“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. 84-0593DECISIONBefore: BUCKLEY, Chairman; AREY, Commissioner. BY THE COMMISSION:The Secretary of Labor cited Cleveland Electric IlluminatingCompany (\”Cleveland\” or \”CEI\”), a public utility providing electricityin 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 offalling while they were undergoing training. Because the administrative law judge whoheard the case concluded that CEI’s training practices were necessary to give employeesthe experience, confidence, and steadiness they would need for the work they were beingtrained to perform, he vacated the citation. The union representing the affected employeespetitioned the Commission to review the judge’s decision, and review was directed. Wereverse.I Cleveland’s Electrical Construction and Maintenance (EC&M)Department builds, repairs, and maintains the generating plants and substations in thecompany’s electrical distribution system. All construction, maintenance, and repair onthese substations is performed by employees called mechanics, who often work on metaltrestles called \”bridges\” at heights as much as 65 feet above the ground. Themechanics are required to wear body belts and lanyards and to tie off the lanyards whenthey are working at a specific location an a bridge. While the mechanics are moving to andfrom 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\/]] Theparties stipulated, however, that it frequently is not feasible to use safety nets orlines to protect the mechanics when they are working on bridges, so that they must movearound on the bridges without fall protection.Before employees can become EC&M mechanics, they must firstserve as apprentice mechanics. Their apprenticeship includes a training program duringwhich they are required to move across bridges at progressively greater heights withoutfall 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 bridgesshould not be exposed to the danger of falling, while the company argues that they must beexposed in order to acclimate them to working under \”real\” conditions and tobuild their confidence in their ability to negotiate the bridges at heights without fallprotection.There are two major issues in this case. The first is whetherthe 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. Thesecond is whether the company’s testimony that it was necessary to perform the trainingwithout fall protection in order to simulate real working conditions establishes a validdefense for its failure to protect its employees from falling.IISection 1926.951 is found in Subpart V of Part 1926, whichcontains the following provisions:? 1926.950 General requirements.(a) Application. The Occupational Safety and Health standardscontained in this Subpart V shall apply to the construction of electric transmission anddistribution lines and equipment.(1) As used in this Subpart V the term of\”construction\” includes the erection of new electric transmission anddistribution lines and equipment, and the alteration, conversion, and improvement ofexisting 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 thischapter are adopted as occupational safety and health standards under section 6 of the Actand shall apply, according to the provisions thereof, to every employment and place ofemployment of every employee engaged in construction work. Each employer shall protect theemployment and places of employment of each of his employees engaged in construction workby 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 thistitle.(d) For the purposes of this part, to the extent that it maynot 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 anddistribution lines and equipment.It is clear from the language of these provisions that some ofthe work the EC&M mechanics normally perform–construction and improvement ofsubstations and generating plants–is, by definition, \”construction work.\” Thequestion, however, is whether training the apprentices to perform these activities isalso, by extension, \”construction work.\” We think it is.CEI argues that the employees are not performing any work, thatall they are doing is walking back and forth across the bridges to develop theirconfidence in their ability to do the work they will be assigned at some point in thefuture. We think this is too narrow a reading of the term \”work.\” The Commissionhas rejected similar arguments. See North Berry Concrete Corp., 13 BNA OSHC 2055, 1988 CCHOSHD ? 28,444 (No. 86-163, 1989)(work necessarily includes getting to and from the workstation); 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, 6BNA OSHC 1688, 1978 CCH OSHD ? 22,807 (No. 15769, 1978)(\”working from an aeriallift\” includes being transported to and from the work level). The apprentices arerequired 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 theapprentices’ performance of their future duties. We therefore conclude that the trainingconstitutes \”work.\”We also conclude that, since the apprentices are being trainedto construct and repair substations and generating plants, the \”work\” they weredoing constitutes \”work for construction, alteration, and\/or repair\” within themeaning of 29 C.F.R. ? 1910.12(b). Under Commission precedent, the construction standardsin Part 1926 apply to operations \”that are an integral or necessary part ofconstruction 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 ownassertions, we find that the training of the apprentice mechanics was an integral andnecessary prerequisite to their doing the construction work to which they would later beassigned Cleveland’s training operation was therefore required to comply with thestandards in Subpart V.CEI argues that the construction standards in Part 1926 cannotapply to its training because the activity took place at a separate training facilitywhere no construction work was being done. It is true that the lower two bridges used inthe training had been erected away from, the equipment in use and were used solely fortraining, but the training was conducted at an operating substation, and the highestbridge was located over actual operating equipment. We are aware that, since CEI filed itsbrief, the Court of Appeals for the Sixth Circuit, in which Ohio is located, has issued adecision in Brock v. Cardinal Industries, Inc., 828 F.2d 373 (6th Cir. 1987), in which itheld that there must be some nexus between the work activity and a construction site forPart 1926 to apply.