Cleveland Electric Illuminating Company

Plain-English summary

Cleveland Electric trained apprentice mechanics to cross narrow substation bridges at heights of 25, 36, and 56 feet. The company removed guide ropes in stages and eventually required trainees to cross without fall protection so the exercise would simulate field conditions and build confidence. The Commission held that the paid training was an integral and necessary part of electrical construction work and therefore covered by the construction standard. It rejected infeasibility and greater hazard defenses because the company offered no expert or factual support showing that nets or other protection would make the training less effective or later work more dangerous. The fact that other utilities trained without fall protection did not excuse noncompliance with a specific standard. The Commission reversed the ALJ, affirmed the violation, and assessed $100 based in part on the company's good-faith safety purpose and its use of ropes during much of the lower-level training.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.951(b)(1)
• Outcome: Fall-protection citation affirmed with a $100 penalty.
• Key point: Employees may not be exposed to a preventable fall hazard merely to simulate real working conditions during training.

Full text (OSHRC public release)

Docket No. 84-0593

SECRETARY OF LABOR,

Complainant,

v.

CLEVELAND ELECTRIC

ILLUMINATING COMPANY,

Respondent.

UTILITY WORKERS UNION OF

AMERICA, LOCAL 270,

Authorized Employee

Representative.

OSHRC DOCKET NO. 84-0593

DECISION

Before: BUCKLEY, Chairman; AREY, Commissioner.

BY THE COMMISSION:

The Secretary of Labor cited Cleveland Electric Illuminating
Company ("Cleveland" or "CEI"), a public utility providing electricity
in northeast Ohio, for violating the Occupational Safety and Health Act of 1970, 29 U.S.C.
� 651-678 ("the Act") by exposing some of its employees to the hazard of
falling while they were undergoing training. Because the administrative law judge who
heard the case concluded that CEI's training practices were necessary to give employees
the experience, confidence, and steadiness they would need for the work they were being
trained to perform, he vacated the citation. The union representing the affected employees
petitioned the Commission to review the judge's decision, and review was directed. We
reverse.

I

Cleveland's Electrical Construction and Maintenance (EC&M)
Department builds, repairs, and maintains the generating plants and substations in the
company's electrical distribution system. All construction, maintenance, and repair on
these substations is performed by employees called mechanics, who often work on metal
trestles called "bridges" at heights as much as 65 feet above the ground. The
mechanics are required to wear body belts and lanyards and to tie off the lanyards when
they are working at a specific location an a bridge. While the mechanics are moving to and
from these work stations, however, they cannot tie off. Under the standard before us,
"other safeguards shall be employed" when it is infeasible to tie off.[[1/]] The
parties stipulated, however, that it frequently is not feasible to use safety nets or
lines to protect the mechanics when they are working on bridges, so that they must move
around on the bridges without fall protection.

Before employees can become EC&M mechanics, they must first
serve as apprentice mechanics. Their apprenticeship includes a training program during
which they are required to move across bridges at progressively greater heights without
fall protection. It is this aspect of the training program that the Secretary has cited.
The Secretary asserts that employees who are inexperienced in negotiating the bridges
should not be exposed to the danger of falling, while the company argues that they must be
exposed in order to acclimate them to working under "real" conditions and to
build their confidence in their ability to negotiate the bridges at heights without fall
protection.

There are two major issues in this case. The first is whether
the construction standards in Part 1926 of 29 C.F.R., including the cited construction,
standard section 1926.951(b), apply to the training activities in question here. The
second is whether the company's testimony that it was necessary to perform the training
without fall protection in order to simulate real working conditions establishes a valid
defense for its failure to protect its employees from falling.

II

Section 1926.951 is found in Subpart V of Part 1926, which
contains the following provisions:

� 1926.950 General requirements.

(a) Application. The Occupational Safety and Health standards
contained in this Subpart V shall apply to the construction of electric transmission and
distribution lines and equipment.

(1) As used in this Subpart V the term of
"construction" includes the erection of new electric transmission and
distribution lines and equipment, and the alteration, conversion, and improvement of
existing electric transmission and distribution lines and equipment.

The general industry standards found in Part 1910 of 29 C.F.R.
contain similar provisions:

� 1910.12 Construction work.

