NLRB Finalizes Rule for Construction Industry Unions to Obtain Majority Support Representational Status
September 23, 2024 —
Aaron C. Schlesinger - Peckar & Abramson, P.C.On July 26, 2024, the National Labor Relations Board (“NLRB”) issued its Fair Choice – Employee Voice Final Rule (“Final Rule”), which takes effect September 30, 2024. The Final Rule eases the process for unions in the construction industry to convert their status as collective bargaining representative of bargaining unit employees from Section 8(f) to 9(a) of the National Labor Relations Act (“Act”) simply by placing certain recognitional acceptance language in their collective bargaining agreements. As a result, construction industry employers should review their collective bargaining agreements prior to signing to determine if such language exists.
Section 9(a) Non-Construction Industry Employers
In most industries, not including construction, union recognitional status as collective bargaining representative of the employer’s employees is governed by Section 9(a) of the Act. In order for a Union to obtain recognitional status under Section 9(a), the union must either: (1) file a petition with the NLRB showing support of 30% of the proposed bargaining unit via employee executed authorization cards and win an election of 51% of the employees in the proposed bargaining unit who actually vote; or (2) by reaching an agreement with the employer that the union possesses employee executed authorization cards from 51% of the proposed bargaining unit, which has been confirmed by a neutral arbitrator pursuant to a card count. Once such status is achieved, the union and employer are required to meet and bargain towards reaching a collective bargaining agreement covering the terms and conditions of employment of the union represented employees. A Section 9(a) union cannot have its recognitional status revoked absent the loss of majority support of the employees it represents.
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Aaron C. Schlesinger, Peckar & Abramson, P.C.Mr. Schlesinger may be contacted at
aschlesinger@pecklaw.com
Utah’s Highest Court Holds That Plaintiffs Must Properly Commence an Action to Rely on the Relation-Back Doctrine to Overcome the Statute of Repose
August 20, 2018 —
Shannon M. Warren - The Subrogation StrategistEarlier this summer, in Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders LLC, 2018 UT 28, the Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose. In Utah, the statute of repose requires that an action be “commenced within six years of the date of completion.” The plaintiff alleged that its 2014 amended complaint naming the general contractor as a defendant was timely-commenced because, before the date on which Utah’s statute of repose ran, a defendant filed a motion to amend its third-party complaint to name the general contractor as a defendant, and the defendant subsequently assigned its claims to the plaintiff. The plaintiff argued that the filing of its 2014 amended complaint related back[1] to the date of its original complaint. The Supreme Court disagreed, holding that an action is “commenced” by filing a complaint and that a motion for leave to amend does not count as “commencing” an action.
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Shannon M. Warren, White and Williams LLPMs. Warren may be contacted at
warrens@whiteandwilliams.com
Construction Litigation Roundup: “D’Oh!”
August 12, 2024 —
Daniel Lund III - LexologyThe U.S. DOL found itself on June 24 on the wrong end of a preliminary injunction concerning recent changes to the Davis-Bacon Act.
The lawsuit, initiated in Texas federal court by the Associated General Contractors of America and other concerned citizens, sought a preliminary injunction barring implementation and enforcement of “specified portions of § 5.2 and § 5.5(e) of the DOL’s ‘Updating the Davis-Bacon and Related Acts Regulations’” – the “Final Rule,” published August 23, 2023.
After determining the appropriateness of the “standing” of the plaintiffs based upon the plaintiffs being “adversely affected” by the Final Rule, the federal court preliminarily enjoined enforcement of the Final Rule. In noting its disagreement with the Final Rule, the court stated:
“… the Final Rule amends the DBA [the Davis-Bacon Act] by imposing a stealth selfimplementing DBA requirement in the contract by an operation-of-law provision that contradicts the express statutory language of the Act [the court bristling at the idea that contracts might exclude with impunity the otherwise mandated DBA clauses]. Further, the Final Rule amends the Act to extend the DBA to apply to workers who are not mechanics and laborers, and to extend the scope of the work covered by DBA to include work is not performed ‘directly on the site of the work.’
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
A Court-Side Seat: Environmental Developments on the Ninth Circuit
July 13, 2020 —
Anthony B. Cavender - Gravel2GavelOn May 26, 2020, the U.S. Court of Appeals for the Ninth Circuit decided three significant environmental law cases. Two of these cases involved whether global warming tort cases could be brought in California state courts on, for example, a public nuisance claim, and whether the defendant energy companies had the right to have them removed to the federal courts.
County of San Mateo, et al. v. Chevron Corp., et al. and City of Oakland v. BP PLC, et al.
