Carpenters (Standard Drywall)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 87 1250 Southwest Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America and Standard Drywall, Inc. and Opera- tive Plasterers’ and Cement Masons’ Interna- tional Association, Local No. 200, AFL–CIO. Case 21–CD–658 December 13, 2006 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). The charge in this proceeding was filed by Standard Drywall, Inc. (the Employer) on February 7, 2006, as amended on March 1, 2006, alleging that Southwest Re- gional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America (Carpenters) violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees represented by Carpenters rather than to employees represented by Operative Plas- terers’ and Cement Masons’ International Association, Local No. 200, AFL–CIO (Plasterers).1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire re- cord, the Board makes the following findings. I. JURISDICTION The parties stipulated that the Employer is a California corporation, with its principal place of business in River- side County and offices located in Arizona, Wyoming, and Utah, where it is engaged as a contractor and/or sub- contractor in the drywall construction industry. They also stipulated that the Employer annually purchases goods and materials valued in excess of $50,000, which goods and materials are manufactured outside the State of California and shipped directly to the Employer’s California projects involved in this proceeding. The Employer’s gross revenue in the 2004 calendar year ex- ceeded $5 million. The parties further stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Finally, 1 This is the second Sec. 10(k) hearing involving the same parties. In the first case, involving the Employer’s plastering work on the Cali- fornia State University Fullerton Fine Arts Project (Fine Arts Project), the Board determined that employees represented by Carpenters were entitled to perform the disputed plastering work. Southwest Regional Council of Carpenters (Standard Drywall.), 346 NLRB 478 (2006). The hearing officer in this proceeding took administrative notice of the record in the earlier proceeding. the parties stipulated, and we find, that Carpenters and Plasterers are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The Employer’s California drywall employees are covered by a memorandum agreement with Carpenters effective by its terms from January 1, 2002 to June 30, 2006.2 This memorandum incorporates the current South- ern California drywall/lathing master agreement which is effective for the same term. The Employer has assigned plastering work to employees represented by Carpenters as required by this agreement. The Employer’s and Car- penters’ bargaining relationship dates back at least 10 years. The Employer has never had a bargaining rela- tionship with Plasterers. Plasterers Business Manager Robert Pullen and Busi- ness Agent David Fritchel, as individuals, filed a prevail- ing wage lawsuit against the Employer in California Su- perior Court on October 28, 2004. On August 9, 2005, a First Amended Complaint for Injunctive Relief and Res- titution was filed in this same lawsuit, and Plasterers was added as a plaintiff. The amended complaint alleges that the Employer violated the prevailing wage laws on pub- lic works projects. The lawsuit is directed at all of the Employer’s past, present, and future Southern California public works projects in 12 California counties, and seeks compensatory damages and injunctive relief requir- ing the Employer to use Plasterers-represented employ- ees on all those projects. On February 6, 2006,3 after the Board issued its deci- sion in the prior case, awarding the Employer’s plaster- ing work on the California State University Fullerton Fine Arts Project to Carpenters’ represented employees, the Employer demanded that Plasterers dismiss its law- suit. By letter dated February 21, Plasterers notified the Employer that it would not seek relief in the lawsuit for the Employer’s conduct at the Fine Arts Project. How- ever, Plasterers has continued to pursue its lawsuit for the remaining public works projects. On February 23, the Employer wrote Carpenters stat- ing that Plasterers was proceeding with its lawsuit on all projects except the Fine Arts Project, and that—in light of this—the Employer “may have no choice but to assign plastering work to employees represented by [Plasterers] on projects on the enclosed list and on any new projects in Southern California.” The letter requested that Car- penters inform the Employer of its position if the Em- 2 This agreement is termed the Southern California Conference of Carpenters drywall/lathing memorandum agreement. 3 All dates are 2006, unless otherwise specified. CARPENTERS (STANDARD DRYWALL) 1251 ployer assigned the plastering work to Plasterers. Car- penters wrote the Employer on February 24, stating that if the Employer “attempts to reassign any work currently being performed by members of the Carpenters Union, we will immediately strike the Company.” Employer Vice President Blaine Caya testified that in approximately February, Plasterers’ secretary- treasurer Patrick Finley told him that Finley would work on getting the lawsuit dropped if the Employer signed an agreement with Plasterers covering the Em- ployer’s projects in California.4 Caya further testified that, about a month later, Finley said that he could not drop the lawsuit but would continue to work on it. According to Caya, Finley stated that, “when we signed in Nevada . . . [h]e would still like me to sign an agreement in California.” During the hearing, on May 15, Carpenters’ representa- tive Gordon Hubel repeated that Carpenters would strike if the Employer reassigned any plastering work currently being performed by employees Carpenters represents on the Employer’s Southern California projects.5 B. Work in Dispute The parties stipulated that the work in dispute is: Plastering work at the public works projects in the 12 Southern California counties.6 Plastering work is defined as follows: A. Corner beads when stuck on. 4 According to Caya, Finley also offered to drop the lawsuit in return for the Employer signing a contract with another local of Plasterers covering the Employer’s work in Las Vegas, Nevada. However, Finley testified that, in discussing dropping the lawsuit, he told Caya that Nevada and California were two separate issues, that is, “Las Vegas is one thing, but . . . I will get involved into looking into Los Angeles. . . no trading one for the other.” 