Cleveland Electric Illuminating Co.

Plain-English summary

Cleveland Electric Illuminating required experienced electrical installers in a training program to cross narrow steel bridge structures as high as 36 feet without fall protection. The utility argued that unprotected exposure to height was psychologically necessary to prepare employees for substation work and prevent them from freezing during real tasks. The Commission found that the employees' jobs did not require free-walking without protection and that the company had not shown the absence of safety belts was essential to the training. It affirmed a serious personal-protective-equipment violation and assessed $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a).
• Outcome: Affirmed. The serious fall-protection violation was affirmed with a $5,000 penalty.
• Key point: An employer cannot expose trainees to a serious fall hazard without protection when it has not shown that unprotected exposure is necessary for the work or essential to the training.

Full text (OSHRC public release)

                                         UNITED STATES OF AMERICA
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                           One Lafayette Centre
                                     1120 20th Street, N.W. - 9th Floor
                                        Washington, DC 200364419

PHONE:
coM(202)606-5100
FTS(202)60&5100

                                                                    ..

     SECRETARY         OF LABOR,                                    ..
                                                                     ..
                             Complainant                              ..
                                                                    l
                                                                    .




                     v.                                             ..
                                                                     .     OSHRC Docket No. 91-2198
     CLEVELAND            ELECTRIC     ILLUMINATING        CO.,      ;
                                                                     ..
                             Respondent.                              ..
                                                                       .



                                                  DECISIO N

     BEFORE:        WEISBERG,        Chairman and MONTOYA, Commissioner.*
      BY THE COMMISSION:
               Cleveland Electric Illuminating Company (“CEI”), a public utility, operates a training
      facility at its Clinton Substation facility in Brooklyn, Ohio. At issue here is a citation alleging
      that CEI violated the Occupational        Safety and Health Act of 1970, 29 U.S.C. 55 651-678
      (“the Act”) by failing to provide fall protection to employees undergoing training at heights
      up to 36 feet above ground. Administrative       Law Judge Edwin Salyers affirmed the citation.
      For the reasons stated below we affirm his decision.


                                                 I. Backgmmd
               Following an inspection, the Secretary issued a citation alleging that on March 18-20,




       *Commissioner Foulke has recused himself from this case.

2

1991, CEI violated section 1910.132(a)l by requiring employees to “traverse on 4” wide
angle-iron rails of a steel structure (bridge) at heights up to 36 * without fall protection . . . .”
Five employees were involved in a CEI training program, which CEI has offered since
1971, that attempts to simulate the conditions employees will face when working at electrical
substations. Following classroom instruction and practice walking on angle iron structures
on the ground, the employees are required to either walk or side-step’ across 2- to 4-inch-
wide steel latticework bridge structures at heights of 8, 25, and 36 feet. After achieving a
comfort level while crossing one level, the trainees progress to the next higher level. They
are not provided with any form of fall protection. The structures were fitted with ropes that
the trainees could hold onto, but they were informed that these were merely there to
increase their confidence while crossing the bridge, and were not safety ropes. The
employees were generally discouraged from using the ropes and, on the third day, the ropes
were removed. Some of the trainees refused to cross without ropes. As a final test, the
trainees were asked to cross a M-foot tall structure, but they refused, with or without ropes.
Eugene Saurwein, an electrical supervisor who was one of the training instructors,
stated that no trainee has fallen during his seven years as an instructor. Although one
employee testified that he felt intimidated by Saurwein during the training, the evidence
shows that, while Saunvein exhorted the trainees to cross the various heights, they were

‘The standard provides:

       §19lO.l32General
                      requirements.

       (a)   Application. Protective      equipment, inchxiing personal protective
       equipment for eyes, face, head, and extremities, protective clothing, respiratory
       devices, and protective shields and barriers, shall be provided, used, and
       maintained in a sanitary and reliable condition wherever it is necessary by
       reason of hazards of processes or environment, chemical hazards, radiological
       hazards, or mechanical irritants encountered in a manner capable of causing
       injury or impairment in the function of any part of the body through
       absorption, inhalation[,] or physical contact.

