Vol. 24, No. 1
(518) 869-9800
July 2005
Vol. 24, No. 1
(518) 869-9800
July 2005
Harold
(Hal) M. Hatfield, President of Maximum Security Products Corp. (MSP), was
elected president of NESCA for 2005-06 at the association’s June 9th
membership meeting held at the Century House.
Hal became NESCA’s 33rd president, succeeding Kevin J.
Garrity of Rose & Kiernan, Inc. He
has served as NESCA’s vice president, treasurer and secretary during the last
three years respectively, following several years of service representing
specialty contractors on NESCA’s Board of Directors.
Hal
founded MSP with two partners in 1989, and has been a member of NESCA since
1994. Prior to starting MSP, he was a
founder and co-owner for 18 years of Bast-Hatfield, Inc., a
commercial/industrial general contractor.
Born
and raised in South Bend, Indiana, Hal found his way to New York via an
appointment to the United States Military Academy at West Point, graduating in
1964. Following post-graduate studies
in the Army’s Airborne and Ranger schools, he enjoyed a 14-month all expense
paid sabbatical in Southeast Asia with the 4th Infantry
Division. Before settling in the
Capital District, Hal obtained his Masters Degree in Mechanical Engineering
from the Illinois Institute of Technology and spend six years as a design
manager in Westinghouse’s naval nuclear operation in Pittsburgh.
Hal
is a licensed professional engineer in New York and Pennsylvania and is a
licensed contractor in California, Virginia, Arizona and Washington. He serves on the board of the Destroyer
Escort Historical Museum and is the chairman of the Ship Restoration and
Maintenance Committee for the U.S.S. Slater Project, a key component of
Albany’s Riverfront Development Program.
Hal is also active in programs for the West Point Society of Upstate New
York.
Hal
is the proud parent of three sons and an equally proud grandparent of four
grandchildren. He resides in Waterford
with his fiancé, Pat Kilmartin, whom he met at a NESCA meeting (according to
Hal this was just one of the many fine benefits of membership in NESCA).
Also
elected on June 9th were Toni Cristo of Cristo Demolition, Inc. as
vice president; Peter Clechenko of Albany Interiors, Inc. as treasurer; and
Tony Whaley of Henderson-Johnson Co., Inc. as secretary.
There will be no NESCA
membership meetings during July or August.
The next regular membership meeting has been scheduled for September 8,
2005 at the Century House.
PRESIDENT’S
MESSAGE (Go Top)
It is indeed an honor for me to have been elected NESCA’s president for 2005-2006. We, as members of NESCA, are privileged to contribute to the success of and reap the benefits of belonging to the largest and most effective subcontractor organization in the country.
When any organization experiences a change in leadership, there is normally an expectation of further change in terms of improvement in the effectiveness of the organization in accomplishing its mission. For example, last year Kevin Garrity brought a new clarity and focus to the idea that by recruiting new members into NESCA, existing members benefit through the added strength the new members bring to our lobbying and government relations efforts. In addition, under Kevin’s leadership, NESCA reemphasized the importance of safety by entering into an Alliance with OSHA and the NYS Onsite Consultation Program. Of course, Kevin’s success during his term in office creates a significant challenge for me. What can be done on my watch to make NESCA even better? What can we accomplish during the coming year to bring even more value to our membership in NESCA? Well, I can tell you at least this much. In addition to our many existing benefits and services, we are exploring two new and exciting programs, both of which I hope to be able to announce to the membership within the next month or so. Mostly, however, I’d like to improve NESCA by listening to the ideas that you, the membership, provide me. I urge you to contact me with any suggestions or ideas you have regarding how NESCA can better serve its members. My address, phone, fax and email address are in the NESCA Membership Directory. If you prefer to present your ideas personally, I would enjoy buying you a beer or coffee (your choice) any time.
