Carpenters Local 623 (Atlantic Exposition Services)

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 586 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586
South Jersey Regional Council of Carpenters, Local
623, affiliated with United Brotherhood of Car-
penters and Joiners of America, AFL–CIO and
Atlantic Exposition Services, Inc.

Spectacor Management Group and Atlantic Exposi-
tion Services, Inc. Cases 4–CE–116–1 and 4–CE–
116–2
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On March 16, 2000, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The Re-
spondents filed exceptions and supporting briefs, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent Union filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
The judge found that the Respondents, Carpenters Lo-
cal 623 and Spectacor Management Group (SMG), vio-
lated Section 8(e) of the Act by entering into an agree-
ment under which SMG would not subcontract work to
employers who did not have collective-bargaining
agreements with Local 623, and by enforcing that agree-
ment against the Charging Party, Atlantic Exposition
Services, Inc.2 In arriving at that conclusion, the judge
found that the Respondents’ agreement required SMG to
cease doing business with employers who were not sig-
natory to contracts with Local 623 and that it did not
have a work preservation objective that would remove it
from the proscription of Section 8(e). He also found that
the agreement did not come within the construction in-
dustry proviso to Section 8(e) because the work in ques-
tion was not performed on a construction site and be-
cause, in any event, SMG was not “an employer in the
construction industry.”

1 The Respondent Union has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 Sec. 8(e) provides, in relevant part, that
It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains from handling, using, selling,
transporting or otherwise dealing in any of the products of any other
employer, or to cease doing business with any other person, and any
contract or agreement entered into heretofore or hereafter containing
such an agreement shall be to such extent unenforceable and void:
Provided, that nothing in this subsection (e) shall apply to an agreement
between a labor organization and an employer in the construction in-
dustry relating to the contracting or subcontracting of work to be done
at the site of the construction, alteration, painting, or repair of a build-
ing, structure or other work[.]

We agree with the judge, for the reasons stated in his
decision, that the Respondents’ agreement lacked a work
preservation objective, that the work covered by the
agreement was not performed on a construction site, and
therefore that the agreement was not protected by the
construction industry proviso.3 Accordingly, we affirm
his finding that the agreement violated Section 8(e). Be-
cause we find the violation on that basis, we need not and
do not decide whether SMG was an employer in the con-
struction industry, including whether it possessed rele-
vant control over labor relations.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, South Jersey Regional
Council of Carpenters, Local 623, affiliated with United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO, its officers, agents, and representatives and
Spectacor Management Group, Atlantic City, New Jer-
sey, its officers, agents, successors, and assigns, shall
take the actions set forth in the Order.

3 In his discussion of the construction industry proviso, the judge
stated that “The Board has found that union signatory subcontracting
clauses, under certain circumstances, are valid when they are aimed at
avoiding friction among contractors and subcontractors at the site with
their union and nonunion employees, the Denver Building Trades
(NLRB v. Denver Building Trades Council), 341 U.S. 675 (1951))
problem.” In Carpenters Local 944 (Woelke & Romero Framing), 239
NLRB 241, 250 (1978), enfd. sub nom. Woelke & Romero Framing v.
NLRB, 654 F.2d 1301 (9th Cir. 1981) (en banc), affd. in relevant part
456 U.S. 645 (1982), which the judge cited, the Board interpreted the
Supreme Court’s decision in Connell Construction Co. v. Plumbers &
Steamfitters Local 100, 421 U.S. 616 (1975), to mean that “the con-
struction industry proviso to Section 8(e) permits subcontracting
clauses . . . in the context of a collective-bargaining relationship, and
possibly even without such a relationship if the clauses are aimed at
avoiding the Denver Building Trades problem.” Thus, the Board did
not hold that signatory subcontracting clauses in the construction indus-
try are lawful only if they are “aimed at avoiding the Denver Building
Trades problem.” Rather, it held that the proviso also protects union
signatory subcontracting clauses negotiated in the context of collective-
bargaining relationships. There can be no suggestion, then, that the
Respondents’ union signatory subcontracting clause is unlawful merely
because there was apparently no “Denver Building Trades problem”
here.
335 NLRB No. 49
CARPENTERS LOCAL 623 (ATLANTIC EXPOSITION SERVICES) 587
Margaret M. McGovern, Esq., for the General Counsel.
James Katz, Esq. and Howard S. Simonoff, Esq. (Tomar, Si-
monoff, Adourian, O’Brien, Kaplan, Jacoby, & Graziano),
of Cherry Hill, New Jersey, for Respondent, Carpenters Lo-
cal 623.
James A. Matthews, III, Esq. and Hollie B. Knox, Esq. (Fox,
Rothschild, O’Brien, & Frankel, LLP), of Philadelphia,
Pennsylvania, for Respondent, Spectacor Management
Group.
Timothy J. Brown, Esq. (Dilworth Paxson, LLP), of Philadel-
phia, Pennsylvania, for the Charging Party Atlantic Exposi-
tion Services, Inc.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
The complaint in this proceeding1 presents the novel issue of
whether the installation and assembly and dismantling of tem-
porary exhibits at trade shows is work encompassed within the
construction industry proviso to Section 8(e)2 of the National
Labor Relations Act, 1947, as amended, 29 U.S.C. Sec. 151 et
seq. Respondents Spectacor Management Group “SMG” and
South Jersey Regional Council of Carpenters, Local 623, affili-
ated with United Brotherhood of Carpenters and Joiners of
America, AFL–CIO the (Union) or (Carpenters), insist that
their agreement prohibiting the subcontracting of that work to a
contractor that does not have an agreement with the Carpenters
is valid because the work involved is construction work and the
provision has a lawful work preservation object.
Jurisdiction is conceded. SMG is a Pennsylvania joint ven-
ture which manages public assembly facilities, such as conven-
tion centers, on behalf of municipal partners. In the year before
the issuance of the complaint, SMG purchased and received
goods valued in excess of $50,000 directly from points outside
New Jersey. SMG has offices in Atlantic City, New Jersey, and
is engaged in providing management services on behalf of the
Atlantic City Convention Center Authority “ACCCA.” The
ACCCA, created by the laws of the State of New Jersey, for
many years, at least since 1983, operated and managed Atlantic
City’s Convention Hall, the original facility on the Boardwalk,
now designated as Boardwalk Hall (in 1996, a second facility
known as West Hall was opened), a public assembly facility

1 The relevant docket entries are: The charges in Cases 4–CE–116–1
and 4–CE–116–2 were filed on October 13 and 14, 1998, respectively,
and the complaint was issued on May 28, 1999. This case was heard in
Philadelphia, Pennsylvania, on September 28–29, 1999.
2 In relevant part, Sec. 8(e) provides:
It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains from handling, using, sell-
ing, transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person, and
any contract or agreement entered into heretofore or hereafter contain-
ing such an agreement shall be to such extent unenforceable and void:
Provided, that nothing in this subsection (e) shall apply to an agree-
ment between a labor organization and an employer in the construc-
tion industry relating to the contracting or subcontracting of work to
be done at the site of the construction, alteration, painting, or repair of
a building, structure or other work.
which hosts various events, including the Miss America pag-
eant and the subject of this proceeding, trade shows. (The
Boardwalk and West Halls are jointly owned and managed and
are referred to collectively as the “Center.”) Atlantic Exposition
Services, Inc. “AES” is a corporation with offices in Egg Har-
bor Township, New Jersey, and is engaged in providing general
services to trade shows in New Jersey and Pennsylvania. It has
a collective-bargaining agreement with Painters District Coun-
cil 711 (“Painters”), which covers its trade show work in New
Jersey. In the year before the issuance of the complaint, AES
provided services in excess of $50,000 outside New Jersey. I
conclude that SMG and AES are employers within the meaning
of Section 2(2), (6), and (7) of the Act. I also conclude that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
Questions concerning the jurisdiction of the Carpenters at the
Center were not new. The ACCCA had a longstanding collec-
tive-bargaining relationship with the Carpenters, covering both
its “in house” operation and maintenance “O&M” work and the
trade show work, including the work that is disputed here. The
agreement3 prohibited subcontracting of Carpenters’ work, as
follows:

The Employer agrees it will not subcontract any of the
work described in Article XI as it pertains to exhibitions,
or to normal and routine maintenance work as performed
in the past, which work traditionally has been performed
by the Employer’s employees at the Convention Center.
All such work shall be retained and preserved by Carpen-
ters in accordance with past practice. All such work will
be performed by the Employer’s employees only, and will
not be performed by any subcontractors or the Employer,
or its tenants or contractors or subcontractors of tenants.

Under this provision, the Carpenters consistently took the
position that certain trade show work was its own work and was
successful in protecting its jurisdiction using the grievance
procedure as well as two, separate 10(k) awards in which the
Board upheld the ACCCA’s assignment of the show work in
dispute to the Carpenters. Carpenters Local 623 (Atlantic Ex-
hibit Services), 274 NLRB 71 (1985); Painters Local 1447
(Hargrove), 306 NLRB 97 (1992).
At some point in or prior to 1995, the New Jersey Sports and
Exposition Authority also became an owner of the Center and
in 1995, prior to the completion of the West Hall, determined to
manage it through a private management company. SMG was
selected; and SMG continued to honor the terms of ACCCA’s
collective-bargaining agreement until SMG negotiated a new
agreement with the Carpenters in 1996. That agreement cov-
ered O&M work, which was to be performed by members of
the Carpenters who were full employees of SMG, employed 40
hours each week. As an addendum, the parties also entered into
a “project-only” agreement, a 3-page document in which SMG
3 The last fully written agreement, dated October 18, 1983, expired
on April 30, 1986, but was extended from year to year, only sometimes
in writing, with increases of wages and contributions as agreed upon
between the Carpenters and the local Building Contractors Association
“BCA.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588
agreed to be bound by the current BCA agreement as to all
Carpenters’ labor, other than the O&M employees, hired to
work on specific projects, such as major renovations or con-
struction projects within the facility.
The project-only agreement also permitted SMG to hire
casuals to do trade show work—construction of exhibits, con-
struction of hard wall displays, and the type of work that had
traditionally been done by the Carpenters. That was contingent
on the success of the Carpenters in negotiating a separate
agreement with SMG to cover the work of trade shows. How-
ever, although SMG and the Carpenters expressly agreed to
negotiate a separate collective-bargaining agreement to cover
trade show work, they never did so. Rather, they agreed that,
contrary to the no-subcontracting practice that had existed for
years, trade show work traditionally performed through the
Carpenters’ hiring hall could be subcontracted. SMG wrote to
the Union on April 15, 1996, describing the agreement to be
incorporated into the collective-bargaining agreement:

Finally, Trade employees who work on a part-time basis or
who perform contracted work for SMG (e.g., “show” labor)
will work under a Separate Agreement which will be negoti-
ated as soon as is practicable. It is understood and agreed that
the Separate Agreement will contain a provision stipulating
that in the event that SMG subcontracts the covered work, the
work will be subcontracted to a firm which will be [sic] nego-
tiate an agreement with the (Trade) Local having jurisdiction
over that work with SMG. The said sub-contractor will be
free to negotiate the terms and conditions of the said agree-
ment and will not be bound by SMG’s agreement(s) with the
applicable local union.

This is the agreement that the General Counsel contends vio-
lates Section 8(e) of the Act.
On September 30, 1998, AES was installing the East Coast
Video Show, an annual 3-day exhibit held at the Center in Oc-
tober, pursuant to AES’s 3-year agreement with the show pro-
ducer to act as its general service contractor. In the course of
setting up the show, AES employees, represented by the Paint-
ers Union, began working from a lift to hang aisle signs at the
Center, when Dennis Lott, Respondent’s foreman,4 told Patrick
Perrino, AES’s owner, if he wanted to avoid an altercation on
the floor, to instruct the Painters’ employees to come down off
the lift and stop hanging aisle signs. That was the Carpenters’
work. Lott said that he had already asked the Painters to do that
and they were not listening to him. Probably at the same time,
SMG General Manager Robert McClintock called Howard
Casper, AES’s secretary-treasurer, on his cell phone. Casper
was also on the floor of the Center, and McClintock told him
that he had to assign certain work—the hanging of aisle signs
and the erection of the entranceway, the registration counters,
and the service desk—that AES had previously assigned to the
Painters, to the Carpenters. Otherwise, if AES did not assign
that work to the Carpenters, he was going to shut the doors, he
4 The counsel for the General Counsel conceded that there is insuffi-
cient evidence that Lott was a union steward or agent, as alleged in the
complaint, when he spoke to Perrino.
would remove AES from the building and he would let Casper
know if, in the future, he could come back into the building.
Soon after this telephone conversation, Lott told Casper that
he had to assign the contested work to the Carpenters and that,
if he did not, he was not going to be permitted to work in the
building. South Jersey Regional Council of Carpenters business
representative Robert Tarby made a similar threat that day. He
wanted AES to sign the contract that had been agreed on with
other show contractors and, “if we didn’t sign the contract, we
weren’t going to be allowed to work in the building.”5 The next
day, McClintock said that the problem could be solved either
by asking SMG to hire members of the Carpenters, because
SMG had the exclusive right to supply labor in the building, or
through a contractor which had an agreement with the Carpen-
ters, because SMG would waive its right to supply labor to such
a company. On October 2, McClintock wrote Casper that he
reserved its “right to take action . . . seeking financial redress
from [AES] and a complete review of [its] right to continue
operating” in the Center.
The substance, then of Respondents’ actions was to use the
SMG–Carpenters’ union-signatory clause to prevent AES from
doing business in the Center. Not every provision with a “cease
doing business” objective is necessarily unlawful. Contract
clauses that fall within the literal proscription of Section 8(e)
are nevertheless lawful if they have the primary objective of
preserving or protecting work performed by the employees of
the employer bound by the contractual provision. Respondents
contend that the primary objective of their provision is to pre-
serve bargaining unit work; the General Counsel and AES con-
tend that the clause is secondary in nature. In NLRB v. Long-
shoremen ILA, 473 U.S. 61 (1985), the Supreme Court held that
the question of whether an agreement to cease doing business is
a lawful work preservation agreement or has a proscribed sec-
ondary objective depends on “whether, under all the surround-
ing circumstances, the Union’s objective was preservation of
work for [the primary employer’s] employees, or whether the
agreements and boycott were tactically calculated to satisfy
union objectives elsewhere. . . . The touchstone is whether the
agreement or its maintenance is addressed to the labor relations
of the contracting employer vis-a-vis his own employees.”
Longshoremen ILA, supra at 75, quoting National Woodwork
Mfrs. Assn., 386 U.S. 612, 644–645 (1967). The Court reaf-
firmed, Longshoremen ILA, supra at 76, its analysis in NLRB v.
Longshoremen ILA, supra 447 U.S. 490 (1980), in which it
explained:

Under this approach, a lawful work preservation agreement
must pass two tests: First, it must have as its objective the
preservation of work traditionally performed by employees
represented by the union. Second, the contracting employer
must have the power to give the employees the work in ques-
tion—the so-called “right of control” test of [NLRB v. Enter-
prise Assn. of] Pipefitters, [429 U.S. 507 (1977)]. The ration-
ale of the second test is that if the contracting employer has no
5 In so finding, I do not believe Tarby’s denial of this threat, which
affirmed what was implicit in his request of Casper that failure sign the
contract would leave Casper without work, because he would not have
a union contract.
CARPENTERS LOCAL 623 (ATLANTIC EXPOSITION SERVICES) 589
power to assign the work, it is reasonable to infer that the
agreement has a secondary objective, that is, to influence
whoever does have such power over the work. [447 U.S. at
504–505.]

The SMG–Carpenters’ provision is not limited to addressing
the labor relations of SMG vis-a-vis its own employees, but
instead seeks to regulate the labor policies of other, neutral
employers by requiring them to have agreements with the Car-
penters, an objective that is clearly secondary. By its terms, as
applied by Respondents, the agreement prohibits SMG from
subcontracting work within the Carpenters’ jurisdiction to the
trade show’s owner or producer which hired AES, or to AES,
because AES does not have a contract with the Carpenters, and
therefore seeks to regulate the labor policies of AES, over
which SMG exercises no right of control. The Board has con-
sistently held that such union signatory subcontracting agree-
ments have a secondary, rather than primary, work preservation
objective, and are unlawful under Section 8(e). As it stated in
Iron Workers (Southwestern Materials), 328 NLRB 934, 935
(1999), quoting Chicago Dining Room Employees (Clubmen,
Inc.), 248 NLRB 604, 606 (1980):

It is well settled that contract clauses which purport to limit
. . . subcontracting to employers who are signatories to un-
ion contracts, so-called union-signatory clauses, are pro-
scribed by Section 8(e). Such clauses are viewed as not be-
ing designed to protect the wages and job opportunities of
unit employees, but as being directed at furthering general
union objectives and undertaking to regulate the labor poli-
cies of other employers.

The union-signatory clause, quoted above, is utterly incon-
sistent with Respondents’ theory that the clause was agreed on
solely to preserve work. The clause requires SMG to cease
doing business with the trade show exhibitor or AES in order to
influence AES’s labor relations policies. Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 652–653 (1982). The
provision was aimed at expanding the Union’s reach. In nego-
tiations with AES in 1998, further discussed below, the Carpen-
ters insisted on an agreement covering seven different counties
in southern New Jersey, including hotels in and around Atlantic
City, where AES had an agreement with the Painters and per-
formed the majority of its jobs,6 ensuring that its agreement
with the Painters would be splintered and that U jurisdiction
would be expanded. The Union simultaneously rejected AES’s
offer to enter into an agreement with the Carpenters for solely
the Center. SMG was aware of the positions of the parties to the
negotiations. Accordingly, I conclude that the SMG–Carpenters
union-signatory agreement was not intended to preserve work
but was intended to satisfy the union’s objectives elsewhere.

The second of Respondents’ defenses is that the work in-
volved in trade shows is excluded by the proviso to Section
8(e), which applies “to an agreement between a labor organiza-
tion and an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building,

6 AES sets up approximately 100 shows in the geographic area, of
which about 15–20 are at the Center.
structure or other work.” Regarding whether SMG is “an em-
ployer in the construction industry,” the record demonstrates
that SMG acts as the agent and manager for the Center, which
hosts many trade shows as part of its business. These trade
shows are booked by a show producer or owner, which enters
into a license agreement with SMG for the presentation of the
show over a specific period of days. Typically, the show pro-
ducer or owner in turn enters into an agreement with a general
service or trade show service contractor “service contractor,”
such as AES, to set up the floor plan and common areas for the
show and facilitate the participation in the show of the exhibi-
tors, who rent their space from the show’s owner or producer.
The contractor needs labor to set up the show. The license
agreement, which by its terms is also binding on the contractor,
provides, among other things, that (1) the licensee shall pay for
all “set-up and/or labor expressly not included in the License
Agreement”; (2) SMG shall provide certain services at the Cen-
ter on an exclusive basis;7 and (3):

Licensee agrees not to violate or jeopardize any labor agree-
ment entered into by ACCCA, SMG and/or the Authorities. If
any such labor agreement is applicable to Licensee or any of
Licensee’s employees or independent contractors then Licen-
see hereby agrees to comply and/or cause its employees and
independent contractors to be in compliance with all of the
provisions of all such labor agreements. Licensee shall use
good faith efforts to prevent all strikes, lockouts and/or labor
disputes at the Center.