‘Under this method the employee holds onto the top rail, with his feet on the bottom rail,
and steps sideways across the bridge.
 3

allowed to proceed at their own pace and were never forced to cross a level if they felt
uncomfortable. During training, one employee caught his toe and tripped but prevented
himself from falling by grabbing the structure.
The employees involved in the citation were experienced electrical installers, each of
whom had been in his current position for three to four years. However, none had yet
received climbing training. 3 Despite their failure to complete the training, none of the
employees were removed from their positions as electrical installers. Saurwein testified that,
had the employees been raw trainees, rather than experienced employees, their refusal to
cross at the 56-foot level would have resulted in their failing the course and returning to
their previous jobs.
CEI’s justification for the lack of fall protection was explained by a number of
witnesses. Craig Kaspar, a CEI general manager, testified that repair and construction work
at substations sometimes requires electrical installers to walk the bridges without fdll
protection. Saurwein and Morris Mach, a former electrical installer who is product manager
for a company that makes video-based training films, testified that the normal way for
experienced climbers to traverse a substation structure was to walk the top of the bridge
without holding on. Because the substations are highly electrified, it is not feasible to use
safety nets to protect these employees. As a result, employees must be psychologically
prepared to ‘%~a&the steel.” An employee who freezes while on the steel must be rescued,
thereby exposing himself and his rescuers to the danger of falling.
Robert G. Kaplan, a psychologist qualified as an expert in the “psychology of fear,”
testified that CEI’s training program was appropriate and necessary to enable employees to
work at heights without fall protection. In Dr. Kaplan’s view, such exposure to anxiety-
producing situations is absolutely necessary to alleviate fear. Kaplan testified that CEI’s
training program helps its participants deal with the normal fear of heights. He especially
approved of the way the training progresses Tom walking at increasing heights with
handholds available to walking at increasing heights without the handholds. In Dr. Kaplan’s

?hey had been scheduled for such training when first hired as electrical installers, but the
session was cancelled due to bad weather.
 4

view, individuals will perform physical tasks best at an optimal level of anxiety. Dr. Kaplan
believed that an employee who had gone through a program such as CEI would be better
prepared to deal with the anxiety associated with climbing a M-foot structure, and would be
far less likely to freeze, than an individual who had never been exposed to that situation.
According to Dr. Kaplan, using fall protection during a training program such as CEI’s
would prevent the trainees from learning how to manage anxiety and would endanger their
safety.
The employees who were engaged in the training testified that they had never seen
any other employee free-walk4 on the steel bridges. They stated that they would usually be
taken directly to their work area on the substation by aerial equipment (Le., crane bucket),
or would get to their work area by moving within the angle iron latticework. They also
testified that although employees tie-off when they get to their work stations on a bridge,
they must often untie their belts to move between the electrical switches they are working
on.

                                    II.    Judge’s Decision

       Judge Myers affirmed the item as serious and assessed a $5000 penalty.            He held

that section 1910.132(a) applied to the cited condition, that the Secretary established that
a fall from a height of 36 feet is a recognized hazard likely to result in death or serious
physical injury, and that CEI knewof the exposure.
The judge found two flaws with CEI’s claim of “psychological” infeasibility. First, he
noted that the employees chosen for the program were experienced employees who had not
shown any difficulties coping with heights. The judge found that, if the purpose of the
training was to desensitize employees to heights, the participants should have been
employees who had such difficulties. To choose employees who had no problems working
at heights needlessly exposed them to a seriousfall hazard.

4Free-walking is walking along the angle irons of the bridges without the use of fall
protection or any form of support, such as holding on to overhead irons.
 5

    The second flaw found by the judge arose from Dr. Kaplan’s testimony                that the

program is ineffective if employees are not “required” to free-walk without fall protection.
Since Saurwein testified that employees are given the option of walking while holding on to
the ropes, the judge found that providing no fall protection cannot be the essential element
of the training program.
The judge concluded, however, that notwithstanding these flaws, the defense must fail
because there is no Commission precedent for psychological infeasibility.

                                     III . Discussion
                                             A

    To establish a violation of section 1910.132(a), the Secretary must establish that the

employer had actual notice of a need for protective equipment or that a reasonable person
familiar with the circumstances surrounding the hazardous condition, including any facts
unique to the particular industry, would recognize a hazard warranting the use of personal
protective equipment. Con Agra Flour M illing Co., 16 BNA OSHC 1137, 1140, 1993 CCH

