The Professional Contractor Spring 2014

THE PROFESSIONAL

SPRING 2014

A Publication of the Associated Subcontractors of Massachusetts, Inc.

BOSTON’S

has a

NEW MAYOR VISION FOR BOSTON DEVELOPMENT – AND INTENDS TO SEE IT REALIZED

THE PROFESSIONAL

A Publication of the Associated Subcontractors of Massachusetts, Inc.

cover story features

16 Boston’s New Mayor has a Vision 04 PRESIDENT’S VIEW A Time to Celebrate the New,

the Renewed, the Reinvented 06 INDUSTRY PROFILE

The Evolution of Haley & Aldrich 08 TAXING ISSUES

Are You a Real Estate Professional

in the Eyes of the IRS? 10 FOCUS ON INSURANCE

Key Flow-Down Considerations 12 MEMBER SPOTLIGHT

E. Amanti & Sons 14

TWO NEW RULES New Federal Veterans and Disabilities Regulations Now in Effect

18 SAFETY ZONE

Keeping Dangerous Spaces Safe 20 LEGAL BRIEFS ‘No Damages for Delay’ Revisited 22 FEATURE

The Importance of Having a

Company Driver Policy

24 ASM NEWS

26 STANDING TALL

12 Body Language

Tips for Career Success

28 MEMBER NEWS

The Professional Contractor

3

PRESIDENT’S VIEW

BY RICHARD R. FISHER

A Time to Celebrate the New, the Renewed, the Reinvented

I

n this issue, we take our cue from the season – spring, finally in full bloom – and we celebrate new beginnings all around us, at ASM, among our members and in the city ASM calls home.

Our cover story captures the remarks of Boston’s new mayor, Marty Walsh, in his first address to the A/E/C community, at an event hosted

by Massachusetts Building Congress in March.

Construction and real estate professionals came together by the hundreds to hear his vision for the city – and to share in the excitement at what the future may bring, as the city transforms once again.

On a different scale, we look at three companies who are at varying stages of “new.” Haley & Aldrich is one of the oldest engineering firms in the area, now operating nationally and internationally, yet it remains one of the most forward-thinking and innovative, by incorporating “lean” process into everything they do. Read more about their lean journey on page 6. E. Amanti & Sons (see page 12) is one of the oldest mechanical contractors in the state – yet today remains state-of-the-art through the enterprise, expertise and energy of several generations working together. Industrial Safety & Rescue is the new kid on the block – established in 2012 – but already changing the way people think about safety in confined spaces; read more on page18.

But new doesn’t stop there. Read our Member News to see who has completed new projects and received awards; who has been elected to leadership positions; who is engaging in a unique new joint venture; who has merged to form a formidable alliance; and who has raised funds to purchase all the physical therapy equipment for a new facility for children with disabilities. The diversity of achievement is impressive.

At ASM we, too, are focused on new – as our new board engages in an innovative strategic planning process using lean methodology with guidance from the lean experts of Haley & Aldrich (see photo in the H&A article). It is exciting to see the energy and engagement it brings out in participants, and we look forward to sharing the results in the coming weeks, with ASM’s new and renewed goals for the future.

Also new is our Young Professionals Group, formed to foster camaraderie and professional growth in our next generation of industry leaders.

(See the photos from their first event, page 24.)

Even while using this issue to highlight what’s new, we give plenty of space, too, to the core substance you look for in TPC, with articles on key insurance provisions, tax considerations if you own real property, and a legal look at exceptions to “no damages for delay.” There’s something new to learn on every page – enjoy! s

Richard R. Fisher is founder and president of Red Wing Construction in Beverly. He can be reached through ASM at (617) 742-3412 or by email at president@associatedsubs.com.

The Professional Contractor is published by The Associated Subcontractors of Massachusetts, Inc. 31 State Street | Fourth Floor | Boston, MA 02109 tel 617-742-3412 | fax 857-453-4338 mail@associatedsubs.com | www.associatedsubs.com

ASM Officers

President: President Elect: Vice President: Vice President: Treasurer: Past President:

4

Richard R. Fisher, Red Wing Construction Joseph H. Bodio, Lan-Tel Communications, Inc. Steven P. Kenney, N. B. Kenney Co. Inc. James B. Miller, Salem Glass Company Russell J. Anderson, Southeastern Metal Fabricators, Inc. David G. Cannistraro, J.C. Cannistraro, LLC

Spring 2014

ASM Directors

George A. Allen, Sr. | Steven T. Amanti| Nardine J. Bellew | Matthew Brown | R. Lindsay Drisko | Roger A. Fuller | Wayne J. Griffin| Robert B. Hutchison | Dana E. Johnston, Jr. | William J. (Mac) Lynch | Susan Mailman | Erik S. Maseng| Scott H. Packard | Gregory A. Porfido | William F. Rucci, Jr. | Nancy H. Salter | Ann T. (Nancy) Shine | Frank J. Smith | Sara A. Stafford | Carolyn M. Francisco, Corwin & Corwin | Monica Lawton

The Warren Group Design / Production / Advertising www.thewarrengroup.com custompubs@thewarrengroup.com ©2014 The Warren Group, Inc. and Associated Subcontractors of Massachusetts, Inc All rights reserved. The Warren Group is a trademark of The Warren Group Inc. No part of this publication may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the publisher.

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and grow your business.

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legal hotline.

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program, which has returned over $4 million in dividends!

 Join the fight for fair laws and regulations –

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“In Massachusetts, there is no other organization like ASM when it comes to informing subcontractors, and protecting our rights.

I can truly say it is the best organization for our company and has been a key to our success.”

– David G. Cannistraro, JC Cannistraro, ASM Past President

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To learn more about all that ASM Membership has to offer, please visit www.associatedsubs.com or call 617-742-3412.

INDUSTRY PROFILE

BY LISA TURTURRO

From the Ground Up The Evolution of Haley & Aldrich

Company founders James Haley (left) and Harl Aldrich (right).

T

Haley & Aldrich facilitates a strategy session with the Associated Subcontractors of Massachusetts.

he year was 1957. The city of Boston was on the verge of major development, including taller, more complex structures and modern infrastructure. As a result, underground construction needed to extend deeper than ever before into the region’s highly variable and challenging soil and rock conditions. Until this time, geotechnical engineering was practiced only by a small number of structural engineers and academics, or not at all.

Two engineering pioneers – James Haley and Harl Aldrich – recognized the emerging need for specialized expertise in geotechnical engineering, and understood that significant innovation would be required to address these new challenges in Boston underground construction.

Rooted in the Subsurface Haley, an engineer for the U.S. Army Corps of Engineers, and Aldrich, a professor at Massachusetts Institute of Technology (MIT), were the first to formally recognize the need to address the subsurface conditions and complex geology that were influencing the development of the city – and with an investment of $6,000, they established the first geotechnical engineering firm in New England. Haley & Aldrich was born.

During its first decades in business, Haley & Aldrich built a reputation as one of the most highly respected soils and foundation engineering firms in the country.

In the 1970s, new environmental regulations impacted their clients’ development plans and increased pressure for cleanup of hazardous waste. As a result, Haley & Aldrich added a practice dedicated to environmental services for design and construction, regulatory compliance, and remediation.

On a similar basis, Haley & Aldrich’s services continued to grow to respond to the needs of their clients.

Now, nearly 60 years since its founding, Haley & Aldrich 6

Spring 2014

One of Haley & Aldrich’s “kaizen,” or improvement workshops, for a confidential construction project.

has grown from a small, local engineering company into a national multi-disciplinary consulting firm with 27 locations and over 500 employees. Their portfolio of work includes many challenging projects across a wide range of disciplines and geographies, from underground engineering for the majority of the high-rise buildings in Boston, to the assessment of sea level rise vulnerability for complex systems such as the San Diego International Airport, to environmental remediation for Fortune 100 companies, to facilities operations consulting for major universities across the country.

A Culture of Transformation Innovation. Value. Service. These are words that are embedded in the Haley & Aldrich culture, and they have continued to transform to meet their clients’ needs.

In 2003, Haley & Aldrich established a vision to “be the company most sought after to integrate technology and human potential to tackle tough issues facing the world.” They recognized that to achieve this vision, they must continue to avoid templates and prescribed solutions, and provide clients with access to expert technical resources and a collaborative and creative approach to problem solving. This is where Haley & Aldrich’s Lean journey began.

So, what exactly is Lean?

And why is Haley & Aldrich doing it?

