NLRB Holds Engineering Firm Committed Unfair Labor Practice

By: Christopher S. Drewry

Over the course of the past year, the National Labor Relations Board (“NLRB”) is the federal agency that has arguably made the biggest push to expand its reach and relevance.  While the National Labor Relations Act (“NLRA”) has always protected the rights of all employees – both union and non-union – the focus of the NLRB has traditionally been on unionized workplaces.  However, the NLRB has shifted its focus from traditional labor matters toward the rights of non-union employees.  Such decisions have impacted companies on business-related issues involving their employment “at-will” disclaimers, social media policies, confidentiality of investigations, as well as other employee handbook policies.  Non-union companies involved in the construction industry (and even those not engaged in traditional labor activities) should take note of this trend by the NLRB, including a decision handed down last week in Jones & Carter, Inc./Cotton Surveying Company v. Teare.

In Teare, the NLRB addressed the viability of an employer’s confidentiality rule prohibiting discussions among employees about their salaries.  The case involved allegations that Jones & Carter, an engineering and surveying firm located in Houston, unlawfully maintained a rule in its employee handbook that prohibited such discussions.  Further, Teare was alleged to have been terminated because she engaged in concerted activities with other employees for the purposes of mutual aid and protection by discussing salaries and because she violated Jones & Carter’s unlawful rule.  One of the basic issues in the case was whether Jones & Carter’s confidentiality rule that prohibited employees from discussing their salaries was overly broad, thereby resulting in an unfair labor practice in violation of §8(a)(1) of the National Labor Relations Act (“NLRA”), which prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their §7 rights (i.e., those rights to self-organize, to form, join, or assist labor organizations, to bargain collectively, and to engage in other concerted activities for  the purpose of collective bargaining).

At trial, Jones & Day said the employee was terminated for “harassing” other workers.  However, the Administrative Law Judge (“ALJ”) found that Teale was, in fact, fired for discussing salaries with other workers, and that sharing such information was a “pet peeve” of the company.  The ALJ and the NLRB (upholding the ALJ’s determination) held that the engineering firm unlawfully fired the employee for discussing salary information with co-workers, and ordered Jones & Day to offer reinstatement and to pay back wages for the time out of work.  Additionally, under the NLRB order, the company also must rescind its policy of forbidding employee discussion of salaries on the basis that the NLRA protects the rights of workers to discuss their terms and conditions of employment, including wages.  Ultimately, Jones & Day had to pay Teare (who declined reinstatement to her former position) back pay, 401(k) contributions, medical expenses and interest in the total amount of $107,000.

From an employment law standpoint, the NLRB’s decision that this type of confidentiality rule is prohibited is not unexpected in light of prior cases extending the trend toward increased transparency among employees at least with respect to salaries.  However, Teare is also part of the ongoing trend wherein the NLRB has sought to expand its reach to non-traditional labor matters and, more significantly, to non-union workplaces.  From that standpoint, Teare stands as yet another warning to both union and non-union employers alike to review and update their employee handbooks to account for the increased NLRB focus on employment policies and procedures.

“Crowdfunding Architecture” – AIA Examines Innovative Approach to Project Financing

By: William E. Kelley, Jr., LEED AP BD+C

What is “crowdfunding”?  By definition, it is “the practice of funding a project or venture by raising many small amounts of money from a large number of people, typically via the Internet.”  Many individuals, groups, and small businesses (especially startups) have attempted to tap into crowdfunding as an alternate to loans, private financing, angel investors, or venture capitalists in order to launch new products, services, or business ventures.

As outlined in an article from Forbes.com, until last year, “crowdfunding sites were only permitted to operate on a reward or donation basis, essentially offering a product or enticement in exchange for monetary funding.”  That prohibition may soon be obsolete, however, thanks to the launch of the JOBS Act, which is short for Jumpstart Our Business Startups.  Under the JOBS Act, the SEC is empowered to issue regulations on crowdfunding, which set forth rules under which the general public can receive company equity in exchange for funding.  Once the SEC issues those regulations, then crowdfunding sites may go beyond reward and donation basis funds, and offer would-be investors equity or other forms of return on investment.

