Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships

Keahn MorrisJohn BolestaJames HaysBy Keahn Morris, John Bolesta and James Hays on Posted in Labor and Employment Issues

In its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of a formal rulemaking jag for on May 22, the Board released its “Unified Agenda” of anticipated regulatory actions which, in addition to proceeding with rulemaking regarding joint employer standards, announced the Board’s intention to consider formal rulemaking in a number of critical areas. Consistent with that wide-ranging Agenda, on August 12, the Board published a Notice of Proposed Rulemaking (NPRM) over the objection of Democratic appointee, Lauren McFerran, that would amend the Agency’s rules and regulations governing the filing and processing of election petitions in three very important ways. This NPRM, therefore, deserves attention. Continue Reading

Labor Development Impacting Developers, Contractors, and Landowners

John BolestaKeahn MorrisBy John Bolesta and Keahn Morris on Posted in Labor and Employment Issues

It 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. Continue Reading

EPC Contractors Procuring from Foreign Companies need to Reconsider their Contracts

Hwan KimBy Hwan Kim on Posted in Construction Claims and Litigation, Design and Construction Defects, Design-Build and Public Private Partnerships, Infrastructure, Mechanic's Liens, Bonds and Stop Notices, Public Works

A recent California case may force engineering, procurement and construction companies doing business with foreign suppliers to reconsider—and maybe rewrite—their contracts. In Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd., the California Court of Appeal held that parties may not contract around the formal service requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, commonly referred to as the Hague Service Convention. The decision could have profound implications for international business. Continue Reading

It’s All a Matter of [Statutory] Construction: Supreme Court Narrowly Interprets the Good Faith Dispute Exception to Prompt Payment Requirements in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.

Erinn ContrerasJoy O. SiuBy Erinn Contreras and Joy O. Siu on Posted in Construction Claims and Litigation, Recent Cases

On May 14, 2018, the California Supreme Court issued its opinion in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., No. S231549, slip. op. (Cal. Sup. Ct. May 14, 2018). In it, the Court narrowly construed the “good faith” exception to the general rule that a direct contractor must make retention payments to its subcontractors within 10 days of receiving any retention payment. The exception provides that “[i]f a good faith dispute exists between the direct contractor and a subcontractor, the direct contractor may withhold from the retention to the subcontractor an amount not in excess of 150 percent of the estimated value of the disputed amount.” Cal. Civ. Code section 8814(c). Continue Reading

“Good Faith” May Not Be Good Enough: California Supreme Court to Decide When General Contractors Can Withhold Retention

Erinn ContrerasJoy O. SiuBy Erinn Contreras and Joy O. Siu on Posted in Construction Claims and Litigation, Recent Cases

It is industry standard in California for owners of a construction project to make monthly payments to a contractor for work it has completed, less a certain percentage that is withheld as a guarantee of future satisfactory performance. This withholding is called a retention. Contractors generally pass these withholdings on to their subcontractors via a retention clause in the subcontract. Under such clause, if a subcontractor fails to complete its work or correct deficiencies in its work, the owner and the general contractor may use the retention to bring the subcontractor’s work into conformance with the requirements of the contract. Continue Reading

Direct Contractors In California Should Take Steps Now To Reduce Exposure For Unpaid Wages By Subcontractors

Nora StilesteinCandace MatsonBy Nora Stilestein and Candace Matson on Posted in Construction Claims and Litigation, Employment and Prevailing Wage, Labor and Employment Issues, Mechanic's Liens, Bonds and Stop Notices, New Rules and Regulations

As of January 1, 2018, direct contractors in California who make or take a contract “for the erection, construction, alteration, or repair of a building, structure, or other private work” are jointly and severally liable with their subcontractors for any unpaid wages, fringe benefits and other benefit payments or contributions owed to wage claimants. Governor Brown approved AB 1701 on October 14, 2017. The new law puts the onus on direct contractors to not only monitor their own payroll practices, but to ensure that their subcontractors and lower tier subcontractors are engaging in proper payroll practices. Continue Reading

Contractors May Benefit by Taking Equity in the Project They are Constructing

Hwan KimBy Hwan Kim on Posted in Arbitration and Mediation, Construction Claims and Litigation, Design and Construction Defects, Design-Build and Public Private Partnerships, Infrastructure, Mechanic's Liens, Bonds and Stop Notices, Public Works

Contractors may benefit in making a small equity investment in the projects they construct. The financial benefit can arise from the investment itself and from improved understanding and communication with the owner during construction itself.

In the past, it was not unusual for construction companies to make small equity investments in the projects they worked on. For example, a construction company building a power plant would take a 5% equity interest in the project. By taking a financial stake in the project, contractors planned to protect their business interest in the project. That was the theory, anyway. Many of these investments did not provide the good returns; often-times the return was negative. While the construction company’s management was great at operating the construction business, it was not so great when it came to the financing business. So the idea went out of fashion. Continue Reading

Picerne Construction Corp. v. Castellino Villas (Feb. 18, 2016, C071197)

Joy O. SiuBy Joy O. Siu on Posted in Recent Cases

The Third District Court of Appeal recently held that completion under the mechanics lien statute requires actual completion of the work of improvement, meaning completion of the entire structure or scheme of improvement as a whole, in Picerne Construction Corp. v. Castellino Villas (Feb. 18, 2016, C071197).*  In doing so, the Court resolved an ambiguity developed through case law by acknowledging the abrogation of authority that permitted completion to be found where only “trivial imperfections” to the work of improvement remained.

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AB 1793 Amends Requirements for Contractors to Establish Substantial Compliance With State Contractor Licensing Requirements

Robert SturgeonBy Robert Sturgeon on Posted in New Rules and Regulations

On August 30, 2016, Governor Brown signed into law AB 1793, which amends the requirements under Business & Professions Code § 7031 for a contractor to establish “substantial compliance” with state contractor licensing requirements.  AB 1793 amends section 7031 by deleting the requirement that to establish substantial compliance, a contractor must show it did not know and reasonably should not have known that it was not licensed at the time it began performing the construction work or contract at issue.  The amendments are to become effective January 1, 2017.

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