Before 1965, the exhibitor ordered labor from the ACCCA,
which hired employees and then billed the exhibitor for the cost
of their services. With SMG’s engagement as the management
company, SMG took the place of ACCCA and changed the
procedure somewhat. Thus, when an exhibitor needed carpen-
ters, it would advise the contractor, such as AES, which would
then advise the building’s convention service manager (SMG
employed four or five convention service managers) of its need
for carpenters and how many. SMG paid those carpenters and
then billed the contractor for that expense, and the contractor
would then be reimbursed by the exhibitor. Subsequently, in
February 1997, in anticipation of the opening of the new West
Hall, SMG announced to its exhibitors that the Center would
not be directly supplying labor for the installation or disman-
tling of exhibits, but labor would be supplied through the gen-
eral service contractors. SMG recommended that the exhibitors
contact the contractors for information. On June 5, 1997, Andy
Minton, SMG’s assistant general manager, wrote Casper that
SMG was still negotiating the union trade show contracts and
that, until new union jurisdictions were set, SMG would still be
working under the prior set of “union guidelines,” which in-
cluded the work “historically done by the carpenter.” SMG
advised Casper on July 7, 1997, that it retained the exclusive
right to provide carpenters to perform trade show work, and it
was a violation of the license agreement for Casper to do work
7 Unfortunately, only a form of the license agreement is in evidence,
not the actual agreement under which the Video Show was bound. The
services to be provided by SMG to the Video Show are not set forth in
the form.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590
utilizing labor other than that provided by SMG. By letter
dated November 11, 1997, McClintock wrote AES that, effec-
tive January 11, 1998, SMG would no longer be providing
carpenter labor directly to service contractors or exhibitors as it
had in the past and advised that it would be appropriate for
AES to make alternate arrangements to obtain labor to perform
those tasks. McClintock added that the Center retained the
“right . . . to reassert it’s [sic] right to provide this labor on an
exclusive basis under terms and conditions it negotiates,” if
there was a potential for “labor activity which would negatively
impact the overall operation” of the Center.
Sometime after, McClintock asked Casper to meet with the
Carpenters to see if they could reach an agreement; and so Cas-
per became the spokesperson for a group of general service
contractors in negotiations with the Carpenters. Ultimately, he
reached an agreement for all the contractors, but not himself,
because, among other provisions, he could not agree to the
Carpenters’ demand that the agreement not be limited to the
Center, but cover all show work at all venues throughout a
seven-county area in southern New Jersey; and the Carpenters
would not accept Casper’s offer to enter into an agreement to
cover work solely at the Center, on condition that the Painters
would give permission. But the other service contractors signed
individual agreements with the Carpenters; and, with the new
agreements, instead of ordering labor from SMG, the exhibitors
could hire their own employees to install and tear down their
exhibits. Signatory contractors were now permitted to obtain
labor by calling the Carpenters’ hiring hall directly, benefits
trumpeted by SMG in a letter to its exhibitors, dated August 18,
1998. Thus, Carpenters-represented employees were employed
and paid directly by the service contractors, and SMG was no
longer the conduit for the hiring of employees. But, if the ser-
vice contractor was not a signatory to a collective-bargaining
agreement with the Carpenters, SMG announced, “the Atlantic
City Convention Center will continue to provide that labor
under the pre-existing agreement. This labor will be supplied
directly to the Service Contractor at our cost.” AES, not being a
signatory to the new agreement, was thus still required to obtain
its Carpenters’ labor from SMG, which continued to arrange for
the hire of carpenters under the project-only agreement.
So, as of 1999, SMG permitted subcontracting of all carpen-
try work and encouraged its service contractors to sign their
own contracts with the Carpenters; and those individual con-
tracts resulted in a number of benefits to them over the old
ACCCA agreement, including the elimination of double time
on weekends, elimination of nonworking personnel, and revised
jurisdictional lines which allowed the service contractors to
utilize the less-expensive employees represented by the Painters
rather than employees represented by the Carpenters on certain
jobs. For example, the agreement negotiated by Casper permit-
ted the Carpenters and Painters to share jurisdiction over the
hanging of aisle signs, depending on how they are constructed;
and, under certain circumstances, exhibitors are allowed to set
up their own areas, using their own employees for work that is
outside the jurisdiction of the Carpenters.
Essentially, SMG removed itself from the role of an em-
ployer. It became no more than a surrogate for the hire of
members of the Carpenters, only if a service contractor refused
to comply with the obligations of its unlawful union-signatory
subcontracting agreement.8 Having made the determination that
it wanted to remove itself from hiring employees to work on
trade shows, and having pursued that determination by an-
nouncing that it would permit subcontracting, there is nothing
in the record that demonstrates that, as part of SMG’s function,
it needed to hire anyone to put on a trade show. Rather, it
needed labor to maintain its building, and it may need craft
labor in the event that it planned to do some major renovations.
Otherwise, its sole function is to manage the Center for the
purpose of renting its space for conventions and trade shows.
There is no definition of the “construction industry” in Sec-
tion 8(e), just as there is no definition of the “building and con-
struction industry” as used in Section 8(f), which allows a 7-
day waiting period for the purposes of a union-security provi-
sion and permits prehire agreements between “an employer
engaged primarily in the building and construction industry”
and “a labor organization of which building and construction
employees are members.” Teamsters Local 83 (Stanley
Matuszak), 243 NLRB 328 (1979). Congress supplied no rea-
son for the different terminology used in those two sections of
the Act, and the legislative history does not mandate an answer
for whether either section was intended to cover an employer
managing buildings used in the exhibition and trade show in-
dustry. Part of the discovery of the intent of Congress begins
with the Supreme Court’s 1958 decision in Carpenters Local
1976 v. NLRB, 357 U.S. 93 (1958), that a union could not en-
gage in a strike or other concerted activity to enforce a “hot
cargo” agreement—one that required an employer to boycott
the goods or services of another employer with whom the union
had a dispute—but employers and union were free to enter into
such agreements, and voluntary compliance with them were
lawful. Section 8(e), enacted in 1959, was designed to eliminate
that loophole, forbidding voluntary agreements. Connell Con-
struction Co. v. Plumbers & Steamfitters, 421 U.S. 616, 628
(1975). The provision represented a compromise between the
positions of the House, which wanted to prohibit all hot cargo
provisions, and the Senate, which wanted to outlaw agreements
only in the trucking industry. Ultimately, the House conferees
prevailed, but the Senate conferees insisted on provisos that
exempted the garment industry and “agreements relating to
work to be done at the site of a construction project.” Woelke &
Romero Framing v. NLRB, supra at 655. The Court’s decision
makes clear that there was a uniformity of opinion, as revealed
by the committee report and statements of legislators,9 that

8 There is little in the record that indicates that SMG supervised the
work of the carpenters, other than the fact the Lott was employed as a
foreman.
9 Senator John F. Kennedy, who was chairman of the Conference
Committee, stated, “The first proviso under new section 8(e) of the
National Labor Relations Act is intended to preserve the present state
of the law with respect to picketing at the site of a construction project
and with respect to the validity of agreements relating to the contracting
of work to be done at the site of the construction project.” 105 Cong.
Rec. 17900 (1959), 2 Leg. Hist. 1433.
Senator Kennedy also said:
The Landrum-Griffin bill extended the “hot cargo” provisions
of the Senate bill, which we applied only to Teamsters, to all
CARPENTERS LOCAL 623 (ATLANTIC EXPOSITION SERVICES) 591

These statements reveal that Congress wished “to preserve the
status quo” regarding agreements between unions and con-
tractors in the construction industry. National Woodwork
Manufacturers Assn., supra . . . . To the extent that subcon-
tracting agreements were part of the pattern of collective bar-
gaining in the construction industry, and lawful, Congress
wanted to ensure that they remained lawful. [456 U.S. at 657]

Indeed, the Court found ample evidence that Congress be-
lieved that union-signatory contract clauses were part of the
pattern of collective bargaining in the construction industry and
noted testimony that such agreements were used extensively by
the building trades unions. The Board has also found that the
8(e) proviso: “indicates that Congress sought only to preserve
the status quo and the pattern of bargaining in the construction
industry at the time the legislation was passed.” Carpenters
District Council (Alessio Construction), 310 NLRB 1023, 1027
(1993), cited with approval in Operating Engineers Local 520
(Massman Construction), 327 NLRB 1257 (1999), NLRB v.
Denver Building Trades Council, 341 U.S. 675 (1951), in
which the Supreme Court found that picketing a general con-
tractor’s entire project in order to protest the presence of a non-
union contractor was an illegal secondary boycott, also contrib-
uted to Congress’ decision to adopt the 8(e) proviso, albeit
Congress’ reason was “only partly concerned with jobsite fric-
tion.” Woelke & Romero, supra at 662.
In Carpenters (Rowley-Schlimgen), 318 NLRB 714, 715
(1995), the Board found that the employer, Rowley, sold office
products, including supplies, furniture, and draperies. It also
designed office interiors, and, as part of that business, it sold
and installed floor covering, including carpeting, hardwood,
vinyl sheeting, and vinyl tiling at, among various commercial
sites, newly erected buildings and existing buildings undergo-
ing renovation or remodeling. In the course of that work, the
employer usually subcontracted to one particular firm the work
of installing the flooring. The Board then held that the installa-
tion of floor covering at construction, renovation, and remodel-
ing sites is construction industry work of the type performed by
special trade contractors. It relied on the definition of construc-
tion in Painters Local 1247 (Indio Paint), 156 NLRB 951, 959
(1966), that “the so-called building and construction concept
subsumes ‘the provision of labor whereby materials and con-
stituent parts may be combined on the building site’ to form,
make or build a structure.” The Board also adopted the defini-
tion of construction used in the Standard Industrial Classifica-
tion (SIC) Manuals for 1957 and 1987 that: “The term
construction includes new work, additions, alterations,
reconstruction, installations, and repairs.” Both SIC manuals
recognize the installation of floor covering as a special trade
within the construction industry.