\u00a0 We believe, however, that the rationale of the Court in CardinalIndustries 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 anactivity covered by the standards that the training is covered by the standards in SubpartV.III The next question we must resolve is whether the judgecorrectly concluded that the purported need to simulate the actual conditions under whichthe mechanics sometimes have to work justified exposing the apprentices to the hazard offalling 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 ahazard in the name of training.The record indicates that the position of EC&M mechanic isa desirable job in the company and that openings are usually filled by CEI employees fromother departments who apply for transfer to the EC&M department. Those selected mustserve a two-year apprenticeship, which includes training in the duties and functions of anEC&M mechanic. Before Cleveland instituted this training program, apprentices weresimply sent aloft to learn their jobs. In 1973 or 1974, the company decided that it wasnecessary 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 thejob, followed by two days of outdoor training in climbing. The classroom instructioncovers climbing techniques and methods of traversing the bridges. it covers the use andcare of safety equipment, including body belts and lanyards. It also includes anexplanation of when and how they should tie off their body belts and when this is notfeasible.The outdoor instruction begins with the instructordemonstrating 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 eachapprentice crosses the bridge at least a dozen times, until he and the instructor aresatisfied that the apprentice can perform this exercise comfortably. At that point, one ofthe ropes is taken down and the apprentice again crosses the bridge until he is able to doit comfortably. The rope is then removed and the apprentice repeats the procedure. Whenall the apprentices in the class have performed satisfactorily at twenty-five feet, theymove to the thirty-six-foot bridge, where the same steps are repeated.The next day, the apprentices are given time to practice, withor 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,\” anapprentice must cross that bridge to the midway point, climb down the side of the bridgeand tie off his safety belt properly, then release himself, climb back to the top of thebridge, and finish crossing the bridge. No rope is used an this bridge, and, unlike theother two bridges, the fifty-six-foot bridge cannot have nets suspended beneath it.The controversy is whether CEI must train its apprenticemechanics without safety nets.[[4\/]] Several witnesses on each side addressed thisquestion, and the parties have argued it at length. Cleveland asserts that the purpose ofthe training is to help the apprentices overcome their fear of heights and that thetraining is designed to simulate the \”real life\” conditions the apprentices willencounter on the job and thereby to develop the apprentices’ skill and confidence so thatthey can function safely when they go into the field. The main theme of CEI’s argument isthat using nets during training would give the apprentices a false sense of security bygiving them a crutch that they would not have out on the field. CEI witnesses testifiedthat they were familiar with the practices of other electric utilities and that none ofthem used safety nets during training.The primary danger that concerned Cleveland was that an apprentice who had not had thistraining would \”freeze.\” One witness, a mechanic who had been an apprenticebefore this training was instituted, testified that he had \”frozen\” early in hiscareer, while another witness testified that he had once had to go up and \”talkdown\” an apprentice who had \”frozen.\” His testimony indicates that he wasafraid the apprentice would grab him and cause them both to fall. The consensus ofCleveland’s witnesses was that, once the apprentices had been given the chance to practiceand to develop their confidence and skill, walking the bridges without fall protection wasnot hazardous.The Utility Workers Union of America, which participated in thehearing, elicited testimony that many CEI mechanics do not walk the tops of bridges butcross to their work stations some other way. It was established, however, that most of themechanics do walk the tops and that is sometimes the only way get to a job.The Secretary presented evidence that nets could be suspendedbeneath the bridges, and the Secretary argues that this should be done. The Secretaryasserts that the very employees who need fall protection the most, inexperiencedapprentices who are likely to experience strong fear or panic, are being forced to workwithout any protection in order to qualify for a job.The administrative law judge accepted CEI’s position. He foundthat Cleveland’s method of training was necessary to protect the apprentices against\”exposure to the hazards alleged.\” The judge also concluded that the trainingprogram complied with the requirements of 29 C.F.R. ? 1926.21(b)(2).