At its core, Lean is a philosophy that focuses on delivering value to customers in the least wasteful way with an unwavering respect for people. It is a concept originally pioneered in manufacturing to reduce waste and improve the flow of work. Over the years, Lean has been used in non-manufacturing settings, such as business operations and construction, to help achieve operational efficiencies and uncover hidden value.

In 2005, Haley & Aldrich hired a Lean Integration

Leader to help them increase the value they deliver to their clients. As they have continued to learn and apply Lean, they have not only enhanced their technical service delivery, they have also experienced sustainable improvements throughout the organization, from the way they manage their work to the way they develop their corporate strategy.

Over time, clients and business partners began asking how Haley & Aldrich was achieving such sustainable improvements, and ultimately requested help in applying the same Lean methods to tackle their own challenges. This led to the creation of Haley & Aldrich’s dedicated Lean Consulting Services practice in 2012.

To support their new Lean practice area, the company developed a team of Lean Practitioners, who are adept at applying Lean principles to a wide variety of challenges. This expertise gives Haley & Aldrich the opportunity to serve as a Lean coach, or facilitator, to help their clients’ address their own problems – from small process improvements on a design and construction project, to an overall transformation of their organization.

Lean in Action Haley & Aldrich combines their technical acumen with Lean knowledge to generate results, whether they are serving as a geotechnical engineer of record, a regulatory compliance specialist, or a Lean facilitator for their clients. And they have achieved some impressive results: •• Identified a reduction of 55,000 hours, or $2.5 million, in facilities management and staff time at an Ivy League university.

•• A 33 percent savings in a Fortune 500 company’s remedial program costs.

•• An increase in collaboration and effective communication among design team members for large building and infrastructure construction projects, leading to more rapid decision-making and reduced staff frustration.

•• A 75 percent reduction in time to process facilities customer work orders for a state university.

In addition to helping clients achieve individual project results, Haley & Aldrich supports organizations as they seek to embark on their own Lean journeys to achieve broader, long-term results – to go beyond doing Lean things and start being Lean.

Thriving in a Changing World It’s inevitable. The world and how business is done is changing, and so is Haley & Aldrich. As clients face new challenges, the company continues to evolve to respond to their need to find the most innovative solutions.

Many have asked how Jim Haley and Harl Aldrich would react to how the firm has changed over the years. They would be impressed, yes, but they certainly would not be surprised. The firm continues to build on the founders’ keen entrepreneurial spirit, working to truly understand clients’ needs by rethinking the conventional and providing results that deliver enduring value. s Lisa Turturro is vice president and senior lean practitioner at Haley & Aldrich.

She can be reached at lturturro@haleyaldrich.com or (585) 321-4237.

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The Professional Contractor

7

TAXING ISSUES

BY WILLIAM R. RUCCI, Jr., CPA, MST, CGMA

Are You a Real Estate Professional in the Eyes of the IRS?

I

n the last issue of The Professional Contractor (Winter 2014), we reviewed the elements of the new tax landscape that contractors need to be especially aware of for 2014 planning purposes, and introduced several tax-mitigating strategies for reducing what you will likely owe Uncle Sam after the current tax year comes to a close in December.

A big kick to the shins was the 3.8 percent surtax on net investment income that took effect in 2013, courtesy of the Affordable Care Act, also known as Obamacare. This tax now applies if you have both net investment income (NII) and modified adjusted gross income (MAGI) of at least $200,000 as an individual taxpayer or $250,000 as a taxpayer filing jointly.

NII includes items like interest, dividends, capital gains, rental and royalty income, and certain income from businesses. It does not include wages, unemployment compensation, and operating income from a nonpassive business, Social Security benefits, alimony, tax-exempt interest or self-employment income.

Generally, under Section 469 of the Internal Revenue Code, all rental real estate activities are deemed passive by default. Thus any rental income earned is considered passive income, and counts as NII toward the 3.8 percent surtax.

In some circumstances, though, you can make the case that a rental activity is non-passive by qualifying as a real estate professional. “But wait,” you say. “How can I claim to be a real estate professional if I don’t have a broker’s license?”

It turns out that the code’s definition of “real estate professional” is much broader than the bright line test of licensure. And although the qualifications to meet the standards are fairly rigorous, the resulting ability to re-characterize rental income as nonpassive rather than passive Bill Rucci is a partner in the Boston area accounting and business advisory firm Rucci, Bardaro & Falzone PC, where he heads the firm’s Construction Business Services Group. He can be reached at (781) 321-6065 or billr@rbfpc.com.

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Spring 2014

can mean substantial savings come tax time.

Section 469(c)(7)(B) requires that you meet two tests in order to qualify as a real-estate professional for a taxable year: 1. that more than one-half of the personal services you perform in all trades or businesses are performed in real property trades or businesses in which you materially participate; and 2. that you worked more than 750 hours in real property trades or businesses in which you materially participate.

In other words, you must have spent more hours on real estate activities than non-real estate activities, and those real estate hours must have exceeded 750 hours on each real estate activity during the taxable year.

That last piece of the test, “each real estate activity” may seem daunting, except for the fact that you may choose to group all rental activities together in order to meet the 750-hour standard.

This is called the “grouping election.”

The real-property trades or businesses that qualify, according to Section 469, are: development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing or brokerage. As you can see, the definition of real estate professional goes far beyond activities in which you must have a brokerage license in order to do business.

You may have noticed that the words “materially participate” were highlighted in the descriptions of the two tests above. That’s because there is a separate set of tests (seven in all, one of which you must pass) for determining whether you also meet the standard of material participation. For brevity’s sake, we’ll leave the details of those for another day.

So let’s say that the facts and circumstances of your business activities qualify you as a real estate professional, and also support the position that you materially participate in the rental activities that generate the income you’d like to re-characterize as nonpassive income, thus removing that income from the reach of the 3.8 percent surtax.

You should be good to go, right?

Well, not so fast. According to justfinalized regulations, there is a third test that must be met, and that is that the rental income must have been earned in the “ordinary course of a trade or business.” In order to meet this particular standard, the taxpayer needs to prove that his involvement in the rental activities is “regular, continuous and substantial.” Huh? The definitions involved in this particular test and the process the taxpayer must go through to make his case here are complicated, and have been the subject of broad criticism by tax professionals during the drafting of this new regulation.

After much haggling, the government issued the final version which included a safe harbor qualifier to this new rule. The standard now holds that if the taxpayer participates in the rental real estate activity for more than 500 hours per year, then the rental income generated will qualify as being derived in the ordinary course of a trade or business.

“IN SOME CASES, CONTRACTORS WITH RENTAL REAL ESTATE HOLDINGS CAN RE-CHARACTERIZE PASSIVE INCOME TO AVOID THE NEW 3.8 PERCENT SURTAX.” The nice part is that the grouping election option for test #2 also applies to test #3 – in other words, if you chose to combine all your rental real estate activities into one economic unit for the purpose of meeting the 750-hour test, that same election will be recognized for the purpose of the 500-hour test.

Even though current regulations provide that one can use “any reasonable means to prove participation in an activity” and that “contemporaneous daily time reports, logs or similar docu-

ments are not required if the extent of such participation may be established by other reasonable means,” the burden of proof is squarely on the taxpayer, and it is not a slam-dunk.

However, the 3.8 percent surtax now presents a powerful economic motivation for many to wade into the process of qualifying as a real estate professional in the eyes of the IRS. As always, it will pay to have a conversation with your tax advisor to determine the best way forward in your particular case. s

Photo: Bret Gum

commitment

•

collaboration

•

craftsmanship

w w w. m a r k r i c h e y. c o m

Hakkasan Restaurant, Beverly Hills, CA

Architect: Woods Bagot

General Contractor: Terra Nova Industries

The Professional Contractor

9

FOCUS ON INSURANCE

BY GREGORY G. PIERCE, CPA, LIA

Key Flow-Down Considerations

I

n today’s environment, virtually all commercial subcontractors are familiar with the presence of insurance-related requirements and strong “risk transfer” language in client contracts.

General contractors and construction managers often, if not always, require that subcontractors carry certain insurance limits and specifications, with the ultimate goal of protecting themselves from liability that may arise as a result of their subcontractors’ work and operations.

While the importance of meeting these requirements is clearly understood and accepted among most subcontractors, it is of equal importance for subcontractors to pass down many, if not all, of these requirements when hiring subsubcontractors and vendors (downstream parties). Failure to do this could result in a subcontractor accepting liability (and paying claims) that result from acts or omissions committed by downstream parties in the performance of their work. The purpose of this article is to outline a number of the key insurance-related items that subcontractors should require via contract when hiring a sub-subcontractor or vendor.

Types of Policies and Limits The types of policies and associated limits that should be required will vary based on the type of work involved, as well as the size/nature of the project and the GC/CM’s requirements.