While acknowledging the immensity of the legal issues, the Ninth Circuit held that the federal removal statutes did not permit these cases to be removed to the federal courts. For one thing, state court jurisdiction was not preempted by the Clean Air Act. Accordingly, the court affirmed the ruling of Federal Judge Chhabria in the Chevron case, and vacated Judge Alsup’s ruling in the BP case that he had jurisdiction to hear this case pursuant to federal common law, and then to dismiss it. The court also remanded the case to Judge Alsup, and directed him to determine if there was an “alternate basis” for federal court jurisdiction based on the pleadings that an issue of ”navigable waters” was a concern.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Massachusetts SJC Clarifies “Strict Compliance” Standard in Construction Contracts
January 02, 2019 —
Jacob Goodelman - Gordon & Rees Construction Law BlogIn Massachusetts, it is well established that a contractor cannot recover damages from a construction contract without first showing that the contractor completely and strictly performed on all of the contract’s terms. Recently, the Massachusetts Supreme Judicial Court narrowed the rule by concluding that complete and strict performance is only required for contract terms relating to the design and construction itself. The high Court explained that non-design / non-construction contract terms are governing by “ordinary contract principles, including the traditional Massachusetts materiality rule.”
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Jacob Goodelman, Gordon Rees Scully MansukhaniMr. Goodelman may be contacted at
jgoodelman@grsm.com
Lawsuit Gives Teeth to Massachusetts Pay Law
September 16, 2024 —
Joseph Barra - Robinson+Cole“The Massachusetts Legislature passed the state’s Prompt Pay Act 14 years ago to improve the downstream flow of money on most large-scale private construction projects. While the act established detailed protocols for administering applications for payment and other important construction phase processes, several questions about its interpretation and impact remained unanswered.
Over the years, I watched as a significant portion of the Massachusetts design and construction community either ignored the law’s exacting requirements or were unaware of their applicability. The first indication of how the act would be interpreted came in 2022, when the state appeals court decided Tocci Building Corp. v. IRIV Partners LLC. In that case, the court strictly construed the act. It held that an owner (and its agent) who failed to promptly advise the project’s general contractor of specific factual and legal reasons why it was withholding payment, coupled with a failure to certify that funds were being withheld in good faith, violated the law—making the contractor liable for the unpaid funds.
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Joseph Barra, Robinson+ColeMr. Barra may be contacted at
jbarra@rc.com
After Sixty Years, Subcontractors are Back in the Driver’s Seat in Bidding on California Construction Projects
September 22, 2016 —
William L. Porter – Porter Law Group BulletinFor almost the last sixty years, the standard for bidding on California construction projects has been governed by the landmark case of Drennan v. Star Paving (1958) 51 Cal.2d 409; which generally states that the contractor bidding to perform work for a project owner is entitled to rely on the bids of subcontractors in formulating its own bid to do the work. Under the equitable legal doctrine of “promissory estoppel”, which serves as the foundation of the Drennan case, even though there was no actual “contract” between the contractor and subcontractor at the time of bid, the contractor was entitled to enforce the subcontractor’s bid in reliance on this doctrine. For bidding purposes, promissory estoppel serves as an equitable substitute for an actual contract. The courts have, since that time, allowed promissory estoppel to act as a substitute for the contract in public bidding because, in equity, when a contractor “reasonably” relies on a subcontractor’s bid in formulating its own bid, it would be unjust to allow the subcontractor to withdraw a bid on which the contractor had relied in submitting its own successful bid.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
New York Considering Legislation That Would Create Statute of Repose For Construction
April 05, 2021 —
Richard W. Brown & Anna M. Perry - Saxe Doernberger & Vita, P.C.New York is considering legislation, which, if enacted, would create a statute of repose limiting the number of years after completion of a construction project that legal action may be asserted against a contractor. New York currently remains the only state without a statute of repose for construction. Earlier this year, however, the New York State Legislature introduced Bills S04127 and A01706 (the “Bill”) , which would impose a 10-year period of repose in which an injured party may bring suit against a design professional and/or a contractor for bodily injury or property damage resulting from a construction defect.
Currently, contractors and design professionals have exposure to bodily injury and property damage claims resulting from construction defects for an unlimited number of years after completion of a project. If enacted, the Bill would limit the period of repose to 10 years after the project is completed, which is deemed to occur upon substantial completion or acceptance by the owner. An additional 1-year grace period is provided for an injured party to file suit where bodily injury or property damage occurs in the tenth year after completion. The Bill notably limits the applicability of the 10-year statute of repose to third-party actions and thereby preserves the existing 3-year and 6-year statutes of limitation applicable to actions asserted by an owner or client for professional malpractice and breach of contract, respectively.
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Richard W. Brown, Saxe Doernberger & Vita, P.C. and
Anna M. Perry, Saxe Doernberger & Vita, P.C.
Mr. Brown may be contacted at RBrown@sdvlaw.com
Ms. Perry may be contacted at APerry@sdvlaw.com
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