(a) Standards. The standards prescribed in Part 1926 of this
chapter are adopted as occupational safety and health standards under section 6 of the Act
and shall apply, according to the provisions thereof, to every employment and place of
employment of every employee engaged in construction work. Each employer shall protect the
employment and places of employment of each of his employees engaged in construction work
by complying with the appropriate standards prescribed in this paragraph.

(b) Definition. For purposes of this section,
"construction work" means work for construction, alteration, and/or repair,
including painting and decorating. See discussion of these terms in � 1926.13 of this
title.

(d) For the purposes of this part, to the extent that it may
not already be included in paragraph (b) of this section, "construction work"
includes the erection of new electric transmission and distribution lines and equipment,
and the alteration, conversion, and improvement of the existing transmission and
distribution lines and equipment.

It is clear from the language of these provisions that some of
the work the EC&M mechanics normally perform--construction and improvement of
substations and generating plants--is, by definition, "construction work." The
question, however, is whether training the apprentices to perform these activities is
also, by extension, "construction work." We think it is.

CEI argues that the employees are not performing any work, that
all they are doing is walking back and forth across the bridges to develop their
confidence in their ability to do the work they will be assigned at some point in the
future. We think this is too narrow a reading of the term "work." The Commission
has rejected similar arguments. See North Berry Concrete Corp., 13 BNA OSHC 2055, 1988 CCH
OSHD � 28,444 (No. 86-163, 1989)(work necessarily includes getting to and from the work
station); Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1977-78 CCH OSHD �
22,353 (No. 14505, 1977)(same); Salah & Pecci Construction Co., 78 OSAHRC 50/A13, 6
BNA OSHC 1688, 1978 CCH OSHD � 22,807 (No. 15769, 1978)("working from an aerial
lift" includes being transported to and from the work level). The apprentices are
required by Cleveland to undergo this training as a prerequisite to becoming mechanics.
They are paid for their time. The company itself argues that training is necessary to the
apprentices' performance of their future duties. We therefore conclude that the training
constitutes "work."

We also conclude that, since the apprentices are being trained
to construct and repair substations and generating plants, the "work" they were
doing constitutes "work for construction, alteration, and/or repair" within the
meaning of 29 C.F.R. � 1910.12(b). Under Commission precedent, the construction standards
in Part 1926 apply to operations "that are an integral or necessary part of
construction work. Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD �
23,914 (No. 15169, 1979), aff'd, 645 F-2d 822 (9th Cir. 1981). Based on the company's own
assertions, we find that the training of the apprentice mechanics was an integral and
necessary prerequisite to their doing the construction work to which they would later be
assigned Cleveland's training operation was therefore required to comply with the
standards in Subpart V.

CEI argues that the construction standards in Part 1926 cannot
apply to its training because the activity took place at a separate training facility
where no construction work was being done. It is true that the lower two bridges used in
the training had been erected away from, the equipment in use and were used solely for
training, but the training was conducted at an operating substation, and the highest
bridge was located over actual operating equipment. We are aware that, since CEI filed its
brief, the Court of Appeals for the Sixth Circuit, in which Ohio is located, has issued a
decision in Brock v. Cardinal Industries, Inc., 828 F.2d 373 (6th Cir. 1987), in which it
held that there must be some nexus between the work activity and a construction site for
Part 1926 to apply.  We believe, however, that the rationale of the Court in Cardinal
Industries ought not to be extended to the circumstances which are present in this case.
We believe there is sufficient nexus between the training which was being conducted and an
activity covered by the standards that the training is covered by the standards in Subpart
V.

III

The next question we must resolve is whether the judge
correctly concluded that the purported need to simulate the actual conditions under which
the mechanics sometimes have to work justified exposing the apprentices to the hazard of
falling during their training. We find nothing in the Occupational Safety and Health Act,
in Commission precedent, or in this record that would justify exposing employees to a
hazard in the name of training.

The record indicates that the position of EC&M mechanic is
a desirable job in the company and that openings are usually filled by CEI employees from
other departments who apply for transfer to the EC&M department. Those selected must
serve a two-year apprenticeship, which includes training in the duties and functions of an
EC&M mechanic. Before Cleveland instituted this training program, apprentices were
simply sent aloft to learn their jobs. In 1973 or 1974, the company decided that it was
necessary to train its apprentices to work at heights before sending them into the field,
and this program was begun.