So why should architects (or anyone in the construction industry, for that matter), care about crowdfunding?  In what has been extremely difficult economic times for a lot of design and construction professionals, crowdfunding may provide an alternate approach to project financing.  At least this is the theory examined by the American Institute of Architects (AIA) in a commissioned white paper titled, “Crowdfunding Architecture”.  A copy of that white paper can be downloaded here.

“Crowdfunding Architecture” outlines the various models for crowdfunding, including donation-based and reward-based crowdfunding, and crowdfunding with financial returns.  As outlined in the white paper, each of these models carries potential benefits and deterrents for investors and owners alike.  For example, under the donation-based model, there is no tangible reward or return on investment for donors.  Donors under this model have to be emotionally connected to the cause or project in order to be motivated to contribute financially.  Projects seeking financing under this model also have to avoid potential pushback from doubters who question why no other financing or funding vehicle is available for this particular project.  As the white paper notes, this model requires the most carefully thoughtful communications strategy and the most persistent communications effort.

“Crowdfunding Architecture” also addresses real life examples of crowdfunding used successfully and unsuccessfully for various projects.  For example, after thunderstorms and tornadoes damaged buildings throughout Joplin, Missouri in 2011, a group known as Rebuild the Joplin Mosque organized a crowdfunding campaign, seeking $250,000 to rebuild the Joplin Mosque, which had been damaged not only by tornadoes, but also by fire damage that caused it to burn to the ground.  The Rebuild the Joplin Mosque not only raised the $250,000 needed in one week, but it exceeded its goal, by raising more than $400,000.  Through its crowdfunding site, the organizers disclosed that any proceeds above the $250,000 goal would be used to finance additional safety features, expansion of the original structure, and access roads.

Clearly the Rebuild the Joplin Mosque effort is a huge success story for crowdfunding.  There are misses in the crowdfunding world as well.  For example, “Crowdfunding Architecture” points to a Kansas City campaign to fund the KC Streetcar Starter Line.  The campaign did not succeed, but not for a lack of community outreach or creative reward structures under the crowdfunding model.  Instead, the campaign failed because its funding goal was $10 Million, and “Crowdfunding Architecture” notes that “for something like that to happen, a campaign needs intensive promotion way in advance of the campaign, and preferably a strong signal (a pledge of funds) that shows that the campaign has secured a considerable amount of pledges from day one.”

So can crowdfunding help launch stalled projects and give the design and construction industries a much-needed economic boost?  Perhaps.  The point made by “Crowdfunding Architecture” seems to be that small, community-based projects are likely the best candidates for crowdfunding, especially those with some tangible reward for investors and/or the presence of matching funding from other public or private contributors.  In other words, crowdfunding might be good for communities looking to leverage available funds in order to take on larger projects that might not otherwise get off the ground without other funding.  “Crowdfunding Architecture” also touches on some of the potential risk and liabilities for organizations seeking to utilize crowdfunding.  Organizers cannot expect to set up a crowdfunding site and simply wait for the funds to roll in.  Successful crowdfunding campaigns involve a tremendous amount of planning and effort.

It will be years before we can fully analyze whether or not crowdfunding will serve as a viable financing tool for design and construction projects.  At the very least, though, it is a creative approach to the question of how to jumpstart not only small businesses, but also design and construction projects.

Court Holds Recess Appointments to the NLRB Were Unconstitutional

By: Christopher S. Drewry

On January 25, 2013, the D.C. Circuit Court of Appeals handed down its decision in the case of Noel Canning v. National Labor Relations Board.  While the facts of the case itself involve an unfair labor practice charge against Noel Canning for allegedly refusing to reduce to writing and then execute a collective bargaining agreement, the key issue on appeal became whether President Barack Obama’s recent appointments to the National Labor Relations Board (“NLRB”) were legal.  Specifically, Noel Canning questioned the NLRB’s authority to issue its order on the basis that (1) the NLRB lacked authority to act because there was not quorum, as three members of the five-member NLRB were never validly appointed because they took office under recess appointments which were made when the Senate was not in recess, and (2) that the vacancies the three members filled did not occur during the recess of the senate, as required by the United States Constitution.

