United States of America 

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 14-0772

Cooper T. Smith, Inc., 

 Respondent.

Appearances: 

 

Josh Bernstein, Esquire, U.S. Department of Labor, Office of the Solicitor, Dallas, Texas 

For the Secretary 

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

 For the Respondent 

BEFORE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

This proceeding is before the Occupational Safety and Health Review Commission 

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 

(2014) (the Act). Cooper T. Smith, Inc., (CTS) provides maritime cargo services. On November 

18, 2013, a CTS employee was killed when she was crushed by shifting cargo in the hold of a 

barge CTS was loading on the Mississippi River in Darrow, Louisiana. Compliance Safety and 

Health Officer (CSHO) James Nevers conducted an inspection of the site for the Occupational 

Safety and Health Administration (OSHA) on November 18 and 19, 2013. 

Based upon CSHO Nevers’s inspection, the Secretary of Labor issued a one-item Citation 

and Notification of Penalty to CTS on April 8, 2014. Item 1 of the Citation alleges a serious 

violation of 29 C.F.R. § 1918.24(e)(1) for failing to provide a ladder or equivalent safe access to 

and from the cargo hold of the barge. The Secretary proposes a penalty of $7,000.00 for Item 1. 

CTS timely contested the Citation. The Court held a hearing in this matter on December 

22, 2014, in Baton Rouge, Louisiana. The parties stipulate the Commission has jurisdiction and 

that CTS is a covered employer (Tr. 11). Based on the record and the stipulations, the Court 
2 

finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act, and CTS is 

a covered employer under § 3(5) of the Act. The parties filed simultaneous post-hearing briefs 

on March 13, 2015. CTS contends the Secretary failed to establish it had knowledge of the 

violative condition. CTS also asserts the affirmative defense of unpreventable employee 

misconduct.1

 

For the reasons discussed below, the Court affirms Item 1 of the Citation and assesses a 

penalty of $7,000.00. 

Background

CTS provides various maritime services, including offloading and loading cargo. On the 

morning of November 18, 2013, a Monday, a CTS crew was preparing to continue offloading 

cargo from a ship, the Yangtze Xing Jin, to a barge on the Mississippi River in Darrow, Louisiana 

(Tr. 100). The cargo comprised numerous sacks (also referred to as bags), each weighing 

“anywhere from a ton to two tons.” (Tr. 33.)2

 The barge was approximately 100 feet long and 24 

feet wide (Tr. 82-83). The hold of the barge was 12 to 14 feet deep (Tr. 108). 

A CTS crew had begun offloading the cargo from the Yangtze Xing Jin over the 

weekend.3 Offloading a ship “can typically last from five to ten days, depending on the amount 

of cargo, the weather . . ., and other variables.” (Tr. 102.) When the Monday morning shift 

began at 8:00 a.m., the hold (also referred to as the hopper) of the barge was partially filled with 

six rows of sacks. The first row of sacks was stacked six high, the second row was stacked five 

high, and so on, in stair-step fashion to the sixth row, which was a single sack high (Exh. C-3, p. 

3; Tr. 249, 254). 

The CTS employees present at the start of the shift were the Shift Supervisor, the Barge 

Foreman, the Crane Operator, and two laborers, Employee A and Employee B. The Shift 

 

1To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed 

abandoned. 

2None of the witnesses who testified identified the contents of the sacks in his testimony. The Crane Operator 

stated, “[W]hat was in the sacks, I don’t know.” (Tr. 34.) In his Inspection Report, CSHO Nevers identified the 

contents of the sacks as Cenospheres, “hollow ceramic microspheres used as a filler in cement to produce concrete.” 

(Exh. C-2, p. 7.) 

3The Barge Foreman had not worked on the barge at issue the previous day and had not participated in the partial 

loading of the barge (Tr. 46). The Crane Operator and Employee A, but not Employee B, had worked on the barge 

the previous day (Tr. 29, 82). 
3 

Supervisor supervised the overall offloading operation for CTS (Tr. 126-127). The Barge 

Foreman reported to the Shift Supervisor and directly supervised Employees A and B (Tr. 42, 

103). The Shift Supervisor was on the deck of the Yangtze Xing Jin, which was 30 to 40 feet 

higher than the barge. From that position, the Shift Supervisor could observe “a large portion of 

the barge that’s on the off side of the derrick rig.” (Tr. 128.) The Crane Operator was on the 

barge, operating the crane (Tr. 129). 

The crew who worked the previous shift had placed hatch covers (lightweight fiberglass 

covers used to protect cargo from the elements) over the stacked sacks in the barge hold because 

it had been raining (Tr. 25-26). The first task the Barge Foreman assigned Employee A and 

Employee B the morning of November 18 was to hook hatch covers so the Crane Operator could 

remove them from the cargo in the hold (Tr. 26). The CTS employees worked at this task until 

“a little after 10:00.” (Tr. 44.) At some point, Employee B entered the hold of the barge by 

climbing down the stacked sacks, using them as stairs (Tr. 27). After Employee B used the 

stacked sacks to enter the hold, Employee A did the same. Employee B described the tragic 

event that followed: 

I see her climb into the barge and she starts to walk down the sacks to get to the 

bottom. In the process of her walking down the sacks she steps on the 3rd row 

from the bottom and the sacks shifted. When they shifted she regained her 

footing and then she sat down on it. She [slid] off the sack and was standing but 

the sack she was sitting on kept sliding down and came down on top of and 

pinned her in a hole between the floor and the sack. 

* * * 

I hollered for anybody. I went to see if she was breathing but she wasn’t 

responding so I climbed the sacks to get out of the barge. I got the attention of a 

guy on the ship; he got the attention of the crane operator. Then guys working on 

the deck of the dock came on the barge and we started moving sacks from around 

her so we could get to her. After I removed the sacks from around her I got out of 

the barge. I don’t know how long it took the ambulance to get there and I wasn’t 

there when they removed her from the barge. 

(Exh. C-14, pp. 3-5.) Employee A was fifty-six years old. She had started working for CTS in 

February 2013, approximately nine months before her death (Exhs. C-2, p.6; R-10). 

CSHO Nevers arrived at the site later that day. He held an opening conference with 

Byron Borne, CTS’s Regional Loss Control Director (Exh. C-2, pp. 2, 17). CSHO interviewed 
4 

employees and took photographs of the hold of the barge. Upon his recommendation, the 

Secretary issued the instant Citation on April 8, 2014. 

The Citation 

The Secretary has the burden of establishing the employer violated the cited standard. 

To prove a violation of an OSHA standard, the Secretary must show by a 

preponderance of the evidence that (1) the cited standard applies; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees had access to 

the violative condition; and (4) the cited employer either knew or could have 

known with the exercise of reasonable diligence of the violative condition. 

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). 

Item 1: Alleged Serious Violation of § 1918.24(e)(1) 

Alleged Violation Description

The Citation alleges: 

Ladders or steps of adequate strength were not furnished when it was necessary to 

obtain access to or from a stowed deckload or other cargo, and no other safe 

means of access were available.

a) River Marker Mile 175; On or about 11/18/13, the employer failed to ensure 

employees used a ladder to access the barge. Employees accessed the barge by 

climbing down 1000 pound sacks of bulk concrete additive stacked on top of each 

other in the barge. The 1000 pound sacks were stacked up to six high which 

exposed employee(s) to the hazard of being crushed in the event the bags shifted 

and struck an employee. 

