320 F.3d 385 | 3rd Cir. | 2003
Before: SLOVITER, FUENTES, Circuit Judges,(cid:13) and DEBEVOISE,* District Judge(cid:13) (Filed: February 13, 2003)(cid:13) James A. Matthews, III (Argued)(cid:13) Jessica L. Pollock(cid:13) Fox, Rothschild, O’Brien & Frankel(cid:13) Philadelphia, PA 19103(cid:13) Attorneys for Petitioner Spectacor(cid:13) Management Group, No. 01-3644,(cid:13) Respondent Spectacor(cid:13) Management Group, No. 01-4036(cid:13) _________________________________________________________________(cid:13) * The Hon. Dickinson R. Debevoise, Senior Judge, United States District(cid:13) Court for the District of New Jersey, sitting by designation.(cid:13) 2(cid:13) James Katz (Argued)(cid:13) Howard S. Simonoff(cid:13) Sagot, Jennings & Sigmond(cid:13) Cherry Hill, N.J. 08034(cid:13) Attorneys for Petitioner Local 623,(cid:13) No. 01-3694, Respondent Local(cid:13) 623, No. 01-4036(cid:13) Arthur F. Rosenfeld(cid:13) General Counsel(cid:13) John E. Higgins, Jr.,(cid:13) Deputy General Counsel(cid:13) John H. Ferguson(cid:13) Associate General Counsel(cid:13) Aileen A. Armstrong(cid:13) Deputy Associate General Counsel(cid:13) Robert J. Englehart(cid:13) Supervisory Attorney(cid:13) James M. Oleske, Jr. (Argued)(cid:13) National Labor Relations Board(cid:13) Washington, D.C. 20570(cid:13) Attorneys for Petitioner NLRB,(cid:13) No. 01-4036, Respondent NLRB,(cid:13) Nos. 01-3644, 01-3694(cid:13) James J. Rodgers(cid:13) Dilworth, Paxson(cid:13) Philadelphia, PA 19103(cid:13) Howard K. Trubman(cid:13) Sobol & Trubman(cid:13) Philadelphia, PA 19103(cid:13) Attorneys for Intervenor Atlantic(cid:13) Exposition Services, Inc., Nos.(cid:13) 01-3644, 01-3694, 01-4036(cid:13) 3(cid:13) Brian F. Quinn(cid:13) DeCarlo, Connor & Selvo(cid:13) Washington, DC 20001(cid:13) Attorney for United Brotherhood(cid:13) of Carpenters and Joiners,(cid:13) Amicus-Appellant, No. 01-3644(cid:13) James M. Walters(cid:13) John M. Capron(cid:13) Fisher & Phillips(cid:13) Atlanta, GA 30326(cid:13) Attorneys for GES Exposition,(cid:13) Amicus-Appellant, Nos. 01-3644,(cid:13) 01-3694, Amicus-Appellee,(cid:13) No. 01-4036(cid:13) OPINION OF THE COURT(cid:13) SLOVITER, Circuit Judge:(cid:13) At issue in this case is whether it was reasonable for the(cid:13) National Labor Relations Board ("NLRB" or"Board") to find(cid:13) that S 8(e) of the National Labor Relations Act ("Act"), 29(cid:13) U.S.C. S 158(e), was violated by (1) an agreement between(cid:13) the Union and the company managing a convention center(cid:13) that provides that the installation, assembly and(cid:13) dismantling of temporary tradeshow exhibits would be(cid:13) subcontracted only to companies that hired Union(cid:13) members and (2) to find that such work was not protected(cid:13) by the construction industry proviso of S 8(e). All parties(cid:13) agree that the latter issue is one of first impression.(cid:13) I.(cid:13) INTRODUCTION(cid:13) Spectacor Management Group ("SMG") and the South(cid:13) Jersey Regional Council of Carpenters, Local 623 ("Union")(cid:13) (collectively "Petitioners") petition this court for review of(cid:13) the order and decision of the NLRB finding that an(cid:13) 4(cid:13) agreement entered into and enforced by Petitioners violated(cid:13) S 8(e) of the National Labor Relations Act ("Act"). The(cid:13) agreement, which precluded SMG from subcontracting(cid:13) trade show work to employers who did not have collective(cid:13) bargaining agreements with the Union, was enforced(cid:13) against Atlantic Exposition Services, Inc. ("AES"), the(cid:13) original Charging Party and Intervenor here.(cid:13) The Administrative Law Judge ("ALJ") ruled against the(cid:13) Petitioners. On appeal, the Board approved the ALJ’s(cid:13) finding that the agreement violated S 8(e). The Board agreed(cid:13) that the "agreement lacked a work preservation objective,(cid:13) that the work covered by the agreement was not performed(cid:13) on a construction site, and therefore that the agreement(cid:13) was not protected by the construction industry proviso."(cid:13) Decision & Order at 1, 335 NLRB No. 49 (2001). As a(cid:13) result, the Board adopted the recommended order of the(cid:13) ALJ which, in relevant part, directed the parties to cease(cid:13) and desist from maintaining and enforcing their(cid:13) subcontracting agreement.(cid:13) The Petitioners attack the Board’s decision on both(cid:13) grounds. Primarily, Petitioners argue that trade show work(cid:13) at the Atlantic City Convention Center constitutes(cid:13) construction work at a construction site, thereby entitling(cid:13) their agreement to the protection of the construction(cid:13) industry proviso. Alternatively, Petitioners argue that the(cid:13) agreement was not illegal because it fell within the work(cid:13) preservation doctrine, in that it served the primary purpose(cid:13) of preserving the Union’s work at the Convention Center(cid:13) rather than unlawfully sought to secondarily influence(cid:13) labor relations of other employers. The Union also argues(cid:13) that the agreement did not violate the Act as it failed to(cid:13) disrupt or change the way AES conducted business with(cid:13) SMG.