Flash back to one year ago in early 2012.  An administrative law judge had concluded that Noel Canning had violated the NLRA.  Thereafter, a three-member panel of the Board affirmed the findings in February of 2012.  At that time, the NLRB ostensibly had five members, two of which had been confirmed by the Senate in June of 2010, while the other three were all appointed by President Obama on January 4, 2012, purportedly pursuant to the recess appointments clause of the Constitution.  At the time of these appointments, the Senate was operating pursuant to a unanimous consent agreement which stated that the Senate would meet every three business days from December 20, 2011 through January 23, 2012.  During one of the sessions, the Senate acted to convene the second session of the 112^th Congress and to fulfill its constitutional duty to meet on January 3^rd as set forth in the 20^th Amendment.

The long and the short of it is that the NLRB is not allowed to issue decisions unless it has three or more members.  President Obama invoked his recess appointment powers to appoint three members to the Board while Congress was on break.  By doing so, the appointees did not have to be approved by the Senate.  Under the Recess Appointments Clause, an appointment made during a recess expires upon conclusion of the following congressional session.

Based on this, Noel Canning asserted that the Board did not have a quorum for the conduct of business on February 8, 2012, that being the date that the NLRB issued its decision.  Noel Canning argued that the NLRB cannot act without a quorum of three members and that the NLRB lacked a quorum on that date because the recess appointments of the last three members of the Board were invalid under the Recess Appointments Clause of the Constitution – namely because there was not an actual recess and the vacancies to be filled did not arise during an actual recess (i.e. the vacancies occurred during a congressional session).  The D.C. Circuit Court agreed that the appointments were constitutionally invalid and the NLRB therefore lacked a quorum.

The outcome of this case is significant…at least for the time being.  With this decision, the NLRB now lacks authority to act since it only has two valid members.  Likewise, every decision that has been issued since the “recess appointments” on January 4, 2012 is subject to attack and/or challenge based upon the same arguments made by Noel Canning.  This includes a large number of cases where the NLRB has expanded its focus to areas beyond the traditional labor context, including non-unionized employers.  The aforementioned caveat “at least for the time being” is made because the Noel Canning decision will likely be appealed to the United States Supreme Court, who could overturn the D.C. Circuit.  And, even if the Supreme Court upholds it, President Obama will have an opportunity during his second term to appoint new members to the NLRB, either through the senate or via valid recess appointments that could continue the same policies pursued by the 2012 Board.  In the meantime, the NLRB is expected to move forward with issuing decisions and orders, notwithstanding the possibility that those decisions risk being declared void and unenforceable.

Hunt Construction: Same Case, Slightly Different Result

By: Sean T. Devenney

Last Month the Indiana Court of Appeals issued a not-for-publication decision in the case of Clade v. Hunt Construction Group, Inc.   This case arose on the same Project (under the same contract) that we have discussed in prior blog posts relating to the Indiana Supreme Court case in Garrett v. Hunt Construction.  In this case, like Garrett, the injured employee Clade was injured while working for a subcontractor on the Project.   Clade could not sue his employer due to the exclusivity of the worker’s compensation remedy.  However, Clade did bring suit against Hunt, who was the Construction Manager Agent on the Project, claiming that Hunt owed him a non-delegable duty regarding jobsite safety on the ingress and egress routes to the Project site where Clade allegedly slipped and fell on ice.  Not surprisingly, Hunt argued that the Supreme Court case in Garrett controlled the outcome of the case and Hunt argued that since the case arose on the same Project with the exact same contracts at issue, Hunt was entitled to summary judgment.  The trial court agreed and found that Hunt did not owe Clade a duty to protect him from his slip and fall and granted Hunt’s motion for summary judgment.