[[5\/]]Since we have determined that CEI’s training was governed bysection 1926-951(b), which requires that employees use body belts or other safeguards, andit is undisputed that CEI’s apprentices were not using any fall protection, the questionwe must resolve is whether anything in the law or the record excuses that failure tocomply with the standard. Since Cleveland’s argument is in the nature of an affirmativedefense, the burden is on the company to establish that its practice was justified by thecircumstances. We find that CEI has not carried that burden.Commission precedent recognizes two affirmative defenses thatarguably apply to CEI’s argument: infeasibility of compliance and greater hazard. We musttherefore determine whether CEI has established either defense.The Commission has held that an employer who has failed tocomply with an occupational safety or health standard may avoid liability for thatnoncompliance 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 theevidence, we conclude that CEI has not established that using some form of fall protectionduring its training was infeasible, particularly on the two lower bridges.The company’s management witnesses who testified that it wasnecessary to simulate actual working conditions during the training were merely statingtheir opinions. None of them had any training or special expertise in the psychology ofovercoming fear. None of then gave any basis for his conclusion that using nets or otherfall protection during training would adversely affect the apprentices. Certainly, theassertion that using fall protection during training would give the apprentices a falsesense of security sounds reasonable at first blush, but there was neither factual supportnor expert testimony to support that assertion. Nor was there any explanation of what thelikely consequences of this sense of security would be. Since the purpose of the trainingis to build the apprentices’ confidence in their ability to walk the bridges, the use offall protection might equally help to increase their confidence. There is simply notenough hard evidence to enable us to conclude that CEI’s training would be any lesseffective or that there would be any harmful effect when the apprentices go into thefield.The Commission has also held that an employer’s failure tocomply with a standard may be excused when it is shown that compliance with the would havecreated a greater hazard to employees. To prove a greater hazard defense, an employer mustshow that (1) the hazards of compliance with a standard are greater than the hazards ofnoncompliance, (2) alternative means of protection proposed by the Secretary wereunavailable, 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, theapplicable 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 safetyof the employees, in which case other safeguards shall be employed.\”The question is whether CEI has shown that the hazards ofcompliance outweigh \”the hazards of noncompliance. The danger from walking fifty-sixfeet off the ground along a four-foot-wide trellis (or even thirty-six or twenty-five feethigh) is evident. We are aware that Cleveland had experienced no falls during itstraining, but the hazard nevertheless exists. Nothing in the record or in logic shows thatthe danger of falling during post-training work is somehow greater than the danger offalling during the training. The only suggestion that there might be a greater hazard camefrom 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 agreater hazard. While we can sympathize with the fears experienced by both the witness andthe employee who froze, it has not been shown that an employee trained with nets and thensent into the field is more likely to freeze or fall than an employee who is being or hasbeen trained without nets. We therefore find that the greater hazard defense has not beenproved.CEI has presented convincing evidence that most if not allother 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 \”reasonableperson\” test to cure potential vagueness in a standard; it should not be consideredwhen, 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 itsapprentices without nets in order for that training to be effective. We simply cannot findthat the record supports that proposition.IVThe last question is whether, as the judge concluded, Clevelandwas excused from complying with section 1926.951(b)(1) because it was complying withanother standard, 29 C.F.R. ? 1926.21(b)(2), that required it to train its employees torecognize and avoid hazards. Cleveland argues that its non-compliance was\”justified\” because it taught the apprentices how to control and eliminateexposure 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. Whiletraining employees as required by 1926.21(b)(2), an employer must take all necessary andfeasible measures to protect them from the hazards they are being trained to recognize andavoid.V We find that CEI violated 29 C.F.R. ? 1926.951(b)(1). We deema 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 theemployer, the gravity of the violation, the good faith of the employer, and the employer’shistory of prior violations. Here, a substantial consideration is that CEI developed thistraining program in the good faith belief that it was promoting the safety of itsemployees. The company patterned its training program after those of other publicutilities in its industry, and the gravity of the violation is diminished by the fact thatthe 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. thecitation, as amended, for a violation of 29 C.F.R. ? 1926.951(b)(1) and assess a penaltyof $100.00.FOR THE COMMISSION Ray H. Darling, Jr.