That said, the minimum requirements should generally include the following types of policies: •• Commercial General Liability Insurance •• Commercial Automobile Liability Insurance •• Workers’ Compensation & Employers’ Liability Insurance •• Excess/Umbrella Liability Insurance Other types of coverage that may be relevant depending on the situation include pollution/ environmental liability, contractors’ professional liability, or coverage for stored materials or

Gregory Pierce is senior account executive with NorthStar Insurance Services, Inc., Needham. He can be reached at (781) 431-2500, ext. 125 or gpierce@nsins.com.

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Spring 2014

installation property, among others. It is also important to specify a minimum A.M. Best financial strength rating that will be acceptable among your downstream parties’ insurance carriers. The use of any carrier below A- (excellent) should be reviewed carefully.

Additional Insured Status When additional insured status is provided, the additionally insured party is afforded certain rights under the named insured’s policy for claims brought resulting from acts or omissions in the performance of the named insured’s work. When a subcontractor is afforded additional insured status by a sub-subcontractor or vendor, the likelihood that the subcontractor’s insurance carrier(s) will be required to defend a covered claim resulting from the downstream party’s acts or omissions is significantly reduced.

When hiring a sub-subcontractor or vendor, one should require this entity to afford additional insured status at least with respect to the general liability policy, and ideally with respect to all applicable lines of coverage; one should also be very careful to make certain that additional insured status is provided on the downstream party’s general liability policy with respect to both ongoing operations and the products and completed operations hazard.

Primary and Noncontributory Language When requesting to be included as an additional insured on a downstream party’s insurance policy, it is also important to require that this status is afforded on a primary and noncontributory basis. The “primary” part of this language serves to stipulate that the downstream

party’s policy will respond first (on a primary basis, as opposed to co-primary or excess). The “noncontributory” part serves to confirm that the Additional Insured’s own policy will not have to contribute to paying a covered claim on a pro-rata basis; instead, the additional insured’s insurance will be required to respond on an excess basis (i.e. once the downstream party’s insurance limit(s) have been exhausted).

Waiver of Subrogation Subrogation (in this context) is the process through which an insurance company, after paying a claim on its policyholder’s behalf, may then seek recovery from another party that it contends caused the claim. For example, consider a subcontractor that hires a sub-subcontractor to perform work. If an employee of the sub-subcontractor is injured on the jobsite, the sub-subcontractor’s workers’ compensation carrier will respond by paying a claim. If this insurance carrier has reason to believe that the injury was somehow caused by the subcontractor (or any other party other than the sub-subcontractor), it could opt to seek reimbursement by “subrogating” the claim to the subcontractor. By requiring a waiver of subrogation on all applicable insurance policies, aThe_Professional_Contractor_August_2013.pdf subcontractor can protect 1itself from to de8/15/2013 4:17:58having PM fend claims that are subrogated from downstream parties’ insurance carriers.

Per Project Aggregate Limit The general liability insurance policy can typically be endorsed to stipulate that the aggregate limit of liability (the maximum limit the insurer will pay over the course of the policy period) applies separately to each construction project.

By requiring downstream parties to implement a per project aggregate limit, a subcontractor can ensure that these parties’ liability limits are not exhausted by other, unrelated claims prior to starting work on a project.

Conclusion This article is by no means an exhaustive list of insurance requirements that should be considered when hiring a subsubcontractor or vendor. That said, in conjunction with a well crafted indemnification clause, the correct use of the aforementioned provisions in a contract’s insurance section could be the difference between avoiding claims altogether vs. paying for the wrongs of one’s own hired downstream parties.

Though proper risk transfer may require some upfront effort, Benjamin Franklin’s famous quote comes to mind: “An ounce of prevention is worth a pound of cure.” To avoid bearing unnecessary risk associated with uninsured, underinsured or improperly insured sub-subcontractors or vendors, I would urge subcontractors to discuss this topic with their insurance broker and a qualified contract attorney. s

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The Professional Contractor

11

MEMBER SPOTLIGHT

BY SCOTT SZYCHER

E. Amanti & Sons

Celebrating 85 Years and Counting

On the rooftop at the Peabody Essex Museum: Vinnie Camerlengo, EAS executive vice president; Eric Olson, EAS foreman; and Diane Amanti, EAS controller.

W

hat started out as a modest plumbing business in Lynn in 1929 has grown beyond what its founders could have imagined: a fourth-generation powerhouse mechanical contractor with exceptional expertise in plumbing, HVAC, fire protection, and much more.

E. Amanti & Sons, Inc. (EAS), which relocated from Lynn to Salem in the 1950s, has witnessed dramatic growth, but still retains the pride and personal touches that people associate with an oldfashioned family business.

Currently run by a combination of Tom Amanti (president), Tom’s wife Dottie Amanti (CFO), Steve Amanti (vice president of operations/project manager), and Vin Camerlengo (executive vice president), the company focuses on commercial projects, with a few residential projects by special request. Tom’s father John, now 89, still contributes on the estimating side. Diane Amanti, another fourth generation Amanti, is controller.

By self-performing multiple trades, EAS is able to control and coordinate multiple aspects of construction work, providing the company with competitive advantages. They’ve even been known to be a “single source” company on projects with aggressive timelines.

Their current niche includes work for public schools and major institutions, such as MIT, Tufts 12

Spring 2014

The EAS team in the central heating plant at PEM.

University, the North Shore Medical Center, and large local high schools, including Wellesley and Malden High. Currently, EAS is working on significant school building projects across Eastern and Central Massachusetts, and the company was recently awarded both the plumbing and HVAC contracts for the new MLK School in Cambridge. One client that’s particularly notable is the Peabody Essex Museum (PEM), which has undergone rapid expansion over the past 10-15 years.

The PEM project involved building a new energy heating and cooling system to power not only the museum’s existing building, but also a fivestory addition. Moreover, PEM needed their existing boiler room removed for expansion while the existing system was still operating. To accomplish this, EAS and various sub-contractors were responsible for 10 new boilers, three chillers, five cooling towers and other state-of-the-art equipment, a feat they pulled off in less than nine months.

There are many reasons for EAS’ impressive growth over the decades, but Steve Amanti (Tom and Dottie’s son) was quick to point out the importance of old-fashioned work ethic within his family’s company. “The work ethic has been passed down from generation to generation,” mentioned Amanti. “It’s our family name on all of our work, and we take that responsibility seriously.”

They’ve also developed a tight-knit culture within the company, resulting in an uncommonly low turnover rate among their employees. “We’ve got employees who have been working here for over 30 years, and 65 percent of our employees have been here over 20 years,” noted Amanti. “That’s translated in not just great camaraderie, but superior workmanship.”

Evidence of that low turnover rate and retained expertise is exemplified by Tom Amanti and Vin Camerlengo. They’ve been working together for decades, know the market inside and out, and know when not to pursue projects that the company can’t truly be competitive on – a common trap that many subcontractors fall into.

And by knowing the market, EAS has been able to not just survive, but grow over the decades. “The competition’s getting fiercer, more so than 15 to 20 years ago,” said Amanti.

Because of the amount of public work, the company is always competing on price – a necessity as the lowest price bidder who’s qualified to do the work wins the job on public projects, with no subsequent negotiations allowed.

With this emphasis on price, skilled estimating becomes a necessity, not a luxury, to survive. “Tom and Steve are involved with every bid we put out, with Tom putting his magic touch on it before it leaves our office,” Camerlengo commented.

EAS’ body of successful work has enabled the company to get its foot in the door early on many projects. “We’re now at a point where some of our clients come to us and ask us to bid on their projects, which is a great compliment to how we do business, both in the office and in the field,” said Amanti.

They also highly value educating their workforce on the latest technologies and certifications. When LEED (Leadership in Energy & Environmental Design) certifications came out, 85 percent of EAS’ workforce attended classes from the Gould Institute. In fact, both Steve and Dottie Amanti have LEED A/P certification.

The company is also involved in multiple charity endeavors; they’ve even got a birthing/waiting room in the North Shore Medical Center named after them.

And they highly value their 32-year membership in the Associated Subcontractors of Massachusetts (ASM). “ASM offers great networking events, and has helped me build relationships with other contractors in my trade and beyond,” Amanti observed. “I get to bounce ideas off others, which helps when we run into tricky situations. And ASM’s educational programs are top notch; we frequently bring those materials back to share with our team.”

But while technologies and market conditions are everchanging, one thing that doesn’t change at EAS is its commitment to its clients and employees. It’s a fourth-generation company with a senior management team that truly cares about every project, and every employee.