While NESCA won’t hold its next membership meeting until September 8th, during the next couple of months, our committees will be hard at work developing informative and interesting meeting programs, educational seminars and special events for the coming year. Our joint NESCA/GBC/ECA Education Committee has already met, and preparations are well under way for a full menu of timely and worthwhile educational seminars and courses starting in September. Likewise, our Golf Committee has met to begin preparing for NESCA’s September 12th Golf Outing at Shaker Ridge Country Club. You will soon receive more details and registration information for the Golf Outing in the mail. Our Program Committee, Trade Show Committee and other committees will also soon meet to plan their respective programs and activities.
NESCA’s past leadership and staff have developed an association that has evolved over many years to be the standard that other subcontractor organizations emulate. I will make every effort to ensure that NESCA meets member expectations for another great year full of information, education, advocacy and first-class service to all members.
Harold M. Hatfield, President
Court Finds Construction
Manager Liable Under Labor Law Section 240
(Go
Top)
On May 5, 2005, the New York
State Court of Appeals in a 4 to 3 Decision decided Timothy Walls, et al. v. Turner Construction Company, Appellant, Jordan Construction Company, Defendant.
In this case, Turner Construction Company was acting
as construction manager. There was no general contractor and the plaintiff was
an employee of Jordan Construction Company which had been contracted by the
owner for the replacement of windows at the school. The plaintiff was injured
after a fall of approximately 12-15 feet while trying to construct scaffolding
on the second floor window.
The majority of the court held
that although a construction manager of a worksite is generally not responsible
for injuries under Labor Law Section 240(1), one may be vicariously liable as
an agent of the property owner for injuries sustained under the statute in an
instance where the manager had the ability to control the activity which
brought about the injury. The majority of the court concluded by stating “the
label of construction manager versus general contractor is not necessarily
determinative. Thus, on the facts of this case, given (1) the specific
contractual terms creating agency, (2) the absence of a general contractor, (3)
Turner’s duty to oversee the construction site and the trade contractors, and
(4) the Turner representative’s acknowledgement that Turner had authority to
control activities at the work site and to stop any unsafe work practices, we
agree that the Appellate Division was correct in holding Turner liable as a
statutory agent of the school district under Labor Law Section 240(1)”.
Judge R. S. Smith writing the
dissenting opinion stated in part “Turner was a typical construction manager,
did not have the kind of authority the general contractor has, and therefore
should not be held liable.” Judge Smith continued to reject the majority
conclusions and stated in part “a few benign safety enhancing provisions in a
contract should not be a basis for imposing Labor Law Section 240(1) liability
on a company whose role was primarily advisory.”
In this case, the Court of
Appeals imposed Section 240(1) liability on a construction manager who had such
supervisory control and authority and broad responsibility over the plaintiff’s
work as to become a statutory agent of the owner. The lesson to be learned for
construction managers in this case is that when a construction manager remains
in a strictly advisory role, he may avoid Labor Law Section 240(1) liability.
However, where the construction manager assumes supervisory control and
authority and broad responsibility over workers at a job site, it will subject
itself to Labor Law Section 240(1) liability.
OSHA 10-Hour Course Requirement Passed by
Legislature (Go Top)
A
bill that will require all public work employees to have completed OSHA’s
10-hour safety course has passed in both houses of the Legislature and will be
sent to Governor Pataki for his consideration.
The bill, passed by the Senate on June 16th and by the
Assembly four days later, specifically requires that all public work contract
specifications to which the state or a local government is a party contain a
provision requiring workers employed by contractors and subcontractors to be
certified as having completed OSHA’s 10-hour safety course.
If the
Governor signs this bill into law, it will become effective 90 days thereafter,
a time-period many believe does not provide contractors enough time to put all
workers through a 10-hour course. To
remedy this problem, a second bill has been introduced that would extend the
time-period to one year after the bill is signed into law. New York is not the first state to consider
a OSHA 10-hour requirement for public contracts. The state of Massachusetts enacted a similar 10-hour course
requirement in 2004.
Workers’ Compensation Payroll Limitation Law Made
Permanent (Go Top)
Legislation
to make the Construction Employment Payroll Limitation Law permanent has been
signed into law by Governor Pataki.
