Bergelectric Corp. v. Secretary of Labor

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BERGELECTRIC CORP., No. 17-72852
Petitioner,
OSHA No.
v. 16-0728

SECRETARY OF LABOR,
Respondent. OPINION

On Petition for Review of an Order of the
Occupational Safety & Health Administration

Submitted March 15, 2019 *
San Francisco, California

Filed June 6, 2019

Before: J. Clifford Wallace, Eugene E. Siler, **
and M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Eugene E. Siler, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 BERGELECTRIC V. SECRETARY OF LABOR

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.

COUNSEL

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,

***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 BERGELECTRIC V. SECRETARY OF LABOR 3

Associate Solicitor for Occupational Safety and Health; Kate
S. O'Scannlain, Solicitor of Labor; United States Department
of Labor, Washington, D.C.; for Respondent.

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.
4 BERGELECTRIC V. SECRETARY OF LABOR

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 site, Christensen observed no employees using
PFAS and no guardrails in place. The site had no safety nets.

Based on the inspection, OSHA issued a citation alleging
three serious violations of the fall protection standards found
in Subpart M of the Occupational Safety and Health Act of
1970 (“the Act”), 29 U.S.C. § 659(c). One violation was
based on the general standards of 29 C.F.R.
§ 1926.501(b)(1), which require employees working near
the unprotected sides and edges of certain roofs to be
protected by guardrail systems, safety net systems, or PFAS.
Two violations were based on the alternative standards of
29 C.F.R. § 1926.501(b)(10), which apply to employees
performing roofing work on low-sloped roofs and allow fall
protection obligations to be satisfied by the use of warning
lines and a safety monitor.

Following a hearing, the administrative law judge
(“ALJ”) found that the principal fall standard of § (b)(1)
applied because Bergelectric employees were not
performing “roofing work,” and that Bergelectric violated
the standard because it failed to use PFAS, safety nets, or
guardrails. 1 Bergelectric appealed the order to the
Commission, which declined review. Therefore, the

1
The ALJ dismissed the citations premised on § (b)(10).
 BERGELECTRIC V. SECRETARY OF LABOR 5

decision of the ALJ became a final order of the Commission
in 2017.

Bergelectric appeals its violation to this court pursuant
to 29 U.S.C. § 660. It argues the ALJ erred by applying
§ (b)(1) rather than § (b)(10), and that it complied with
§ (b)(10). Bergelectric also argues that, since evidence
indicated that its employees would have used PFAS had they
moved outside the warning lines, the Secretary cannot prove
that the employees were exposed to a risk of falling. We
conclude neither argument has merit and the Commission’s
decision is supported by substantial evidence.

STANDARD OF REVIEW

The court has jurisdiction to review the Commission’s
final order under 29 U.S.C. § 660(a). The Commission’s
factual findings are treated as “conclusive” if supported by
substantial evidence from the record as a whole. 29 U.S.C.
§ 660(a); see also R. Williams Constr. Co. v. OSHRC,
464 F.3d 1060, 1063 (9th Cir. 2006). Substantial evidence
exists if the “record contains such relevant evidence as
reasonable minds might accept as adequate to support a
conclusion,” even if a different conclusion is possible.
Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 941 (9th Cir.
1994). A decision of the Commission must be upheld unless
it is “arbitrary and capricious, not in accordance with the
law, or in excess of the authority granted by OSHA.” Id.

DISCUSSION

OSHA regulations require employers to provide fall
protection systems in certain circumstances. 29 C.F.R.
§ 1926.501(a). The type of system required depends largely
on the work performed and the environment in which it is
6 BERGELECTRIC V. SECRETARY OF LABOR

performed. To prove a prima facie violation of a particular
safety standard:

[T]he Secretary must show by a
preponderance of the evidence that (1) the
cited standard applies; (2) the employer
failed to comply with the terms of the cited
standard; (3) employees had access to the
violative condition; and (4) the cited
employer either knew or could have known
with the exercise of reasonable diligence of
the violative condition.

