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.