The Court of Appeals, however, reversed.  The Court noted that there were two ways Hunt could be found to have assumed a duty to Clade:  (1) by contract; or (2) by conduct.  Presumably, the Court agreed with Hunt that the contracts (because they were the exact same as those analyzed in Garrett) did not create a duty to individual employees of subcontractors on the Project.  However, the Court found that there was no evidence presented by any party as to what, if anything, Hunt had actually done with respect to snow and ice removal in the particular spot where Clade allegedly fell.  Since there was no evidence presented on the subject, under Indiana’s liberal summary judgment standard Hunt was not entitled to summary judgment.  The Court did appear to leave open the possibility that Hunt could present evidence that it did not perform snow and ice removal on the Project in the area where the Plaintiff fell (prior to when he fell), in which case, presumably Hunt would be entitled to summary judgment.  Under Garret, it seemed that a construction manager might be able to insulate itself from assuming a duty for jobsite safety by drafting the appropriate contractual language and limitations.  However, the Clade case appears to require an examination by the court that looks beyond the contractual language to the parties’ conduct as well in order to determine whether or not the construction manager assumed a duty for jobsite safety.  What appeared to be clear direction from the Indiana Supreme Court may have just gotten murkier.

Industry Groups Congratulate Obama on Re-election

By: Joseph M. Leone

Construction trade groups offered congratulations and admonitions to President Obama on his re-election.  Barry Rutenberg, chairman of the National Association of Home Builders (NAHB) offered his congratulations in a statement released on November 7.  “The National Association of Home Builders (NAHB) congratulates President Obama on winning a second term as President of the United States of America and all the lawmakers who were elected to the 113^th Congress.”  Mr. Rutenberg also admonished the President to address the upcoming “fiscal cliff.”  “In the closing weeks of the 112^th Congress, NAHB urges President Obama and congressional leaders to work together to resolve issues related to the ‘fiscal cliff’ by extending all of the 2001 and 2003 tax cuts while being mindful of how broad-based tax reform will affect the fledgling housing recovery.”

American Institute of Architects (AIA) President Jeff Potter urged both parties to work together to solve the country’s current economic problems “[n]ow that the election battle is over, we urge both the White House and the newly elected Congress to launch a new era of statesmanship by putting aside differences on the budget and by enacting policies that will help put the economy on a more solid footing for all Americans.”  Mr. Potter similarly implored both sides to resolve the looming fiscal cliff.  “In particular, we urge both parties to solve the impending budget impasse known as the ‘Fiscal Cliff,’ where mandatory budget cuts and tax hikes threaten to cost more than 60,000 construction jobs.”

American Road & Transportation Builders Association (ARTBA) President and Chief Executive Officer Pete Ruane stated, “[w]e congratulate President Obama on his hard fought victory; . . . the centerpiece of both campaigns was about growing the economy, creating jobs and getting America’s fiscal house in order.”  Mr. Ruane then put in a plug for the transportation industry, “[d]eveloping a comprehensive solution for the nation’s staggering transportation infrastructure challenges is one of these areas, and is wholly consistent with the economic and budgetary priorities shared by both parties.”

Notwithstanding Wall Street’s immediate negative reaction to the President’s re-election, there may be reason to be optimistic on the economy.  Overall construction volume has continued to grow at a steady pace for the last year and a half.  Residential construction in particular has shown strong growth especially in the last three to four months.  Of course, any hope for continued growth depends on resolution of the “fiscal cliff” before the end of the year.

50 Shades of Green: Indiana’s Greenwash Lawsuit

By: William E. Kelley, Jr., LEED AP BD+C

Defining what products or services are “green”, and how “green” those products or services really are, can be daunting tasks.  The rise in popularity in products and services that purport to positively impact the environment has given rise to a new term:  “greenwash”.  The concept of greenwash generally relates to use of deceptive, unsupported, or misleading statements or claims made for the purpose of portraying one’s business, product or service as having a positive effect on, or benefit to, the environment.