Sec’y of Labor v. Nuprecon LP, 23 BNA OSHC 1817, 2012
WL 525154, at *1, n.3 (No. 08-1037, Feb. 7, 2012). On
appeal, Bergelectric attacks the ALJ’s analysis of steps one
and three.

I. The Appropriate Standard

Bergelectric’s primary argument is that its installation of
solar panels on the hangar was governed by the laxer safety
standard for roofing work on low-sloped roofs, rather than
the stricter general standard applied to unprotected sides and
edges.

Section 1926.501(b)(1), the provision Bergelectric was
found in violation of, provides:

Unprotected sides and edges. Each employee
on a walking/working surface (horizontal and
vertical surface) with an unprotected side or
edge which is 6 feet (1.8 m) or more above a
lower level shall be protected from falling by
 BERGELECTRIC V. SECRETARY OF LABOR 7

the use of guardrail systems, safety net
systems, or personal fall arrest systems.

29 C.F.R. § 1926.501(b)(1).

Section 1926.501(b)(10), the provision Bergelectric
argues is applicable, provides:

Roofing work on Low-slope roofs. Except as
otherwise provided in paragraph (b) of this
section, each employee engaged in roofing
activities on low-slope roofs, with
unprotected sides and edges 6 feet (1.8 m) or
more above lower levels shall be protected
from falling by guardrail systems, safety net
systems, personal fall arrest systems, or a
combination of warning line system and
guardrail system, warning line system and
safety net system, or warning line system and
personal fall arrest system, or warning line
system and safety monitoring system.

29 C.F.R. § 1926.501(b)(10).

The parties agree that the upper roof of the hangar was
low-sloped and six feet or more above a lower level. The
parties disagree as to whether Bergelectric’s installation of
solar panels constitutes roofing activities under § (b)(10).

The regulations define “[r]oofing work” as the “hoisting,
storage, application, and removal of roofing materials and
equipment, including related insulation, sheet metal, and
vapor barrier work, but not including the construction of the
8 BERGELECTRIC V. SECRETARY OF LABOR

roof deck.” 29 C.F.R. § 1926.500(b). 2 Installation of solar
panels is not referenced in this definition. Bergelectric urges
the court to find it an “application . . . of roofing materials
and equipment.” Id. But the definition’s plain language
suggests otherwise. It makes clear that roofing work does
not extend to all materials and equipment that could be
applied atop a roof, but rather roofing materials and
equipment. Id. And there is no trickery here: the plain
meaning of the verb “roof” is to “provide or cover with a
roof.” Roof, Oxford English Dictionary,
http://www.oed.com/view/Entry/167251 (last visited May 2,
2019); see also Safe Air For Everyone v. EPA, 488 F.3d
1088, 1097 (9th Cir. 2007) (“As a general interpretative
principle, the plain meaning of a regulation governs.”
(internal quotation marks and citation omitted)). To
constitute roofing materials and equipment, the materials
and equipment must be connected to the act of roofing. This
is confirmed by the examples of roofing materials and
equipment offered by section 1926.500(b), each of which is
an item or process used to roof a building: “related
insulation, sheet metal, and vapor barrier work.” 3

Here, Bergelectric’s activities on the hangar have no
connection to roofing and were, instead, simply the
installation of a system that often happens to sit atop a roof.

2
While the title of § 1926.501(b)(10) is “Roofing work on Low-
slope roofs,” the text of the section refers to “roofing activities on low-
slope roofs.” Neither party discusses this distinction, and both parties
cite the definition of “Roofing work” contained in § 1926.500(b) as
dispositive.

3
When questioned regarding whether Bergelectric was installing
roofing materials, Bergelectric’s safety manager, Calvin King,
demonstrated a similar understanding: “Roofing materials like–you
mean like shingles and stuff like that?”
 BERGELECTRIC V. SECRETARY OF LABOR 9

There is no evidence that Bergelectric was hired to perform
anything other than the installation of solar panels, much less
work connected to the roofing of the hangar. Therefore, the
safety standards of 29 C.F.R. § 1926.501(b)(10) are
inapplicable.