(cid:13) Congress has not spoken on whether a trade show floor(cid:13) constitutes a construction site for purposes of the(cid:13) construction industry proviso, and neither the Board nor(cid:13) any court has hitherto determined the issue. Given the(cid:13) deference that we owe the Board on issues within its(cid:13) purview, we will accept its determination.(cid:13) 5(cid:13) II.(cid:13) FACTS AND PROCEDURAL BACKGROUND(cid:13) A.(cid:13) Some background of the current dispute is necessary to(cid:13) appreciate the issue. Between 1983 and 1995, the Atlantic(cid:13) City Convention Center Authority ("ACCCA") operated and(cid:13) managed the Convention Center. The Union represented(cid:13) ACCCA employees who assembled and dismantled trade(cid:13) show exhibits. During this time, the collective bargaining(cid:13) agreements between ACCCA and the Union precluded(cid:13) ACCCA from subcontracting trade show work. In or before(cid:13) 1995, the New Jersey Sports and Exposition Authority(cid:13) became an owner of the Center and decided to manage it(cid:13) through SMG, a private management company.1 When(cid:13) SMG’s predecessors managed the Convention Center, they(cid:13) directly hired members of the Union for trade show work.(cid:13) SMG honored the terms of ACCCA’s collective bargaining(cid:13) agreement. Show exhibitors contracted with SMG to provide(cid:13) the labor to assemble and dismantle tradeshow exhibits.(cid:13) SMG, in turn, procured the appropriate labor force from the(cid:13) Union’s hiring hall. In 1996, SMG sought to remove itself as(cid:13) the middleman between show exhibitors and laborers,(cid:13) leaving the direct employment of labor to subcontractors or(cid:13) tenants. Accordingly, it negotiated a new agreement with(cid:13) the Union that no longer prohibited subcontracting at the(cid:13) Convention Center. Instead, the Union and SMG agreed(cid:13) that trade show work traditionally performed through the(cid:13) Union’s hiring hall could be subcontracted as long as Union(cid:13) workers continued as the sole providers of trade show labor(cid:13) under agreements reached between the subcontractors and(cid:13) the Union.(cid:13) This agreement, incorporated in a letter dated April 15,(cid:13) 1996, stands at the center of the current dispute. It(cid:13) provides:(cid:13) _________________________________________________________________(cid:13) 1. SMG is a Pennsylvania joint venture which manages public assembly(cid:13) facilities, such as convention centers, on behalf of municipal partners.(cid:13) 6(cid:13) Trade employees who work on a part-time basis or who(cid:13) perform contracted work for SMG (e.g. "show" labor)(cid:13) will work under a Separate Agreement which will be(cid:13) negotiated as soon as is practicable. It is understood(cid:13) and agreed that the Separate Agreement will contain a(cid:13) provision stipulating that in the event SMG(cid:13) subcontracts the covered work, the covered work will(cid:13) be subcontracted to a firm which will . . . negotiate an(cid:13) agreement with the (Trade) Local having jurisdiction(cid:13) over that work with SMG. The said sub-contractor will(cid:13) be free to negotiate the terms and conditions of the(cid:13) said agreement and will not be bound by SMG’s(cid:13) agreement(s) with the applicable local union.(cid:13) Decision & Order at 3. No Separate Agreement as referred(cid:13) to above was negotiated but the parties proceeded to act as(cid:13) if the above paragraph was binding. If a subcontractor(cid:13) failed to reach its own agreement with the Union, it was(cid:13) required to obtain labor through the previous method(cid:13) where SMG played middleman, using Union labor.(cid:13) AES, unlike many, if not all, of the other subcontractors(cid:13) at the Convention Center, did not sign an agreement with(cid:13) the Union but chose to use its own employees, members of(cid:13) the Painters Union. In 1998, as an AES employee was(cid:13) installing a tradeshow exhibit at the Center, he was ordered(cid:13) to stop working by a Union foreman. Thereafter, the SMG(cid:13) General Manager demanded that AES either use Union(cid:13) laborers or leave the Convention Center altogether. This(cid:13) current litigation ensued.(cid:13) B.