The classroom training covers the rules and requirements of the
job, followed by two days of outdoor training in climbing. The classroom instruction
covers climbing techniques and methods of traversing the bridges. it covers the use and
care of safety equipment, including body belts and lanyards. It also includes an
explanation of when and how they should tie off their body belts and when this is not
feasible.

The outdoor instruction begins with the instructor
demonstrating how to walk across the top of a bridge.[[2/]] At the time of the inspection,
training began with the employees walking a bridge twenty-five feet from the ground.[[3/]]
To start, ropes are strung along each side of the bridge about waist height, and each
apprentice crosses the bridge at least a dozen times, until he and the instructor are
satisfied that the apprentice can perform this exercise comfortably. At that point, one of
the ropes is taken down and the apprentice again crosses the bridge until he is able to do
it comfortably. The rope is then removed and the apprentice repeats the procedure. When
all the apprentices in the class have performed satisfactorily at twenty-five feet, they
move to the thirty-six-foot bridge, where the same steps are repeated.

The next day, the apprentices are given time to practice, with
or without the ropes, until they feel ready to be tested on the fifty-six-foot bridge,
which is in an unused part of the actual distribution system. To "graduate," an
apprentice must cross that bridge to the midway point, climb down the side of the bridge
and tie off his safety belt properly, then release himself, climb back to the top of the
bridge, and finish crossing the bridge. No rope is used an this bridge, and, unlike the
other two bridges, the fifty-six-foot bridge cannot have nets suspended beneath it.

The controversy is whether CEI must train its apprentice
mechanics without safety nets.[[4/]] Several witnesses on each side addressed this
question, and the parties have argued it at length. Cleveland asserts that the purpose of
the training is to help the apprentices overcome their fear of heights and that the
training is designed to simulate the "real life" conditions the apprentices will
encounter on the job and thereby to develop the apprentices' skill and confidence so that
they can function safely when they go into the field. The main theme of CEI's argument is
that using nets during training would give the apprentices a false sense of security by
giving them a crutch that they would not have out on the field. CEI witnesses testified
that they were familiar with the practices of other electric utilities and that none of
them used safety nets during training.

The primary danger that concerned Cleveland was that an apprentice who had not had this
training would "freeze." One witness, a mechanic who had been an apprentice
before this training was instituted, testified that he had "frozen" early in his
career, while another witness testified that he had once had to go up and "talk
down" an apprentice who had "frozen." His testimony indicates that he was
afraid the apprentice would grab him and cause them both to fall. The consensus of
Cleveland's witnesses was that, once the apprentices had been given the chance to practice
and to develop their confidence and skill, walking the bridges without fall protection was
not hazardous.

The Utility Workers Union of America, which participated in the
hearing, elicited testimony that many CEI mechanics do not walk the tops of bridges but
cross to their work stations some other way. It was established, however, that most of the
mechanics do walk the tops and that is sometimes the only way get to a job.

The Secretary presented evidence that nets could be suspended
beneath the bridges, and the Secretary argues that this should be done. The Secretary
asserts that the very employees who need fall protection the most, inexperienced
apprentices who are likely to experience strong fear or panic, are being forced to work
without any protection in order to qualify for a job.

The administrative law judge accepted CEI's position. He found
that Cleveland's method of training was necessary to protect the apprentices against
"exposure to the hazards alleged." The judge also concluded that the training
program complied with the requirements of 29 C.F.R. � 1926.21(b)(2).[[5/]]

Since we have determined that CEI's training was governed by
section 1926-951(b), which requires that employees use body belts or other safeguards, and
it is undisputed that CEI's apprentices were not using any fall protection, the question
we must resolve is whether anything in the law or the record excuses that failure to
comply with the standard. Since Cleveland's argument is in the nature of an affirmative
defense, the burden is on the company to establish that its practice was justified by the
circumstances. We find that CEI has not carried that burden.

Commission precedent recognizes two affirmative defenses that
arguably apply to CEI's argument: infeasibility of compliance and greater hazard. We must
therefore determine whether CEI has established either defense.

The Commission has held that an employer who has failed to
comply with an occupational safety or health standard may avoid liability for that
noncompliance by establishing that compliance was infeasible under the circumstances.
Dun-Par Engineered Form CO., 86 OSAHRC 37/A3, 12 BNA OSHC 1949, 1986 CCH OSHD � 27,650
(1986) rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988). Having reviewed the
evidence, we conclude that CEI has not established that using some form of fall protection
during its training was infeasible, particularly on the two lower bridges.