“Everybody here feel like they’re part of something important, and it shows in our work,” Amanti concluded. s

You put building first.

Scott Szycher is the membership and marketing manager for ASM. He can be reached at sszycher@associatedsubs.com or (617) 742-3412.

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The Professional Contractor

13

TWO NEW RULES

New Federal Veterans and Disabilities Regulations Now in Effect

O

n March 24, 2014, two new federal rules took effect expanding the affirmative obligations of direct federal contractors and subcontractors with regard to veterans and individuals with disabilities. The rules, which fall under the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), update regulations under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973.

The VEVRAA rule requires federal contractors and subcontractors to annually adopt a hiring benchmark based either on the national percentage of veterans in the workforce (currently 8 percent) or their own benchmark based on local and other data. The Section 503 rule creates a 7 percent workforce utilization goal for individuals with disabilities. Following is a summary of the two rules:

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VEVRAA Rule •• Sets hiring benchmarks: Contractors must establish annual hiring benchmarks for protected veterans.

•• Record-keeping: Contractors must document the number of veterans who apply for jobs and the number they hire. These records must be kept for three years.

•• Self-identification: Contractors must invite applicants to self-identify as protected veterans.

•• Incorporate equal opportunity clause: Language must be incorporated by reference into subcontracts, which will flow down the requirements to federal subcontractors.

•• Give OFCCP access to records: Contractors must give OFCCP access to review documents and check for compliance.

Section 503 Rule •• Seven percent goal: Contractors must apply a 7 percent utilization goal for individuals with disabilities.

•• Record-keeping: Contractors must document the number of individuals with disabilities who apply for jobs and the number they hire. As with veterans, these records must likewise be kept for three years.

•• Self-identification: Contractors must invite applicants to self-identify as individuals with disabilities (the rule prescribes the language that contractors must use). Employees must be invited to self-identify every five years.

•• Incorporate equal opportunity clause: Language must be incorporated by reference into subcontracts, which will flow down the requirements to federal subcontractors.

•• Give OFCCP access to records: Contractors must give OFCCP access to review documents and check for compliance.

•• ADA Amendments Act: The rule revises the definition of “disability” and certain non-discrimination provisions.

The language of the VEVRAA Rule can be found at: www.dol. gov/ofccp/regs/compliance/vevraa/vevraa_rule_qa_508c.pdf The Section 503 Rule can be found at www.dol.gov/ofccp/regs/compliance/section503/503_rule_ qa_508c.pdf s

Reprinted courtesy of the Northeastern Subcontractors Association, Albany, NY.

The Professional Contractor

15

has a

NEW MAYOR VISION for Boston Development – and Intends to See it Realized

Boston Mayor Martin Walsh has clearly not lost his zest for the bustling world of construction sites and towering cranes, even as he learns the ropes of running one of the world’s most prominent cities, from cops to schools.

Formerly chief of the Boston Building Trades Council, Walsh detailed his vision for development in Boston on March 20 before the Massachusetts Building Congress in an event that had the feel of a homecoming for the new mayor.

Walsh told the hundreds of contractors, union officials, architects and engineers gathered at the Westin Waterfront Hotel Boston that he hopes to green-light even more projects than his predecessor, Mayor Thomas M. Menino.

And to help make that happen, Walsh said, high on his 16

Spring 2014

agenda will be streamlining the project-approval process at City Hall.

Yet Boston’s new mayor also made clear that he is looking for far more than additional towers on the city’s gleaming skyline – he’s looking for development that will make a difference in the lives of residents across the city.

“I want to do the same thing, but I want to do more,” Walsh said in a reference to the many projects approved by Menino during his 20 years in office. “I don’t think anyone loves cranes more than I love cranes.”

Walsh’s remarks come amid reports that some developers are worried about the slow pace of project reviews by the Boston Redevelopment Authority (BRA) – and concerns that the

“MARTY ALWAYS IMPRESSED ME IN THOSE MEETINGS AS A VERY SENSIBLE PERSON, THE KIND OF GUY WHO WAS WAY FAR BEYOND THE OLD SCHOOL STEREOTYPE OF THE UNION LEADER.” — HUGH KELLEHER, EXECUTIVE DIRECTOR PLUMBING, HEATING, COOLING CONTRACTORS OF GREATER BOSTON

FACING PAGE AND COVER PHOTOS BY AMANDA MARTOCCHIO, STAFF PHOTOGRAPHER, THE WARREN GROUP

By Scott Van Voorhis new mayor hasn’t gotten things up to speed yet.

However, Walsh noted he is working to change the way the BRA vets projects to eliminate unnecessary delays and snags in the approval process.

An audit of the agency ordered by Walsh is due to be completed this spring.

The BRA needs to identify neighborhood issues around new project proposals earlier on than before and work them out to prevent last minute surprises, he said.

As the top trade union leader in Boston, Walsh recalled he frequently sat down with developers and contractors, as well as labor leaders, to help cut deals that would move new projects forward.

That experience, in turn, taught him how disruptive lastminute changes mandated by city officials can be to a new development’s bottom line and chances of moving forward.

“I sat down with a lot of owners and developers and talked about how do we put deals together,” Walsh recalled. “If the BRA makes a change in a plan, it might change the cost and put the project out of reach.”

Walsh’s development smarts and good sense stood out in meetings on various construction industry issues and projects, said long-time friend and colleague Hugh Kelleher, executive director of the Plumbing, Heating, Cooling Contractors of Greater Boston, who, along with James Rooney, CEO of the Massachusetts Convention Center Authority, introduced Walsh before the March 20 speech to the Massachusetts Building Congress.

“Marty always impressed me in those meetings as a very sensible person, the kind of guy who was way far beyond the old school stereotype of the union leader,” Kelleher said.

Walsh also made it clear that he wants to see a broader range of new development, not just simply more square footage, especially housing that is affordable to a wide array of city residents.

Citing housing affordability as a major challenge for Boston, Walsh pledged to focus city efforts on spurring construction of housing that would be affordable to middle class and working families.

To get the ball rolling, the mayor noted he has launched a task force to study the housing issue and come up with recommendations.

In comments after the speech, Walsh said the panel will be casting a wide net, and would look at a range of ideas, including an initiative in San Francisco in which city government is offering up to $200,000 in down payment money to middle class families looking to buy a home.

“Eight-five percent of the people of Boston can’t afford

President Joe Flynn (Allsteel) and MBC Executive Director Jan Breed extend a warm welcome to Boston Mayor Martin Walsh.

to live in these buildings,” Walsh said of the new luxury apartment buildings taking shape on the city’s skyline.

Walsh said he will also be promoting new developments that will spur economic development in Boston neighborhoods beyond the bright lights of downtown.

One example can be found Dudley Square, Walsh noted, where the city is preparing to pick winning bids by restaurants and retailers interested in opening up in the historic, 19th-century Ferdinand Building, just coming off a $120 million renovation.

Walsh said he is eager to attract medical manufacturing and other businesses to bring jobs to Dudley and other areas and neighborhoods across the city.

In fact, long before he was mayor, Walsh was also interested in creating opportunities for all Bostonians, helping launch Building Pathways, a pre-apprentice program aimed to helping more women and people of color get jobs in the construction trades, Kelleher said.

“He was pretty clear all during the campaign that he wants to see development, not just downtown, that he wanted to see it in the neighborhoods as well,” said Frank Callahan, president of the Massachusetts Building Trades Council.

And Walsh may be the best prepared of any Boston mayor to oversee development in the city, especially at a time when projects are moving again after the lean years of the Great Recession.

“He certainly comes to the job of mayor with a more indepth background in the construction business than possibly any mayor in history,” Kelleher noted. s The Professional Contractor

17

SAFETY ZONE

BY SCOTT SZYCHER

Keeping Dangerous Spaces Safe A Conversation with the Experts at Industrial Safety & Rescue

Blake Underhill addressing “lock box” requirements.

George Simmons covering “attendant responsibilities.”

Props for safety training on underground pipe environments.

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W

hen people think of Corona beer – the number-one imported beer in the United States – they likely think of warm weather, sandy beaches, and perhaps an obligatory lime sticking out of the top of the bottle. Workplace fatalities in a confined space certainly don’t come to mind.

But that’s exactly what happened last April at the company’s brewery in Mexico, when seven people died in a tank undergoing maintenance and cleaning – most likely due to atmospheric hazards in the tank such as carbon monoxide and ammonia. The victims included four maintenance contractors, as well as three brewery employees who entered the tank to attempt to rescue the contractors.

