Thursday, June 06, 2019

Bergelectric Corp. v. Secretary of Labor (9th Cir. - June 6, 2019)

The $3000 question in this opinion is whether solar panels are "roofing materials [or] equipment."  If they are, then installing those panels is subject to a certain set of OSHA rules, which the contractor here followed, and the $3000 fine is invalid.  But if they aren't, then installing the panels is subject to a different set of rules, and the $3000 fine is valid.

The Ninth Circuit concludes that the plain meaning of "roofing materials [or] equipment" answers the question.  Nothing fancier or more complicated than that.

So?  Whatchathink?  Is a solar panel a type of roofing material or equipment?  After all, you're just as qualified as the Ninth Circuit to decide the common meaning of those terms.  What's your call?

On the one hand, solar panels are (as here) installed on the roof, typically by roofers.  On the other hand, the solar panels are typically installed on top of the roof, though they (partially) cover the roof as well.

Roofing materials or equipment?

The Ninth Circuit says no.  So the fine's valid.

To me, it's actually a close call.  Indeed, my initial impression was that solar panels are indeed a type of roofing equipment.  Maybe in part because when my wife and I looked into having solar panels installed on our own home, we were told (by the roofing contractor) that they'd have to cut out some or most of the clay roofing tiles to install the panels, which would then cover the resulting gaps.  That sounds a lot like a type of roofing, or at least roofing materials or equipment.  Even though it's on top of what we normally think of as the "main" roofing material.

But the Ninth Circuit decides otherwise.  Fair enough.  Maybe right, maybe wrong.  I'm not sure I'm going to spend all day thinking about a close case in which a whopping $3000 is at stake.

Though I do have a marginal critique about the definition employed by the per curiam opinion.

Recall that the question is what we mean by "roofing material" or "roofing equipment."  Those are nouns.  Yet the definition that the Ninth Circuit's opinion relies upon (1) is for the word "roof," not "roofing" (even though it's the latter word that's the one used in the regulation), and (2) is for the word "roof" as a verb, which is not how the word is used here.  (As a verb, "roof" does indeed mean to provide cover with a roof -- that's the "action" word -- but as a noun, the word "roof" can have a very different meaning.)

Now, I'm not enough of a grammarian to know for sure what you do when you turn a noun (roof) into an adjective (roofing) that describes a different noun (material or equipment).  Still.  Seems weird to use the verb definition when you're trying to figure out the meaning of a particular noun.

Anyway.  Close case.  I'm not sure the plain meaning of the relevant words is really all that plain.  Or why someone installing material on a roof (as the petitioner undeniably did here) isn't okay to follow the regular old rules for someone installing roofing equipment -- e.g., shingles -- since the risk of falling seems equivalent whether you're installing shingles or solar panels.  But what do I know?  I'm freaked out by being on a high roof in any event.

(I also wonder what the Ninth Circuit would do with solar shingles, which seem -- sort of like regular solar panels -- to provide both solar power as well as covering for the home.  Is that a different result, or the same thing?)