The company's management witnesses who testified that it was
necessary to simulate actual working conditions during the training were merely stating
their opinions. None of them had any training or special expertise in the psychology of
overcoming fear. None of then gave any basis for his conclusion that using nets or other
fall protection during training would adversely affect the apprentices. Certainly, the
assertion that using fall protection during training would give the apprentices a false
sense of security sounds reasonable at first blush, but there was neither factual support
nor expert testimony to support that assertion. Nor was there any explanation of what the
likely consequences of this sense of security would be. Since the purpose of the training
is to build the apprentices' confidence in their ability to walk the bridges, the use of
fall protection might equally help to increase their confidence. There is simply not
enough hard evidence to enable us to conclude that CEI's training would be any less
effective or that there would be any harmful effect when the apprentices go into the
field.

The Commission has also held that an employer's failure to
comply with a standard may be excused when it is shown that compliance with the would have
created a greater hazard to employees. To prove a greater hazard defense, an employer must
show that (1) the hazards of compliance with a standard are greater than the hazards of
noncompliance, (2) alternative means of protection proposed by the Secretary were
unavailable, and (3) a variance was not available or was inappropriate. Lauhoff Grain Co.,
87 OSAHRC 5/A3, 13 BNA OSHC 1084, 1987 CCH OSHD � 27,814 (1987). In addition, the
applicable standard, section 1926.951(b)(1), contains its own greater hazard provision,
that belts must be worn "except where such use creates a greater hazard to the safety
of the employees, in which case other safeguards shall be employed."

The question is whether CEI has shown that the hazards of
compliance outweigh "the hazards of noncompliance. The danger from walking fifty-six
feet off the ground along a four-foot-wide trellis (or even thirty-six or twenty-five feet
high) is evident. We are aware that Cleveland had experienced no falls during its
training, but the hazard nevertheless exists. Nothing in the record or in logic shows that
the danger of falling during post-training work is somehow greater than the danger of
falling during the training. The only suggestion that there might be a greater hazard came
from the witness who had once climbed up to "talk down" an apprentice who had
"frozen." The witness testified that he was afraid that the other employee would
"do something to" him. Presumably, he feared that the employee would grab him,
causing both to fall. This speculation does not, however, establish the existence of a
greater hazard. While we can sympathize with the fears experienced by both the witness and
the employee who froze, it has not been shown that an employee trained with nets and then
sent into the field is more likely to freeze or fall than an employee who is being or has
been trained without nets. We therefore find that the greater hazard defense has not been
proved.

CEI has presented convincing evidence that most if not all
other electric utilities that conduct similar training also do so without fall protection.
That situation does not affect Cleveland's legal obligation to comply with the standard.
Evidence as to industry practice is appropriate only in applying a "reasonable
person" test to cure potential vagueness in a standard; it should not be considered
when, as it does here, the standard prescribes the required conduct in specific terms.
Cleveland Consolidated, Inc., 87 OSAHRC 7/A3, 13 BNA OSHC 1114, 1117, 1987 CCH OSHD �
27,829, p. 36,428 (No. 84-696, 1987), and cases cited at nn. 3 & 4.

The essence of Cleveland's position is that it must train its
apprentices without nets in order for that training to be effective. We simply cannot find
that the record supports that proposition.

IV

The last question is whether, as the judge concluded, Cleveland
was excused from complying with section 1926.951(b)(1) because it was complying with
another standard, 29 C.F.R. � 1926.21(b)(2), that required it to train its employees to
recognize and avoid hazards. Cleveland argues that its non-compliance was
"justified" because it taught the apprentices how to control and eliminate
exposure to injury during their subsequent work. We hold that the judge erred.

Sections 1926.951(b)(1) and 1926.21(b)(2) are not incompatible;
an employer can comply with both and, in fact, has a legal obligation to do so. While
training employees as required by 1926.21(b)(2), an employer must take all necessary and
feasible measures to protect them from the hazards they are being trained to recognize and
avoid.