(cid:13) On October 13, 1998, AES filed charges against the(cid:13) Union and SMG for refusing to allow AES to use its own(cid:13) employees to do its tradeshow work at the Convention(cid:13) Center. The ALJ found that the Union and SMG had(cid:13) violated S 8(e) of the Act when they entered into and(cid:13) enforced the agreement that SMG would not subcontract(cid:13) work to employers who did not have collective-bargaining(cid:13) agreements with the Union. In so finding, the ALJ reasoned(cid:13) that the agreement did not have a valid work preservation(cid:13) purpose because it was "not limited to addressing the labor(cid:13) 7(cid:13) relations of SMG vis-a-vis its own employees, but instead(cid:13) seeks to regulate the labor policies of other, neutral(cid:13) employers by requiring them to have agreements with the(cid:13) Carpenters, an objective that is clearly secondary." Decision(cid:13) & Order at 4. The ALJ also rejected the Petitioners’ defense(cid:13) that the work involved in trade shows was protected by the(cid:13) construction industry proviso to S 8(e). The ALJ held that(cid:13) SMG was not an employer in the construction industry. He(cid:13) further concluded that the construction industry proviso to(cid:13) S 8(e) was not applicable because the work in question was(cid:13) not "associated with building a structure" and was not(cid:13) being performed at " ‘the site of the construction, alteration,(cid:13) painting, or repair of a building, structure or other work’ as(cid:13) Section 8(e) requires." Id. at 9.(cid:13) In a brief Decision and Order entered August 27, 2001,(cid:13) a unanimous three member panel of the Board affirmed the(cid:13) ALJ’s finding that the "agreement lacked a work(cid:13) preservation objective, that the work covered by the(cid:13) agreement was not performed on a construction site, and(cid:13) therefore that the agreement was not protected by the(cid:13) construction industry proviso." Decision & Order at 1. The(cid:13) Board did not reach and did not decide the ALJ’s(cid:13) conclusion that SMG was not an employer in the(cid:13) construction industry.(cid:13) Shortly thereafter, SMG and the Union filed Petitions for(cid:13) Review in this court. The Board filed a Cross-Application for(cid:13) Enforcement. AES intervened in support of the Board. The(cid:13) United Brotherhood of Carpenters and Joiners and GES(cid:13) Exposition Services filed briefs as amici curiae.(cid:13) III.(cid:13) DISCUSSION(cid:13) A. Jurisdiction and Standard of Review(cid:13) We have jurisdiction to review final orders of the National(cid:13) Labor Relations Board pursuant to Section 10(e) and (f) of(cid:13) the Act. 29 U.S.C. SS 160(e) and (f). We accept the Board’s(cid:13) factual findings if they are supported by substantial(cid:13) evidence. We exercise plenary review over questions of law(cid:13) 8(cid:13) and the Board’s application of legal precepts. NLRB v.(cid:13) Attleboro Associates, Ltd., 176 F.3d 154, 160 (3d Cir. 1999).(cid:13) For the Board to prevail, "it need not show its construction(cid:13) is the best way to read the statute;" rather we must respect(cid:13) the Board’s judgment as long as it is reasonable. Holly(cid:13) Farms Corp. v. NLRB, 517 U.S. 392, 409 (1996) (emphasis(cid:13) in original).(cid:13) B. Section 8(e) and the Work Preservation Doctrine(cid:13) At oral argument, the Union conceded that its agreement(cid:13) with SMG would be illegal under S 8(e) were it not entitled(cid:13) to the protection of the construction industry proviso. Tr. of(cid:13) Oral Argument, Oct. 29, 2002, at 4. However, in their briefs(cid:13) the Petitioners press the argument that their agreement is(cid:13) not proscribed by S 8(e). In doing so, they invoke the work(cid:13) preservation doctrine.2 Notwithstanding the Union’s(cid:13) concession, it is important that we consider whether the(cid:13) Union/SMG agreement falls within the proscription ofS 8(e)(cid:13) as that was the predicate for the decisions of both the(cid:13) Board and the ALJ.(cid:13) Section 8(e), which was added to the Act by the 1959(cid:13) Landrum-Griffin Act, provides:(cid:13) It shall be an unfair labor practice for any labor(cid:13) organization and any employer to enter into any(cid:13) contract or agreement, express or implied, whereby(cid:13) such employer ceases or refrains or agrees to cease or(cid:13) refrain from handling, using, selling, transporting or(cid:13) otherwise dealing in any of the products of any other(cid:13) employer, or to cease doing business with any other(cid:13) person, and any contract or agreement entered into(cid:13) _________________________________________________________________(cid:13) 2. The Union’s argument that the Board erred as a matter of law in(cid:13) concluding that it violated S 8(e) because the agreement did not result in(cid:13) disruption or cessation of AES’s existing business relationship with SMG(cid:13) or change the way AES had been doing business at the Center before the(cid:13) agreement, is satisfactorily answered by the Board’s earlier decision that(cid:13) "[t]he cease-doing business element of Sec. 8(e) is satisfied by proof of(cid:13) prohibitions against forming business relationships in the first place as(cid:13) well as requirements that one cease business relationships already in(cid:13) existence." Northeast Ohio Dist. Council of Carpenters (Alessio(cid:13) Construction), 310 NLRB 1023, 1025 n.9 (1993).