Labor Development Impacting Developers, Contractors, and Landowners
June 25, 2019 —
John Bolesta & Keahn Morris - Sheppard Mullin Construction & Infrastructure Law BlogIt is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer. This area of the law is governed by the National Labor Relations Act (“NLRA”), the federal law that regulates union-management relations and the National Labor Relations Board (“NLRB”), the federal administrative agency that is tasked with enforcing the NLRA. But NLRB decisions issued during the Obama administration have allowed a union to secondarily demonstrate at job sites and to publicize their beefs over the use of non-union contractors there, provided the union does not actually “picket” the site. In those decisions, the NLRB narrowed its definition of unlawful “picketing,” thereby, limiting the scope of unlawful activity prohibited by law. Included in such permissible nonpicketing secondary activity is the use of stationary banners or signs and the use of inflatable effigies, typically blow-up rats or cats, designed to capture the public’s attention at an offending employer’s job site or facilities.
A recently released NLRB advice memo, however, signals the likely reversal of those earlier decisions and that contractors and owners may now be able to stop such harassing union job site tactics simply by filing a secondary boycott unfair labor practice change with the NLRB. The 18 page memo, dated December 20, 2018 (and released to the public on May 14, 2019), directs the NLRB’s Region 13 to issue a complaint against the Electrician’s Union in a dispute coming out of Chicago where the union erected a large, inflatable effigy, a cat clutching a construction worker by the neck, and posted a large stationary banner proclaiming its dispute to be with the job’s general contractor over the use of a non-union electrical sub at the job site’s entrance. Though not an official Board decision, the memo suggests the NLRB General Counsel’s (GC) belief that the earlier Obama era decisions may have been wrongly decided and should be reconsidered by the NLRB on the theories that the Union’s nonpicketing conduct was tantamount to unlawful secondary picketing, that it constituted “signal” picketing that unlawfully induced or encouraged the employees of others to cease working with the subs or that it constituted unlawful coercion.
Reprinted courtesy of
John Bolesta, Sheppard Mullin and
Keahn Morris, Sheppard Mullin
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Morris may be contacted at kmorris@sheppardmullin.com
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Hurricane Claim Cannot Survive Anti-Concurrent Causation Clause
May 15, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe court upheld the insurer's denial of coverage for hurricane damage caused by storm surge. Heritage Motorcoach Resort & Marina Condominium Association, Inc v. Axis Ins. Co., 2023 U.S. Dist. LEXIS 58931 (S.D. Ala. April 4, 2023).
Heritage operated a resort with a marina, dock and clubhouse. Hurricane Sally caused damage to the property. Heritage submitted a claim to its insurer, Axis. Axis investigated the claim. One investigator reported that the marina structures sustained damage caused by storm tide forces, wave action and debris impact. He opined that the marina structures did not sustain wind damage. When deposed, he testified that there was a combination of vessels and wave action causing damage to the marina. A second investigator found that the storm drove boats and other debris into the marina area causing much of the damage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Clean Water Act Cases: Of Irrigation and Navigability
January 06, 2020 —
Anthony B. Cavender - Gravel2GavelThe federal courts have recently decided two significant Clean Water Act (CWA) cases: State of Georgia, et al. v. Wheeler, where the US District Court for the Southern District of Georgia held that the 2015 rulemaking proceeding of EPA and the U.S. Army Corps of Engineers redefining the term “Waters of the United States” in the CWA violated the Act as well as the Administrative Procedure Act; and the Ninth Circuit’s decision in Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser, where the appeals court ruled that the lower court erroneously interpreted a CWA NPDES permitting exception involving agricultural return flows.
An Absence of Navigability: State of Georgia, et al. v. Wheeler
Decided on August 21, 2019, the district court, one of the few courts to grapple with the rule’s compliance with the CWA and the Administrative Procedure Act (APA), held that the agencies’ redefinition of the terms “Interstate Waters,” “Tributaries” and “Adjacent Waters” violated the CWA by reading “navigability” out of the new definitions, or by failing to adhere to the Supreme Court’s rulings in the 2005 case of Rapanos v. United States, in particular Justice Kennedy’s concurrence regarding the application of the “significant nexus” in case-by-case adjudications as to whether a particular body of water was covered by the Act. Moreover, some provisions of the rule conflicted with the APA because they were not a logical outgrowth of the rules proposed by the agencies in 2014, and on which they solicited comments, and other determinations were not supported by a reasonable explanation. In addition, without a clear statement from Congress that it supported the rule’s effect of increasing the nature and extent of enhanced federal jurisdiction over waters subject to the CWA, the court was loathe to approve the rule. Accordingly, the rule was remanded to the agencies for additional review consistent with this decision.
This decision is of particular importance as it may well be the first case to subject this new EPA rule—the linchpin of much of EPA’s regulation under the CWA—to extended review. (Other courts have only been asked to enjoin the rule, which involves a different type of review.)