agreements between an employer and a labor union by which the
employer agrees not to do business with another concern. The
Senate insisted upon a qualification for the clothing and apparel
industries and for agreements relating to work to be done at the
site of a construction project. Both changes were necessary to
avoid serious damage to the pattern of collective bargaining in
these industries. [105 Cong. Rec. 17899 (1959), 2 Leg. Hist.
1432.]
The Board then held that, although it is necessary for the
purposes of Section 8(f) to show that the employer is primarily
engaged in the construction industry, it is unnecessary to do so
for the purposes of Section 8(e). If an employer actually per-
forms construction work, it may be covered by the proviso.
Thus, the Board wrote, 318 NLRB 714, 715–716:

It is significant that the application of the construction indus-
try proviso of Section 8(e), unlike Section 8(f), is not condi-
tioned on an employer’s being primarily engaged in the con-
struction industry. The 8(e) proviso permits the establishment
of union-signatory subcontracting clauses in the construction
industry as a means of reducing the tensions that typically
arise among the various crafts when union and nonunion labor
are assigned to the same construction site. Given the relatively
short-term nature of construction work, Section 8(f) attempts
to assure the ready provision of labor and the prehire estab-
lishment of wages, hours, and other terms and conditions of
employment in order to avoid the uncertainties and disrup-
tions that would arise if, as is likely, negotiating an agreement
took longer than the construction work itself. Thus, the under-
lying policies as well as the pertinent language of the two sub-
sections differ. Additionally, as the Board observed in [Car-
penters Local 743 (Longs Drug)], 278 NLRB [440 (1986),] at
442, citing [Los Angeles Building & Trades Council
(Church’s Fried Chicken)], [183 NLRB 1037 (1970)],
“[W]hether an employer is ‘an employer in the construction
industry’ within the meaning of the first proviso of Section
8(e) is dependent on the circumstances of each situation,
rather than on the principal business of the employer.” Ac-
cord: District Council of Carpenters v. Rowley-Schlimgen, 2
F.3d [765 (7th Cir. 1993)] at 767–769. [Footnote omitted.]

Over Rowley’s claim that only a relatively small amount of
its entire business was construction site work, the Board found
that “a significant absolute amount of [Rowley’s] flooring in-
stallation work is performed at construction sites” and that,
specifically, the two projects where the disputes started were, in
fact, “construction projects.” Carpenters (Rowley-Schlimgen),
supra at 716. In addition, the Board found that Rowley had
control over the work force, even though it did not directly
employ the floor covering installers, because of its close con-
nection with the subcontractor, whose owner was concurrently
employed by Rowley. In so finding, the Board relied on the fact
that Rowley procured its flooring installation contracts at con-
struction sites through competitive bidding and distinguished
Carpenters Chicago Council (Polk Bros.), 275 NLRB 294
(1985), on the ground that there was no competitive bidding
and that Polk’s “carpet sales and installations were principally
to home owners of already existing dwellings.” Carpenters
(Rowley-Schlimgen), supra at 716 fn. 11.
The issue, then, is whether SMG was an employer engaged
“in construction work at construction sites during the period for
which the unfair labor practice [was] alleged.” Carpenters
(Rowley-Schlimgen), supra at 716.10 Thus, it is appropriate11 to
10 Board law does not provide any specific answers. There is not one
binding authority cited by any of the parties that holds that trade show
work is construction work. All the decisions in which the proviso has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592
look at, as the Board did in Rowley-Schlimgen, the SIC Manu-
als, which define the term “construction” as “includ[ing] new
work, additions, alterations, reconstruction, installations, and
repairs.” There is no reference to the trade show or convention
service enumerated in the SIC Manuals in any of the functions
of the construction industry. Rather, they list under “Miscella-
neous Business Services, Business Services, Not Elsewhere
Classified” the following businesses: “Convention bureaus,”
“Convention decorators,” “Exhibits, building of: by industrial
contractors,” and “Trade show arrangement.” The newer North
American Industry Classification System of 1997 states at Sec-
tion 23, page 89, that construction

comprises establishments primarily engaged in the construc-
tion of buildings and other structures, heavy construction (ex-
cept buildings), additions, alterations, reconstruction, installa-

been applied involve work performed on permanent buildings and
structures, not the type of work that is done here, such as the hanging of
an aisle sign which will come down in a few days. Respondents’ reli-
ance on Expo Group, 327 NLRB 413 (1999), is misplaced. There, the
administrative law judge found, in the context of a 8(f) defense, which
permits unions and employers to enter into prehire agreements if the
employer is primarily engaged in the construction industry, and also
allows for the expedited application of union-security clauses after just
7 days of employment, rather than the 30-day grace period applicable in
all other industries, that an employer in the business of setting up and
fabricating exhibits for the trade show and convention industry was not
entitled to the 8(f) exemption. The construction work performed by
Expo’s employees was “incidental to its mission of producing trade
shows,” Id. at 428, “[e]ven assuming for the sake of analysis that the
work of assembling displays and exhibits constitutes activity in the
construction industry,” Id., which the judge found may “literally fall
within the meaning of the word construction,” Id. at 428–429, Expo
was only secondarily engaged, and not primarily engaged, in the con-
struction industry. Id. Thus, that decision did not hold that the work in
dispute was construction work. Moreover, the precise issue as to
whether the employer was engaged even secondarily in the construction
industry was not discussed by the Board, and there is no indication that
the parties filed exceptions to that specific conclusion of the administra-
tive law judge. The administrative law judge’s decision in Stage Em-
ployees Local 39 (Freeman Decorating), 1999 WL 33452961 (NLRB
Div. of Judges), at 10–11, and the General Counsel’s Division of Ad-
vice memorandum in Case 10–CA–20488–1–4 (1985) are also not
binding. No exceptions were filed to the judge’s decision, and so the
Board never ruled on it. The analysis of the Division of Advice is sim-
ply the position of the General Counsel, no more binding on the Board
(or on me) than the brief of the General Counsel in this proceeding.
Advice memoranda do not constitute Board law. Finally, the issue of
whether a trade show contractor was lawfully entitled to enter into a
pre-hire agreement was never reached in Shepard Decorating Co., 196
NLRB 152 (1972), because the administrative law judge determined
that the union had previously demonstrated its majority status. It was
reached in Animated Displays Co., 137 NLRB 999, 1020–1022 (1962),
in which the trial examiner determined that a manufacturer of exhibits
for trade shows was not primarily engaged in the construction industry
under Section 8(f). The parties, however, apparently did not except to
that conclusion and, at Animated Displays Co., supra fn. 1, the Board
adopted pro forma the finding of a violation based on the 7-day union-
security clause.
11 Concededly, the answer to at least part of the issue does not de-
pend on the principal business of the employer. But Rowley-Schlimgen
did discuss the employer’s business, as part of “the circumstances.”
tion, and maintenance and repairs. Establishments engaged in
demolition or wrecking of buildings and other structures,
clearing of building sites, and sale of material from demol-
ished structures are also included. This sector also includes
those establishments engaged in blasting, test drilling, landfill,
leveling, earthmoving, excavating, land drainage, and other
land preparation. The industries within this sector have been
defined on the basis of their unique production processes. As
with all industries, the production processes are distinguished
by their use of specialized human resources and specialized
physical capital. Construction activities are generally adminis-
tered or managed at a relatively fixed place of business, but
the actual construction work is performed at one or more dif-
ferent project sites.