OSHD ll 30,045, p. 41,232,33 (No. 88-1250, 1993), mv’d on othergrounds, 31 F.3d 653 (8th
Cir. 1994); Annour Food Co., 14 BNA OSHC 1817, 1820, 1987-90 CCH OSHD T 29,088,
p. 38,881 (No. 86-247, 1990). Evidence of industry custom and practice will aid such a
determination, but it is not necessarily determinative.
We find that the Secretary has established that the employees undergoing training
were exposed to a hazard warranting the use of personal protection equipment. In fact, CEI
does not dispute that its employees were exposed to a serious fall hazard and that it was
physically feasible for the employees to be protected by safety belts.
CEI has not shown, however, that the training of the five employees would be
frustrated by the use of safety belts. First, there was no evidence that the electrical
installer’s job required work without fall protection. The employees’ duties may involve free-
walking, but such occasions are infrequent and, when they do occur, employees can utilize
methods other than free-walking (i.e. crawling, side-straddling, walking inside the latticework)
to reach their work stations. There was evidence that, on occasion, the electrical installers
would have to unhook their safety belts to make short movements between work locations
on a bridge. However, during such movements, they would either walk between the
 6

latticework, crawl, hold on to the steel above them, or use other methods to reduce the risk

of falling. Both Kaspar and Saurwein testified that employees did free-walk the steel, but
then conceded that other methods of crossing usually are available? Second, the record did
not establish that not using belts was an essential element of the training. The trainees were
urged, but not required, to free-walk without using the ropes. Despite their failure to
complete the course, they were allowed to remain electrical installers because, according to
CEI, they were already proven, experienced employees. As the judge properly noted, this
“optional” element is inconsistent with CEI’s assertion that training without fall protection
was necessary for these employees to work safely.
W e therefore find that CEI had reason to know that the five employees being trained
on the date of the inspection were exposed to a fall hazard requiring the use of personal
protective equipment.6 Because the evidence also establishes that CEI did not require the
use of such equipment,’ we find that CEI failed to comply with section 1910.132(a).8

‘In this regard, Saurwein testified as follows:

              Q. How often is it that you would absolutely have to walk the
     top of the bridge because there is no other way to get to the work area
              A. Not real often.

‘Chairman W eisberg agrees that CEI failed to comply with section 1910.132(a) on
March l&20,1991 with regard to the five employees at issue here. However, he would also
find based on the evidence presented that CEI’s entire program of training at heights
without fall protection violated the standard. The Chairman would treat CEI’s defense of
“psychological infeasibility” as a claim that employees will be exposed to a greater hazard
if they are not trained without fall protection. See, e.g., Spancrete Northeast;Inc., 16 BNA
OSHC 1616,1618,1994 CCH OSHD lI 30,366, p. 41,888 (No. 90-1726,1994), afd, No. 94-
4043 (2d Cir. Oct. 14, 1994). In his view, CEI has failed to effectively rebut the testimony
of the employees concerning the requirements of their jobs and the hazards that they are
necessarily exposed to in performing them. Therefore, CEI has failed to show there is an
on the job need that justifies the hazard of exposing employees to a fall without any
protection in the name of training. In this respect, he notes the testimony that on the few
occasions involving free-walking,methods other than free-walking were available to the
employees. Additionally,regarding the training program as a whole, the Chairman notes
that an inexperienced employee would have failed the course if he had refused to walk at
any level, even the highest level of 56 feet, without fall protection.

‘We note that safety nets are not a form of personal protective equipment and, therefore,
cannot be required by the standard. However, had CEI provided nets, it would have
(continued...)
 7

                                            B0
                               Character&at&zand Penalty

       We find the $5000 penalty proposed by the Secretary and assessed by Judge Salyers

to be appropriate. When dete rmining an appropriate penalty, the Commission must
consider the gravity of the violations, the size of the employer, its good faith and safety
history. Section 17(j) of the Act, 29 U.S.C. 6 666@? The evidence establishes that CEI
is a large company with a history of previous violations. The violation was also of high
gravity. A fall from the 36foot bridge would have resulted in death or serious physical
injury. While CEI’s desire to train its employees does indicate good faith, we find that factor

‘(...corztiued)
eliminated the fall hazard and there would have been no violation of 29 C.F.R.
§ 1910.132(a).

8The Secretary cited CEI under section 5(a)(l) of the Act, the general duty clause, in the
alternative. Citation under the general duty clause was inappropriate at the time the citation
was issued because section 1910.132(a) was specifically applicable to the fall hazard. Ted
Wilkerson, Inc., 9 BNA OSHC 2012, 1981 CCH OSHD ll25,551 (No. 13390, 1981). We
note, however, that to establish a violation of section S(a)(l), the Secretary must prove that:
(1) a condition or activity in the employer’s workplace presented a hazard to employees, (2)
the cited employer or the employer’s industry recognized the hazard, (3) the hazard was
causing or likely to cause death or serious physical harm, and (4) feasible means existed to
eliminate or materially reduce the hazard. Kizstalon,Inc., 12 BNA OSHC 1928,1931,1986
87 CCH OSHD ff 27,643 p. 35,973 (No. 79=3561,1986)(consolidated); Pelron Cop., 12 BNA
OSHC 1833, 1835, 1986-87 CCH OSHD T 27,605, p. 35,871 (No. 82-388, 1986). The
evidence establishes that the hazard of trainees falling from the towers during training was
recognized and that a fall from the heights involved would cause death or serious physical
harm. Moreover, the record demonstrates that the hazard could be abated either by using
safety nets or safety belts. Therefore, if the standard were found not to apply to the hazard,
we would find that the record demonstrates a violation of the general duty clause.

