CSA and the marine handling cargo industry recognized the cited 

hazard. 

Whether the Hazard Caused or was Likely to Cause Death or Serious Physical Harm

There is no question, and the facts of this case demonstrate, the hazard cited in this case 

caused death. An employee who worked as a checker was hit by a forklift and crushed between 

the forklift and a steel coil (Tr. 178). Approximately thirty days after the accident, the employee 

died (Tr. 177, 230-231; Exh. R-10). The violation is properly characterized as a serious 

violation. The Secretary has established the third element of his burden of proof. 

Whether Feasible Means Existed to Eliminate or Materially Reduce the Hazard

The Secretary proposed three abatement methods to alleviate the hazard of being struck 

by the forklift: (1) installing mirrors on the forklift to compensate for the obstructed view when 

operating in reverse; (2) providing spotters to secure a clear path of travel to the rear as set forth 

in ANSI B56.1-2009; or (3) establishing a safe area for the checkers/clerks by separating them 

from the forklifts (Citation and Notification of Penalty). CSA disputes that a feasible means 

exists to eliminate or materially reduce the hazard and takes issue with each of the abatement 

methods proposed by the Secretary. Nonetheless, after the accident, CSA implemented the third

abatement method proposed by the Secretary of separating the forklift operations from the clerks. 

As a result, CSA now requires its clerks to work shipside rather than at the warehouse, and 

requires them to check all coils once they are lowered from the ship. Once the checking is 

completed, the clerks move to a safe area away from the coils, and only then are forklifts allowed 

to retrieve the coils (Tr. 115-116). 

The Secretary only is required to set forth one feasible means of abatement. The evidence 

supports a finding that the abatement method implemented by CSA is feasible; therefore, the 

undersigned will not address the feasibility of the other two proposed abatement methods. 

CSA contends that checkers and forklifts cannot always be separated because of the 

nature of the marine cargo handling operations. The issue is not whether they always can be 

13 
separated, but whether they can be separated during the coil checking operation so that they are 

not exposed to the hazard of being struck by a forklift. The fact that CSA has implemented a 

procedure separating the forklifts from the checker/clerks is in direct conflict with its argument 

that this cannot be done. No evidence was adduced at the hearing to show that separating the 

forklifts from the checker/clerks was technologically or economically infeasible or impractical. 

Further, Rossi testified that it could be done (Tr. 370-372). 

Eustis John Faulk testified as an expert for CSA. He has an extensive background in 

marine terminal cargo operations and applicable OSHA regulations as well as the industry’s 

consensus standards (Tr. 436-441). Faulk was qualified as an expert to testify generally 

regarding occupational safety and health at marine terminals and to render opinions regarding the 

accident in this case, the OSHA standards, consensus standards and the manner in which the 

investigation was conducted (Tr. 443-444). Faulk addressed the feasibility of separating 

checker/clerks from the forklifts and testified that it is not feasible because “you couldn’t 

conduct cargo handling operations unless you had people on the ground and you had machines in 

the immediate area.” (Tr. 462). The fact that CSA is in fact separating the checkers/clerks and 

forklifts and there is no evidence that CSA is adversely affected by doing so, renders Faulk’s 

testimony unreliable. Therefore, the undersigned credits Rossi’s testimony on this issue over 

Faulk’s. Since CSA implemented the abatement method without technological, economic, or 

other adverse consequences, the issue of abatement feasibility is essentially rendered moot. For 

the same reason, CSA’s greater hazard defense fails. A feasible means of abatement is 

established.

14 
Whether CSA had Knowledge of the Violative Condition

An essential requirement for meeting the Secretary’s burden of proof is establishing the 

employer had knowledge of the hazard. “As part of the Secretary’s prima facie case, [he] must 

show that the employer had actual knowledge of the violation or could have discovered it with 

the exercise of reasonable diligence.” Otis Elevator Co., 21 BNA OSHC at 2207. 

The Secretary contends CSA had actual knowledge of the violative conditions and it 

should have known of the conditions. According to the Secretary, knowledge is established 

because CSA implemented the procedure in place at the time of the accident and the conditions 

were in plain view (Secretary’s brief, p. 24-26). In further support, the Secretary asserts the 

general superintendent had knowledge of the conditions in the warehouse because he was the one 

who determines how things were going to be offloaded and directed the operation (Tr. 195). 

CSA does not dispute knowledge. 

The record evidence shows that for business reasons, CSA implemented a coil checking 

procedure which placed employees in proximity to operating forklifts. There were no barriers 

separating the employees from the forklifts and no designated paths of travel for the forklifts. 

Forklifts operate in reverse to retrieve coils although a blind spot on the forklift obstructs the 

view from the rear of the forklift. CSA was aware that employees crouched to check the coils 

and when doing so might not be seen by the forklift operator. Issues associated with forklifts 

striking posts and employees’ safety around forklifts were discussed during management safety 

meetings. Actual knowledge is established. 

Further, because the conditions were in plain view, CSA could have discovered the 

conditions with reasonable diligence. “Reasonable diligence” includes the employer’s 

“obligation to inspect the work area, to anticipate hazards to which employees may be exposed, 

and to take measures to prevent the occurrence.” Frank Swidzinski Co., 9 BNA OSHC 1230, 

1233 (No. 76-4627, 1981). The Commission has held that “[r]easonable steps to monitor 

compliance with safety requirements are part of an effective safety program.” Southwestern Bell 

Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000 (citations omitted), aff’d without 

published opinion, 277 F.3d 1374 (5th Cir. 2001). Constructive knowledge is established. 

For the foregoing reasons, the undersigned concludes the Secretary has met his burden of 

proving that CSA failed to provide a clear view of the designated path of travel for powered 

industrial trucks, exposing employees to crushing hazards while materials are checked into the 

15 
warehouse. The Secretary has met his burden of proving the alleged violation in this case. The 

violation is affirmed. 

Penalty Determination

The Secretary proposed a penalty of $6,300.00 in this case. The Commission, in 

assessing an appropriate penalty, must give due consideration to the gravity of the violation and 

to the size, history and good faith of the employer. See section 17(j) of the Act. The violation 

was classified as serious because injuries involving permanent disability or death can be 

reasonably expected if struck by a forklift (Tr. 197). The gravity of the violation was determined 

to be of high severity with greater probability because employees were working near a hazard 

that could produce a serious physical injury or death if an accident occurred, and because the 

accident resulted in a fatality (Tr. 197, 302-303). 

In consideration of the number of employees CSA employs, a 10 percent adjustment to 

the penalty was applied, resulting in the proposed penalty of $6,300.00 (Tr. 303-304; Exh. C-16). 

No adjustments were made for good faith, due to the high severity and greater probability 

ratings, or for history, as CSA had not been inspected within the past five years (Tr. 309-310). In 

consideration of the statutory penalty factors, the undersigned finds the proposed penalty of 

$6,300.00 is appropriate. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER

Based upon the foregoing decision, it is ORDERED that: 

Item 1 of Serious Citation 1, alleging a violation of § 5(a)(1) of the Act, is affirmed, and a 

penalty of $6,300.00 is assessed.

SO ORDERED. 

 

/s/ 

Date: November 19, 2013 SHARON D. CALHOUN 

Atlanta, Georgia Judge 

16