(cid:13) 9(cid:13) heretofore or hereafter containing such an agreement(cid:13) shall be to such extent unenforcible and void.(cid:13) 29 U.S.C. S158(e).(cid:13) It is apparent that the literal language of the SMG/Union(cid:13) agreement comes clearly within the prohibition ofS 8(e) of(cid:13) the Act. In National Woodwork Mfrs. Ass’n v. NLRB, 386(cid:13) U.S. 612 (1967), the Supreme Court explained thatS 8(e)(cid:13) was designed to invalidate so-called "hot cargo" clauses, or(cid:13) agreements between a union and an employer whereby the(cid:13) employer agrees not to deal with other employers with(cid:13) whom the union either has a labor dispute or who it deems(cid:13) to be unfair to organized labor. Id. at 634-37. Looking to(cid:13) the legislative history of S 8(e), the Supreme Court(cid:13) interpreted the section to invalidate only those contract(cid:13) clauses with secondary objectives, while those with a(cid:13) primary purpose, such as work preservation, remained(cid:13) lawful. See id. at 637-645. If the purpose of the agreement(cid:13) is to benefit the employees of the bargaining unit, the(cid:13) agreement is primary and thus lawful, but if its aim is to(cid:13) pressure outside employers to concede to union objectives,(cid:13) the agreement is unlawfully secondary. In re Bituminous(cid:13) Coal Wage Agreements, 756 F.2d 284, 289 (3d Cir. 1985).(cid:13) As the Supreme Court stated in an oft-repeated sentence,(cid:13) "the touchstone is whether the agreement or its(cid:13) maintenance is addressed to the labor relations of the(cid:13) contracting employer vis-a-vis his own employees." National(cid:13) Woodwork, 386 U.S. at 645.(cid:13) The Supreme Court further stated that a lawful work(cid:13) preservation agreement must pass two tests. First, the(cid:13) agreement must seek to preserve work traditionally(cid:13) performed by employees represented by the union. Second,(cid:13) the contracting employer must have the power to give the(cid:13) employees the work in question, which is known as the(cid:13) "right of control" test. NLRB v. Int’l Longshoremen’s Ass’n,(cid:13) 447 U.S. 490, 504 (1980) ("ILA I"). The rationale is that if(cid:13) the contracting employer does not have the power to assign(cid:13) the work, it is reasonable to infer that the agreement has(cid:13) the secondary objective to influence the person or entity(cid:13) that has such power. Id. at 504-05.(cid:13) In the case before us, the ALJ, in reasoning adopted by(cid:13) 10(cid:13) the Board, found the agreement to be unlawfully secondary(cid:13) in nature because it "was not intended to preserve work but(cid:13) was intended to satisfy the union’s objectives elsewhere."(cid:13) Decision & Order at 4. The ALJ found that the SMG/Union(cid:13) agreement violated National Woodwork’s touchstone as it(cid:13) was not limited to SMG’s labor relations vis-a-vis its own(cid:13) employees but sought to regulate the labor policies of other(cid:13) neutral employers (subcontractors, such as AES) by(cid:13) requiring them to contract with the Union, an unlawful(cid:13) secondary objective. SMG had removed itself from the role(cid:13) of employer when it began subcontracting, and accordingly(cid:13) the Union workers were no longer SMG employees. Adding(cid:13) support to the ALJ’s finding that the agreement sought to(cid:13) regulate other employers’ labor policies was the fact that(cid:13) the Union rejected AES’ offer to contract with it for work(cid:13) done at the Convention Center but insisted that AES also(cid:13) enter an agreement that covered seven counties in southern(cid:13) New Jersey.3(cid:13) Petitioners argue that because SMG manages the(cid:13) Convention Center, it exercises control over the work(cid:13) conducted there. However, SMG’s agreement with the(cid:13) Union, which removed SMG from the role of employer by(cid:13) allowing it to subcontract, eliminated SMG’s ability to "give(cid:13) the employees the work in question." ILA I , 447 U.S. at 504.(cid:13) The agreement forced the subcontractors to negotiate their(cid:13) own agreements with the Union, thereby giving these(cid:13) subcontractors the power to assign employees the work in(cid:13) question, namely installing, assembling and dismantling(cid:13) trade show exhibits. It is therefore apparent that the(cid:13) SMG/Union agreement did not satisfy the work(cid:13) preservation doctrine’s touchstone as it was not limited to(cid:13) labor relations of SMG vis-a-vis its own employees. Instead,(cid:13) the SMG/Union agreement plainly affects the labor(cid:13) relations of employers other than SMG.