The term “greenwash” is not a legal term of art.  There is no official cause of action or lawsuit that can be brought for “greenwashing”.  However, acts giving rise to what is known as “greenwash” can have legal consequences.  For example, the Federal Trade Commission (FTC) recently released an updated version of its green marketing guidelines, known as the “Green Guides”, in order to “help marketers ensure that the claims they make about the environmental attributes of their products are truthful and non-deceptive.”  As businesses clamor to be a part of the emerging “green” industry, there is more potential for false or misleading claims to unsuspecting consumers.

The mere presence of exaggerated claims or “puffery” in advertising materials does not automatically result in liability to the seller.  The basis of the bargain between seller and consumer is predominantly found in the terms of the contractual agreement—not the pre-sale advertising materials.  In those instances, disappointed expectations by the consumer may not be actionable.  However, in some instances, the pre-contract sales materials and representations can give rise to liability to the seller, despite contrary language in the contract.  The Indiana Court of Appeals recently addressed these concepts in the context of the sale and installation of a residential wind turbine system.

In Wind Wire, LLC v. Finney, 2012 WL 4903026 (Ind. Ct. App. 2012), the seller/installer of a residential wind turbine system was sued by homeowners for fraud in the inducement relating to advertising materials containing misleading information about the potential benefits of a residential wind turbine.  The evidence at trial indicated that in 2008, the seller/installer distributed brochures claiming that (1) residential owners could see a cost savings of “75% to 100% of current electric service”; (2) residential owners could see a complete return on investment within three to four years; and (3) residential owners could receive a “substantial refund” on their taxes for the installation of the wind turbine system.  The brochure also stated, “With a savings of approximately $160 plus per month and a payoff span of 3–4 years you would control 75% to 100% of your electric supply utilizing nature and doing your small part for the ecology? (sic)”

In addition to the statements in the sales brochures, a sales representative from seller/installer told the homeowners that the local utility provider would purchase excess energy produced by their wind turbine, and that the homeowners would be entitled to a tax credit equal to a percentage of the purchase price.  In reliance upon the sales materials and the statements from the sales representative from seller/installer, the homeowners purchased the wind turbine for their residence.

According to the lawsuit, the wind turbine failed to live up to expectations.  It did not produce any excess power, and it had no effect on the homeowners’ electric bills.  In fact, the evidence at trial indicated that the wind turbine actually consumed energy while it sat idle.  Further, the local utility provider testified that it would not be possible for the wind turbine to pay for itself in three to four years, but rather it would typically take twenty-five years for such a wind turbine to pay for itself.

The homeowners sued seller/installer for fraud in the inducement.  The homeowners argued that the sales brochures and statements from the sales representative were knowingly and falsely misleading, and were allegedly made for the sole purpose of inducing the homeowners to enter into a contract for the purchase and installation of a wind turbine.  The seller/installer argued that the sales materials were not part of the contract, and therefore could not be considered as part of the contractual agreement with the homeowners.  In support of its argument, the seller/installer pointed out that the contract had an integration clause that provided that the entire agreement between the parties was contained in the contract, and that the terms of the contract superseded any prior discussions or communications about the products or services to be provided.  In other words, if the sales materials were not part of the agreed upon services or products, the homeowners could not sue over mere disappointed expectations in performance of the wind turbine.

The trial court ultimately entered judgment in favor of the homeowners, and the Indiana Court of Appeals affirmed the judgment.  Specifically, the Indiana Court of Appeals found that the integration clause in the contract did not preclude evidence of the sales material since the core issue was whether the allegedly fraudulent statements induced the homeowners into signing the contract originally.  The Court of Appeals held that the trial court properly considered evidence of the sales materials and the representations made in those materials, and the Court of Appeals upheld the finding of fraud in the inducement against the seller/installer.