V

We find that CEI violated 29 C.F.R. � 1926.951(b)(1). We deem
a penalty of $100 to be appropriate. Under section 17(j) of the Act, 29 U.S.C. � 666(i),
we must consider four factors in determining an appropriate penalty: the size of the
employer, the gravity of the violation, the good faith of the employer, and the employer's
history of prior violations. Here, a substantial consideration is that CEI developed this
training program in the good faith belief that it was promoting the safety of its
employees. The company patterned its training program after those of other public
utilities in its industry, and the gravity of the violation is diminished by the fact that
the apprentices had ropes to hold for much of their training on the bridges.

The decision of the administrative law judge is therefore reversed. We affirm. the
citation, as amended, for a violation of 29 C.F.R. � 1926.951(b)(1) and assess a penalty
of $100.00.

FOR THE COMMISSION

Ray H. Darling, Jr. 

Executive Secretary

DATED: April 18, 1989

SECRETARY OF LABOR,

Complainant

v.

CLEVELAND ELECTRIC ILLUMINATING CO.,

Respondent,

and

UTILITY WORKERS UNION OF AMERICA, AFL-CIO,

Authorized Employee

Representative.

OSHRC, Docket No. 84-0593

APPEARANCES:

Gary A. Boncella, Esquire, Office of the Solicitor, U. S. Department of Labor,
Cleveland, Ohio, on behalf of complainant

Tomas Barnard and Kenneth B. Stark, Esquires, Cleveland, Ohio, on behalf of
respondent

Mr. Michael Coughlin, Utility Workers Union of North America, Local 270, Cleveland,
Ohio, on behalf of authorized employee representative

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to section 10
of the Occupational Safety and Health Act of 1970 ("Act") to contest a citation
issued by the Secretary of Labor ("Secretary") pursuant to section 9(a) of the
Act.

Prior to commencement of the hearing, the Secretary's motions to vacate the alleged
violation of 29 C.F.R. � 1926.21(b)(2), and to allege in the alternative to item 1(a),
violations of 29 C.F.R. � 1926.28(a) and � 1926.951(b)(1), were granted.

The underlying facts in this case are not in dispute.
Respondent, an electrical public utility, serves customers in northeast Ohio with four
generating plants which transmit electricity to various substations. From high voltage
transmission substations, the electricity is reduced in voltage and transmitted to
distribution substations. Respondent operates approximately 40 transmission substations
and 175 distribution stations.

Respondent's construction and maintenance department builds,
installs, maintains and repairs the substations. The duties of this department are
performed by electrical mechanics classified as Electrical Mechanic Leaders, Electrical
Mechanics Grade I, Electrical Mechanics Grade II and Electrical Apprentices.

All mechanics are required to perform work at elevations within
the structure of the substations, including changing and cleaning insulators. servicing
switches, replacing capacitators, cleaning bushings and repairing defective lines. It is
undisputed that the mechanics are also required to tie off prior to performing any work.

This case concerns the training requirements for apprentice
mechanics. The apprentice is the entry level position which generally provides assistance
to the higher classified mechanics. Employees enter their apprenticeships by voluntary
transfer to the department, testing, and then training. The apprenticeship program lasts
two years during which the apprentice is given formal classroom training in addition to
on-the-job training. Generally, the training program includes substation orientation,
structure climbing and use of tools. The training is conducted both in classrooms and on
the jobsite. It is the structure climbing segment of the training that is the subject of
the citation.

The parties stipulated that due to the configuration of the
substations, it would be infeasible to install fall protection for employees moving about
the substation structures in the course of their work (Tr. 363; Ex. R-1 thru R-13).
Complainant maintains, however, that fall protection in the form of safety nets or
lifelines are feasible at the training site when trainees are required to walk on top of
the substation bridge. Accordingly, the structure climbing training was conducted in
violation of the following standards:

29 C.F.R. � 1926.105(a):

Safety nets shall be provided when workplaces are more than 25
feet above the ground or water surface, or other surfaces where the use of ladders,
scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
impractical.

Or in the alternative:

29 C.F.R. � 1926.28(a):

The employer is responsible for requiring the wearing of
appropriate personal protective equipment in all operations where there is an exposure to
hazardous conditions or where this part indicates the need for using such equipment to
reduce the hazards to the employees.

And:

29 C.F.R. � 1926.951(b)(1):

Personal climbing equipment. (I) Body belts with straps or lanyards shall be worn to
protect employees working at elevated locations on poles, towers, or other structures
except where such use creates a greater hazard to the safety of the employees, in which
case other safeguards shall be employed.