(cid:13) In its oral argument, SMG argued that even though it(cid:13) _________________________________________________________________(cid:13) 3. Those subcontractors who signed agreements with the Union received(cid:13) significant benefits, such as the elimination of double time on weekends,(cid:13) elimination of nonworking personnel, and revised jurisdictional lines(cid:13) allowing the subcontractors to use cheaper employees represented by(cid:13) another union on certain jobs.(cid:13) 11(cid:13) had subcontracted trade show work, it retained the right(cid:13) directly to employ Union members when the show promoter(cid:13) opted to hire a subcontractor who did not have a contract(cid:13) with the Union (a nonsignatory employer). SMG stated that(cid:13) because it could hire and supervise Union members and(cid:13) provide them to the contractor, it should be treated as the(cid:13) direct employer. However, SMG was unable to provide the(cid:13) court with any estimate as to how often this situation arose(cid:13) and it produced no records in that connection. Tr. of Oral(cid:13) Argument, Oct. 29, 2002, at 17. Assuming the existence of(cid:13) some such situations, we fail to see why it would undercut(cid:13) the ALJ’s determination that the SMG/Union agreement(cid:13) falls precisely within the prohibition of S 8(e) as that(cid:13) agreement requires neutral employers to contract with the(cid:13) Union.(cid:13) Reiterating its argument based on the work preservation(cid:13) doctrine, the Union emphasizes that it has provided trade(cid:13) show exhibition work at the Convention Center for decades,(cid:13) and its agreement with SMG merely seeks to preserve the(cid:13) Union’s historical work at that venue. This argument fails(cid:13) for two reasons. First, it completely avoids the"touchstone"(cid:13) of the work preservation doctrine because it does not even(cid:13) attempt to challenge the ALJ’s critical finding that the(cid:13) agreement was not limited to labor relations of SMG vis-a-(cid:13) vis SMG’s own employees. Second, the Union fails to justify(cid:13) its efforts to use the agreement covering the Center to(cid:13) expand its reach into seven other counties.(cid:13) In contrast to the Union, SMG glides quickly over the(cid:13) work preservation argument and largely relies on the(cid:13) Union’s brief on this issue. Nonetheless, SMG distances(cid:13) itself from the Union by arguing that if a violation of S 8(e)(cid:13) did occur, it was limited to an as-applied violation by the(cid:13) Union in its dealings with AES. SMG’s position is not(cid:13) persuasive. We have made clear that hot cargo clauses may(cid:13) be invalid per se if the provision is " ‘secondary in [its](cid:13) purpose as well as [its] result.’ " In re Bituminous Coal Wage(cid:13) Agreements, 756 F.2d at 290 (quoting A. Duie Pyle, Inc. v.(cid:13) N.L.R.B., 383 F.2d 772, 777 (3d Cir. 1967)). This per se(cid:13) violation becomes apparent when the clause’s " ‘necessary(cid:13) effect is to make the continuance of the relationship(cid:13) between the [signatory] employer and an independent(cid:13) 12(cid:13) contractor depend on the latter’s decision to become a(cid:13) member of the union.’ " Id. The SMG/Union agreement fits(cid:13) this description precisely as SMG, the signatory employer,(cid:13) could not subcontract to an independent contractor unless(cid:13) that contractor first contracted with the Union. The(cid:13) violation of S 8(e) was not limited to AES but was generally(cid:13) applicable and therefore is per se invalid. Accordingly, there(cid:13) is ample basis to support the Board’s determination that(cid:13) the agreement violated S 8(e) of the Act.(cid:13) C. The Construction Industry Proviso of Section 8(e)(cid:13) The Petitioners place most, if not all, of their emphasis on(cid:13) the contention that their agreement is not in violation of the(cid:13) Act because it receives the protection of the "construction(cid:13) industry proviso" to Section 8(e). The proviso states:(cid:13) [N]othing in this subsection shall apply to an(cid:13) agreement between a labor organization and an(cid:13) employer in the construction industry relating to the(cid:13) contracting or subcontracting of work to be done at the(cid:13) site of the construction, alteration, painting, or repair(cid:13) of a building, structure or other work.(cid:13) 29 U.S.C. S 158(e). There is a dearth of applicable case law(cid:13) that could help interpret the meaning and scope of the(cid:13) proviso.(cid:13) There are three phrases in the proviso to be considered(cid:13) in this case: The protected agreement must be between a(cid:13) union and (1) an employer in the construction industry; (2)(cid:13) it must relate to work to be done at the site; (3) of the(cid:13) construction, alteration, painting, or repair of building,(cid:13) structure or other work. As to (1) above, the ALJ held that(cid:13) SMG was not an "employer in the construction industry,"(cid:13) Decision & Order at 10, but the Board, having found that(cid:13) S 8(e) was violated on another basis, did not decide that(cid:13) issue or the subsidiary question whether it possessed(cid:13) relevant control over labor relations.