The Wind Wire case is a strong reminder to all businesses to closely monitor the representations and statements made in advertising materials.  However, for those businesses involved with products or services in the “green” industry, the Wind Wire case is also a reminder of the potential consequences for statements that are later deemed to be unsupported or unverified.  Businesses in the green industry should take due care to review not only the statements in their marketing materials, but also their contract forms, to ensure that the agreements capture a full understanding of the expectations of the parties and the entire agreement between the parties for the products or services at issue.

Meet the Extended Family: New AIA Contracts for Sustainable Projects

By: William E. Kelley, Jr., LEED AP BD+C

In 2011, the American Institute of Architects (AIA) released its AIA D503-2011 Guide for Sustainable Projects to assist Owners, Contractors, and Architects with drafting contracts for projects seeking some form of sustainable project goal, whether it is certification under LEED or other non-certification based sustainability goals.  The D503-2011 contains an overview of legal and practice issues that can arise on green building projects, as well as model contract language that can be added to AIA contract forms to address sustainable project goals. 

As follow-up to the D503-2011 Guide for Sustainable Projects, AIA released new contract forms in May 2012 to address these same issues.  These new contract forms include the A101-2007 SP (Owner-Architect Agreement); A201-2007 SP (General Conditions); A401-2007 SP (Contractor-Subcontractor Agreement); B101-2007 SP (Owner-Architect Agreement); C401-2007 SP (Architect-Consultant Agreement); and B214-2012 (Scope of LEED Certification Services for Architect).  All of these forms—with the exception of the B214-2012—are essentially modified versions of the already familiar 2007 AIA contract forms, with additions relating specifically to sustainable project goals. 

The new AIA contract forms contain several new defined terms that project participants will need to learn and familiarize themselves with, including, “Sustainable Objective”, “Sustainable Measure”, “Sustainability Plan”, “Sustainability Certification”, “Sustainability Documentation”, and “Certifying Authority”.  In essence, the “Sustainability Objective” is the defined sustainable goal for the project, which could include third-party certification or other sustainable goals not involving project certification or registration.  Once the “Sustainability Objective” is defined, the “Sustainable Measures” are identified, including specific design elements or construction means or methods that are necessary to achieve the “Sustainability Objective”.  The “Sustainability Plan” is the document that specifically identifies and describes the “Sustainability Objective” and that allocates roles and responsibilities for individual achievement of the “Sustainable Measures”. 

As part of the conventional family of AIA contract documents, the new sustainable project versions of the A101, A201, A401, B101, and C401 contract documents relate only to projects utilizing a design-bid-build project delivery method.  Projects utilizing other delivery methods, such as design/build, do not yet have AIA contract forms addressing these issues.  However, the model contract language outlined in the D503-2011 Guide for Sustainable Projects may be utilized for these types of projects in order to address the same type of sustainability process. 

As for the B214-2012, this document is an update from AIA’s prior LEED Certification exhibit, which was originally released as the B214-2007.  The B214-2012 document can be used as an addendum to the B101 Owner-Architect Agreement, where the Architect is also going to perform the services relating to LEED Certification.  However, the B214-2012 could also be used as the basis for a separate agreement between Owner and an independent LEED consultant for the project.  Unlike the other new sustainable contract forms, which can apply to a broad range of sustainable project goals, the B214-2012 is specifically designed for a project that is seeking certification as a LEED project.

Project participants involved in any aspect of green building or sustainability—no matter whether the projects actually seek LEED certification or not—should familiarize themselves with these new contract forms and evaluate whether these contracts are right for their particular projects.  Even if you choose not to use the new contract documents, these new forms should nonetheless serve as a good excuse to dust off your old contract forms and see whether those forms effectively address the unique aspects of projects incorporating sustainability goals. 

 

Three Green Building Developments to Watch in 2012: The 6 Month Check Up

By: William E. Kelley, Jr., LEED AP BD+C

At the beginning of this year (posted here), I highlighted three green building developments to watch in 2012: (1) the continued development of LEED 2012; (2) the planned release of the 2012 International Green Construction Code (IgCC); and (3) the planned release of new AIA contract forms for sustainable project goals.  Now that we are nearly six months into the year, it is time to check up on those three developments to see where they stand.