Section 1918.24(e)(1) 

Section 1918.24(e)(1) provides: 

Where access to or from a stowed deckload or other cargo is needed and no other 

safe means is available, ladders or steps of adequate strength shall be furnished 

and positively secured or held against shifting or slipping while in use. Steps 

formed by the cargo itself are acceptable when the employer demonstrates that the 

nature of the cargo and the type of stowage provides equivalent safe access.
5 

Applicability of the Cited Standard 

Part 1918 of 29 C.F.R. addresses “Safety Health Regulations for Longshoring.” Section 

1918.1(a) provides, “The regulations of this part apply to longshoring operations and related 

employments aboard vessels.” Section 1918.2 specifies vessel “includes every description of 

watercraft or other artificial contrivance used or capable of being used for transportation on 

water, including special purpose floating structures not primarily designed for or used for 

transportation on water.” The standard defines barge as “an unpowered, flatbottomed, shallow 

draft vessel including river barges, scows, carfloats, and lighters.”

The parties stipulate § 1918.24(e)(1) applies to the cited conditions in this proceeding 

(Tr. 11). Based upon the record, the parties’ stipulation, and above-cited standards, the Court 

finds § 1918.24(e)(1) applies to the cited conditions.

Failure to Comply with the Terms of the Standard 

Where access to or from a stowed deckload or other cargo is needed and no other safe 

means is available, § 1918.24(e)(1) requires an employer to furnish ladders or steps of adequate 

strength. The employer must positively secure or hold the ladder or steps against shifting or 

slipping while in use. The standard considers steps formed by the cargo itself acceptable “when 

the employer demonstrates that the nature of the cargo and the type of stowage provides 

equivalent safe access.”

CTS does not dispute it failed to furnish a ladder for access to the barge hold. CTS 

furnished steps formed by the cargo, but it is undisputed its supervisors failed to demonstrate that 

these steps provided equivalent safe access to the barge hold. 

CTS Failed to Furnish a Ladder 

 There were two ladders onsite: a 20-foot extension ladder that CTS usually set up for 

access to the barge hold and a fixed ladder on the bow of the barge (Exh. C-14, p. 7). There is no 

evidence the fixed ladder provided access to the barge hold.4

 

 

4

In its post-hearing brief, CTS states, “It is important to remember that there is always a fixed or connected ladder 

that provides access to the hold, so there is another way to enter the hold without using cargo as steps.” (CTS’s brief, 

p 19.) This reference to the fixed ladder is apparently an afterthought on the part of CTS. It did not argue at the 

hearing that the fixed ladder was the means of access provided to reach the hold. CTS’s expert witness John Faulk, 

who never observed the barge at issue (Tr. 239), made a passing reference to fixed ladders in general: “Quite often, 

fixed ladders on each end of the barge [are] blocked out with cargo, very common.” (Tr. 246.) No fixed ladder is 

visible in the only photographs in the record (Exhs. C-3, R-7). Furthermore, in his witness statement, Employee B 
6 

 The Shift Supervisor had overall responsibility for CTS employees working to load the 

cargo into the barge on November 18, 2013. He testified he generally stays on the ship from 

which the cargo is being offloaded and does not board the barge. The Shift Supervisor stated 

that, from the ship’s vantage point, “I can see quite a bit of their work area [on the barge]. So I 

know what the deck of the rig looks like, if there’s good housekeeping, if there are certain 

hazards on the deck.” (Tr. 128.) With regard to the ladder required for access to the hold, the 

Shift Supervisor testified, 

Depending on where the ladder is, I can usually see it. The barge actually moves 

up and down the side of the crane, which is also on the barge, but sometimes that 

will block your view of part of the barge. . . . But I can generally see the ladder 

from the deck of a ship and that will be part of my inspection, so to speak. . . . If I 

don’t see one, I will ask the operator if I’m not seeing it and it’s there or if 

someone is not using it. 

(Tr. 129.) 

 The Shift Supervisor initially would not provide a straightforward answer to whether 

CTS furnished the ladder required by § 1918.24(e)(1) the morning of November 18, 2013, to 

access the hold. 

Q. On the morning of November 18, 2013, when [Employee A] was crushed by 

the cargo, was a ladder present in the hopper? 

Shift Supervisor: There was a ladder present on the rig. At that moment I don’t 

recall -- I wasn’t out there to see whether or not it was present in the barge when 

she went into the barge. 

* * * 

Q. Whose job is it to ensure that the barge foreman timely sets up a ladder for the 

longshoremen’s use? 

Shift Supervisor: Mine. 

* * * 

Shift Supervisor: Generally speaking, as part of my inspection when I walk past a 

barge, walk past a crane, that is something that I look for. That particular day, I 

don’t remember taking issue with anything, which causes me to assume that had 

there not been a ladder, I would have addressed it with the barge foreman and/or 

 

said, “There is a ladder on the bow of the barge connected to the barge. I climbed down that ladder and then 

climbed down the cargo.” (Exh. C-14, p. 7). Employee B’s statement indicates the fixed ladder does not provide 

access to the hold of the barge. 
7 

the crane operator. So based on that assumption, I would say a ladder was 

probably being used that morning. However, I can tell you I have corrected many 

a barge foreman, many a crane operator for not having a ladder in the barge while 

people were working. So could it have happened that day? Sure. But as I recall, 

it didn’t happen on that day on that crane. That tells me that they were probably 

using a ladder that morning. 

(Tr. 129, 131, 134.) 

It was not until the Secretary’s counsel informed him the Barge Foreman admitted earlier 

in the hearing (the witnesses were sequestered) that he had not set up the ladder in the barge hold 

that the Shift Supervisor finally acknowledged he knew no ladder was in the barge hold at the 

time of Employee A’s death. “[I]n the weeks following this incident, I do recall [the Barge 

Foreman] saying that after shifting covers, he had not yet had a chance to put the ladder into the 

barge.” (Tr. 136.) 

It is unclear why, in his testimony, the Shift Supervisor engaged at length in the pretense 

he was unaware the Barge Foreman had failed to set up the ladder at the time of Employee A’s 

death.5

 The Shift Supervisor had overall authority over the CTS crew’s operations that morning. 

One of the four employees he was supervising died during the shift as she used the stacked cargo 

to access the hold of the barge. It beggars belief the Shift Supervisor would not be cognizant of 

the details of the conditions at the time of Employee A’s death, including the Barge Foreman’s 

failure to set up the ladder.6 

The Barge Foreman has worked for CTS for approximately 20 years and has held the 

position of barge foreman for the last ten years (Tr. 41). He testified that on the morning of 

November 18, 2013, he was working outside of the barge, Employee A was on the deck of the 

barge, and Employee B was “on the inside toward the stern.” (Tr. 42.) The Barge Foreman 

related, unprompted, his version of the events that morning: 

And as we were restacking the covers, I went along and then come to find out, the 

young lady, she jumped in the barge without me knowing, without me setting up 

 

5At the hearing, the Shift Supervisor’s evasions and feigned ignorance with regard to the Barge Foreman’s failure to 

set up the ladder are much more extensive than the selections quoted above. See Tr. 128-136. 