(cid:13) The Petitioners argue that the Board could not reach the(cid:13) "construction site" issue without first deciding whether(cid:13) SMG was an employer in the construction industry because(cid:13) SMG’s counsel explained at oral argument that the(cid:13) "employer in the construction industry" comes first in the(cid:13) 13(cid:13) statutory language. Tr. of Oral Argument, Oct. 29, 2002, at(cid:13) 21. We decline to pursue a "chicken or the egg first"(cid:13) argument. The construction industry proviso is inapplicable(cid:13) if either the employer is not in the construction industry or(cid:13) the site is not a construction site. The ALJ decided both(cid:13) adversely to the Petitioners. The Board chose to limit its(cid:13) focus on the construction site. It was free to do so.(cid:13) Instead, the ALJ found, and the Board agreed, that trade(cid:13) show floors do not constitute construction sites. In(cid:13) challenging this conclusion, the Union focuses on the ALJ’s(cid:13) statement that some work of skilled carpenters is needed(cid:13) and performed at the Convention Center, although the(cid:13) amount remains in question. The ALJ further stated that(cid:13) "[t]he work at trade shows requires the same sorts of skills,(cid:13) utilizes the same sorts of materials, and involves the same(cid:13) sorts of tools as traditional, recognized construction work.(cid:13) It is the kind of work, with the kind of skills, that, if(cid:13) performed at a construction project and as a component of(cid:13) that construction, might be exempt under the proviso."(cid:13) Decision & Order at 8.(cid:13) Other similarities, noted by the ALJ and emphasized by(cid:13) Petitioners, are that "the assignment process is through a(cid:13) hiring hall, the majority of jobs are of short duration, and(cid:13) carpenters who work trade shows are employed by a(cid:13) number of employers." Id. at 8-9. The ALJ noted that "there(cid:13) are normally at least two groups of employees working at(cid:13) the Center to set up and break down trade shows,(cid:13) employees represented by the Painters [with whom AES had(cid:13) a contract] and the Carpenters [the Union with which SMG(cid:13) made the agreement]." Id. at 9.(cid:13) Despite the similarities between some trade show work(cid:13) and traditional construction work, the ALJ focused on the(cid:13) requirement in the proviso that "the agreement must apply(cid:13) only to work ‘to be done at the site.’ " Id. The ALJ stated:(cid:13) "The Center would not be referred to as a construction(cid:13) project, in the sense that appears in the legislative history(cid:13) or in the Supreme Court’s decision in Woelke & Romero(cid:13) Framing. No occupancy inspections occur and neither(cid:13) construction nor zoning permits are required. Hard hats are(cid:13) not worn, and safety boots are not required." Id. (footnote(cid:13) omitted). The ALJ summarized his discussion by stating(cid:13) 14(cid:13) that "the Center is an exhibition hall typically used to(cid:13) display items for sale. The Center is not the subject of(cid:13) construction or building." Id.(cid:13) Having found that a trade show floor did not qualify as a(cid:13) construction site, the ALJ determined that the agreement(cid:13) did not fit within the proviso. Id. ("whatever work is(cid:13) performed by the Carpenters on the floor of the Center is(cid:13) not being performed at ‘the site of the construction.’ "). The(cid:13) Board expressly approved, as it too stated "that the work(cid:13) covered by the agreement was not performed on a(cid:13) construction site." Id. at 1. The Petitioners argue that the(cid:13) statutory words "at the site" do not exclude remote job(cid:13) sites. However, in Woelke & Romero Framing, Inc. v. NLRB,(cid:13) 456 U.S. 645, 654-62 (1982), the Supreme Court speaks of(cid:13) the proviso only in terms of a "construction site," and there(cid:13) is no basis to extend "site" beyond the statutory context of(cid:13) the phrase.(cid:13) Most of Petitioners’ fire is reserved for the interpretation(cid:13) applied to the third, and inextricably related, requirement,(cid:13) that the site be "of the construction, alteration, painting, or(cid:13) repair of a building, structure or other work." The word(cid:13) "construction" was interpreted by the Board for purposes of(cid:13) S 8(f) of the Act (the provision allowing pre-hire agreements(cid:13) under certain circumstances) in its decision in Carpet,(cid:13) Linoleum and Soft Tile Local Union No. 1247, 156 NLRB 951(cid:13) (1966) (Indio Paint). In that decision, the Board carefully(cid:13) parsed technical, common, and legal definitions of the word(cid:13) "construction" as found in Construction Review (a 1957(cid:13) joint publication of the U.S. Departments of Labor and(cid:13) Commerce), the Standard Industrial Classification Manual,(cid:13) and Mechanics Lien Law respectively. Amalgamating the(cid:13) various definitions, the Board defined "building and(cid:13) construction" as "the provision of labor whereby materials(cid:13) and constituent parts may be combined on the building site(cid:13) to form, make or build a structure." Id. at 959. Using this(cid:13) definition, the Board held that the provision of labor and(cid:13) materials for floor covering installations constitutes(cid:13) building and construction work. Id. The Indio Paint(cid:13) definition is significant because the parties agree that the(cid:13) Board uses the same standard for "construction" in SS 8(e)(cid:13) and (f) cases.