• LEED 2012 is dead, but LEED v4 is alive.  After going through the third and fourth public comment periods for LEED 2012, the U.S. Green Building Council (USGBC) announced on June 4 that it is delaying ballot on LEED 2012 until June 1, 2013.  Since LEED 2012 will no longer be released in calendar year 2012, the USGBC has also renamed this new iteration “LEED v4”.  What are the reasons for the delay?  Rick Fedrizzi (President, CEO, and Founding Chairman of the USGBC) says that as the USGBC has gone through the public comment process for LEED 2012, “we have heard repeatedly that while our [LEED] community continues to fully embrace our mission, they need more time to absorb the changes we’re proposing and to get their businesses ready to take the step with us.”  However, in recent days, there also have been questions raised from the chemical industry about LEED 2012’s proposed credit for avoiding “chemicals of concern” (including PVC), which concerns were voiced in a letter signed by fifty-six (56) members of Congress to GSA, urging GSA to stop using the LEED rating system unless these proposed credits were not reconsidered or removed by the USGBC.  We likely have not heard the last of the reasons for the delay in releasing the newest version of LEED, but one thing is clear: LEED 2012 is gone, and green building professionals should now focus on the newly named LEED v4.
  

• The IgCC is here. Will it gain momentum?  In March, the International Code Council (ICC) released its final version of the 2012 International Green Construction Code (IgCC).  As I explained in a prior post here, the IgCC is a model code intended for adoption by state or local jurisdictions.  It provides baseline code provisions for jurisdictions that want to mandate certain green building requirements, and it is a departure from other forms of legislation that have been based on LEED or other green building rating systems, in that it is solely administered and enforced by the adopting jurisdiction—not a third-party certification body.  The ICC reports that several states and local jurisdictions have already adopted the IgCC in some form, most commonly the form of a voluntary compliance path for other, already existing green building programs.  We will continue to monitor the IgCC to see how—and in what form—jurisdictions adopt the IgCC this year.
  

• AIA announces new contract forms for sustainable project goals with a press release quoting…me.  This past year, I had the opportunity to review the draft forms of the new AIA contract forms for sustainable project goals, as well as to submit comments, proposed revisions, and questions.  These contract forms are predominantly based on the model contract language outlined in the AIA D503-2011 Guide for Sustainable Projects (discussed here).   AIA released the final forms for these contracts during its national convention on May 17, and I was honored to be part of the press release from AIA announcing the release of these new contract forms.  The new contract language dealing with sustainable project goals clearly fills a void that was present in the prior AIA contract forms.  For example, in the 2007 version of the contracts, LEED was only mentioned as (1) an additional service for Architects; and (2) as part of the B214-2007 LEED addendum to the Owner-Architect agreement.  Prior versions of the contracts did not include language involving sustainable project goals for contractors, subcontractors, or in the general conditions for the project.  I will discuss these new contract forms in more depth in a future post, but for project participants involved in projects with any type of sustainability goals, strong consideration should be given to using these new contract forms to more thoroughly address sustainable project goals in the contract documents.            

Legislating Green: So, You Want to Be Sustainable. Now What?

By: William E. Kelley, Jr., LEED AP BD+C

Spring is in the air, Earth Day is around the corner, and green is on everyone’s mind.  So, let’s suppose that you are a city, town, or maybe even a state looking to encourage green building and sustainable design and construction practices in your jurisdiction.   You have a wide range of options available to you, but your legislative efforts likely will fall into one of two categories: (1) a mandate (i.e., requiring all covered projects to comply with the legislation); or (2) an incentive (i.e., providing some benefit, like tax credits or rebates, to projects that comply with sustainable project goals).  Within these two categories, jurisdictions further have the option of setting baseline requirements for the mandates or incentives with reference to codes (e.g., energy codes, green building codes, the IgCC, etc.), green building rating systems (e.g., LEED, Green Globes, Energy Star, etc.), or green building standards (e.g., ASHRAE 189.1, ICC 700, etc.), all of which have different benefits and potential challenges.