6 CTS incorporates Fatality Response Procedures in its written safety program. Procedure no. 5 states, “NOTE IN 

WRITING ALL OF THE PARTICULARS OF THE ACCIDENT: WHO, WHAT, WHEN, WHERE, WHY, 

ETC. Photographs (Video), sketches should be made of the accident scene including all angles of the deceased. 

The Safety Director will take notes and investigate, along with taking pictures and making sketches.” (Exh. C-9, p. 

4, emphasis in original.) 
8 

the ladder and stuff so she could proceed to go down the ladder the correct way. 

So I mean, as I was coming along, I didn’t see her, you know, jump in the barge 

because I was walking on the off side. But if I would have saw her, I would have 

stopped her, you know. But no one told her to jump into the barge, to go down 

that way, because you know, I worked with her in that area once before and I 

never had a problem with her about doing it that way. So all of a sudden, she just 

done it on her own and not even was following directions to be told something 

like that. You know, I don’t know why she done it, but she done it, and that was 

it.

(Tr. 42-43.) 

The Barge Foreman conceded it was his responsibility to set up a ladder for access to the 

cargo hold that morning and that he had not fulfilled this responsibility at the time of Employee 

A’s fatal accident. Immediately after conceding it was his responsibility to set up the ladder, 

however, the Barge Foreman reverted to blaming Employee A for her accident. 

I have a little objection to how you’re saying it, you know, about I’m not fulfilling 

my obligation. See, it’s a process that no one is supposed to do anything before 

the barge foreman let them know what to do. You know, that was my job as the 

barge foreman to let them know how to proceed. So until I finish all of my 

operations step-by-step, and then they will proceed to go into the area of work. 

But at this time, this young lady, she wasn’t told or asked to do anything but stay 

on the rig. That was her position, to stay on the rig, not to even enter in that work 

area until I, as the barge foreman, let her know that it was safe for her to get in the 

areas to go to work. And it wasn’t even told by me; much less let her do that, but 

she overrided on her own thinking ability to get up on the ladder, to get in the 

working area on her own without even being authorized to be in that area. So I 

mean, she should know after I worked with her that she should have waited at that 

time till I got all my proper work set up to proceed in this area. And then I would 

have let her know that everything is safe to go in the area to work. But at that 

present time, she didn’t give me the opportunity to fulfill my obligation as being 

the barge foreman, and I know my responsibilities. 

(Tr. 48-49.) 

The Barge Foreman initially stated he was waiting until the barge was upriver to set up 

the ladder and that he was outside the barge and Employee B was inside the barge, near the stern, 

when Employee A climbed down the steps formed by the cargo (“I was going to go and set the 

ladder further upriver.” (Tr. 47.); “At that moment, I wasn’t going to even allow those workers to 

get in that area without—they were going to be upriver.” (Tr. 53.)). But the Barge Foreman 

abruptly changed his story when asked if he was in the process of getting the ladder when the 
9 

accident occurred. He stated that he “was proceeding to go get” the ladder with the help of 

Employee B at the time Employee A climbed down the cargo. “The young lady, she’s not handy 

with the ladder. Me and [Employee B] we two men, we proceed to hook the ladder up, you 

know, and we carry it up and she had to reach up the ladder.” (Tr. 88-89.) The Court sought to 

clarify his testimony. 

JUDGE JOYS: [T]he last answers that you gave to Mr. Signorino confused me. 

Did you say -- what did you say you were doing right before you came to the area 

where [Employee A] was when she had her accident? What were you doing right 

before that? 

Barge Foreman: Right before that, we were stacking the barge. 

JUDGE JOYS: No, you personally. 

Barge Foreman: Personally, I was on the off side of the barge. 

JUDGE JOYS: Doing what? 

Barge Foreman: You know, stacking the covers. [Employee A], this young lady, 

she was on the deck of the barge. 

JUDGE JOYS: When she had her accident? 

Barge Foreman: Yes. Right. Yes, ma’am. 

JUDGE JOYS: And where was this ladder? You said something about the ladder 

being right there. 

Barge Foreman: Right there. It was right there on the deck of the barge where the 

covers would be at, you know, where the barge would be set up at. They also 

have a ladder where you can exit the barge on the rig, you know. And the young 

lady, she’ll readjust the ladder. It may lack a foot or two. You standing up on the 

high barge and she -- you know, the competent man was there as well to help her. 

She wasn’t passing all this by herself. You know, they’ll help the young lady, 

you know, because longshoremen, we pretty much work together. You know, and 

they’ll reach out and reach the ladder. 

JUDGE JOYS: I was confused because I thought you said you were in the process 

of going to get the ladder but the ladder was actually there where she was? 

Barge Foreman: On the rig, yes, ma’am. Yes, ma’am. 
10

(Tr. 91-92.) Despite the Barge Foreman’s obfuscations regarding when he was “proceeding to 

go get” the ladder and the locations where the ladders were kept (as opposed to set up for actual 

use), the record is clear that he had not yet set up a ladder to provide access to and from the barge 

hold at the time of Employee A’s death (Q. “So that morning, you had not yet fulfilled your 

responsibility of putting a ladder in the barge, is that correct?”; Barge Foreman: “Correct.” (Tr. 

48.)). The Crane Operator also stated there was no ladder placed for access to the hold at the 

time of Employee’s death (Tr. 27). 

The Secretary has established CTS failed to furnish a ladder where access to or from a 

stowed deckload is needed. 

CTS Failed to Demonstrate the Steps Formed by the Cargo Provided Safe Access 

The Barge Foreman initially testified CTS has a rigid work rule prohibiting employees 

from using cargo as steps to access a barge hold. 

Q. Did Cooper have a work rule last November that employees must always use a 

ladder to access the barge and that it’s prohibited to climb on cargo? 

Barge Foreman: Definitely. It’s very strictly enforced that we install all ladders at 

all times for safety, no matter what. Ever since I’ve been working bags, the 

ladders was always properly used, never once climbed in the barge. If they did so, 

I didn’t see them. I didn’t authorize them to do it. I mean, some things, you 

know, the guys out there do, you know, they do it and I don’t have no knowledge 

of it. But at that present time, I didn’t authorize anyone to climb on cargo at that 

time. 

(Tr. 54.) 

The Barge Foreman almost immediately amended his response, stating CTS allows 

climbing on the cargo to access the hold on occasion. 

Q. Sir, my question was: are you aware of any written work rule that Cooper has 

that says you must use a ladder to climb into a barge? 

Barge Foreman: Well, like I say, if it’s step-by-step when we’re working in the 

barge, we will. If they stacked real neat like step ways, you know, like steps --

like going up layer by layer where they’re stacked real neat, then we’ll proceed 

going down. And if they’re a certain height, you know, we just use them as steps 

going down to the floor. 
11

Q. Are you telling the Court that at some point it is okay for employees to climb 

down the cargo like steps? 

Barge Foreman: I mean, if they right there -- if they right here, if the bag is 

stacked right there and they right there and they right behind us and more will be 

coming in and if it be right there, you know – they won’t be way up here. 

[Indicating] They’ll be right there. You know, a bag will come in and they’ll 

stand behind the bag. The bags will come in front of them and they’ll just 

continue going like that. Yeah. 