(cid:13) 15(cid:13) Upon examining the proviso’s legislative history, the(cid:13) Supreme Court determined that Congress wished to(cid:13) " ‘preserve the status quo’ " regarding agreements between(cid:13) unions and contractors in the construction industry.(cid:13) Woelke & Romero Framing, 456 U.S. at 657 (quoting(cid:13) National Woodwork, 386 U.S. at 637). According to the(cid:13) Board, that preservation applies to the status quo in the(cid:13) industry as of 1959, the year Congress enacted S 8(e).(cid:13) Alessio Construction, 310 NLRB 1023, 1027 (1993). For this(cid:13) reason, there is a historical basis for the focus by the(cid:13) General Counsel of the Board on permanency, as the(cid:13) Departments of Labor and Commerce’s 1957 Construction(cid:13) Review defines buildings or structures for construction(cid:13) purposes as work "built into or affixed to the land." Br. of(cid:13) Bd. at 32.(cid:13) In his brief for the Board, the General Counsel argues(cid:13) that "structure" is the critical word in the Board’s standard(cid:13) enunciated in Indio Paint and that such structure excludes(cid:13) trade show exhibits. Br. of Bd. at 27. He notes that the(cid:13) Board has never treated as a construction site a location(cid:13) where the work provided did not involve building or affixing(cid:13) to the land.4 Trade show exhibits, certainly the ones in(cid:13) _________________________________________________________________(cid:13) 4. In its Reply Brief the Union states that if"construction" is limited to(cid:13) something "built into or affixed to the land" numerous activities(cid:13) previously considered construction work would no longer be covered. The(cid:13) three cases cited by the Union disprove its argument. In International(cid:13) Union of Operating Engineers, Local Union No. 12 (Tri-Counties), 131(cid:13) NLRB 520 (1961), the construction at issue was of streets, sewers,(cid:13) gutters, and utility installations. It is difficult to imagine construction of(cid:13) items more built into or affixed to the land. In Ohio Valley District Council(cid:13) (Zidell Explorations), 175 NLRB 887 (1969), the work involved(cid:13) dismantling of ballistic missile sites, which speaks for itself. In U.S.(cid:13) Abatement, Inc., 303 NLRB 451 (1991), the work considered(cid:13) "construction" was the removal of asbestos, and the Board itself said,(cid:13) "[i]t is evident that the asbestos removal activities in which Respondent(cid:13) is engaged affect the structure of buildings and equipment, such as(cid:13) boilers and pipes, which, after installation, have become an integral part(cid:13) of the structure, itself." Id. at 456. Finally, in SMG’s Reply Brief, it(cid:13) contends that the Board’s intervening decision in Freeman Decorating(cid:13) Co., 336 NLRB No. 1 (2001), is inconsistent with its decision in the(cid:13) current case. SMG’s argument is unpersuasive. In Freeman Decorating,(cid:13) the Board never reached the "construction" question of the S 8(f) issue(cid:13) 16(cid:13) question, are not built into or affixed to the land; the only(cid:13) building associated with this dispute is the Convention(cid:13) Center. Thus, the Board’s brief argues that because the(cid:13) Center is not being constructed or altered, it is not a(cid:13) construction site.(cid:13) In an analysis that Petitioners vigorously attack, the ALJ(cid:13) distinguished the earlier Board decisions that held that the(cid:13) construction of a retail store fell within S 8(e)’s proviso on(cid:13) the ground that the employer in those cases "was involved(cid:13) in the construction of a building, something tangible and(cid:13) permanent, even installing carpeting." Decision & Order at(cid:13) 8. The Petitioners complain that in interpreting the(cid:13) language of the proviso to require some permanence to the(cid:13) structure, the ALJ and the Board have added a requirement(cid:13) Congress never intended. We do not agree. The(cid:13) contemporary references cited by the ALJ define(cid:13) construction in terms of structures being "built into or(cid:13) affixed" to the land, which necessarily excludes temporary(cid:13) trade show work. Decision & Order at 9.