II. Violation of 29 C.F.R. § 1926.501(b)(1)

Substantial evidence supports the ALJ’s decision that
Bergelectric did not comply with § 1926.501(b)(1). Most
obviously, § (b)(1) requires that Bergelectric protect its
employees from falling by providing guardrail systems,
safety net systems, or PFAS. Evidence in the record showed
it used none of the three. Christensen testified that no
employees were using PFAS on the roof of the hangar, and
there were no guardrails erected. The parties stipulated that
safety nets were not in place around the hangar.

Bergelectric is not saved by its contention that, since its
employees would have used PFAS had they stepped outside
the company’s warning lines, the Secretary cannot prove that
the employees were ever exposed to a fall hazard.
Bergelectric overlooks that exposure to a violative condition
can be established by showing that access to the hazard was
reasonably predictable, regardless of actual exposure. Sec’y
of Labor v. Phoenix Roofing, Inc., 17 BNA OSHC 1076,
1995 WL 82313, at *3 (No. 90-2148, Feb. 24, 1995). The
“‘inquiry is not simply into whether exposure is theoretically
possible,’ but whether it is reasonably predictable ‘either by
operational necessity or otherwise (including inadvertence),
that employees have been, are, or will be in the zone of
danger.’” Nuprecon LP, 23 BNA OSHC 1817, 2012 WL
525154, at *2 (quoting Sec’y of Labor v. Fabricated Metal
Prods., Inc., 18 BNA OSHC 1072, 1997 WL 694096, at *3
(No. 93-1853, Nov. 7, 1997)). And “a personal fall arrest
system must be tied off the moment [an employee] is
10 BERGELECTRIC V. SECRETARY OF LABOR

exposed to the hazard of falling . . . . [It] is useless unless it
is properly secured as soon as the danger of falling arises.”
N&N Contractors, Inc. v. OSHRC, 255 F.3d 122, 126 (4th
Cir. 2001).

Substantial evidence supports the ALJ’s conclusion that
Bergelectric employees were subject to the danger of falling
prior to proper use of PFAS. Multiple employees worked
within eight or nine feet of an unprotected edge. The ALJ
considered photographs showing that the structure of the
upper roof presented the potential for inadvertent tripping
and stumbling, including raised seams running the entire
length of the roof and wire cabling adjacent to the warning
lines. Being eight or nine feet from an unprotected edge—
coupled with evidence that tripping hazards existed which
could bring them even closer to the edge—is sufficient to
find the employees were exposed to a fall hazard. See Sec’y
of Labor v. Cornell & Co., 5 BNA OSHC 1736, 1977 WL
7738, at *3 (No. 8721, Aug. 25, 1977) (access to fall hazard
when employees standing ten feet from open elevator
shafts); Sec’y of Labor v. Dic-Underhill, 8 BNA OSHC
2223, 1980 WL 10689, at *7–8 (No. 10798, Nov. 3, 1980)
(access to fall hazard where employees worked 25 feet from
the unguarded edge, but work would eventually take them
closer); Phoenix Roofing, 17 BNA OSHC 1076, 1995 WL
82313, at *3 (finding exposure where employees were
“about 12 feet” from unguarded skylights); Nuprecon LP,
23 BNA OSHC 1817, 2012 WL 525154, at *3 (employee
was exposed to hazard when positioned “closely adjacent”
to unprotected edge).

Finally, Bergelectric does not challenge the ALJ’s
findings that it knew of the conditions constituting the
violation and that the violation was serious, and substantial
evidence supported those findings. Thus, the ALJ did not
 BERGELECTRIC V. SECRETARY OF LABOR 11

err in finding Bergelectric liable for a violation of 29 C.F.R.
§ 1926.501(b)(1).

CONCLUSION

We DENY the petition for review of the Commission’s
final order.