The record discloses that after training in electric safety and
use of safety belts, the training in structure climbing begins. The apprentice climbs to
the "box bridge" on the substation at a level of 25 feet where 3/4- inch ropes
are strung on both sides. He traverses the bridge a minimum of 12 times to demonstrate his
confidence before one rope is removed and then the other before he walks the bridge with
no ropes as support. At each phase he crosses the bridge at least 12 times before moving
to the next and proceeds at his own pace of confidence and comfort. This procedure is
similarly repeated at the 36-foot and 55-foot levels. He also practices use of his safety
belt on the side of the bridge at each level (Tr. 384-390).

The Secretary argues that inexperienced employees were exposed
to fall hazards in being required to walk across the bridges to qualify for jobs that do
not involve that particular activity. [The record does reflect that walking across the top
of a bridge is not necessarily part of the mechanic's job (Tr. 198)]. Mr. James Szakovits,
safety specialist supervisor who conducted the inspection herein, testified that the fall
hazard of up to 55 feet could be abated by the installation of safety nets or permanent
lines to which safety belts could be attached (Tr. 280).

Complainant also asserts that respondent is properly charged
under the construction standards since the Commission has held they are applicable to
power companies. Pacific Gas & Electric Co., 75 OSAHRC 16/200, 5 BNA OSHC 1702,
1974-75 CCH OSHD � 19,431 (No. 2821, 1975). Therefore, any training to perform the work
of building or renovating substations and transmission equipment should be covered by the
section.

The Commission has held that, in order to establish a violation
such as set forth, it is necessary for the Secretary to show by a preponderance of the
evidence that (1) the cited standard applies; (2) there was a failure to comply with the
standard; (3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of reasonable
diligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1982 CCH
OSHD � 26,251 (No. 78-6247, 1982); Daniel International Corp., 81 OSAHRC 71/06, 9 BNA
OSHC 2027, 1977-78 CCH OSHD � 21,679 (No. 76-181, 1977).

There is no question that Subpart V of the Construction Safety
Standards apply to the construction of electric transmission and distribution lines and
equipment. Its application, however, is limited to certain areas of construction as set
forth in 29 C.F.R. � 1926-950(a)(1) as follows:

(1) As used in this Subpart V the term "construction"
includes the erection of new electric transmission and distribution lines and equipment,
and the alteration, conversion, and improvement of existing transmission and distribution
lines and equipment.

Respondent does not deny application of the standards to
construction work but argues that its training activities in no way involves construction
work within the context of the standards. In support of this argument, it is pointed out
that the Commission has extended the scope of the standards in Part 1926 to include only
actual construction work or related activities that are an integral and necessary part of
the work. Royal Logging Company, 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD � 23,914
(No. 15169, 1979).

It is clear respondent's training procedure was not actual
construction work and was not part of the actual construction to be performed at the
substations. Generally, the determination as to what constitutes construction work depends
on the activities or functions engaged in by the employer in the overall work process. See
Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD � 20,503 (No.
5064, 1976) and Bertrand Goldberg Associates, 76 OSAHRC 102/A9, 4 BNA OSHC 1587, 1976-77
CCH OSHD � 20,995 (No. 1165, 1976).

In this case, clearly the training function or activity was
directed solely toward the employee becoming a craftsman in the construction industry. His
performance was "directly and vitally" related to construction work, so much so
that his employment was contingent on successful completion of the program.

Therefore, under the circumstances, actual physical
construction work is not a necessary element that must be shown if the activity is an
integral and necessary part thereof.

Even though the standards have application to the facts in this
case, a failure to comply has not been established. The facts reveal that due to the
configuration of the substation structure, fall protection was not feasible and it is not
disputed that employees must tie off to a stable object prior to performing any work.
Also, when moving about the structure, experienced mechanics usually walked. In light of
the foregoing, it was explained that the goal of the training was to help the apprentices
become proficient in walking in an atmosphere similar to the on-the-job conditions.
Clearly, there is merit to the contention that an untrained employee would be faced with a
hazard when walking across the bridges without fall protection. The evidence, however,
sufficiently establishes that the entire training process provided the necessary
experience, confidence and steadiness for protection against exposure to the hazards
alleged. Testimony persuasively shows that since the formal training program began In
1973, approximately 50 apprentices have successfully completed it without the occurrence
of falls, accidents, or injuries in connection with the climbing training. (Tr. 307-308).
This proficiency in climbing also demonstrates that the employees have overcome the
serious problem of "freezing" and the need for rescue efforts often associated
with the fear involved (Tr. 393) additionally, respondent's procedure for training
apprentices appears to be in total compliance with section 1926.21(b)(2) which requires
that:

(2) The employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other exposure to illness or injury.