How do you figure out what path is right for you?  It depends on the goals that are you trying to advance in your jurisdiction.  What is it that you are seeking to encourage in your jurisdiction?

• Universal recycling programs for private businesses and residents?
• Incorporation of energy efficiency measures in all new construction projects?
• Developing a mechanism for requiring some level of sustainable retrofits for existing buildings?
• Encouraging development of alternative or renewable energy sources?
• Creating a plan to add more bike and pedestrian trails connecting residential developments to local amenities?
• Finding ways to lower utility bills for publicly owned facilities through system upgrades and facility management procedures?
• Looking for ways to encourage redevelopment of vacant lots, underutilized buildings, or challenging building sites?

It is easy to get bogged down in the myriad of available options for legislating green, but jurisdictions should first undergo a goal-setting process.  Goals should take on the form of short-term, middle-range, and long-term goals for sustainability.  The goal setting process should also include key stakeholders in the jurisdiction, including internal agencies (e.g., economic development, purchasing departments, facility managers, planning & zoning, code enforcement, etc.), as well as private entities and individuals (e.g., developers, owners, business leaders, contractors, architects and engineers, residents, etc.).  Ideally, those goals should then be incorporated into a “master sustainability” plan, outlining a comprehensive plan for the direction the jurisdiction wants to head on the sustainability front.  A “master sustainability” plan also helps set the stage for identifying how future developments, ordinances, laws, and policies are addressed, and how each of those future items fits into the overall sustainability plan for the jurisdiction.

The idea of beginning with a goal setting process seems basic, but jurisdictions often seem to take the opposite approach, by trying to first legislate green, and then figuring out how that legislation fits into the master plan for the jurisdiction.  While state or local governments may successfully adopt a green building law, the piecemeal approach may leave it without a real vision as to how that legislation fits into the overall development plan for the area.  Further, jurisdictions may be at a loss to figure out how to encourage use of the incentive program or even how to develop a successful enforcement program for mandates, unless there is a comprehensive plan in place.  How will you finance an incentive program?  How will you enforce green building requirements that may not materialize until after project completion?  A little planning can help you effectively answer these questions.

More importantly, without a master plan or vision, how will you know if your sustainability efforts are successful?  The master plan is the key.  With it, jurisdictions can begin evaluating all decisions on future development of the community in terms of how those developments will help reach the desired sustainability goals, instead of taking a piece meal approach to sustainability efforts.  No matter where you are in the process, we can help you navigate the process, assist you in the weighing of the multiple options available, and work with you to evaluate the legal processes, procedures, and considerations involved as you develop your sustainability plan and implement green legislation.

April 30th Deadline for Employers to Post NLRB’s Employee Rights Notice is On Hold

By: Robert J. Orelup

As the result of yesterday’s ruling by the D.C. Circuit Court of Appeals, the upcoming April 30, 2012 deadline for applicable employers to post the required NLRB employee rights notice has once again been delayed and is now put on hold.  The NLRB has since posted on its website that “[i]n view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”  See NLRB News Release.

Recently, federal district courts in the District of Columbia and South Carolina have issued decisions addressing the legality of the NLRB’s notice posting requirement that was previously set to go into effect on April 30, 2012.  The D.C. Circuit of Appeals has ordered an expedited briefing schedule, with a following oral argument to take place in September 2012 to resolve the pending legal issues on appeal surrounding the NLRB’s notice.  As such, even if the NLRB were to prevail, it is likely that any required posting deadline would not be re-implemented by the NLRB prior to September or October 2012 at the very earliest.  We will continue to keep you updated on the legal developments related to the Employee Rights Notice and their impact on your company.

For additional information regarding this issue, please contact Bob Orelup of the DSV Labor and Employment Group via telephone (317) 580-4848, or directly via email (rorelup@DSVlaw.com). For more information about our law firm, please visit www.DSVlaw.com.