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Defective Panels Threatening Profit at China Solar Farms: Energy
January 21, 2015 —
Bloomberg NewsFlaws found in some Chinese solar panels can drastically eat into their efficiency, reducing how much power the panels will produce as the country races to meet aggressive goals to hold the line on fossil fuel emissions.
The defects, found in products set to be used only in China, are in a coating that suppresses reflections on glass, allowing the panels to capture more light. About 23 percent of samples taken from dozens of Chinese companies failed to meet requirements, according to regulators in China. For samples from Jiangsu, the eastern province where much of the glass is made, the rate was as high as 40 percent.
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Bloomberg News
A Court-Side Seat: Permit Shields, Hurricane Harvey and the Decriminalization of “Incidental Taking”
May 31, 2021 —
Anthony B. Cavender - Gravel2GavelThis is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks.
THE U.S. SUPREME COURT
On April 22, 2021, the Court decided two important administrative law cases: Carr, et al. v. Saul and AMG Capital Management v. Federal Trade Commission.
Carr, et al. v. Saul
In this case, the constitutionality of Social Security Administrative Law Judges (ALJs) hearing disability claims disputes was at issue. More precisely, were these ALJs selected in conformance with the Appointments Clause of the Constitution? A similar issue was litigated in the case of Lucia v. Securities and Exchange Commission. There, the Court held that many of the agency’s ALJs were not selected in conformance with the Appointment’s Clause. Here, the Court held that this issue could be decided by the courts without compelling the litigants to first exhaust their administrative remedies. Thousands of ALJs are employed by the federal government, and it may take some time to resolve this question for every agency.
AMG Capital Management v. Federal Trade Commission
In this case, the court held, unanimously, that the Commission does not presently have the authority to employ such equitable remedies as restitution or disgorgement.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
The Regulations on the Trump Administration's Chopping Block
August 02, 2017 —
Pam Radtke Russell - Engineering News-RecordThe Trump administration's next big step toward repealing the controversial Waters of the U.S. (WOTUS) rule is official, with a proposal to rescind the Obama-era regulation appearing in the Federal Register on July 27, setting off a relatively short comment period that will end Aug. 28.
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Pam Radtke Russell, ENRMr. Russell may be contacted at
Russellp@bnpmedia.com
Colorado Legislative Update: HB 20-1155, HB 20-1290, and HB 20-1348
August 03, 2020 —
Jean Meyer - Colorado Construction LitigationThis year’s Colorado State Legislative session was cut short. However, in the period of time Colorado’s Legislature was in session, it passed and evaluated important legislation for Colorado homebuilders. This article highlights relevant legislation for Colorado homebuilders.
1. HB 20-1155
This Bill creates new requirements on new homebuilders to offer renewable energy systems to the buyer of a new home. Specifically, the Bill requires homebuilders to offer each of the following:
- A solar panel system, a solar thermal system, or both;
- Prewiring or pre-plumbing for the above solar systems; and,
- A chase or conduit for future installation of such systems.
The Bill further requires Colorado homebuilders to offer homebuyers one of the following:
- An electric vehicle charging system;
- Prewiring for the future installation for such a system; or,
- A plug-in receptacle in a place accessible to a vehicle parking area.
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Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLCMr. Meyer may be contacted at
meyer@hhmrlaw.com
AI Systems and the Real Estate Industry
April 03, 2023 —
Robert G. Howard & Craig A. de Ridder - Gravel2Gavel Construction & Real Estate Law BlogArtificial intelligence (AI) systems captured considerable attention with the release of a large language chatbot, ChatGPT, by OpenAI, in November of last year. On March 14, OpenAI unveiled GPT-4, a more powerful “multimodal” chatbot responding to both text and images. And, on March 21, Google launched its conversational computer program, Bard, to compete with GPT-4. These chatbots allow users to initiate detailed queries or requests and receive prompt responses in complete sentences. Users are not forced to scroll through a list of results like those produced by search engines and follow-up questions can be asked.
AI systems have been touted for many years and these new breakthroughs may drastically change the way that we create content.
Notwithstanding their unprecedented capabilities, AI systems can produce imperfect results. New chatbots, for example, can generate plausible-sounding but nonsensical, biased or false responses. Accordingly, heavy fact-checking is necessary. OpenAI has warned that ChatGPT is prone to filling in replies with incorrect data if there is not enough information available on the topic on the internet. Bard includes a website disclaimer that it “may display inaccurate or offensive information that doesn’t represent Google’s views.” On March 20, a breach at OpenAI allowed users to see other people’s chat histories before the service was shut down. Further, there is a real risk that courts will rule that certain content generated by these systems infringes the copyright or database rights of the owner of the materials and data that the technologies relied on. When entering into agreements with AI software providers, companies should also be concerned about
other risks, including misappropriation of data, security, confidentiality, privacy and third-party claims.
Reprinted courtesy of
Robert G. Howard, Pillsbury and
Craig A. de Ridder, Pillsbury
Mr. Howard may be contacted at robert.howard@pillsburylaw.com
Mr. de Ridder may be contacted at craig.deridder@pillsburylaw.com
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