“Confined spaces are dangerous, in large part because there are multiple hazards you can’t see,” said Blake Underhill, CEO of Canton-based Industrial Safety and Rescue (IS&R), which provides safety, rescue, and related training services to commercial clients. “There can be air quality hazards, slip-and-fall hazards, flammables, and more. And more environments than you think are considered confined spaces.”

A confined space is one that is large enough to enter and perform work, but has limited means

of entry and exit, and is not designed for continuous occupancy – “it’s not a space like a trailer at a construction site, where you might find a desk,” noted Underhill. Confined spaces include tunnels, boilers, hoppers, furnaces, ducts, vaults, pipes and more.

The confined spaces are separated into two categories: those that require permits to enter, and those that don’t. A permit-required confined space is one that has one or more of several characteristics: •• Contains or has the potential to contain a hazardous atmosphere.

•• Contains a material that has the potential to engulf an entrant.

•• Has an internal configuration where an entrant could become trapped or asphyxiated.

•• Contains any other serious safety or health hazard, including electricity or flammables/ combustibles like methane, propane and gasoline fumes.

Manholes that lead to underground chambers or tunnels, grain silos and trenches would all be examples of permit-required confined spaces. All permitted confined spaces require when there is an entrant – defined as the employee entering the confined space – there must also be an attendant, who deliberately remains outside the confined space to monitor the entrant, guard against unauthorized entry, communicate with the entrant, and summon rescue personnel if necessary.

Confined spaces that don’t require permits are those that don’t contain, or have the potential to contain, any hazard capable of causing death or serious physical harm, such as the space above drop ceilings or inside motor control cabinets.

Underhill noted that the same regulations apply whether it’s a company’s own employees working in confined spaces, or a hired contractor, who must be informed of the hazards of the space. “There are a number of responsibilities when a contractor is performing work in a confined space, or when it’s a shared effort,” Underhill noted. “Coordination between the contractor and the host site is critical when it comes to safety.”

But no matter who’s working in the confined space, emergency rescue teams must be available while authorized entrants are in the confined space. “The whole issue of rescue plans and preparation is the most poorly understood aspect of confined spaces,” said George Simmons, IS&R’s operations manager. “It’s human nature to want to help when someone’s in distress, but 60 percent of all fatalities in confined space incidents where multiple fatalities occurred were would-be rescuers.”

A rescue plan is an essential part of a company’s safety protocol. “If you’re in a business where you have employees or contractors going into confined spaces – particularly permitrequired confined spaces – then it’s really in your best interest to have a rescue plan in place before incidents happen,” commented Underhill. If a company does not employ personnel trained to handle rescue operations, they can outsource that responsibility to third-party firms like IS&R, which provides safety monitoring, first aid and training services to complement their work in confined spaces.

While in some cases, OSHA regulations allow for calling 911 as a de facto rescue plan, IS&R discourages that approach.

“Remember, when you’re utilizing 911 services, those are limited municipal resources, and any delay in their getting to your confined space could mean the difference between an accident and a tragedy,” Simmons noted. “Additionally, per OSHA regulations, if the local emergency service goes out on a call you must vacate the confined space and cannot reenter until they are back in the station.”

When injuries or fatalities occur at industrial sites, the effects can be enormous. In addition to the possibility of significant financial penalties, many companies find themselves hit with legal ramifications. And beyond insurance claims and lost productivity, there are massive human costs, including devastated coworkers and family members, and irreparable harm to carefully-crafted corporate brands. “No company wants to be known as that place where workers died, even if the correct protocols were in place and simply weren’t followed,” Underhill advised. “Your customers might end up switching to the competition simply because they don’t want to be associated with a company that fairly or unfairly has become synonymous with a dangerous workplace environment.”

“If you look back at most workplace accidents, they could have been eliminated or mitigated by proper equipment and training; having a rescue plan in place if something does happen, and following protocol at all times,” Underhill concluded. “And there are plenty of companies ready to assist when it just doesn’t make sense for an employer to take on those responsibilities internally.”

“Just as you don’t want to be that employee who gets injured in a workplace incident, you don’t want to be that owner or manager who skimped on safety training and rescue plans and thought ‘This could never happen here.’ Preparation beats regret 100 percent of the time.” s Scott Szycher is the membership and marketing manager for ASM. He can be reached at sszycher@associatedsubs.com or (617) 742-3412.

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The Professional Contractor

19

LEGAL BRIEFS

BY JOHN M. CURRAN, ESQ.

Damaged by Delay?

Don’t Assume ‘No Damages’ Means No Recovery

C

onstruction projects fall behind schedule for many reasons. For instance: a hurricane may hit the site, destroying the work in place; an owner may fail to respond promptly to critical RFIs, bringing work to a standstill; or a general contractor may fail to coordinate the work causing logjams and inefficiencies for subcontractors. Although the cause of any given delay may be less than clear, one thing is almost always certain – schedule impacts have wideranging financial repercussions for everyone involved in the project.

Subcontractors, however, are likely to feel the tangible effects of an impacted schedule first and most significantly, since they carry the initial burden of paying for most of the labor and material costs. Subcontractors may be forced to accelerate their work in a compressed schedule, working nights and weekends. They may lose productivity if the contractor stacks the sub-trades. Delays and the slippage of the construction schedule may result in escalation of wages and material costs.

If your project schedule has been impacted for reasons unrelated to you, and your costs are spiraling out of control, first read your subcontract – and then understand Massachusetts’ law.

In the absence of any contractual provision to the contrary, Massachusetts permits a subcontractor to recover damages for schedule impacts that they did not cause, provided the impact arises out of the other party’s breach of contract. The problem for subcontractors is that the vast majority of subcontracts today contain some type of no-damages-for-delay clause. Many general contractors incorporate these provisions into their subcontracts to attempt to absolve themselves from liability by eliminating a subcontractor’s right to recover money damages arising from schedule impacts, no matter how caused. Usually the only allowable remedy is an extension of time for impacts not caused by the subcontractor.

John Curran is a partner at Corwin & Corwin LLP, one of the oldest law firms in New England, dedicated solely to construction law, and counsel to ASM since 1950. He can be reached at jcu@corwinlaw.com or (617) 742-3420.

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Spring 2014

Although these provisions can yield a harsh result to an innocent subcontractor who has not caused any delay, Massachusetts courts have found that no-damages-for-delay clauses are valid and enforceable, subject to certain exceptions discussed below.

A typical no-damages-for-delay provision found in contracts for public or private work in Massachusetts may read something like this: The subcontractor agrees that it shall have no claim for money damages or additional compensation for any delay, hindrance, interference or obstruction, no matter how caused, but may be entitled to an extension of time for any delay, hindrance, interference or obstruction not caused by the subcontractor.

This provision seeks to bar the subcontractor’s ability to recover money damages as a result of certain schedule impacts regardless of by whom and how they are caused.

Even if you are burdened with a no-damagesfor-delay clause, don’t despair since there are several exceptions which may permit recovery of damages.

M.G.L. c. 30 §39O M.G.L. c. 30 §39O provides the first such exception, and applies only to public jobs in which the awarding authority suspends, delays or interrupts construction operations, which in turn causes extra costs to the general contractor and subcontractors. The statute defines the circumstances under which compensation is to be awarded. It requires that the suspension, delay or interruption must (a) be ordered in writing by the awarding authority, (b) either last for at least 15 days or result from the authority’s failure to act within the time specified by the contract, (c) increase the contractor’s cost of performance and (d) not be covered under any other contract provision. The first requirement is critical, because the Supreme Judicial Court ruled that the statute does not apply absent a written order to suspend or delay.

Where applicable, the statute limits payments to any increase in the cost of performance, without profit. It bars extra costs incurred more than

20 days before the general contractor or subcontractor gives written notice of the act or failure to act involved in the claim, and it requires that the amount of the claim be submitted “as soon as practicable” after the end of the suspension/delay/ interruption/ failure to act, and in any event, no later than the date of final payment.

Unreasonable Refusal to Grant an Extension of Time Massachusetts courts have also created judicial exceptions that may provide a subcontractor relief from the harsh effects of a no-damages-for-delay provision.1 The most frequently used exception is described in the seminal case of Farina Bros., Inc. v. Commonwealth decided by the Massachusetts Supreme Judicial Court in 1970.

In Farina, the contractor experienced significant delays waiting for the commonwealth to provide approvals and to complete work necessary for the contractor to complete its work. In response to Farina’s request that the work be shut down until the issues were resolved, the commonwealth ordered Farina to continue to work wherever and whenever it could, under the threat of termination. Farina finished the work beyond the completion date and submitted claims for additional costs due to extended performance and for time extensions. The commonwealth denied Farina’s request for additional time and its claim for damages, relying on the nodamages-for-delay provision of its contract. The court allowed Farina to recover damages for its delay, refusing to enforce the no-damages-for-delay provision on the grounds that the commonwealth had wrongfully denied time extensions and had used the no-damages-for-delay provision to “whipsaw” the contractor.

