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In an eight-to-one decision issued on June 1, the U.S. Supreme Court issued a favorable decision in a labor preemption case in which �鶹��ý of America submitted an amicus brief. The case, Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174, presented the question of whether the National Labor Relations Act (NLRA) preempts an employer’s state tort claim against a union for intentionally destroying the employer’s property in the course of a labor dispute. Agreeing with arguments made in an �鶹��ý-supported coalition amicus brief, the Court affirmed the principle that strikers must take “reasonable precautions” to protect employer property from “foreseeable, imminent danger” and held that the union’s failure to do so in the case rendered its conduct outside the NLRA’s protections. Accordingly, preemption did not apply, and the employer in the case is free to pursue damages against the union in state court. For more background on the case, see �鶹��ý’s prior articles here and here.

Will Change Federal Permitting for Construction Projects

An �鶹��ý-backed lawsuit has led the U.S. District Court for the District of North Dakota to issue a preliminary injunction of the Biden Administration’s 2023 “Waters of the United States” (WOTUS) rule in 24 states (see below) on April 12. Adding to the two-state injunction the association secured from a Texas court as well as a preliminary injunction in Kentucky (�鶹��ý of Kentucky joined the Chamber of Commerce on that case), the 2023 WOTUS rule is now temporarily blocked in over half the country: 27 states in all.

�鶹��ý of America joined three other employer associations in filing an amicus brief at the U.S. Supreme Court on April 24, 2023, in a case addressing what language is needed in a notice to terminate a collective bargaining agreement (CBA) to satisfy the termination procedure in a CBA containing an “evergreen clause.”

On Jan. 18, the Associated General Contractors of America joined a coalition representing a broad cross-section of the economy in filing a lawsuit to block the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers’ new Waters of the U.S. (WOTUS) rule. The legal action seeks to have the new rule put on hold and ultimately reversed. The construction industry invests a significant amount of time and cost in compliance with the Clean Water Act and to avoid or reduce potential impacts on the environment. The new rule is the sixth time the requirements have changed in seven years, compounding the existing uncertainty in an area of law that can not only significantly delay and increase costs on projects but also bring criminal as well as civil penalties.

�鶹��ý of America’s (�鶹��ý) advocacy fund is proactively seeking to improve general contractors’ business environment by participating in a case before the Supreme Court of Tennessee. �鶹��ý and the �鶹��ý of Tennessee jointly submitted an amicus (or friend of the court) brief to preserve a general contractor’s right not to be sued for the damages twice under different legal theories by its contracting partner seeking to receive a double recovery.

�鶹��ý of America and seven fellow employer groups jointly submitted an amicus brief at the U.S. Supreme Court on November 8 urging the Court to reverse a Washington Supreme Court decision that prevents a company from recovering damages from a union that sanctioned the destruction of company property.

�鶹��ý goes to the U.S. Supreme Court to defend the practice of pre-bid interaction between public owners and contactors that ultimately leads to better RFPs and projects.

�鶹��ý filed a joint April 18 “friend-of-the-court” brief in the case Sackett v. Environmental Protection Agency at the U.S. Supreme Court. The Court will take a fresh look at what are “waters of the United States” (WOTUS) under the Clean Water Act (CWA), which may limit federal agencies’ permitting and enforcement authority over construction work in isolated wetlands and ephemeral streams. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ (Corps) will need to factor the Court’s decision into their planned WOTUS rulemakings.

In a favorable decision issued March 11, the TN Court of Appeals agreed with �鶹��ý of America and �鶹��ý of Tennessee that a subcontractor cannot sue a general contractor on one and the same set of facts for not only breach of contract (seeking to recover its purely economic losses) but also in tort for misrepresentation (seeking compensatory and punitive damages). The court of appeals ruled that the subcontractor’s ability to recover monetary damages was limited by its contract with the general contractor. As such, the court vacated the lower court’s award of punitive damages because they were not permitted under the contract.