\u00a0 Executive Secretary DATED: April 18, 1989SECRETARY OF LABOR, Complainant v.CLEVELAND ELECTRIC ILLUMINATING CO., Respondent, and UTILITY WORKERS UNION OF AMERICA, AFL-CIO, Authorized Employee Representative.OSHRC, Docket No. 84-0593APPEARANCES: Gary A. Boncella, Esquire, Office of the Solicitor, U. S. Department of Labor,Cleveland, Ohio, on behalf of complainantTomas Barnard and Kenneth B. Stark, Esquires, Cleveland, Ohio, on behalf ofrespondentMr. Michael Coughlin, Utility Workers Union of North America, Local 270, Cleveland,Ohio, on behalf of authorized employee representativeDECISION AND ORDERBRADY, Judge: This proceeding is brought pursuant to section 10of the Occupational Safety and Health Act of 1970 (\”Act\”) to contest a citationissued by the Secretary of Labor (\”Secretary\”) pursuant to section 9(a) of theAct.Prior to commencement of the hearing, the Secretary’s motions to vacate the allegedviolation 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 fourgenerating plants which transmit electricity to various substations. From high voltagetransmission substations, the electricity is reduced in voltage and transmitted todistribution substations. Respondent operates approximately 40 transmission substationsand 175 distribution stations.Respondent’s construction and maintenance department builds,installs, maintains and repairs the substations. The duties of this department areperformed by electrical mechanics classified as Electrical Mechanic Leaders, ElectricalMechanics Grade I, Electrical Mechanics Grade II and Electrical Apprentices.All mechanics are required to perform work at elevations withinthe structure of the substations, including changing and cleaning insulators. servicingswitches, replacing capacitators, cleaning bushings and repairing defective lines. It isundisputed that the mechanics are also required to tie off prior to performing any work.This case concerns the training requirements for apprenticemechanics. The apprentice is the entry level position which generally provides assistanceto the higher classified mechanics. Employees enter their apprenticeships by voluntarytransfer to the department, testing, and then training. The apprenticeship program laststwo years during which the apprentice is given formal classroom training in addition toon-the-job training. Generally, the training program includes substation orientation,structure climbing and use of tools. The training is conducted both in classrooms and onthe jobsite. It is the structure climbing segment of the training that is the subject ofthe citation.The parties stipulated that due to the configuration of thesubstations, it would be infeasible to install fall protection for employees moving aboutthe 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 orlifelines are feasible at the training site when trainees are required to walk on top ofthe substation bridge. Accordingly, the structure climbing training was conducted inviolation of the following standards:29 C.F.R. ? 1926.105(a):Safety nets shall be provided when workplaces are more than 25feet above the ground or water surface, or other surfaces where the use of ladders,scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.Or in the alternative: 29 C.F.R. ? 1926.28(a):The employer is responsible for requiring the wearing ofappropriate personal protective equipment in all operations where there is an exposure tohazardous conditions or where this part indicates the need for using such equipment toreduce 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 toprotect employees working at elevated locations on poles, towers, or other structuresexcept where such use creates a greater hazard to the safety of the employees, in whichcase other safeguards shall be employed.The record discloses that after training in electric safety anduse of safety belts, the training in structure climbing begins. The apprentice climbs tothe \”box bridge\” on the substation at a level of 25 feet where 3\/4- inch ropesare strung on both sides. He traverses the bridge a minimum of 12 times to demonstrate hisconfidence before one rope is removed and then the other before he walks the bridge withno ropes as support. At each phase he crosses the bridge at least 12 times before movingto the next and proceeds at his own pace of confidence and comfort. This procedure issimilarly repeated at the 36-foot and 55-foot levels. He also practices use of his safetybelt on the side of the bridge at each level (Tr. 384-390).The Secretary argues that inexperienced employees were exposedto fall hazards in being required to walk across the bridges to qualify for jobs that donot involve that particular activity. [The record does reflect that walking across the topof 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 fallhazard of up to 55 feet could be abated by the installation of safety nets or permanentlines to which safety belts could be attached (Tr. 280).Complainant also asserts that respondent is properly chargedunder the construction standards since the Commission has held they are applicable topower 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 workof building or renovating substations and transmission equipment should be covered by thesection.The Commission has held that, in order to establish a violationsuch as set forth, it is necessary for the Secretary to show by a preponderance of theevidence that (1) the cited standard applies; (2) there was a failure to comply with thestandard; (3) employees had access to the violative condition; and (4) the cited employereither knew or could have known of the condition with the exercise of reasonablediligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1982 CCHOSHD ? 26,251 (No. 78-6247, 1982); Daniel International Corp., 81 OSAHRC 71\/06, 9 BNAOSHC 2027, 1977-78 CCH OSHD ? 21,679 (No. 76-181, 1977).There is no question that Subpart V of the Construction SafetyStandards apply to the construction of electric transmission and distribution lines andequipment. Its application, however, is limited to certain areas of construction as setforth 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 distributionlines and equipment.Respondent does not deny application of the standards toconstruction work but argues that its training activities in no way involves constructionwork within the context of the standards. In support of this argument, it is pointed outthat the Commission has extended the scope of the standards in Part 1926 to include onlyactual construction work or related activities that are an integral and necessary part ofthe 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 actualconstruction work and was not part of the actual construction to be performed at thesubstations. Generally, the determination as to what constitutes construction work dependson the activities or functions engaged in by the employer in the overall work process. SeeBechtel 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, 1976-77CCH OSHD ? 