(cid:13) The Petitioners suggest that there is no statutory basis(cid:13) for the Board’s requirement for a structure. They criticize(cid:13) the Board for ignoring the words "other work" in the proviso(cid:13) while focusing on "site of construction." Br. of Union at 39.(cid:13) However, the Petitioners provide no decisions in which the(cid:13) Board or any court discusses "other work." In such a(cid:13) situation, the General Counsel is not unreasonable in(cid:13) referring to the maxim that "a word is known by the(cid:13) company it keeps." Br. of Bd. at 31.(cid:13) The Union supports its position by reference to what(cid:13) some courts have deemed to be the legislative intent behind(cid:13) the proviso, which is minimizing jobsite tension within the(cid:13) construction industry. Br. of Union at 37 (citing Milwaukee(cid:13) & Southeast Wis. Dist. Council of Carpenters v. Rowley-(cid:13) Schlimgen, 2 F.3d 765, 767 (7th Cir. 1993)). The Union(cid:13) _________________________________________________________________(cid:13) before it, and thus the ALJ’s discussion of the erection and dismantling(cid:13) of exposition shows in that case was dicta. Petitioners concede as much.(cid:13) That dicta, articulated by an administrative law judge and not addressed(cid:13) by the Board on review, does not render the Board’s determination in(cid:13) this case unreasonable.(cid:13) 17(cid:13) then states that because having different groups at the(cid:13) Center causes friction, it would be arbitrary not to conclude(cid:13) that the Convention Center is a requisite location for(cid:13) application of the proviso. Br. of Union at 38. However, as(cid:13) the Supreme Court said in Woelke & Romero Framing, the(cid:13) proviso was "only partly concerned with jobsite friction."(cid:13) 456 U.S. at 662. Instead, the Woelke Court found that(cid:13) Congress was more concerned with preserving the"status(cid:13) quo" in the construction industry. Id. at 657. The Board(cid:13) has concluded that under established principles of(cid:13) statutory construction, the construction industry proviso(cid:13) "should not be given an expansive reading" but should(cid:13) protect only " ‘those subjects expressly exempted by the(cid:13) proviso.’ " Operating Engineers Local 520 (Massman(cid:13) Construction), 327 NLRB 1257, 1257-58 (1999) (quoting(cid:13) Alessio Construction, 310 NLRB 1023, 1029 (1993)). The(cid:13) Board’s interpretation of the proviso as limited to more(cid:13) traditional notions of construction appears to be consistent(cid:13) with that principle and Congress’ purpose.(cid:13) We are presented with two vastly different interpretations(cid:13) of the construction industry proviso. Under the ALJ’s and(cid:13) Board’s interpretation of the proviso, the proviso covers,(cid:13) and is limited to, traditional construction sites, such as(cid:13) building homes, offices, and similar relatively permanent(cid:13) structures. Under the interpretation of construction site(cid:13) proffered by the Petitioners, any location where installing,(cid:13) assembling and disassembling occurs feasibly could fit(cid:13) within the construction industry proviso, ranging from(cid:13) construction of intricate movie sets to platforms at malls for(cid:13) performers and the appearance of Santa Claus. Petitioners(cid:13) have produced no evidence that Congress envisioned that(cid:13) movie set builders and the like would fall within the(cid:13) construction industry proviso.(cid:13) Under the circumstances, where the United States(cid:13) Supreme Court, this court, and no other federal appellate(cid:13) court has addressed the issue of the application of the(cid:13) construction industry proviso to the installing and(cid:13) dismantling of trade show exhibits, we believe it is(cid:13) appropriate to defer to the reasonable statutory(cid:13) interpretation of the Board, the agency primarily charged(cid:13) with the Act’s implementation and administration. See(cid:13) 18(cid:13) Meyer v. Holley, No. 01-1120, slip op. at 7 (U.S. Jan. 22,(cid:13) 2003); Chevron U.S.A. Inc. v. Natural Resources Defense(cid:13) Council, Inc., 467 U.S. 837, 842-45 (1984). 5 We will(cid:13) therefore deny the Petition for Review and grant the Board’s(cid:13) cross-application for enforcement.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) _________________________________________________________________(cid:13) 5. One of the amici, the United Brotherhood of Carpenters and Joiners(cid:13) of America ("UBC"), urges that if we affirm the Board, we limit the(cid:13) Board’s decision to the facts of the current case, and adopt a case-by-(cid:13) case, totality of circumstances approach without drawing a broad rule(cid:13) that trade show work does not fall within the construction industry(cid:13) proviso. See Br. of UBC at 5. It will be up to the Board to determine the(cid:13) applicability of its interpretation of the construction industry proviso in(cid:13) different circumstances.(cid:13) 19