Q. I’m not sure I understood your answer . . .Is it your understanding as the barge 

foreman that once cargo is stacked sufficiently high in a step formation, that it is 

permissible for employees to climb up and down the cargo like steps? 

Barge Foreman: If they stack real neat, they can go step-by step till it gets to the 

point to where it’s not safe for them to be way up[.] 

(Tr. 61-62.) A little later in his testimony, the Barge Foreman finally acknowledged not only is it 

permissible for employees to step on the bags, it is “a necessary part of the employees’ job 

duties.” “I mean, if you’re stacking bags, I mean, quite naturally, I mean, you don’t have an 

elevator or somebody to pick you up and make you unhook the bag. I mean, yeah, they have to 

get up on the bags to unhook the straps.” (Tr. 70.) 

In contrast, the Shift Supervisor readily acknowledged that there are times “when the 

cargo is stacked sufficiently high that the cargo can be used as steps” to access the hold. He 

stated he had personally used steps formed by cargo to access the hold and had observed other 

employees doing the same (Tr. 109). In fact, the Shift Supervisor testified, “Every day we work 

a bag ship, I’m aware that a majority of employees will be walking on cargo at some point that 

day.” (Tr. 139.) 

When asked how he knows when it is safe to use cargo as steps to access the hold, the 

Shift Supervisor replied it was a judgment call for each employee, not a determination made by a 

supervisor prior to employees’ use of the cargo steps (Tr. 110). “[Y]our judgment comes into 

play when you look at that cargo and decide whether or not you could climb down these bags or, 

you know, which bags you could safely climb down.” (Tr. 111.) 
12

Over the Secretary’s objection, the Court qualified CTS’s witness John Faulk as an expert 

in marine cargo handling (Tr. 243).7

Faulk stated it is “very common” for employees to use 

stepped cargo to access barge holds (Tr. 246). “I’ve seen it hundreds of times done safely on 

various types of cargo. And it’s a practice that’s been recognized by management and labor and 

OSHA since 1971.” (Tr. 246.) 

The Crane Operator has worked for CTS for 10 to 12 years (Tr. 23). His testimony (in 

contrast to that of the Shift Supervisor and the Barge Foreman) was straightforward, responsive 

to the questions asked, and without artifice. The Court finds him a credible witness whose 

testimony is given great weight. The Crane Operator stated CTS has a 20-foot ladder that it 

usually sets up to access the hold of the barge. He estimated employees use the ladder to access 

the hold 80 to 90 percent of the time, but he also observed employees routinely climb the cargo 

stacked in the hold, “using it like a stepladder.” (Tr. 24.) He typically stacks cargo in a stair step 

manner for employees to use as access (Tr. 34). 

The Crane Operator matter-of-factly stated Employee B entered the hold by climbing 

down the stacked sacks because the ladder had not been set up. Section 1918.24(e)(1) requires 

the employer to furnish a ladder or equivalent safe access “[w]here access to or from a stowed 

deckload or other cargo is needed.” The Crane Operator’s testimony establishes such access was 

needed in order for the laborers to perform their assigned tasks. 

Crane Operator: According to how we stack covers, [Employee B] gets in the 

barge, and he walks down the sacks. And [Employee A], before I went to the ship, 

she was on the outside of the barge. 

Q. How did [Employee B] get into the barge that morning? 

Crane Operator: He -- if I’m not mistaken, he climbed on top of the cargo 

because the stepladder was inside the tractor. I know that much. 

Q. So was there a ladder that was in the barge for him to use to climb down on? 

 

7The Secretary objected to Mr. Faulk’s testimony at the hearing and again noted in its brief CTS “failed to timely 

designate Mr. Faulk as a testifying expert witness and failed to timely produce a CV or report from Mr. Faulk.” 

(Secretary’s brief, p. 3.) The Court overruled Secretary’s objection (Tr. 243). The Secretary suggested in its brief 

CTS made misrepresentations regarding its relationship with Mr. Faulk at the hearing. Given CTS’s minimal 

reliance on Mr. Faulk’s testimony as well as the Court’s assessment it does not support CTS’s defense, the Court 

finds the Secretary was not prejudiced by the admission of Mr. Faulk’s testimony and will not revisit the Secretary’s 

objection to it. 
13

Crane Operator: No, they hadn’t put it in by then. 

Q. Okay. And you observed him climb into the barge by climbing down the 

cargo? 

Crane Operator: I seen him climb in the barge. I assume that’s the way he went 

in. 

Q. Okay. Had you seen employees of Cooper climb down into the barge before? 

Crane Operator: Yes. 

(Tr. 27.) 

When the Barge Foreman was asked if he had made “any independent determination of 

the stability” of the steps formed by the cargo, the Barge Foreman replied, “No. No. No, sir.” 

(Tr. 46.) The Barge Foreman was asked whose responsibility it was to determine whether the 

steps formed by the cargo were safe to use to access the hold. He first responded, “Well, no one 

was told to go in the barge, period, you know, because I was going to go and set the ladder 

further upriver. So I mean, I didn’t give the instructions for no one to get in the barge.” (Tr. 47.) 

When pressed to answer the question posed, the Barge Foreman stated, “Well, when I come on, 

that probably would have been my responsibility, you know, but what I was going to do is I was 

going to put the ladder in and we was going to start on the floor.” (Tr. 47.) 

Had he gotten around to making a determination of whether the cargo was safe to use as 

steps, the Barge Foreman testified he would have made it “[b]y looking at it at the present time, 

you know. I would have made my determination of what to move and what not to move, and 

whether to even be in that area or not. I would have avoided that area, period, till it was 

corrected.” (Tr. 54.) He stated he had made such determinations before. 

Q. Have you ever, as a foreman, made a determination that the steps formed by 

cargo by and of themselves provided a safe means of access into the barge? 

Barge foreman: Yes, sir. Yep. If I see something unsafe, I will correct it. 

Q. So there have been times when you as a foreman looked at the steps formed by 

the cargo itself and said, “Yes, they provide a safe means of access to get into the 

barge”? 

Barge Foreman: Yes, sir. 
14

Q. Okay. That’s not uncommon, is it? 

Barge Foreman: No, sir. 

(Tr. 85.) 

The Barge Foreman acknowledged the steps formed from the cargo were not safe in the 

configuration existing when Employees A and B used them to access the barge hold. “Well, first 

of all, this employee, it’s unfortunate that she lost her life from entering into an area that wasn’t 

safe for her to enter. And that’s the reason why it’s very important that the ladder be set up for 

you to enter the barge properly. She did it enter it, but it was unproperly done.” (Tr. 51.) 

Elsewhere in his testimony, the Barge Foreman conceded Employee B had accessed the barge 

hold before Employee A. When asked how Employee B accessed the hold, he stated, 

How [Employee B] got in the barge, they had steps that he might have climbed 

down, you know, in the center that it was safe for him to go down. But at the 

same time, it’s another unproper procedure that I wasn’t told, you know, that he 

was doing it. When I looked, he was already in there, you know. I didn’t see 

[Employee B] enter the barge. I’m back up -- I’m going to stick to what I’m going

to say and that I didn’t have anyone authorized to go in the barge, period. 