mat section provides:

       The Commission shall have the authority to assess all civil penalties provided
       in this section, giving 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.

8

to be adequately reflected by a penalty that is $2000 below the maximum of $7000 provided
*

under section 17(a) of the Act.

                                      IV. O RDER                                        -

     Accordingly,   the judge’s   decision   affirming   a serious   violation   of 29 C.F.R.

6 1910.132(a) is AFFIRMED and a penalty of $5000 is ASSESSED.

                                                           j#lmk            E*   xbLiAb~
                                                          Stuart E. Weisberg
                                                          Chairman




                                                          Velma Montoya
                                                          Commissioner

Dated: October 31, 1994
 lJNlTED SlAlES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th floor
Washington, DC 2003643419

SECRETARY OF LABOR, ’ .

                                   l



                                   .

                                   .




        Complainant,               ..
                                    ..
  v.                                 ..     Docket No. 91-2198
                                   .
                                   .
                                   ..

CLEVELAND ELECTRIC
ILLUMINA’ITNG CO., ..

        Respondent.                    ..
                                        .



                       NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
October 31.1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEAL!5 WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.

                                            FOR THE COMMISSION

October 31. 1994
Date
Executive Secretary
Docket No. 91-2198

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for RegionalTrial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W .
Washington, D.C. 20210

Benjamin T. Chid, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Kenneth B. Stark, Esq.
Duvin, Cahn & Barnard
Erieview Tower 20th Floor
1301 East Ninth Street
Cleveland, OH 44114

David T. Kotecki, VP
Utility Workers Union of America
Local 270
4205 ChesterAvenue
Cleveland, OH 44103

Office of
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119

UNITED STATESOF AMERICA
OCClJPATlONAL !SAFElY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4Tti FLOOR
WASHINGTON D.C. 20006-l 246

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
V. NO. 91-2198
CLEVELAND ELECTRIC ILLUMINAmG
COMPANY,
Respondent,
UNITED UTILITY WORKERS OF
AMERICA,
Authorized Employee
Representative.

                NOTICE OF DOCKETING
          OF ADMINISmm     LAW JUDGES DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on November 4, 1992. The decision of the Judge
will become a final order of the Commission on December 4, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF-THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
November 24, 1992 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor,, U.S. DO%
Room S4004 *
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DOCKET NO. 91-2198

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent th ,e Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.

                                 FOR THE COMMISSION

Date: November 4, 1992
DOCKET NO. 91-2198
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of ii e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Kenneth B. Stark, Esq.
Duvin, Cahn & Barnard
Erieview Tower 20th Floor
1301 East Ninth Street
Cleveland, OH 44114

Edwin G. &dyers
Administrative Law Jud e
Occupational Safety an cf Health
Review Commissl~n
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

0010884496O:OS
 UNlED S’CAm OF AMERCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMbl~SSt0N
1365 PEACHTREE STREETI,NE., SUTZ 24C
ATLANTA, GEORGIA 30309-3119

PHONE:
COM (40s) 34?419?
m257-486

                                                     l
                                                     .

SECRETARY OF LABOR, . .0
Complainant, 0.

                v.                                           OSHRC Docket No.: 91-2198

CLEVELMDELE-C
ILLUM INArING COM PANY,
Respondent,

                and                                  ..
                                                      ..

UNITED UTUIY W ORKERS 0
l

OF AMERIC& l
.

 Authorized Employ=                                  l
                                                     .




 Representative.                                         l
                                                         .