The 1997 Classification System specifically adds “Conven-
tion and Trade Show Organizers” (561920) as: “This industry
comprises establishments primarily engaged in organizing,
promoting, and/or managing events, such as business and trade
shows, conventions, conferences, and meetings (whether or not
they manage and provide the staff to operate the facilities in
which these events take place).”
At the time that SMG made its demand of AES to give the
disputed work to the Carpenters, SMG had not competitively
bid on the job (nor is there evidence that SMG ever bid com-
petitively on jobs);12 and there is no indication that it employed
one employee in construction work at the Center.13 The only
work being performed on the floor of the Center was by mem-
bers of the Painters, who were employed by AES, and were
doing work, Respondents claimed, that should have been per-
formed by members of the Carpenters, who were not employed
by SMG. As a result, SMG told Casper to hire Carpenters to do
that work, or else SMG would, or else AES would not work.
So, at the time that the dispute occurred, SMG was not even an
employer in any industry other than being the manager of a
convention or exhibition hall, and was not an employer at a
construction site.
As noted above, however, even though SMG is not engaged
in the construction industry, either primarily or partially, if it
performed its own construction on construction projects, it may
still be an “employer in the construction industry” for the pur-
poses of Section 8(e) under the Board’s rather broad definition.
Carpenters (Rowley-Schlimgen) demonstrates that, as do Longs
Drug, Church’s Fried Chicken, and Columbus Building Trades
Council (Kroger Co.), 149 NLRB 1224 (1964) (all involving
construction of a retail store). But, in each of these cases, the
employer was involved in the construction of a building, some-
thing tangible and permanent, even installing carpeting. Re-
12 Carpenters (Rowley-Schlimgen), supra at 716 fn. 11, holds that the
manner in which an employer procures its work is “arguably relevant”
to the determination of an employer’s status in 8(e) cases.
13 McClintock testified that, at the time that SMG became the man-
ager of the Center, ACCCA had collective-bargaining agreements with
the Carpenters, Painters, Teamsters, Plumbers, Electricians, Stage-
hands, Laborers, and A.S.M.E. (for the property and maintenance em-
ployees), but there is no indication that SMG assumed these contracts
or made new contracts with these unions, other than the Carpenters.
Moreover, there is no testimony about what work the contracts covered.
CARPENTERS LOCAL 623 (ATLANTIC EXPOSITION SERVICES) 593
spondents contend that it should make no difference that the
type of construction engaged in at trade shows is temporary, not
permanent. Indeed, although the construction skills required at
trade shows are arguably less than all the skills required of
carpenters at a traditional construction project,14 certain jobs
require the skills that carpenters have. And there are other simi-
larities to employment in the construction industry. The carpen-
ters are obtained from the Carpenters hiring hall. The employ-
ment is casual, probably a little more casual than in building
construction. Typically, it takes 2 days or less to build a show,
2 days for the show to run, and 2 days to dismantle the show,
thus requiring approximately 6 days from the time the carpen-
ters enter the building until the time they leave. But, about half
of the time, the carpenters who set up a show are not available
to return to dismantle the show, because they have been as-
signed to work elsewhere while the show is going on and their
work is not required. Thus, the employees work for short peri-
ods of time ranging from 4 hours to 2 weeks and averaging 1 or
2 days on any given show.
The work performed by the carpenters was described differ-
ently by the parties. The emphasis by AES was on the ease of
the job, whereas, predictably, Respondents emphasized how
difficult the job was. Casper described that most of AES’s jobs
were small events, the majority in hotels, and not in the Center.
The vast majority of all the jobs, well in the high 90 percent
range, consisted of 10 by 10 or 10 by 20-foot booths, involving
no installation and dismantling at all. Most booths are simple
pipe and drape, with a piece of carpet, or a popup or a “mag-
unit,” which the exhibitor supplies, wheeled in and enclosed in
a fiber case. It has a spider-like mechanism: when it is removed
from the case, it accordions out as a metal truss, and on it is
placed Velcro and a sign. The installation, according to Casper,
is no more difficult. The layout of the exhibitors’ areas is
marked on the floor with chalk, tape, or paint. The employees
then bring in “metal,” which consists of extruded aluminum
pipes, and they attach the pipes together and put a cloth “drape”
on the pipes (thus, the industry term of “pipe and drape”).15
Sometimes, hard wall is used to separate the exhibitors’ booths,
but that is not traditional hard wall, but panels that are slid into
portable, freestanding metal supports or panels that interlock.
The employees lay carpet in the booths, perhaps move furni-
ture, such as a table, into the booth, and then put a plastic top or
skirt on the table. They then move the exhibitors’ freight, which
is transported in crates, from the dock onto the show floor and
into the exhibitors’ area, and sometimes do some decorating
work, such as painting or hanging signs. When the show is
over, that process is reversed, the crates are repacked, and the
floor is cleaned and restored to its original condition.
AES did, however, need carpenters from time to time, al-
though Casper did not detail when those needs arose. Respon-
dent supplied that information in abundance, not necessarily for