(Tr. 55; emphasis added.) Although the Barge Foreman insisted he did not give the laborers 

permission to enter the hold and he did not see Employee B climb down the cargo steps, he 

acknowledged Employee B may have used the cargo steps, somehow intuiting Employee B 

climbed down in the center, where it was safe. 

The Barge Foreman acknowledged it was his responsibility to demonstrate the steps 

formed by the cargo provided safe access to the hold. He conceded he had not done so at the 

time of Employee A’s death (Tr. 47). The Secretary has established CTS failed to demonstrate 

the cargo steps provided safe access to the hold of the barge. 

The Court determines CTS failed to comply with the terms of § 1918.24(e)(1). 

Employee Access to the Violative Condition 

Employee A and Employee B both used the stacked sacks to access the barge hold. After 

one of the sacks shifted and crushed Employee A as she descended the makeshift steps, several 

other CTS employees and rescue personnel rushed to her aid, using the same unsafe cargo steps 

(Exh. C-2, pp. 3-5; Tr. 159). 
15

The Secretary has established CTS’s employees had access to the unsafe steps formed by 

the cargo. 

Employer Knowledge 

In its post-hearing brief, CTS argues the Secretary failed to establish only the knowledge 

element of his burden of proof. CTS contends the Secretary failed to establish knowledge on 

two fronts: first, the Secretary failed to prove CTS “knew or should have known that its 

employees would even enter the barge hold at all considering they had not been given permission 

to do so by the barge foreman.” Second, “[e]ven if the Secretary could prove this, he failed to 

prove [CTS] knew or should have known that when the employees entered the barge hold they 

would do so by using cargo as steps, something that they had never done before.” (CTS’s brief, 

p. 2.) The Court finds no merit to either of these contentions. 

Permission to Enter the Barge Hold 

CTS claims it has a work rule prohibiting employees from entering the hold of a barge 

until the barge foreman gives them permission (Tr. 48-50). This purported work rule is not 

written.8 Assuming CTS had established and communicated this work rule to its employees, 

Court would still conclude there is no credible evidence the Barge Foreman had not given 

Employees A and B permission to enter the barge hold at the time of Employee A’s death. 

CTS had five employees engaged in the cargo operations at issue on November 18, 2013. 

The Shift Supervisor and the Crane Operator did not testify one way or the other regarding 

whether the Barge Foreman gave permission to the laborers to enter the barge hold. Employee A 

is deceased and Employee B’s written statement is silent on this issue. Thus, the only evidence 

in the record indicating the Barge Foreman had not yet given permission to Employees A and B 

to enter the hold is the testimony of the Barge Foreman. The Court, having closely observed the 

Barge Foreman’s demeanor and listened to his sworn testimony, finds his manner was evasive 

and defensive, and his testimony self-serving. His testimony is replete with contradictory 

 

8 CTS has a written rule prohibiting employees from entering the hold of a ship without their supervisor’s 

permission, which is part of a document titled WORKING ABOARD THE SHIP (Exh. C-5, p. 9). This document 

does not address work on vessels, a more inclusive term which is defined as “every description of watercraft.” § 

1918.24(e)(1). CTS has a separate set of rules addressing work on barges, titled COVERSTACKING AND 

WALKING ON BARGES (Exh. C-5, p. 7). This document does not have an equivalent rule prohibiting employees 

from entering the hold of a barge without the barge foreman’s permission. 
16

statements and implausible scenarios. The Court quoted some of his self-contradictory 

testimony above regarding CTS’s supposed prohibition against stepping on the cargo and his 

muddled account of when he was planning to set up the ladder. The Barge Foreman showed 

himself to be a fabulist, tailoring his answers to continually shift blame to Employee A, 

regardless of the disparities these answers created with his previous statements. 

The Barge Foreman admitted it was his responsibility to set up the ladder accessing the 

barge hold and to determine whether the stacked cargo was safe to use as steps, and he did 

neither. He stated he had worked with Employee A three days previous to her death and “[s]he 

complied with every last one of my commands, you know, with the ‘do’s and with the ‘don’ts.’” 

(Tr. 84.) The Court determines the Barge Foreman is not a credible witness on the issue of 

whether he gave the laborers permission to enter the hold. The Court views his self-serving 

testimony as an attempt to divert responsibility for the unsafe conditions in the barge hold to 

Employee A. The Barge Foreman’s repeated statements that he had not given the laborers 

permission to enter the barge hold are accorded no weight.9

Employees’ Use of the Cargo as Steps 

CTS argues “there was no reason to suspect the employees would use cargo as steps to 

enter the hold” and, therefore, CTS had no knowledge of the violation (CTS’s Brief, p. 18). 

CTS’s focus is misplaced. The violative conduct here is not the entry of the employees into the 

hold—it is the failure of the Barge Foreman to “demonstrate[ ] that the nature of the cargo and 

the type of stowage provides equivalent safe access.” The Barge Foreman was aware he had 

failed to place the ladder for access to the barge hold and to demonstrate the stacked cargo 

provided safe access to the barge hold. He had knowledge of his own violative conduct. 

 

9

 CTS devotes a section of its brief to attacking the credibility of Employee B’s written statements, admitted as 

Exhibit C-14. Employee B was served with a subpoena issued by the Court (Tr. 195). Employee B failed to appear 

at the hearing. In lieu of his testimony, the Secretary offered Employee B’s witness statements, taken by CSHO 

Nevers on November 19, 2013, and January 19, 2014 (Tr. 195, 201). The Court admitted the statements over CTS’s 

objection (Tr. 204). Although the Court disagrees with CTS’s assessment that the statements “have no indicia of 

reliability,” (CTS’s brief, p. 14) the Court agrees some of Employee B’s answers are ambiguous and should be 

subject to cross-examination. The Court therefore does not rely on the statements admitted as Exhibit C-14, other 

than to quote from Employee B’s explanation of how he entered the hold and his eyewitness account of his coworker’s death. 
17

Employees A and B had access to the barge hold via the stacked sacks for 1 to 31⁄2 hours 

(Tr. 44-45).10

 The Barge Foreman acknowledged the employees would have to step on the 

stacked cargo at some point in order to perform their duties (Tr. 70). The Shift Supervisor 

testified “Every day we work a bag ship, I’m aware that a majority of employees will be walking 

on cargo at some point that day.” (Tr. 139.) The phrasing of the Crane Operator indicates it was 

routine and expected that employees would climb down the cargo when hooking the hatch 

covers, the specific task the Barge Foreman assigned the laborers to perform that morning: 

“According to how we stack covers, [Employee B] gets in the barge, and he walks down the 

sacks.” (Tr. 27.)11

The Barge Foreman was aware he had not set up the ladder to access the barge hold 

because he planned to place it upriver. Therefore, he was aware the only method available to the 

employees to access the barge hold was to climb down the steps formed by the cargo. The fact 

that the sacks were stacked in stair-step fashion suggests CTS intended the cargo to be used as 

steps; otherwise, CTS could have stacked each of the rows of sacks six high. The Barge 

Foreman was also aware he had not determined the stacked cargo provided safe access to the 

hold. He stated the cargo was not safe to step on at the time of Employee A’s death (Tr. 54). 

