Submitted March 15, 2019 [*] San Francisco, California
Petition for Review of an Order of the Occupational Safety
& Health Administration OSHA No. 16-0728
D. Peterson, Robert D. Peterson Law Corporation, Rocklin,
California, for Petitioner.
Glabman, Senior Appellate Attorney; Heather R. Phillips,
Counsel for Appellate Litigation; Ann Rosenthal, Associate
Solicitor for Occupational Safety and Health; Kate S.
O'Scannlain, Solicitor of Labor; United States Department
of Labor, Washington, D.C.; for Respondent.
Before: J. Clifford Wallace, Eugene E. Siler, [**] and M. Margaret
McKeown, Circuit Judges.
Safety and Health Administration
panel denied a petition for review of a final order of the
Occupational Safety and Health Review Commission affirming a
citation that Bergelectric Corp. violated the Occupational
Safety and Health Administration's fall protection
standards in 29 C.F.R. § 1926.501(b)(1).
panel concluded that Bergelectric was not performing roofing
work when it installed solar panels on a roof, and
substantial evidence supported the finding that that it did
not comply with the stricter safety standards of 29 C.F.R.
§ 501(b)(1) governing work on unprotected sides and
edges. The panel rejected Bergelectric's argument that
its installation of solar panels on the hanger roof was
governed by the laxer standard for roofing work on low-sloped
roofs in 29 C.F.R. § 1926.501(b)(1), rather than the
stricter general standard applied to unprotected sides and
Corporation seeks review of a final order of the Occupational
Safety and Health Review Commission ("Commission")
affirming a citation that alleged Bergelectric violated the
Occupational Safety and Health Administration's
("OSHA") fall protection standards, 29 C.F.R.
§ 1926.501(b)(1), and assessed a penalty of $3, 000.
Resolution of this appeal largely rests on whether
Bergelectric's installation of solar panels constitutes
"roofing work." We conclude that Bergelectric was
not performing roofing work and that substantial evidence
supports the finding that it did not comply with the stricter
safety standards governing work on unprotected sides and
edges. We DENY the petition for review.
AND PROCEDURAL HISTORY
Corporation ("Bergelectric") is a California-based
electrical contractor. As a single part of a larger
renovation project, Bergelectric was hired to install
photovoltaic panels (i.e., solar panels) on the roof of a
hangar at the Marine Corps Air Station Miramar in San Diego,
California. Beginning on February 24, 2016, Compliance Safety
and Health Officer Eric Christensen conducted a two-day
inspection of the project, including inspection of
Bergelectric's activities at the worksite.
the inspection, four Bergelectric employees were installing
solar panels on the upper roof of the hangar. Bergelectric
employees informed Christensen that they were using warning
lines and a safety monitor to comply with fall protection
obligations. Additionally, the employees indicated they would
affix personal fall arrest systems ("PFAS") if they
moved outside the warning lines. During his time on ...