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Bergelectric Corp. v. Secretary of Labor

United States Court of Appeals, Ninth Circuit

June 6, 2019

Bergelectric Corp., Petitioner,
v.
Secretary of Labor, Respondent.

          Submitted March 15, 2019 [*] San Francisco, California

          On Petition for Review of an Order of the Occupational Safety & Health Administration OSHA No. 16-0728

          Robert D. Peterson, Robert D. Peterson Law Corporation, Rocklin, California, for Petitioner.

          Scott 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.

         SUMMARY[***]

         Occupational Safety and Health Administration

         The 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).

         The 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 edges.

          OPINION

          PER CURIAM.

         Bergelectric 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.

         FACTUAL AND PROCEDURAL HISTORY

         Bergelectric 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.

         During 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 ...


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