Based on the record, the Court rejects CTS’s contention it had no reason to suspect its employees 

would use the cargo as steps to access the hold. On the contrary, the record establishes the 

 

10 CSHO Nevers’s Investigation Report lists 11:30 a.m. as the time of the accident (Exh. C-2, p. 4). The Barge 

Foreman was the only witness who was asked when the accident occurred. His estimate was uncertain. 

Q. And, approximately, what time did [Employee A] get killed? 

Barge Foreman: If I'm not mistaken, it might -- I'm not totally correct with the time. It might have 

been a little bit after 10:00. I'm not sure. You know, my recollection don't remember right the 

time, but I know it was before lunchtime. 

Q. Closer to the beginning of the shift? 

Barge Foreman: No. Somewhere up in there, 9:00 to 10:30, a quarter to 10:30. I'm not sure. I'm 

not precise with what time. 

(Tr. 44-45.) 

11 An experienced longshoreman not involved in the accident (called to testify by CTS) also stated he has used cargo 

to access barges (Tr. 214). 
18

employees’ use of the cargo as steps was routine and expected, especially given the Barge 

Foreman had not placed the ladder for access to the hold.12

Constructive Knowledge 

The Barge Foreman admitted he had actual knowledge he had not placed the ladder for 

access to the barge hold and he had not demonstrated the stacked cargo provided safe access to 

the barge hold at the time of Employee A’s death (Tr. 46, 48). The record also establishes the 

Shift Supervisor should have known, with the exercise of reasonable diligence, of the violative 

conditions. “Reasonable diligence involves several factors, including an 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, 1981 

CCH OSHD ¶ 25,129, p. 31,032 (No. 76–4627, 1981).” Pride Oil Well Serv., 15 BNA OSHC 

1809, 1814 (No. 87-0692, 1992). 

The Shift Supervisor testified it was his responsibility to enforce the safety rules during 

the shift he oversaw on November 18, 2013 (Tr. 105). CTS’s written safety program includes a 

page titled Inspections, which states in pertinent part: 

Continuous inspections of cargo handling operations are required to assure the 

standards, duties, and policies of the Company are followed. A primary duty of 

superintendents is to inspect the work area for unsafe practices, gear and other 

hazards and make necessary corrections. 

No one is in a better position to perform an inspection of a work area or operation 

than the superintendent in charge. The superintendent should know the 

 

12 John Faulk, CTS’s expert in marine cargo handling, appeared to ignore the employer’s obligation to demonstrate 

the cargo steps provide safe access as required by § 1918.24(e)(1). He stated, “[L]ooking at the cargo [in 

photographic Exhibit C-3] the way it’s stowed here, I wouldn’t have a problem with it if these bags were in place on 

the left side of the barge like they probably were before it fell.” (Tr. 252.) When asked if § 1918.24(e)(1) requires 

the employer to demonstrate the cargo steps are safe prior to use, Faulk stated, “I think it’s demonstrated the way it’s 

stowed here.” (Tr. 254.) When the Court pointed out he had not answered the question (“[W]hat does the regulation 

require the employer to demonstrate?” (Tr. 254)), Faulk replied, “Your Honor, the way a cargo is stowed, it’s 

stowed under the direction of the superintendent in charge of the operation. The way it’s stowed, I think 

demonstrates that it’s step-down and it’s stowed in a manner than it can be used for access to the barge.” (Tr. 254.) 

The preamble to Part 1918 clarifies § 1918.24(e)(1) allows the use of cargo as access to the hold only “where the 

employer can show that employees can safely use the cargo itself to climb in and out of the hold (often called ‘safe 

cargo steps’)[.]” Longshoring and Marine Terminals, 62 Fed. Reg. 40142, 40156 (July 25, 1997) (emphasis added). 

Section 1918.24(e)(1) imposes an obligation on the employer beyond safely stacking the cargo; the employer, 

(through supervisory personnel) must affirmatively show the stepped cargo is safe prior to permitting an employee 

to use it as access the hold. In its brief, CTS does not dispute it failed to comply with the second sentence of § 

1918.24(e)(1). 
19

workplace, equipment, operations, and personnel under their direction. The use 

of inspection checklists tailored to specific operations is required. 

(Exh. C-9, p.1.) 

The Shift Supervisor stated he was aware “there was a rule in place that a ladder was 

always to be present for safe access” to the barge hold (Tr. 107). He testified, “I can generally 

see the ladder from the deck of the ship and that will be part of my inspection, so to speak. . . . If 

I don’t see one, I will ask the operator if I’m not seeing it and it’s there or if someone is not using 

it.” (Tr. 129.) When asked, “Whose job is it to ensure that the barge foreman timely sets up a 

ladder for the longshoreman’s use?,” the Shift Superintendent replied, “Mine.” (Tr. 131.) 

As noted above, the Shift Supervisor spent much of the time during his examination 

attempting to parry counsel for the Secretary’s questions regarding the ladder. Initially he stated 

the ladder could not be set up at the start of the shift because the hatch covers were still in place. 

He stated, “[T]he accident happened right after we shifted covers.” (Tr. 132). Immediately 

thereafter, however, the Shift Supervisor stated, “That being said, I was not there watching the 

covers be shifted, so I couldn’t tell you if the ladder was already in the barge or on its way to the 

barge or laying next to the barge when she actually went over the coaming.” (Tr. 132-133). He 

then stated, “I’m pretty sure when I walked by that morning, when the covers were in their 

original arrangement, there had been a ladder used.” (Tr. 133). CTS now acknowledges a ladder 

was never in place for access to the hold the morning of November 18, 2013. 

Reasonable diligence includes the “obligation to inspect the work area, to anticipate 

hazards to which employees may be exposed, and to take measures to prevent the occurrence.” 

Here, despite CTS’s written safety program encouraging “[c]ontinuous inspections of cargo 

handling operations,” the Shift Supervisor failed to inspect the work area of the barge hold for 

the ladder. Due to his failure to ensure the ladder was in place, he failed to anticipate the logical 

consequence of its absence, that the employees tasked with working around the cargo would use 

the stacked sacks to access the hold. His failure to inspect the work area and to anticipate 

hazards to which employees may be exposed set up his failure to take measures to prevent the 

occurrence of the hazardous condition, such as instructing the Barge Foreman to set up the ladder 

or inspect the stacked cargo to see if it was safe to use as steps. 
20

The absence of the ladder and the presence of the stacked cargo were open and obvious 

conditions. The Shift Supervisor stated he had walked past the barge hold and inspected it the 

morning of November 18 (Tr. 133). 

[T]he conspicuous location, the readily observable nature of the violative 

condition, and the presence of [the employer’s] crews in the area warrant a 

finding of constructive knowledge.” Kokosing Constr. Co., 17 BNA OSHC 1869, 

1871, 1993-95 CCH OSHD ¶ 31,207, p.43,723 (No. 92-2596, 1996). 

Additionally, constructive knowledge may be found where a supervisory 

employee was in close proximity to a readily apparent violation. Hamilton 

Fixture, 16 BNA OSHC1073, 1089, 1993-95CCH OSHD ¶ 30,034, p.41,184 (No. 

88-1720, 1993), aff’d, 28 F.3d 1213 (6th Cir. 1994) (unpublished). 

KS Energy Services, Inc., 22 BNA OSHC 1261, 1265-1266 (No. 06-1416, 2008). 