Signed by the Governor on June 7, 2005, this legislation will keep in
place the payroll limitation law, which was originally enacted in 1998 to
provide a more equitable distribution of workers’ compensation premium between
high wage paying and low wage paying employers in the construction
industry.
The law
applies to approximately 80 construction industry classifications, and applies
a cap on the amount of payroll subject to premium calculations. When originally enacted in 1998, the law
phased in a decreasing cap on wages over four years. Wages subject to premium calculations are currently capped at
$750.
In addition, to account for
different costs in different regions of the State, for rating purposes the law
recognizes the three separate geographic territories of 1) New York City, 2) seven counties contiguous to New
York City, and 3) all other counties (upstate).
Governor to Consider
Multiple Prevailing Wage-Related Bills (Go
Top)
No less than a half dozen
prevailing wage-related bills being pushed by organized labor have passed both
houses of the Legislature and will be sent to Governor Pataki for his
consideration. As follows is a short
summary detailing each of these bills:
List of
Independent Contractors – Would require contractors and subcontractors on public works projects
to submit a list of all “independent contractors” used on the project. The list would have to be submitted within
30 days after completion of the project along with a $10 fee per independent
contractor on the list. Information
required would include the name, social security number, job title and address
for each independent contractor named.
Access to
Certified Payroll Records – Would require public agencies and local governments to make
available for public inspection and copying a contractor’s or subcontractor’s
certified payroll records for all employees classified as apprentices. Similar legislation has been vetoed by
Governor Pataki in recent years.
Notice of
Prevailing Wage Rates – Would require contractors and subcontractors on public works projects
to provide written notification to all workers of the prevailing wage rates and
supplements for their particular job classification. Such written notice would be required to be given at the
beginning of a project and every eight weeks thereafter with the worker’s
paycheck. The notice would also be
required to contain a statement that workers are entitled to be paid the
prevailing rate of wage, the Department of Labor’s address and phone number
and, and a statement that it is the worker’s right to contact the Department if
he is not receiving the proper wage.
Daily Head
Count –
Would require the engineer-in-charge or other agent representing the
contracting agency to record a daily head count of all the workers on the
project each day, enumerated by classification of worker, hours worked and at
what pay rate. The daily records must
be submitted to the contracting agency’s fiscal officer and maintained for at
least 3 years.
Subcontractor
Criminal Penalties – Would clarify that subcontractors who fail to pay prevailing wages
are subject to the same criminal penalties as contractors who fail to pay.
Off-site
custom fabrication – Would apply the prevailing wage law to the fabrication and all
drafting related to the fabrication of woodwork, cases, cabinets or counters
and the fabrication of plumbing, heating, cooling, ventilation or exhaust duct
systems, and mechanical insulation specifically designed and engineered for
installation in a public works project.
NESCA
wishes to thank all Tournament Sponsors, Tournament Supporters and Tee Sponsors
for your generosity in connection with the 10th Annual NESCA/GBC
Joint Golf Outing held on June 13, 2005 at the Wiltwyck Golf Club in
Kingston. Our sponsors were:
Arold Paving Co., Inc.
Fast Trek Steel
LHV Precast, Inc.
Marshall & Sterling, Inc.
Reliable Glass & Door Corp.
Shaker Computer
Vellano Bros., Inc.
The Darlind Group
Ashley Mechanical, Inc.
D.J. Heating & Air Cond.
Eastern Contractors Assoc.
Jeff Lowe Plumbing, Heating & A.C.
Newburgh Windustrial
Northern Fire Systems
Paychex, Inc.
Victaulic Co.
The Woodward Co.
Welcome
New Member (Go Top)
3 Franklin Square, Suite 6,
Saratoga Springs, NY 12866
(518) 580-9950; FAX (518) 580-9976
Contact: Grant Gentner
MEMBER
ANNIVERSARIES (Go Top)
In July, the following members have reached milestone
anniversaries as members of NESCA. Thank
you very much for your continued support!
Ten
Years
Gridworks By McRoberts
M.V.P. Construction Co.
Twenty Years
Thorpe Electric Supply