14 For example, carpenters at the Center do not need drywall installa-
tion equipment, as they would on traditional construction sites.
15 The Carpenters do not claim jurisdiction over pipe and drape work
at the Center, and thus the contested work in this proceeding represents
a very minor portion of AES’s work for the Video Show.
work done for AES,16 but work performed over the years at the
Center, starting with the most monumental of the installations,
a two-story house, admittedly modular and one not meant to be
lived in, but one that needed the services of skilled workmen to
put together. Other exhibits are as high as two stories or have
multiple levels, requiring stairways and structural supports, so
that people can move from level to level. Some exhibits require
the building of walls and temporary office structures and one,
the construction of a skateboard ramp. Among the less dramatic
jobs that carpenters performed were to pry open, repair, and
repack the crates that contained the exhibits, lay carpet, bolt
exhibits together, hang signs, cut lumber and other materials,
build stairs or ramps, install turntables, build stages, erect scaf-
folding, build docks, and move exhibits. The carpenters who
assemble and dismantle the exhibits use the traditional tools of
the trade, tools that would be used elsewhere in the construction
industry: hammers, screwdrivers, wrenches, pliers, and power
drivers or drills. They might also use chalk boxes, nails, bolts,
side cutters, Allen wrenches, tape measures, combination
squares, hand saws, utility knives, pry bars, ratchets, and cat’s
paws, kickers and other carpet laying tools. Carpenters utilize
various materials at the shows, including laminates, wood,
metal, lightweight aluminum and steel, and fiberglass. The
Board found in Atlantic Exhibit, 274 NLRB 71, 74, that: “Pre-
fabricated displays can be complex, with two stories and stair-
ways. The displays may be packaged in numerous shipping
crates, which may require carpentry repair after repeated use.
Erection and dismantling of the displays involves the use of
nuts, bolts, screwdrivers, pliers, hand tools, and power machin-
ery. The tools and equipment are conventionally used by car-
penters rather than displayment [the Painters].”
There is no question that some work of skilled carpenters is
needed and performed at the Center, although the amount re-
mains in question. The work at trade shows requires the same
sorts of skills, utilizes the same sorts of materials, and involves
the same sorts of tools as traditional, recognized construction
work. It is the kind of work, with the kind of skills, that, if per-
formed at a construction project and as a component of that
construction, might be exempt under the proviso. Like the con-
struction industry, basic carpentry skills are a prerequisite for a
small amount of the work, the assignment process is through a
hiring hall, the majority of jobs are of short duration, and car-
penters who work trade shows are employed by a number of
employers. Similarly, there are normally at least two groups of
employees working at the Center to set up and break down
trade shows, employees represented by the Painters and the
Carpenters.
Because of all these similarities, Respondents contend that
the purpose of the Act would be served by including the trade
show industry within the scope of the 8(e) proviso. But, in
Rowley-Schlimgen, the Board was careful to answer the thresh-
old question of whether the work that was performed by the
employer was, in fact, work that was construction-industry
16 In particular, no proof was elicited as to the necessity that skills of
carpenters were required to perform the jobs that Lott and McClintock
were demanding, one of which was the hanging of a sign from a wire
cable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594
work. Using the prevailing definitions, the Board found that the
sale and contracting of floor covering was a craft that was in-
cluded within the jobs that the construction industry does. Here,
the making of aids to exhibits is encompassed within the trade
show industry, but is not what is performed in the construction
industry. Centering our attention solely on the work that was
disputed, the hanging of aisle signs, the erection of the en-
tranceway and the registration counters and the service desk,
this is not work that is associated with building a structure. The
hanging of aisle signs does not even require the skills of a car-
penter, who have no monopoly over the climbing on ladders or
getting on a lift. The construction of counters and desks is no
more than the making of furniture, like a table or a chair or a
bookcase. True, there are undoubtedly carpenters’ skills re-
quired, but this is not building construction. The only disputed
item which cannot be categorized and is unusual to the trade
show industry is the entranceway, which may be a two-story
structure through which the customers of the show enter. But,
even that is the kind of structure which could have been made
anywhere and transported to the Center for use there. It never
became part of the building but was merely temporary.
All parties agree that the proviso requires that the agreement
must apply only to work “to be done at the site,” as opposed to
in a manufacturer’s plant. Thus, a union may properly refuse to
handle goods prefabricated in a shop away from the site and
delivered for installation at the building site. National Wood-
work Mfgs. Assn. v. NLRB, 386 U.S. 612 (1967). But the lan-
guage of the proviso says more; it sets forth the kind of work
performed at a construction site and thus defines the nature of
the site itself. Thus, in Carpenters (Rowley-Schlimgen) the
Board examined whether the job was being “done at the site of
the construction, alteration, painting, or repair of a building,
structure or other work,” as the proviso insists. The Board spe-
cifically found: “Notably, no party disputes that the Greenway
Tower Office and Physicians Plus Building projects over which
the Respondent initiated the grievances and court action are
construction projects.” Carpenters (Rowley-Schlimgen), supra
at 716. To the contrary, in Carpenters Chicago Council (Polk
Bros.), 275 NLRB 294 (1985), the employer was found not to
be an employer within the meaning of Section 8(e) because “its
carpet sales and installations were limited principally to home
owners of already existing dwellings.” Carpenters (Rowley-
Schlimgen), supra at 716, fn. 11.
And so it makes a difference where the work is being per-
formed.17 In Rowley-Schlimgen, buildings were being con-