Based upon the readily observable nature of the violative conditions, the proximity of the 

Shift Supervisor to the violative conditions, and his failure to adequately inspect the work area or 

to anticipate likely hazards and take preventive measures, the Court determines the Shift 

Supervisor had constructive knowledge of the Barge Foreman’s failure to place the ladder for 

access to the barge hold and to demonstrate the stacked cargo provided safe access to the barge 

hold. 

The actual knowledge of the Barge Foreman and the constructive knowledge of the Shift 

Supervisor are imputed to CTS. “‘[K]nowledge can be imputed to the cited employer through its 

supervisory employee.’ Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726, 1999 CCH OSHD 

¶ 31,821, p. 46,782 (No. 95-1449, 1999). ‘Therefore, the Secretary establishes a prima facie 

showing of knowledge by proving that a supervisory employee was responsible for the 

violation.’ Aquatek Sys., Inc., 21 BNA OSHC 1400, 1401, 2006 CCH OSHD ¶ 32,794, p. 52,442 

(No. 03-1351, 2006).” American Engineering & Development Corporation, 23 BNA OSHC 

2093, 2095 (No. 10-0359, 2012). The Secretary has established CTS knew of the violative 

condition. 

The Secretary has established CTS committed a violation of § 1918.24(e). He classified 

the violation as serious. Under § 17(k) of the Act, “a serious violation shall be deemed to exist 

in a place of employment if there is a substantial probability that death or serious physical harm 

could result from a condition which exists[.]” Here, Employee A was killed when a sack 
21

weighing at least one ton crushed her as she climbed down the cargo stowed as steps. The 

violation is properly classified as serious. 

Foreseeability 

If it were concluded the Shift Supervisor did not have constructive knowledge of the 

violative condition, then the only supervisory personnel who knew of the violative conduct was 

the Barge Foreman.13 Because the Barge Foreman is himself responsible for the violative 

conduct, his knowledge of his own misconduct would not be imputed to CTS. This case arose in 

the Fifth Circuit, which has rejected the Commission’s approach of imputing a supervisor’s 

knowledge to the employer when it is knowledge of his own violative conduct involved.14

 

Instead, the court has imposed an additional burden on the Secretary to show that the 

supervisor’s violative conduct was foreseeable by the employer. 

[A] supervisor’s knowledge of his own malfeasance is not imputable to the 

employer where the employer’s safety policy, training, and discipline are 

sufficient to make the supervisor’s conduct in violation of the policy 

unforeseeable. As with each element required to establish a violation, employer 

knowledge must be established by the Secretary, as an element of § 666(k). 

Trinity Indus., Inc. v. OSHRC, 206 F.3d 539, 542 (5th Cir.2000) (citing Carlisle 

Equip. Co. v. Sec. of Labor, 24 F.3d 790, 792-93 (6th Cir.1994) (“Knowledge is a 

fundamental element of the Secretary of Labor’s burden of proof for establishing 

a violation of OSHA regulations.”)) 

W.G. Yates & Sons Const. Co. Inc. v. Occupational Safety & Health Review Comm’n, 459 F.3d 

604, 608-09 (5th Cir. 2006) (emphasis in original). 

Therefore, if the Shift Supervisor’s constructive knowledge were discounted, the 

Secretary would have to show CTS’s safety policy, training, and discipline are insufficient and 

the Barge Foreman’s misconduct was foreseeable. The Court determines the Secretary has done 

so. 

 

13CTS did not argue the Secretary failed to establish the foreseeability of the Barge Foreman’s misconduct either at 

the hearing or in its post-hearing brief. It has consistently maintained that it was Employee A, and not the Barge 

Foreman, who engaged in violative conduct. 

14 “Where it is highly probable that a case will be appealed to a particular circuit, the Commission generally has 

applied the law of that circuit in deciding the case, even though it may clearly differ from the Commission's law.” 

D.M. Sabia Co., 17 BNA OSHC 1413, 1414 (No. 93-3274, 1995), vacated and remanded on other grounds, 90 F.3d 

854 (3rd Cir. 1996). 
22

CTS’s written safety program includes this rule: “To enter or exit a barge hopper or ship 

hold a ladder must be used.” (Exh. R-9, p. 5.) It has no written rule prohibiting the use of cargo 

as steps to access the hold of a barge or requiring a supervisor to demonstrate the cargo is safe 

for such access. CTS does have, however, written rules prohibiting employees from stepping or 

climbing on other surfaces and equipment (“Do not step on manhole covers.”; “Never stand on 

covers being lifted or rolled.”; “Employees are not to walk on the coamings of barges at any 

time.”; “Climbing on buckets is prohibited.” (Exh. C-5)). As discussed above, employees 

routinely used the cargo to access barge holds and CTS’s supervisors were aware of this use (Tr. 

61-62, 70, 109, 139). The Shift Supervisor agreed CTS’s rule requiring employees to enter and 

exit a barge hold using only a ladder “is incomplete.” (Tr. 119.) The record establishes CTS’s 

written rule stating a ladder must be used to enter or exit a barge hopper is not absolute and is 

ignored regularly by management and employees. 

CTS failed to train its employees to use only a ladder to access the barge hold. The 

Crane Operator was unaware whether there was a “mandatory work rule at Cooper which says 

you must use a ladder and you are prohibited from climbing on cargo.” (Tr. 28.) Neither the 

Barge Foreman nor the Shift Supervisor was aware of a rule prohibiting employees from using 

cargo as steps (Tr. 60, 109). The Shift Supervisor also testified it was up to the individual 

employees to “decide whether or not you could climb down these bags, or you know, which bags 

you could safely climb down.” (Tr. 111.) 

Although its employees routinely used the cargo as access to the barge hold rather than a 

ladder, there is no evidence CTS ever disciplined any of its employees for this purported 

infraction. Exhibit R-12 comprises disciplinary records produced by CTS. None of them was 

issued for using cargo to access a barge hold or for failing to use a ladder to access a barge hold. 

According to the Barge Foreman, both Employee A and Employee B violated company policy 

when they entered the barge hold without his permission. When asked if he disciplined 

Employee B for his part in the misconduct, the Barge Foreman wove an implausible tale. 

Q. Okay. Is it true that you did not discipline [Employee B] in any way for 

climbing down the sacks like steps on that morning? 

Barge Foreman: Yes, sir, I told him, you know, that ain’t the proper way to go. 

“Hey, man, I do this. This is what I’ve always done.” I said, “Hey, that’s not the 

proper way.” 
23

Q. But is it true that you did not discipline [Employee B] in any way for climbing 

down the sacks like steps that morning with you; is that true? 

Barge Foreman: Yes. No, we -- like I said, I gave him a lecture. I mean, I don’t 

know, lecture, discipline. I did pass it by him that wasn’t the proper way to do it.

* * * 

Q. When you saw [Employee B] climb down the sacks like steps on that morning 

before you had an opportunity to put the ladder in, you did not report or discipline 

him in any way; is that correct? 

Barge Foreman: I didn’t get around to it, letting the supervisor know, because 

everything took place so fast. But yeah, I did let him know personally that that 

wasn’t the correct way to go. . . . When I come around, he come hollering. You 

know, he was hollering and I come back around and I said, “Man, what’s going 

on?” He said, “The lady, the bags done fell on her.” I said, “What you doing 

down in the barge?” “I climbed in.” “You know that ain’t the proper way, man. 