Similarly, the Suffolk Superior Court in the case of Central Ceilings, Inc. v. Suffolk Construction Company, Inc. et al 2 (December 2013) refused to enforce a no-damages-for-delay clause and permitted a subcontractor to recover damages for loss of productivity where the general contractor wrongfully deprived the subcontractor of its contractually-mandated remedy of time extensions. Judge Jane Haggerty wrote: “This deprivation [failure to grant time extensions] is, itself, a breach of the Subcontract, and Central’s damages for loss of productivity are a direct result of this breach … The plain language of the no-damages-for-delay clause accordingly does not bar Central’s recovery.”

Another 2013 Superior Court decision found that the nodamages-for-delay provision was no bar to a contractor’s damages claim where the owner “willfully disregarded the most basic and time-honored of owner’s obligations: to provide the contractor with a site that is ready for the work he has contracted to do, and then to permit him to do it without hindrance.”

Both Superior Court decisions recognize that under Farina

one may not turn their back on their contractual obligations and then seek the refuge of a no-damages-for-delay clause.

Waiver of No-Damages-for-Delay Clause A lesser-known exception to the no-damages-for-delay provision arises where a party waives the provision, either expressly or by its acts and conduct. In a 1990 decision, the Massachusetts Appeals Court held that a public owner had waived the nodamages-for-delay provision by writing several letters in which it expressed an intent and desire to pay for the contractor’s delay and then by actually paying for certain delays associated with the electrical work. In these types of circumstances where there is clear evidence of a party’s intent to waive the no-damages-fordelay provision, a subcontractor may be able to recover damages resulting from an impacted schedule despite the existence of a contractual provision purporting to bar these same damages.

Breach of Independent Contract Requirement In 1969 the Supreme Judicial Court in State Line Contractors, Inc. v. Commonwealth held that a contractor’s damages arising from a schedule impact caused by the commonwealth were recoverable even in light of an otherwise enforceable no-damages-for-delay provision. In this case, the general contract provided that the work on a roadway and an adjacent rest area were to be performed simultaneously. The commonwealth, however, stopped the rest area work for months due to title issues with the property, requiring the contractor to perform the roadway work sequentially, rather than simultaneously. The contractor submitted a claim for damages resulting from the impacted schedule. The commonwealth alleged that the no-damagesfor-delay provision precluded recovery for this claim. The SJC disagreed, holding that the commonwealth breached its independent contractual obligation to allow the work to proceed simultaneously and, as a result, permitted the contractor to recover money damages for what it characterized as extra work arising as a result of this breach.

The best route to recovery of delay damages is to avoid the clause altogether. If you have appropriate bargaining strength and are able to negotiate the terms and conditions of your subcontract, you may be able to remove it entirely or modify it so it is more favorable to you. However, if you are stuck with a nodamages-for-delay provision in your subcontract, understand its scope and the exceptions which may make the clause unenforceable. It may make all the difference in getting paid for your increased costs that result from schedule impacts. s 1. Other jurisdictions have created judicial exceptions to the enforceability of a nodamages-for-delay clause where there are delays that are: entirely un-contemplated; so unreasonable as to constitute abandonment; resulting from breach of a fundamental obligation of the contract; or caused by active interference or obstruction of an owner or general contractor.

2. This case is on appeal before the Massachusetts Court of Appeals.

The Professional Contractor

21

FEATURE

The Importance of Having a Company Driver Policy

D

oes your company have a specific driver policy that you review with newly hired employees, as well as all employees annually? If not, you are missing out on one of best risk management tools available to you. Having an official, written driver policy shows your insurer that you take the issue very seriously, considering the fact that you are entrusting an employee with a multi-ton moving object with your name on it. Most importantly, it can help reduce claims and keep safety on the minds of your drivers. Any risk management strategies that you put into place will also go a long way in controlling premium increases.

Outlined below is a sample driver policy that can be used as the framework for your company’s driver policy. You can add or delete portions to tailor it for your company’s needs. In any case, you should review it with your attorney to determine its applicability to your business.

Sample Driver Policy XYZ Inc. is 100 percent committed to your safety, our customers’ safety and those in our community. Driving is a MAJOR part of your employment with This Company Inc. Your personal driving record has a direct relationship to your value to this company and our ability to employ you.

Required Licenses and Permits All employees who are in a potential driving position are required to maintain a valid Massachusetts Drivers License. The company may verify each employee’s driving record prior to employment and whenever else necessary during the course of employment to ensure compliance.

When applying for a job at XYZ involving the operation of a motor vehicle, you will provide us with: •• Your name, address, date of birth, and Social Security/driver’s license number.

•• Your permission to have your driving record obtained and reviewed.

•• Your agreement that your driving record is a vital part of your employment application and that you may not be hired due to it.

•• Your previous addresses for the past three years.

•• Expiration date of driver’s license.

•• List of all motor vehicle accidents and violations or RMV report.

•• Any driver’s license suspensions or revocations.

•• List of all past employers for the last three years with names and addresses and your written permission to contact previous employers.

Driving Records The company reserves the right to investigate an employee’s driving record and take whatever action necessary or appropriate based on the information gained. Every employee who drives any company vehicle must possess a valid Massachusetts driver’s license and have a driving record with no driving under the influence convictions within the last three (3) years and not more than two (2) moving violations within the last three (3) years.

Employees are required to report all vehicular accidents and moving violations (whether incurred on the job or not) to their supervisor within forty-eight (48) hours of an accident or receiving a violation. Failure to report accidents and/or moving violations (including DUI violations) will result in disciplinary action, up to and including termination.

Employees who are offered the chance to take a remedial and/or defensive driving course to remove a traffic violation from their record will complete the course in the prescribed amount of time. Costs for the course shall be borne by the company.

Employees who are in driving positions will be automatically terminated upon receipt of a third traffic violation within a three (3) year period or if driving record has adverse effect on our commercial auto policy rates.

This article was prepared by TGA Cross Insurance Wakefield and is reprinted with permission. For further information, contact David Thomas, senior vice president, TGA Cross Insurance at (781) 914-1035. Please note: The information presented here is for informational purposes only and should not be relied on as legal advice. Seek the advice of your attorney based on the particular facts and circumstances of your operation.

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Spring 2014

Personal Use Employees who drive company vehicles shall not, at any time, use company vehicles for personal reasons. This policy shall be strictly enforced with disciplinary action, up to and including termination.

Employees are restricted from personal use of any kind, including, but not limited to, the following: •• Using company vehicles to run personal errands on or off clock.

•• Transporting non-employees in company vehicles, including family members.

•• Allowing non-employees to use company vehicles for any reason.

Duties of an XYZ, Inc. Driver You will: •• Report all citations and convictions with full details to employer immediately.

•• Report suspension of license.

•• Every 12 months, fill out a form listing any violation convictions. A driver must inform his employer within 48 hours of any violation or conviction.

•• Not speed, ever.

•• Wear seat belts at all times.

•• Conduct yourself in a civil manner at all times and ALWAYS avoid or back down from ANY confrontation.

•• Never argue with another driver or a police officer.

•• Not speak on phone or text while driving.

•• Report any maintenance issues of the vehicle immediately to _____________.

•• Comply with and agree to alcohol rules.

Alcohol Rules •• You may never consume alcohol while on duty.

•• You may not consume alcohol within eight hours proceeding reporting for duty or have a blood alcohol concentration of 0.02 or greater.

•• You may never possess alcohol, including medications like cough syrup or cold medicine that contain alcohol.

•• You may not consume alcohol within eight hours proceeding an accident or until after having blood alcohol level tested.

•• You may never use any drug that affects your ability to safely operate a motor vehicle. Refusing to submit to any mandated alcohol or drug test including breath and saliva testing, blood testing, and urine testing will result in termination on the spot.

Failure to comply with all of the above may result in unpaid suspension or immediate termination.

If You are in an Accident •• Stop vehicle/shut off engine. Exit vehicle if safe to do so.

•• Place warning reflectors around the scene.

•• Attend to any injured persons.

•• See that help is summoned i.e. police, ambulance, etc.

•• Notify your supervisor/manager.

•• Obtain badge numbers of police.

•• Be courteous.

•• Answer police questions truthfully.

•• Do not discuss details of the accident with any other people.

•• Do not assume responsibility.