                                                         .
                                                         a

Appearances:

      Sandra B. Kramer, wuire                                Kenneth B. Stark Esquire
             Office of the Solicitor                                Duvin,CahnandBamard
             U. S. Department of Labor                              Clevelanc&Ohio
             clevelane Ohio                                                  For Respondent
                     For Complainant

      Mra David Kotecki
             For Apthorrized
                         EZmployeeRepresentative

Before: Administr&veLaw Judge Edwin G. Myers

                                 DECISION AND ORDER

       Cleveland Electric IlluminatingCompany (CEI) contests a citation issued by the

Secretmy alleginga sefious violation of 29 C.F.R. 5 1910.132(a), or, in the ahnative, a
seriousviolationof $ S(a)(l) of the OccupationalSafety and Health Act of 1970 (Act). CEI
is a public utilitywhich supplieselectricity to customersin northeast Ohio. The alleged
violation occurred duringa training session for electrical instaIlers held from M arch 18 to
M arch 20, 1991. The electrical installerswere required to traverse steel bridge structures
at heights of up to 36 feet without M protection. CEI asserts that compliancewith the
standardscited is infeas~We.
The Secretary had previous2ycited CEI for exposingits employeesto f&lIsduringits
training prog%m in 1984. A complete understandingof the present case requires that the
historyof the previouscase be related. In that case, the Secretary cited CEI for the serious ,
violation of a constructionstandard,9 1926.951@)(l), for failure ‘to providefdll’protection
for apprenticesduringtrainingexercisesin whichthey were required to walkback and forth
across open bridgeselevated25 to 56 feet abovethe ground. CEI defendeditselfon two
grounds: That the constructionstandardsdid not apply to its trainingprogram,and that it
was necessary to petiorm the training withoutfkll protection in order to simulate real
working conditions. Training on bridges without fdll protection, CEI argued, would
psychologicallypreparetheemployeesforworkingon real substations.W ithoutthistraining,
employeeswouldhave a greater likelihood of “ freezing” under actual work conditions.
Judge Paul BradyrejectedCEI’s first argument,findingthat the constructionstandardsdid
applyto CEI’s trainingprogram. He acceptedthe company’ssecondargument,however,
and concludedthat CEI was not in violat& of 29 C.F.R. 6 1926.95(b)(l) because the
trainingprogramwas necessaryto instillconfidencein CEI’s employees.
The Review Commissionreversed Judge Brady’s decision in C&&z& E&c&
l

mw rwrarin g Co., 13 BNA OSHC 2209,1989CCH OSHD a 28,494 (No. 84-593,1989), rev’d
sub nom, Ckvelanti Ektric llluminaring Co., 910 F.2d 1333 (6th Cir. 1990). The
Commission agreed with Judge Brady that the constructionstandardsapplied to CEI’s
training progranL C&em 1989 CCH OSHD at pg. 37,759. The Commissiondisagreed
with Judge Brady’s conclusionthat CErs training program did not violate 29 C.F.R.
0 1926.951(b)(2) and reversedhis decision.The Commissionstated= “ We find nothingin
the OccupationalSafetyand Health Act, in Commissionprecedent,or in this record that
wouldjustify exposingemployeesto a hazardin the name of training.” Cleveland,1989 .
CCH OSHD at pg. 37,759.
CEI appealed the decisionto the United States Court of AppeaIs for the Sixth
Circuit. The court reversed the Review Commission’sdecision h C&v&& E&&i
muminaring V, OSHRC 910 F.2d 1333 (6th cir. 1990), on the groundsthat “OSHA has
failed to establishthe nexusbetween the training activityand a particularconstructionsite
as requiredby Bmck v. Cardinal lirdusnies,Iizc., 828 F.2d 373 (6th Cir., 1987)” The majority
opiniondid not addressthe question of whetherit was appropriateto ti the employees
at heights abe six feet without providingthem with fall protection. In his dissenting
opinion,Judge Merritt disagreedwith the majority opinionthat CEI’s employeeswere not
involvedin constructionworkduringthe company’strainingsessions. Judge Merrittfurther
commentedon the issue of whether it was reasonable for CEI to train its employeesby
exposingthem to heightswithoutprovidingthem withf&Uprotection. Judge Merrittpointed
out that CEI presented no evidence supporting the psychologicaltheory underlyingits
training technique, Le., that it prevents “ freezing,” and that CEI failed to show that fall
protectionwas infeasible.
The present case involvesa similar fact pattern to the previousone, but the parties
have each taken note of the previousCEI case and altered their approac’hesin the litigation
of this case. The Secretary chose to cite Cl51under a general industrystandard,29 C.F.R.
5 1910.132(a), or, in the alternative, under the general duty clause, 0 5(>(l), thereby
avoidingthe constructionstandardsthat the Sixth circuit ruled were inapplicableto CEI’s
training sessions. For its part, -1 presented the testimony of an expert witness, a
psychologist,to shore up its in&asibility defense.
The essentialfacts are not in dispute. CEI’s System Con$tructionand Maintenance
Department operates, maintains,and constructs the distributionand transmissionsystem
within CEs service area. CEI operates approximately 210 substations within the
transmission system. The substationsvaryin heightTom 12 to 110 feet, and
anddistriibution
operate at voltagesup to 345,000 volts (Tr. 345-347).
CEI requiresthat all of its mechanicsand electricalinstallersparticipate in a training
programon structureclimbing.The programis normaSlytaken by apprentice mechanicsand
installers. Five electricaSinstallers, however, had completed their apprenticeshipwithout
having attended the trainingprogram on structure climbing (Tr. 383). Electrical installer
Donald C. Reeves testified that he was scheduled to attend the training programwhen he
first started at CEI, “ [b]ut,the weatherwas bad, so they cancelled it” (Tr. 16). It was three