Why you done that?” I mean, that was it. You know, I mean, I didn’t see. I didn’t 

see [Employee B] get in the barge or the young lady, you know. 

Q. You’re telling the Court now that you had a conversation with [Employee B] 

about how it was improper for him to get in the barge the way he did? 

Barge Foreman: Yeah, after I saw him in the barge, yes, sir. 

Q. And where was [Employee A] at this time? 

Barge Foreman: At the present time, that’s when the lady --the bags must have 

fell on her. When I come along, you know, and I saw all this here, you know, I 

said, “What’s going on?” They climbed in the barge. “Well, she got in the barge 

and the bags fell on her.” You know, I said, “Why? You know, I’m supposed to 

put the ladder up.” 

(Tr. 55-60). 

The Court is skeptical that anyone would, upon being notified a subordinate employee 

was lying crushed beneath cargo, choose that moment to upbraid another employee. Employee 

B’s account of the frantic events immediately following Employee A’s accident also casts doubt 

on the Barge Foreman’s version (“I hollered for anybody. I went to see if she was breathing but 

she wasn’t responding so I climbed the sacks to get out of the barge. I got the attention of a guy 

on the ship; he got the attention of the crane operator. Then guys working on the deck of the 
24

dock came on the barge and we started moving sacks from around her so we could get to her.” 

(Exh. C-14.)). 

The Secretary has established CTS did not have safety rules prohibiting its employees 

from using cargo to enter or exit barge holds or requiring supervisors to demonstrate the cargo 

was safe to use as access before permitting employees to use it. CTS did not provide safety 

training requiring its employees to access barge holds using ladders only or prohibiting them 

from using cargo to access barge holds until a supervisor demonstrated the cargo was safe to use. 

Despite it being a daily occurrence, CTS never disciplined employees for using cargo to access 

barge holds. Under these circumstances, it was entirely foreseeable by CTS that the Barge 

Foreman could violate § 1918.24(e)(1). The Secretary has established foreseeability. 

Employee Misconduct Defense 

CTS contends that any violation of the cited standard is the result of employee 

misconduct. “To establish the unpreventable employee misconduct defense, an employer must 

show that it established a work rule to prevent the violation; adequately communicated the rule 

to its employees, including supervisors; took reasonable steps to discover violations of the rule; 

and effectively enforced the rule.” Schuler-Haas Electric Corp., 21 BNA OSHC 1489, 1494 (No. 

03-0322, 2006). The Barge Foreman is responsible for the violative conduct and is a supervisory 

employee. “Where a supervisory employee is involved the proof of unpreventable employee 

misconduct is more rigorous and the defense is more difficult to establish since it is the 

supervisor’s duty to protect the safety of his employees under his supervision ... A supervisor’s 

involvement in the misconduct is strong evidence that the employer’s safety program was lax.” 

Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1076, 1991). 

In its post-hearing brief, CTS contends the work rule Employee A violated was entering 

the barge hold without the Barge Foreman’s permission. As noted above, CTS does not have a 

written rule requiring a supervisor’s permission before entering a barge hold—that written rule 

applies only to the hold of a ship. The Shift Supervisor testified, “[A]lthough this is referring to 

a ship hold, I believe a reasonable person could say that entering a hopper, they would need to 

wait for a supervisor’s permission.” (Tr. 116.) The Court disagrees that the Shift Supervisor’s 

conclusion is the obvious one. There are significant differences between a ship and a barge. 
25

Section 1918.2 provides an individual definition for barge. One of its defining characteristics is 

its shallowness, which differentiates the configuration of its hold from that of a ship. 

The Court also finds CTS’s contention it had a well-communicated policy regarding the 

need for supervisory permission to enter a barge at odds with the testimony of the Shift 

Supervisor and the Crane Operator that the determination of whether it was safe to use cargo to 

access the barge was a judgment call to be made by the employee (Tr. 150-53, 109-11). If such a 

policy existed, there would be no reason for an exercise of discretion on the part of the employee 

regarding how or when to enter the barge. 

As discussed in the section above addressing Permission to Enter the Barge Hold, the 

only evidence adduced showing the Barge Foreman had not given permission to Employees A 

and B to enter the hold of the barge was the testimony of the Barge Foreman. For the reasons 

discussed, the Court does not accord this testimony any weight. 

CTS’s employee misconduct defense must address the Barge Foreman’s misconduct to 

be effective. CTS must demonstrate it established a work rule to prevent the violation; 

adequately communicated the rule to its employees, including supervisors; took reasonable steps 

to discover violations of the rule; and effectively enforced the rule. CTS, however, does not 

have a rule requiring its supervisors to furnish a ladder for access to a barge hold at the beginning 

of a shift or requiring them to demonstrate cargo provides safe access before permitting 

subordinate employees to use it. No such rules were communicated to its supervisors and CTS 

took no steps to discover violations or enforce the requirements of § 1918.24(e)(1). 

The Court finds CTS’s employee misconduct defense is without merit. 

PENALTY DETERMINATION

Under § 17(j) of the Act, the Commission must give “due consideration to the 

appropriateness of the penalty with respect to the size of the business of the employer being 

charged, the gravity of the violation, the good faith of the employer, and the history of previous 

violations.” The principal factor in a penalty determination is gravity, which “is based on the 

number of employees exposed, duration of exposure, likelihood of injuries, and precautions 

against injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-

1052, 2005). 
26

The gravity of the violation is high. Up until the time of Employee A’s accident, she and 

Employee B were exposed to the violative condition the morning of November 18. The Shift 

Supervisor testified that immediately following Employee A’s accident, he and other CTS and 

ship employees, as well as rescue personnel, used the stacked cargo to access the hold in order to 

help Employee A (Tr. 159). When asked how they accessed the hold of the barge, the Shift 

Supervisor stated, “Everyone that I saw gained access by climbing down the cargo.” (Tr. 159.) 

The Shift Supervisor testified employees have been previously injured while walking on cargo 

(Tr. 139). Mr. Faulk testified a passing ship, currents, or high winds could cause cargo to 

dislodge (Tr. 247-48). Therefore, the likelihood of injuries resulting from use of unsafe cargo to 

access a barge is high. Potential injuries could be severe, as demonstrated by the accident. The 

Court concludes a $7,000.00 gravity based penalty is warranted. 

Locally, CTS had approximately 70 employees at the time of the inspection, but 

nationally it has many more. OSHA had previously cited CTS for safety violations (Tr. 178-

179). The Secretary adduced no evidence indicating CTS demonstrated anything less than good 

faith. Taking these factors into consideration, the Court gives no reductions in the gravity-based 

penalty. 

The Court determines a penalty of $7,000.00 is appropriate. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

accordance with Fed. R. Civ. P. 52(a).

ORDER 

Based upon the foregoing decision, it is hereby ORDERED: 

Item 1 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1918.24(e)(1), is 

AFFIRMED, and a penalty of $7,000.00 is assessed. 

SO ORDERED. 

/s/ Heather Joys 

Date: May 18, 2015 HEATHER A. JOYS

 Administrative Law Judge 

Atlanta, Georgia