20,995 (No. 1165, 1976).In this case, clearly the training function or activity wasdirected solely toward the employee becoming a craftsman in the construction industry. Hisperformance was \”directly and vitally\” related to construction work, so much sothat his employment was contingent on successful completion of the program.Therefore, under the circumstances, actual physicalconstruction work is not a necessary element that must be shown if the activity is anintegral and necessary part thereof.Even though the standards have application to the facts in thiscase, a failure to comply has not been established. The facts reveal that due to theconfiguration of the substation structure, fall protection was not feasible and it is notdisputed 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 ofthe foregoing, it was explained that the goal of the training was to help the apprenticesbecome 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 ahazard when walking across the bridges without fall protection. The evidence, however,sufficiently establishes that the entire training process provided the necessaryexperience, confidence and steadiness for protection against exposure to the hazardsalleged. Testimony persuasively shows that since the formal training program began In1973, approximately 50 apprentices have successfully completed it without the occurrenceof falls, accidents, or injuries in connection with the climbing training. (Tr. 307-308).This proficiency in climbing also demonstrates that the employees have overcome theserious problem of \”freezing\” and the need for rescue efforts often associatedwith the fear involved (Tr. 393) additionally, respondent’s procedure for trainingapprentices appears to be in total compliance with section 1926.21(b)(2) which requiresthat:(2) The employer shall instruct each employee in therecognition and avoidance of unsafe conditions and the regulations applicable to his workenvironment to control or eliminate any hazards or other exposure to illness or injury. Consistent with the requirements of the standard, respondent’s climbing training wasinitiated for the purpose of providing instruction to control or eliminate exposure toinjury.The citation is, therefore, vacated.FINDINGS OF FACT1. Cleveland Electric Illuminating Co., at all times hereinafter mentioned, maintained aplace of business at a Clinton Road electrical substation in Brooklyn Ohio.2. On February 15, 1984, authorized representatives of theSecretary 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 withapproximately 100 electrical mechanics performing the construction and maintenanceactivities.4. The electrical mechanics are divided into four jobclassifications: Electrical Mechanic Leader, Electrical Mechanic Grade I, ElectricalMechanic Grade II, and Electrical Apprentice. The Electrical Apprentice is the entry levelposition, and the apprentice generally assists the higher classification mechanics.5. All mechanics are required to perform work at elevationswithin the substation structure. However, due to the configuration of the substations, itis not feasible to install fall protection for employees moving about the structures.6. Respondent’s two-year apprentice training program consistsin part that trainees be required to walk across the top of the bridge of the structure atelevations of 25, 36 and 55 feet, respectively.7. The apprentice training program is an activity which isnecessary and vital to the construction work process.8. The training program provides the apprentices with the experience, steadiness andconfidence for adequate protection against exposure to fall hazards.CONCLUSIONS OF LAW1. Cleveland and Electric Illuminating Co., at all times pertinent hereto, was an employerengaged in a business affecting commerce within the meaning of section 3(5) of theOccupational Safety and Health Act of 1970, and the Commission has jurisdiction of theparties and subject matter herein pursuant to section 10(c) of the Act.2. Respondent is, and at all times pertinent hereto, requiredto comply with the safety and health regulations promulgated by the Secretary pursuant tosection 6(a) of the Act.3. Respondent, at the time of the aforesaid inspection, was notin 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).ORDEROn the basis of the foregoing findings of fact and conclusions of law, and the entirerecord, it is hereby ORDERED:The citation is hereby vacated.PAUL L. BRADYJudgeDate: May 8, 1985FOOTNOTES: [[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 wornto protect employees working at elevated locations on poles, towers, or other structuresexcept where such use creates a greater hazard to the safety of the employees, in whichcase 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 alternativea 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 conditionscited here.[[2\/]] The bridges are rectangular frames that are usually fourfeet 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. Eachdiagonal meets another diagonal on each side. The greatest distance between the diagonalsis about eighteen inches.[[3\/]] After the inspection but before the hearing, Clevelandaltered its training program to add a new first step. The employees now begin on a bridgeeight 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 otherother methods of fall protection, it is clear that what the Secretary wants here is safetynets. 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 unsafeconditions and the regulations applicable to his work environment to control or eliminateany hazards or other exposure to illness or injury.”