•• Keep notes on any statements made at the scene by you and others involved.

•• In glove compartment keep an “Accident Kit,” to include the following: 1. Accident report 2. Pencil (pens freeze in the winter) 3. Disposable camera ACKNOWLEDGEMENT ____________ acknowledges that this driver manual has been reviewed with him/her on ________ and agrees to abide by its rules. _______________ agrees with it and recognizes that driving is a very serious business and that his/her personal driving record will affect his/her value to XYZ, Inc. and its ability to employ him/her.

Date: Reviewed and agreed to by: Company Official:

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The Professional Contractor

23

ASM NEWS ASM Board Members Take Time Out for the Camera ASM’s new Board of Directors for 2014-15 takes time out for a photo before getting down to business at their first board meeting since elected to office.

Front Row: Nardine Bellew (General Safety Services), Nancy Salter (Frontline), Jim Miller (Salem Glass), ASM President Rich Fisher (Red Wing Construction), Roger Fuller (R & R Windows), William Rucci (Rucci, Bardaro & Falzone), Lindsay Drisko (ENE Systems) and Atty. Carolyn Francisco (Corwin & Corwin).

Row 2: Steven Amanti (E. Amanti & Sons), Joe Bodio (Lan-Tel Communications), Russ Anderson (Southeastern Metal Fabricators), David Cannistraro (JC Cannistraro), Matthew Brown (Greenwood Industries) and Monica Lawton (ASM).

Row 3: Steve Kenney (NB Kenney), Wayne Griffin (Wayne J. Griffin Electric), Scott Packard (Chapman Waterproofing), Robert Hutchison (Cheviot Corp.), Mac Lynch (William F. Lynch Co.), George Allen (Archer Corp.) and Dana E. Johnston (Fall River Electrical).

Not pictured: Sue Mailman (Coghlin Electrical), Erik Maseng (Viking Controls), Nancy Shine (JF Shine Mechanical), Frank Smith (Eastern Insurance) and Sara Stafford (Stafford Construction).

Marketing Bootcamp Covers Marketing Essentials for Contractors ASM members turned out in droves for a “Marketing Bootcamp” on Feb. 3, featuring Lisa Nickerson and Matthew King of award-winning NickersonPR. The presentation included practical tips for creating compelling logos, brochures and websites that set you apart from the competition, and effective use of social media and PR. 24

Spring 2014

ASM Forms Young Professionals Group ASM’s new Young Professionals Group held its inaugural “tipoff” event at the TD Garden in February, to see the Celtics take on the Atlantic Hawks. It was a great evening – with plenty of good food, networking and camaraderie – as well as a big win on the court! This is the first of many events to come, as the YP Group strives to promote connections and professional development among the next generation of industry leaders.

We know there’s more on your mind than the safety of a building alone.

Seminar Addresses Challenges of Public Bidding Attorneys Joseph Pisarri and Carolyn Francisco received rave reviews for their April 3 “Public Bidding” seminar. They went beyond the basics to cover aspects of procurement law that challenge even the most experienced bidders – including paragraph E listings, and differences between traditional filed sub-bidding and procedures under CM at Risk.

Construction is a business where risk is around every corner. You need an insurance company that understands that. Not just from an insurer’s perspective, but from yours. Acadia. We’re closer to your business. Visit acadiainsurance.com or contact your local independent agent for more information about the ASM Safety Group and Dividend potential.

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ASM & CFMA Team up for Seminar on Building Backlog ASM and Construction Financial Management Association (CFMA) had a full house on March 11 for a presentation by Scott Humrickhouse of FMI on “Building Your Backlog – Regardless of Market Conditions.” Humrickhouse is shown with CFMA President Joe Gates (Methuen Construction), ASM’s CEO Monica Lawton, and ASM President Rich Fisher (Red Wing Construction). s

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The Professional Contractor

25

STANDING TALL

BY CAROL KINSEY GOMAN, PH.D.

12 Body Language Tips for Career Success

W

hen properly used, body language can be your key to greater success. It can help you develop positive business relationships, influence and motivate the people who report to you, improve productivity, bond with members of your team, and present your ideas with more impact.

Here are a dozen tips for using body language to project confidence, credibility, and your personal brand of charisma: 1. Stand tall and take up space. Power, status, and confidence are nonverbally displayed through the use of height and space. Keeping your posture erect, your shoulders back, and your head held high makes you look sure of yourself.

If you stand you will look more powerful and assured to those who are seated. If you move around, the additional space you take up adds to that impression. If you are sitting, you can look more confident by putting both feet flat on the floor, widening your arms away from your body (or hooking one elbow on the back of your chair), and spreading out your belongings on the conference table to claim more territory.

2. Widen your stance. When you stand with your feet close together, you can seem hesitant or unsure of what you are saying. But when you widen your stance, relax your knees and center your weight in your lower body, you look more “solid” and confident.

3. Lower your vocal pitch. In the workplace, the quality of your voice can be a deciding factor in how you are perceived. Speakers with higher-pitched voices are judged to be less empathic, less powerful and more nervous than speakers with lower pitched voices. One easy technique I learned from a speech therapist was to put your lips together and say “Um hum, um hum, um hum.” Doing so relaxes your voice into its optimal pitch. This is especially helpful before you get on an important phone call – where the sound of your voice is so critical.

4. Try power priming. To display confidence and Carol Kinsey Goman, Ph.D. is a keynote speaker, leadership communication consultant, and body language coach based in Berkley, CA. She can be reached at (510) 526-1727 or CGoman@CKG.com.

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be perceived as upbeat and positive, think of a past success that fills you with pride and confidence.

(This doesn’t have to be taken from your professional life – although I do encourage clients to keep a “success log” so that they can easily find an event.)

Then recall the feeling of power and certainty – and remember or imagine how you looked and sounded. Recalling that genuine emotion will help you embody it as you wenter the meeting room or walk up to the podium.

5. Strike a power pose. Research into the effects of body posture on confidence, conducted at Harvard and Columbia Business Schools, has shown that simply holding your body in expansive, “highpower” poses (leaning back with hands behind the head and feet up on a desk, or standing with legs and arms stretched wide open) for as little as two minutes stimulates higher levels of testosterone – the hormone linked to power and dominance – and lower levels of cortisol, a stress hormone.

Try this before your next important business meeting, and I guarantee you will look and feel more confident and certain. In addition to causing hormonal shifts in both males and females, these poses lead to increased feelings of power and a higher tolerance for risk. The study also corroborated my observation that people are more often influenced by how they feel about you than by what you’re saying.

6. Maintain positive eye contact. You may be an introvert, you may be shy, or your cultural background may have taught you that extended eye contact with a superior is not appropriate, but businesspeople from the U.S., Europe, Australia (and many other parts of the world), will expect you to maintain eye contact 50 to 60 percent of the time. Here’s a simple technique to improve eye contact: Whenever you greet a business colleague, look into his or her eyes long enough to notice what color they are.

7. Talk with your hands. Brain imaging has shown that a region called Broca’s area, which is important for speech production, is active not only when we’re talking, but also when we wave our hands. Since gesture is integrally linked to speech, gesturing as you talk can actually power up your thinking. Whenever I encourage clients to incorporate gestures into their deliveries, I find that their verbal content improves, their speech is less hesitant, and their use of fillers (“ums” and “uhs”) decreases. Experiment with this and you’ll find that the physical act of gesturing helps you form clearer thoughts and speak in tighter sentences with more declarative language.

8. Use open gestures. Keeping your movements relaxed, using open arm gestures, and showing the palms of your hands – the ultimate “see, I have nothing to hide” gesture – are silent signals of credibility and candor. Individuals with open gestures are per-

ceived more positively and are more persuasive than those with closed gestures (arms crossed, hands hidden or held close to the body, etc.) Also, if you hold your arms at waist level, and gesture within that plane, most audiences will perceive you as assured and credible.

9. Try a steeple. You see lecturers, politicians and executives use this hand gesture when they are quite certain about a point they are making. This power signal is where your hands make a “steeple” – where the tips of your fingers touch, but the palms are separated. When you want to project conviction and sincerity about a point you’re making, try steepling.

10. Reduce nervous gestures. When we’re nervous or stressed, we all pacify with some form of self-touching, nonverbal behavior: We rub our hands together, bounce our feet, drum our fingers on the desk, play with our jewelry, twirl our hair, fidget – and when we do any of these things, we immediately rob our statements of credibility. If you catch yourself indulging in any of these behaviors, take a deep breath and steady yourself by placing your feet firmly on the floor and your hands palm down in your lap, on the desk or on the conference table. Stillness sends a message that you’re calm and confident.