Consistent with the requirements of the standard, respondent's climbing training was
initiated for the purpose of providing instruction to control or eliminate exposure to
injury.

The citation is, therefore, vacated.

FINDINGS OF FACT

1. Cleveland Electric Illuminating Co., at all times hereinafter mentioned, maintained a
   place of business at a Clinton Road electrical substation in Brooklyn Ohio.

2. On February 15, 1984, authorized representatives of the
   Secretary conducted an inspection of respondent's aforesaid workplace. As a result,
   respondent was issued a citation and notice of proposed penalty.

3. Respondent operates approximately 215 substations with
   approximately 100 electrical mechanics performing the construction and maintenance
   activities.

4. The electrical mechanics are divided into four job
   classifications: Electrical Mechanic Leader, Electrical Mechanic Grade I, Electrical
   Mechanic Grade II, and Electrical Apprentice. The Electrical Apprentice is the entry level
   position, and the apprentice generally assists the higher classification mechanics.

5. All mechanics are required to perform work at elevations
   within the substation structure. However, due to the configuration of the substations, it
   is not feasible to install fall protection for employees moving about the structures.

6. Respondent's two-year apprentice training program consists
   in part that trainees be required to walk across the top of the bridge of the structure at
   elevations of 25, 36 and 55 feet, respectively.

7. The apprentice training program is an activity which is
   necessary and vital to the construction work process.

8. The training program provides the apprentices with the experience, steadiness and
   confidence for adequate protection against exposure to fall hazards.

CONCLUSIONS OF LAW

1. Cleveland and Electric Illuminating Co., at all times pertinent hereto, was an employer
   engaged in a business affecting commerce within the meaning of section 3(5) of the
   Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the
   parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required
   to comply with the safety and health regulations promulgated by the Secretary pursuant to
   section 6(a) of the Act.

3. Respondent, at the time of the aforesaid inspection, was not
   in violation of 29 C.F.R. � 1926.105(a), 29 C.F.R. � 1926.28(a), and 29 C.F.R. �
   1926.951(b)(1).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, and the entire
record, it is hereby ORDERED:

The citation is hereby vacated.

PAUL L. BRADY

Judge

Date: May 8, 1985

FOOTNOTES:

[[1/]]The standard, 29 C.F.R. � 1926.951(b), provides:

� 1926.951 Tools and protective equipment.

(b) Personal climbing equipment. (1) Body belts with straps or lanyards shall be worn
to protect employees working at elevated locations on poles, towers, or other structures
except where such use creates a greater hazard to the safety of the employees, in which
case other safeguards shall be employed.

The Secretary originally cited the company for a willful violation of 29 C.F.R. �
1926.105(a), but moved at the hearing to amend the pleadings to allege in the alternative
a serious violation of that standard or either 29 C.F.R. � 1926.28(a) or 29 C.F.R. �
1926.951(b)(1). That motion was granted. In their briefs, both parties agree that �
1926.951(b)(1) is the standard that is most specifically applicable to the conditions
cited here.

[[2/]] The bridges are rectangular frames that are usually four
feet wide but vary from two feet high by two feet wide to six feet high by four feet wide.
They consist of four long beams connected by a series of diagonal cross-pieces. Each
diagonal meets another diagonal on each side. The greatest distance between the diagonals
is about eighteen inches.

[[3/]] After the inspection but before the hearing, Cleveland
altered its training program to add a new first step. The employees now begin on a bridge
eight feet high, then move to the twenty-five-foot-high bridge.

[[4/]] Section 1926.951(b) requires the use of body belts or
"other safeguards." Although, some reference was made at the hearing to other
other methods of fall protection, it is clear that what the Secretary wants here is safety
nets. That is the means of protection that the parties litigated.

[[5/]] That standard provides:

� 1926.21 Safety training and education.

(b) Employer responsibility.

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to control or eliminate
any hazards or other exposure to illness or injury.