17 SMG contends that “several aspects of the installation work per-
formed by carpenters on trade shows differ not at all from the kind of
‘installation’ work which they perform on more traditional construction
projects (as, for example, the installation of removable selling fixtures
in a retail store).” That, of course, is work that is being performed at a
traditional construction project and by crafts that are undoubtedly doing
something else to the structure. If new selling fixtures were installed in
an older building, the installation would not be at a site of construction
under Polk Bros. That threshold has not even been crossed in this case.
Similarly, the question presented is not whether the item that is con-
structed is permanent or temporary, as much as whether it can reasona-
bly be held as part of “the construction, alteration, painting, or repair of
a building, structure or other work,” as the proviso requires.
structed. The floor covering was installed as part of the con-
struction of the finished building. In Polk Bros., an already
existing building was not a construction site within the meaning
of the statute, because the dwelling had already been built.
Similarly, in this proceeding, whatever work is performed by
the Carpenters on the floor of the Center is not being performed
at “the site of the construction, alteration, painting, or repair of
a building, structure or other work,” as Section 8(e) requires.
The Center would not be referred to as a construction project,
in the sense that appears in the legislative history or in the Su-
preme Court’s decision in Woelke & Romero Framing. No
occupancy inspections occur and neither construction nor zon-
ing permits18 are required. Hard hats are not worn, and safety
boots are not required. Rather, the Center is an exhibition hall
typically used to display items for sale. The Center is not the
subject of construction or building. Show owners and producers
renting the building cannot mar the building in any manner.
They cannot even drive nails or insert screws or hooks; and, if
they should damage the Center, they agree to pay the cost of
repair or replacement. For this reason, as Tarby testified, “Vel-
cro is a very common thing used in the convention exhibit in-
dustry.”
The Board has warned against an expansive reading of the
construction industry proviso. Massman Construction, 327
NLRB 1257 (1999). The primary purpose of the proviso was to
preserve the status quo in the construction industry, not the
trade show or exhibition industry. There is no proof in this
record that Congress in 1959 had any inkling that the trade
show industry existed or that the trade show industry tradition-
ally had contractual union-signatory provisions, which were to
be preserved.19 To the contrary, in the case at hand, although
the practice was not proved to have existed in 1959, the Car-
penters had no more than a tradition of prohibiting subcontract-
ing. As a result, neither the language nor the intent of the pro-
viso have been satisfied; and the proviso should not be applied
to trade shows at the Center.20 The Board has found that union-
signatory subcontracting clauses, under certain circumstances,
are valid when they are aimed at avoiding friction among con-
tractors and subcontractors at the site with their union and non-
union employees, the Denver Building Trades problem. Car-
penters Local 944 (Woelke & Romero Framing), 239 NLRB
18 Not even the two-story house required a construction permit.
19 Whether the industry existed or not is unclear. According to Ken-
neth Viscovich, a national representative of the United Brotherhood of
Carpenters and Joiners of America, the union’s relationship to trade
shows “began very early . . . generally through the automobile industry
and other type shows that were advertising shows basically, introducing
the new models.” The union would provide workers for those shows
“through [its] construction collective bargaining agreements. And in
some areas of the country, still continue to provide workers for this
industry through our regular construction collective bargaining agree-
ments.” Almost all are prehire agreements, because their genesis was
the construction-industry contracts.
20 I make no finding with respect to AES’s current collective-
bargaining agreement with the Painters, and another which it agreed to
with the Metropolitan Regional Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters Union, covering eight counties in
Pennsylvania, both of which have 8(f) prehire and 8(e) subcontracting
language.
CARPENTERS LOCAL 623 (ATLANTIC EXPOSITION SERVICES) 595
241, 250 (1978), enfd. en banc sub nom. Associated Builders v.
NLRB, 654 F.2d 1301 (9th Cir. 1981), affd. in pertinent part
456 U.S. 645 (1982); Colorado Building Trades Council (Utili-
ties Services), 239 NLRB 253, 256 (1978). “What appears criti-
cal is that the potential for conflict is likely to arise only when
the nonunion laborers are in frequent and relatively close con-
tact with the union craftsmen.” Acco Construction Equipment,
Inc. v. NLRB, 511 F.2d 848, 851 (9th Cir. 1975). At best, all
that has been shown here is that jurisdictional disputes arise
from time to time at the Center between the Carpenters and
Painters over some of the work. There has never been any Den-
ver Building Trades problem here, or potential for one, that
needed to be solved by the unlawful union-signatory provision
agreed on by SMG and the Carpenters.
Additionally, assuming that the Center is a construction site,
Carpenters (Rowley-Schlimgen), relying on Longs Drug and
Church’s Fried Chicken, and Glen Falls Building Trades
Council (Indeck Energy), 325 NLRB 1084, 1087 (1998), re-
quire an inquiry into whether SMG possessed control over any
segment of labor relations at the site. The Board found that
when the employer in Longs Drug decided to build a branch
outlet store, reserving actual construction work for itself, it also
decided not to be the general contractor on the project. As a
result, despite the fact that the carpenters installed fixtures at its
new drug stores, it did not control the labor relations on the
jobsite. The Board found control in Rowley-Schlimgen, because
the owner of the subcontractor was concurrently employed by
Rowley. Here, SMG determined not to be involved in the hiring
of employees to work trade shows. Rather, it ceded all respon-
sibilities to the show owner and producer, the exhibitors, and
their service contractors; and at the time that it threatened AES
for improperly assigning work, it had no control over AES’s
employees. Indeed, unlike all the other 8(e) cases, SMG does
not have a proprietary interest in what is being built, such as an
additional retail store, or what is being sold, such as carpeting.
Instead, the products that are exhibited, and the carpentry work
that has aided in the exhibits of those items, do not belong to
SMG, which has no interest other than ensuring that the Center
obtains its rent and the premises are returned timely and clean
of the exhibit. Respondents had the burden of proving that they
were entitled to the benefits of the proviso, and more particu-
larly had the burden of proving that SMG controlled the labor
relations at the jobsite. Polk Bros., 275 NLRB 294, 296. They
did not do so. For this additional reason, SMG was not “an
employer in the construction industry” within the meaning of
Section 8(e).
Accordingly, the 8(e) proviso does not apply to the work of
AES and the conduct of Respondents in entering into, maintain-
ing, and attempting to enforce their agreement violated Section
8(e) of the Act. The unfair labor practices found affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondents have engaged in certain un-
fair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, including my observation of the witnesses as they
testified and my reading of the briefs filed by all parties,21 I
issue the following recommended22
ORDER
A. Respondent South Jersey Regional Council of Carpenters,
Local 623, affiliated with United Brotherhood of Carpenters
and Joiners of America, AFL–CIO (Union), its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Entering into, maintaining, enforcing, or giving effect to
its April 15, 1996 letter of agreement with Spectacor Manage-
ment Group “SMG” with respect to trade show labor pursuant
to which SMG agrees to cease doing business with any other
person within the meaning of Section 8(e) of the National La-
bor Relations Act, 1947, as amended.
(b) Entering into, maintaining, invoking, giving effect to, or
enforcing any other agreement, express or implied, whereby
SMG ceases or refrains, or agrees to cease or refrain, from do-
ing business within the meaning of Section 8(e) of the Act with
Atlantic Exposition Services, Inc., or any other general service
or trade show service contractor at the Atlantic City Convention
Center.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its un-
ion office in Atlantic City, New Jersey, copies of the attached
notice marked “Appendix A.”23 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being
signed by the Union’s authorized representative, shall be posted
by the Union immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Sign and return to the Regional Director sufficient copies
of the notice for posting by SMG, if willing, at all places where
notices to employees are customarily posted.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

21 AES’s contention in its brief that Respondent violated the Act by
insisting on its signing a collective-bargaining agreement covering a
seven-county area in New Jersey is rejected. That was not alleged in the
complaint as a violation of the Act.
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596
on a form provided by the Region attesting to the steps that the
Union has taken to comply.
B. Respondent Spectacor Management Group (SMG), Atlan-
tic City, New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Entering into, maintaining, enforcing, or giving effect to
its April 15, 1996 letter of agreement with South Jersey Re-
gional Council of Carpenters, Local 623, affiliated with United
Brotherhood of Carpenters and Joiners of America, AFL–CIO,
with respect to trade show labor pursuant to which SMG agrees
to cease doing business with any other person within the mean-
ing of Section 8(e) of the National Labor Relations Act, 1947,
as amended.
(b) Entering into, maintaining, invoking, giving effect to, or
enforcing any other agreement, express or implied, whereby
SMG ceases or refrains, or agrees to cease or refrain, from doing
business within the meaning of Section 8(e) of the Act with At-
lantic Exposition Services, Inc., or any other general service or
trade show service contractor at the Atlantic City Convention
Center.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Atlantic City, New Jersey, copies of the attached notice
marked “Appendix B.”24 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by SMG’s authorized representative, shall be posted by SMG
immediately on receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by SMG to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, SMG has gone out of
business or closed the facility involved in these proceedings,
SMG shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by SMG at any time since September 30, 1998.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
SMG has taken to comply.
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

24 See fn. 23.
The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT enter into, maintain, enforce, or give effect
to our April 15, 1996 letter of agreement with Spectacor Man-
agement Group “SMG” with respect to trade show labor pursu-
ant to which SMG agrees to cease doing business with any
other person within the meaning of Section 8(e) of the National
Labor Relations Act, 1947, as amended.
WE WILL NOT enter into, maintain, invoke, give effect to,
or enforce any other agreement, express or implied, whereby
SMG ceases or refrains, or agrees to cease or refrain, from do-
ing business within the meaning of Section 8(e) of the Act with
Atlantic Exposition Services, Inc., or any other general service
or trade show service contractor at the Atlantic City Convention
Center.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
SOUTH JERSEY REGIONAL COUNCIL OF
CARPENTERS, LOCAL 623, AFFILIATED WITH
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL–CIO
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT enter into, maintain, enforce, or give effect
to our April 15, 1996 letter of agreement with South Jersey
Regional Council of Carpenters, Local 623, affiliated with
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO, with respect to trade show labor pursuant to which
we agree to cease doing business with any other person within
the meaning of Section 8(e) of the National Labor Relations
Act, 1947, as amended.
WE WILL NOT enter into, maintain, invoke, give effect to,
or enforce any other agreement, express or implied, whereby
we cease or refrain, or agree to cease or refrain, from doing
business within the meaning of Section 8(e) of the Act with
Atlantic Exposition Services, Inc., or any other general service
or trade show service contractor at the Atlantic City Convention
Center.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Relations Act.
SPECTACOR MANAGEMENT GROUP