11. Smile. Smiles have a powerful effect on us. The human brain prefers happy faces, and we can spot a smile at 300 feet – the length of a football field. Smiling not only stimulates your own sense of well being it also tells those around you that you are approachable and trustworthy.

Research from Duke University proves that we like and reSullGroupTPC 1/29/09 3:49 PM Page 1 member those who smile at us – and shows why we find them

Insurance Relationships:

more memorable. Using functional magnetic resonance imaging (fMRI), the Duke researchers found that the orbitofrontal cortices (a “reward center” in the brain) were more active when subjects were learning and recalling the names of smiling individuals. Most importantly, smiling directly influences how other people respond to you. When you smile at someone, they almost always smile in return. And, because facial expressions trigger corresponding feelings, the smile you get back actually changes that person’s emotional state in a positive way.

12. Perfect your handshake. Since touch is the most powerful and primitive nonverbal cue, it’s worth devoting time to cultivating a great handshake. The right handshake can give you instant credibility and the wrong one can cost you the job or the contract. So, no “dead fish” or “bone-crusher” grips, please. The first makes you appear to be a wimp and the second signals that you are a bully.

Handshake behavior has cultural variations, but the ideal handshake in North America means facing the other person squarely, making firm palm to palm contact with the web of your hand (the skin between the thumb and first finger) touching the web of the other person’s hand, and matching hand pressure as closely as possible without compromising your own idea of a proper professional grip.

By the way: While a great handshake is important for all professionals, it is especially key for women – whose confidence is evaluated by the quality of their handshake even more than it is with their male counterparts. s

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The Professional Contractor

27

MEMBER NEWS Cannistraro Acquires Harrington Bros Corp.

J.C. Cannistraro LLC (Watertown) is not only tops with employees (see story below right), it also holds the distinction of being Boston’s largest mechanical construction company – and now, one of the most versatile, with the recent addition of sheet metal to its full-service operations. Cannistraro recently announced the acquisition of Harrington Brothers Corporation, one of the region’s premier sheet metal and fabrication companies. The company will continue as Harrington Air Systems, that will operate as a sister company to Cannistraro and deliver sheet metal and related HVAC solutions across New England. Through this venture, Cannistraro is now the only New England contractor to offer four mechanical specialties to its clients – plumbing, HVAC, sheet metal and fire protection.

Capone Iron’s Stephen Capone Elected President of SFNE Congratulations to Stephen Capone, president of Capone Iron Corporation (Rowley) who was recently elected president of the board of directors for the Steel Fabricators of New England (SFNE). SFNE is an association of structural steel and miscellaneous metal fabricators and allied companies that serve the building and bridge construction markets in New England. Capone Iron Corp. is a full-service steel construction and metals company whose services include project management, engineering, steel fabrication and finishing/coating.

J.C. Cannistraro Named One of Massachusetts’ Best Places to Work

Fernandes Masonry Holds Fundraiser for Children with Disabilities More than 800 guests attended the second annual Wine Tasting Fundraiser hosted by Fernandes Masonry (Dartmouth) and its “Team Noah” Foundation in New Bedford on Feb. 28 – all to benefit the Schwarz Center for Children, which serves children with disabilities in southeastern Massachusetts. The thousands of dollars raised will go to buy all of the highly specialized equipment for a new Sensory Integration (SI) room at the center where children will go for physical therapy. The new SI room will bear the logo of The Team Noah Foundation, which is is named in honor of Noah Fernandes, son of company owner Victor Hernandes. Noah is a spirited young man who has rare mitochondrial disease and has been a student at the Schwarz School. In the photo are Victor Fernandes surrounded by his Team Noah event volunteers.

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Congratulations to ASM member J.C. Cannistraro LLC (Watertown), recently named one of Boston Globe’s “Top Places to Work,” in the Medium Companies category. The Globe’s annual survey was completed by over 76,000 employees at more than 330 area businesses, who rated their employers on a range of factors including leadership and company direction, appreciation of workers, opportunities for professional learning and growth, work /life balance, and pay/benefits.

“The survey results demonstrated how incredibly invested our employees are in the company, and how grateful Cannistraro is for their commitment,” said Cannistraro Director of Marketing Tom Palange, pictured (center) along with Cannistraro’s Meghan Valyou and Joe Cannistraro.

PHOTO CREDIT: PHOTO COURTESY OF LUMENPULSE

LAN-TEL’s Joseph Bodio Named Chapter President of NECA Boston Congratulations to Joseph Bodio, CEO of LAN-TEL Communications (Norwood), who was recently named chapter president of the National Electrical Contractors Association’s (NECA) Boston Chapter, succeeding Paul Guarracino of fellow ASM member company J.M. Electrical Co. Greater Boston NECA represents nearly 100 electrical and telecommunications contractors in Eastern Massachusetts, Maine and New Hampshire. Bodio will serve a two-year term as president, and simultaneously serves as president-elect of ASM.

J.&M. Brown Receives ENR Award for Work on MIT’s Great Dome J.&M. Brown Company (Boston) is the proud recipient of Engineering News Record’s 2013 Best Projects Merit Award in the Renovation/Restoration category for its electrical and lighting renovation work on MIT’s Building 10 – more commonly known as the Great Dome. To provide three levels of LED lighting, J.&M. Brown provided wiring and installation of state-ofthe-art lighting, and upgraded the emergency lighting system in addition to other work. The Great Dome is a historical building, and the company took great care to complement the building’s architectural detail while ultimately providing students with a terrific atmosphere for their studies.

Jerry Gagliarducci named UCANE’s Contractor of the Year JM Electrical, Cannistraro Team Up on Lovejoy Wharf Project In a unique project collaboration, J.M. Electrical Company, Inc. (Lynnfield), and J.C. Cannistraro LLC (Watertown) recently announced they have teamed up to handle construction and installation of intelligent, state-of-the-art building control systems for Boston’s Lovejoy Wharf development on North Washington St., adjacent to the TD Garden. This 237,000-square-foot LEED Silver complex is the future home of Converse, as well as luxury residential, office and retail space, and is expected to be completed in 2015. J.M. Electrical technicians will be responsible for installing automated heating and cooling control systems, utilizing Gwynn Systems’ American Automatrix System, throughout 10 floors of the mixed-use development. Cannistraro is delivering all plumbing, HVAC and fire protection systems for the project, including all roof and storm drainage, core bathrooms and plumbing at each level, vent stacks, and basement and below-slab pumps for control of water infiltration. The collaboration is expected to save money and energy and result in superior standard of living for occupants.

At the Utility Contractors’ Association of New England’s (UCANE) annual gala last October, Jerry Gagliarducci of Gagliarducci Construction (Indian Orchard) was honored with UCANE’s prestigious Contractor of the Year Award, in recognition of dedication and service to the association and the industry.

Gagliarducci Construction is a fourth-generation family-run business, and recently celebrated its 113th anniversary. Jerry’s father and grandfather were both in the business while he was young, and his own son Jerry has joined the business after graduating from college. The company is a leader in site construction and development in western Massachusetts, and is proud that the majority of their employees have been with them for over 25 years.

The Professional Contractor

29

MEMBER NEWS

Sweeney Drywall Expands to New Space Sweeney Drywall Finishes Corp. (Boxborough) is proud to show off its new location on Codman Hill Road, where they now have more space to operate their growing business. Sweeney Drywall provides a range of drywall, rough carpentry, insulation and other services to commercial clients throughout the region.

N.B. Kenney Presents Donation to Philippine Typhoon Relief Fund

Wayne J. Griffin Electric Scores a Project Hat Trick Wayne J. Griffin Electric, Inc. (Holliston) recently announced completion of three significant projects. In Worcester, they completed the electrical installation at the Cancer Center for St. Vincent Hospital; in Lowell, they finished work on a residence hall and the Health and Social Sciences Building at UMass-Lowell; and in Clinton, they completed their work on a two-story addition at Clinton Hospital, known as the Daly Building.

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Moved by scenes of devastation from Typhoon Haiyan in the Philippines last November, the team at N.B. Kenney Company (Devens) decided to take action. With the help of employees, vendors, subcontractors and the company itself, they raised $34,000 to provide aid to victims of the typhoon, which was the deadliest on record in the Philippines, killing more than 6,200 men, women and children. Company President (and ASM Vice President) Steven Kenney and Executive Vice President Robert Nims presented the donation to Direct Relief, a leading medical relief organization, to assist health care providers with on-the-ground relief efforts in the areas hit hardest by the typhoon.

2 0 14 A DV ERT IS ING O PPO RTUN ITIE S

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