                                           3

years before he participated in the program (‘I?. 13-14). He participated in the
March l&20, 1991, program session that gave rise to the present ease.
The Secretaxy called as witnessesfourof the five electricalinstallerswho participated
in the March 18-20, 1991, session: Reeves, Raymond D. Reed, Dennis Propst, and
WilIiamA. Stem. All four employeestestified that they had been electrical installersfor
approximately three years at the time of the trainingcourse pra 13,135,188,228). Eugene
Saurweinw the principalinstictor for the trainingsession (Tr. 54). The training pro&ram .
began with classroom htruction and practice walking on an angle iron structure on the
ground (Tr. 140, 193, 234). The angle iron on which the employees walked was
approximatelytwo inches wide (Tr. 44, 145)
After walking on the angle iron strume on the ground,employeeswere required
to free walk across the top of the angle iron bridge structuresat heightsof 8 feet, 20 feet,
and 36 feet. While the employeescrossedthe structures,no fall protectionwas provided,
other than a layer of wood chips spread below the structures(Tr. 61,140,198,234). Guide
ropeswere installedalongthe sidesof thebridgestrwtures butthe employeesweretold that
the ropes were to be used as a guide and not as fall protection vr. 19, 142, 234). The
employeesmre encouraged not to use the ropes ur. -142,236).
All tie employeesrefused to attemptto trawrse the structureat the 55foot 1eveL
AUfour of the employeeswho appeared as witnessestestified that the performanceof their
jobs had never required them to fkee walk across the top of the substation structures.
Reeves testSed that he normally uses aerial equipment or laddersto get to the top of the
stru~es (Tr, 29-30). He stated, “ And,from that point on, you cross the structurein the
safest way you can, whether it be if you are inside the strume itself; belted to it or
whatever. But, I have never yet seen a situationwhere it wouldbe necessaryfor me tu get
up on top of that structureand walk acrossit” (Tr. 30).
Reed testified that tiee walkingacross a structure would not be using “ common
sense” (Tr. 157). Asked if he had ever free walked across a substationstructurein a work
situation,Reed replied, “ No, I tive neverhad to. I have never been in that situationwhere
rye had to. If the boss is there, you don’tdo it; you’d better not” (Tr. 157). Like Reeves,
Reed generallyuses high reach equipmentor laddersto access the substationstructure,and

                                           4

then walks inside of the structure(“ IL156-157). Reed stated, “ 1have neverwalked upright
like they wanted us to do here. I’ve crawledacross” (Tr. 166).
Propst ako testified that he had never &ee walked across the top of substation
structure. He uses high reach equipmentand ladders for accessto workstations in the field
or he maygo throughthe center of a bridge,or straddleit. He had never seen anyone free
walk across a structure (Tr. 214216).
Stem also stated that he had never had to free walk across a substation structure
(Tr. 238). He also uses aerial lifts and laddersto access the structureand then belts off tu
the structure (Tr. 238-239).
In contrast, CEI’s witnessestestifiedthat free walkingacrosssubstationstructureswas
routinelydone by experiencedelectrid installers. Craig Kasper,CEZI’s
general manager of
the SystemConstruction and MaintenanceDepartment,testied thatelectricalinstallersW
almost ahqs walk the top of the bridgewhere they’re comfortable,and that is the way they
consider to be the safest way, they will walk the top of the bridge” (Tr. 317). Eugene
Saurwein,CEI’s electrical supervisorand the instructorfor the trainingprogram, testified
that, Wur experienced cimbebers,
where they can, they walk ori the tops of the bridges”
pr. 424). Morris J. Mach, productmanagerfor NUS Training Corporation,worked in the
withNUS TrainingCorporation. He test&d
elect&utility industrypriorto his employment
that when he worked for Gulf States, he and his co-workers ‘ktdlked the steel . . m
Par&&@ in construction that’sjust normal practice” (Tr. 477).
The Secretary cited CEI for the seriousviolation of 29 CF.R. 8 1910.132(a), which
providesin pertinent part:
Protective equipment . shallbe provided,used,and maintainedin a
l l

   sanitary and reliable conditionwhereverit is necessaryby reason of hazards
   of a 0 0environment. . .
   The Review Commissionhasheld that 29 C.F.R. 9 1910.132(a) appliesto fall hazards.

BethMem Steel Cop., 10 BNAOSHC 1470,1982 CCH OSHD li 25,982 (No. 77.1545,1982).

   The Secretary contendsthat duringthe training program, CEI could have required

the employeesto use safety belts tied off to safety lines or that CEI could have provided

                                         5

safetynets below the level of the structurewhichthe employeeswere required to traverse.
Both Kasper and Samein conceded that it was possible to rig safety nets under the
structuresduringthe trainingprogram (Tr. 363,447).
To establisha violationof a standard,the Secretary must show by a
preponderance of the evidence that: (1) the cited standard applies, (2) its
terms were not met, (3) employeeshad accessto theviolativecondition,and
(4) the employer knew or could have known of it with the exercise of
reasonable diligence.
Seibd M&m Mantrfactig & Weld&g C&p., 15 BNA OSHC 1218,199l CCH
OSHD B 29,442, pg. 39,678 (No. 88-821, 1991). In the present case, the Secretary has
establishedthat 29 C.F.R. 0 1910.132(a) applies to CEI’s training program, and that its
requirementfor protectiveequipmentwasnot met. She also establishedthat five employees
were exposed to farls of up to 36 feet. A f&Illfrom a height of 36 feet is a recognized
hazard,likely to result in death or serious physicalinjury. CEI knew of the employees’
exposure.The Secretary has establishedaprimafacie case that CEI wasin seriousviolation
of 29 C.FJL 8 1910.132(a).
CEI asserted the aEmative defenseof infeasibility.The Commissionhasheldthat
an emplqer who has failedto complywithan occupationalsafety or health standardmay
avoidliabilityfor that noncompliance
by establishiqg
t&t compliancewas inkasiile under
the circumstances. Ckvekmd, 1989 CCH OSHD at pg. 37,761. The i&easibility(or
impos&ility) defense has a long history underthe Act: “ From the outset of the Act’s
enforcement,the Commissionhas been faced withemployee’sclaimsthat technologicrrl
or
problemsprecludedcompliancewith cited standards.” Seibe!, 1991 CCH OSW
economrtic
at pg. 39,682. (emphasisadded). The foregoingquotationestablishesthat the infkasibility
defensehas alwaysdealt with physical,technological,
oreanomic dif&ultiesthat compliance
withthe cited standardwouldcreate. In the presentcase, CEI seeks to came out a new
exceptionunder the infea&ility defense,that of psychologicaI
infea&lity.
CEI called Dr. RobertG. KapIan,a clinicalpsychologistspecializingin stress-related
problems,as an expert witness(‘k 506). Dr. Kaplanexplainedthe psychologicalbasisfor
“ freezing”that immobilizessome people who are exposedto heights (T’r. 508):

                                        6

When an individualis overwhelmedby anxiety, they are subject to a
panic reaction, and in the sense of a panic reaction, one of the types of
reactions they can do is freeze and become immobilized
Two methodsused by Dr. Kaplan to help people overcomeanxietyover exposureto
heightsare stressinoculationand systematic desensitization. Stress inoculation is “based on
the concept that an individualexposed to a stressfulsituation at a lower level intensitywill
become inuculated . . . so that they willbe able to tolerate a higher levelof stress later on
. . . (Tr. 509-510). In systematicdesensitization,the individualis also exposed to gradually
more stressm situations. “ As they become more relaxed with the lower levels of stress-
provokingsituations,they will then move on to a higher level, and then they will continue
to eqose themselvesto that higher level of anxiety until they master that level, and then
theywill proceed on throughthe hierarchyuntilthey reach levelswhichhad previouslybeen
ovenvhelmiq” (Tr. 510411). Dr. Kaplan stated that providingfti protection,such as a
safety line or safety nets, woulddefeat the purposeof the training: “ You wouldtake away
the elementof anxietybe&se they knowthat if they f&I&there’sa safetynet there . . . You
remove the abilityof the participantsto tolerate anxiety at higherlevels. . . Q’r. 536).
Dr. Kaplan’stestimoq was unrefuted,and there is no reasonbasedon the record to
doubtthe psychologicalsoundnessof the stress inoculationand systematicdesensitization
theories. There are two problems,however,with CEB incorporzxtion
of these theories in
its trainingprogram.
First, Dr. Kaplan stated that freezing,the conditionwhich CEI assertsit is seeking
to preventwith its training program, occurs ‘*hen someone is overwhelmedby anxiety’
(Tr. 509). Yet accordingto the testimonyof the four employeeswho underwentthe
training,none of them had ever experiencedany oven&e-g anxietyregardingheightsin
theirpreviousthree yearsof climbing substations (Tr. 35-36, 92, 149, 189,242). The only
anxiety regarding heights that these employees felt occurred during the actual training
program,whentheybelievedSaunveinwasattemptingto intimidatethem into trav&ing the
structures in an unde manner. Reeves stated, “ 1 was feeling very intimidatedand, the
intimidationitselfwas makingme nemousand leery of heights. . .” (Tr. 85). Reed also
testified that the atmospherecreated by Saunveinwas disturbing:“ well, he asked each one

                                          7

of us if we were going to come up individually,[to the 55 foot level]. I told him there had
been some arguing back and forth and back and forth about this, the safety of it and that.
By then I was sufficiently agitated enough, I didn’t feel it was safe for me to go up there”
(Tr. 146). Stem testified that the five employees refused to attempt the 55 foot level

because they believed it to be un&e (Tr. 238).
The record establishesthat at least four of the five employees,who had worked in
the industryfor three years prior to the training program,had never had any difBulti&s
coping with heights. They were then required to participate in a training program during
which they felt intimidatedand agitated by Saurwein’s bullying manner. Their anxiety was
created,not by the heights,but by the pressurebroughtto bear on them to fkee walk the
structures,a method they believed to be unsafe. If the purpose of stress inoculation and
systematicdesensitizationis to help employeesavoid freezing by overcoming overwhelming
anxiety regarding heights, then the participants in the program should be people who, in fact,
have an overwhelminganxiety regarding heights. Five employeeswho had no previous
diflicultycopingwith heightswere needlesslyexposedto seriousfall hazards.
The secondflaw withCEI’s in&asibilitydefense is that the pro-3 implementation
is not consistentwith Dr. Kaplan’s theory. While Dr. Kaplan stated that the program is
ineffectiveif employees are not required to free walk without fall protection, Samein
testified that he does not require the employees to do so. Rather, he testiEed that he
“ give[s]them the option” pr. 429). If f&e walkingwithout&illprotectionis an optioq then
it cannotbe the essential element of the trainingprogram that CEI claims it to be.
The flawsin CEI’s program notithstanding, the company’sdefense mustultimately
fail because it is not recognized under the established infeasibility defense. There is
Commission precedent for technological and economic infeasibility, but none for
psychologicalinf~ibility.
CEI concedesthat it would have been easy to rig safety nets below the structureson
whichthe employeestrained, CEI does not contend that the use of nets would result in an
ecomnic burden. CEI’s claim that safety nets wouldimpair the psychologicalefficacy of
the trainingprogramdoes not fall withinthe parametersof the infeasibilitydefense.

                                           8

The Secretary has established that CEI was in serious &lation of 29 CF.R.
8 1910.132(a). The Secretaryproposeda penaltyof $5,000.00. The Commissionis the final
arbiter of the penaltiesin all contestedcases. Se-v v.- 0SAHRC and IiztastuteGiius Co.,
487 F.2d 438 (8th Cir., 1973). Under section 17(j) of the Act, the Commissionis required
to find and give due consideration to the size of the employer’s business,the gravity of the
violation, the good faith of the employer, and the history of previous yiolations in
determiningthe appropriatepenalty. Based upon these factors, it is determined that a
penalty of $5,000.00 is appropriate.
FINDINGS OF FACI’ AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fkt and conclusionsof law in
accordanti with Federal Rules of Civil Procedure 52(a).
ORDER
Based upon the foregoingdecision,it is hereby ORDERED that
1. The citationfor the seriousviolationof 29 C.F.R. 8 1910.132(a)is afiiirmedand
a penalty of $5,000.00 is assessed.

                                              EDW IN G. SALYERS          /i
                                              Judge

Date: October 26, 1992