5 On November 14, 2006, the Employer filed a motion to reopen the record. On November 27, Plasterers filed an opposition to which the Employer filed a brief in reply. The motion was filed for the purpose of presenting additional evidence supporting the Employer’s claims that: (1) Plasterers’ lawsuit has a jurisdictional objective; and (2) the factor of relative skills favors awarding the work in dispute to employ- ees represented by Carpenters. Because we find that the current record establishes that Plasterers’ lawsuit has a jurisdictional objective and that the disputed work should be awarded to employees represented by Carpenters, we deny the Employer’s motion. Further, although we find that the record evidence on the factor of relative skills does not favor awarding the work to either group of employees, the evidence that the Employer proffers on this issue—that Carpenters’ apprenticeship pro- gram for plastering has been approved by the State of California— would not tip the scales in favor of either group of employees 6 Although the original notice of hearing listed 22 projects which the Employer claimed were subject of the dispute, the Employer modified the scope of the dispute at the hearing by introducing a list of 97 public works projects in the 12 Southern California counties where it was currently working or was scheduled to work. (This amended list deleted five of the originally listed projects, on the basis that they were not public works projects.) B. All interior or exterior plastering using gyp- sum, Portland Cement plaster (excepting cement bases 6 inches (6”) or lower, stucco, radian heat fill material, marble-crete, imitation brick or masonry, embedding of chips and stones, the finishing of same and mortars applied by the normal methods used by plasterers. C. The waterproofing of plaster including such materials as Thoroseal and Ironite. D. The bonding and scratching of all ceilings and walls to receive terrazzo and tile; and bonding, scratching and browning to receive thin set tile. E. The sticking, nailing and screwing on of all plaster caps and ornaments. F. The application of bond coat plasters, bond dash coats and bonding agents to which plaster is to be applied regardless of tools used, method of appli- cation, color of material or type of base to which it is applied. G. The application of materials used for contract fireproofing, fireproofing, acoustical finish, or deco- rative finish. H. All moldings run in place. The making of all templates and the horsing of molds for interior and exterior work. The sticking in place of all staff work and plaster enrichments. I. The initial cleaning of areas immediately adja- cent to the plastering and concurrent with the plas- tering operation. J. Plasterers shall have the autonomy governing the mixing and applying of all materials used for plaster patching. K. The installation of Exterior Insulation Finish Systems (EIFS), starting with the foam. L. The carving or texturing of “positive” rock and other theme work created from gypsum, Port- land cement, or acrylic plaster. C. Contentions of the Parties Plasterers first contends that the notice of hearing should be quashed because there are no competing claims for the work in dispute. Plasterers contends that its lawsuit merely seeks to enforce the California prevail- ing wage law, and that it never offered to drop the law- suit in return for the Employer’s signing a contract with Plasterers. Plasterers next contends that the 10(k) hearing should be quashed because there is no reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated because Carpenters’ threat to strike: (1) was representational, not jurisdictional, and, therefore, did not have an 8(b)(4)(D) objective; (2) was aimed at preserving work currently performed by Carpenters, and, therefore, did not have a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252 jurisdictional objective; and (3) cannot be jurisdictional because Carpenters’ contract with the Employer, at arti- cle VI, prohibits a jurisdictional strike. Plasterers further contends that Carpenters’ February 24 threat to strike was a sham, and reflected collusion between Carpenters and the Employer.7 In addition, Plasterers maintains that there is an agreed-upon method for adjusting the jurisdictional dis- pute at 3 of the 97 jobsites at issue, namely “the Plan” as provided for by article VII of the Project Stabilization Agreement (PSA).8 On the merits, Plasterers contends that the disputed work should be awarded to the employees it represents based on the factors of area and industry practice, and economy and efficiency of operations. The Employer contend that there are competing claims to the work in dispute. It asserts that Plasterers claims the work at issue by continuing to maintain its lawsuit against the Employer, which lawsuit the Board found has a jurisdictional objective,9 as well as by offering to with- draw the lawsuit if the Employer would enter into a con- tract with it. The Employer further argues that Carpen- ters has claimed the work in dispute, first, by performing it, and, second, by making repeated threats to strike or picket if the plastering work is reassigned. The Employer maintains that there is no agreed-upon method for the adjustment of jurisdictional disputes. It contends that the evidence fails to show that the Em- 7 At the hearing, Plasterers subpoenaed information from the Em- ployer and Carpenters, seeking evidence of payments from the latter to the former, which payments Plasterers asserted would demonstrate collusion in connection with Carpenters threat. The subpoena sought documents reflecting agreements to pay and actual payments from Carpenters to Employer from January 1, 2002, to the present. The Em- ployer and Carpenters petitioned to revoke as to certain of the subpoe- naed documents. The Hearing Officer granted the petition on the grounds that the evidence sought in these documents would not be relevant to the issue raised. On May 19, 2006, the Regional Director denied Plasterers’ appeal of the hearing officer’s ruling on the grounds that these documents would not tend to prove or disprove Plasterers’ claims that Carpenters’ threat was fabricated or collusive and on the further ground that the subpoena was overbroad in this respect. Plas- terers contends that the Board should reverse the Regional Director’s partial revocation of its subpoena. 8 Under art. VIII of the PSA, jurisdictional disputes will be settled according to the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the Plan). Plasterers contends that all parties are bound to the PSA for jobsites at Los Angeles Unified High School No. 2, East Valley Middle School, and LAUSD Caltrans Shop 7 Re- placement. Plasterers states that it filed a Plan grievance about the assignment of work at these three projects and that the arbitrator issued an award assigning the work to employees it represents. In a May 30, 2006 letter to the Regional Director, Plasterers requested that the arbi- trator’s award “be included in the documents transmitted to the Board for consideration in this case.” Plasterers also attached a copy of the arbitration award to its brief. 9 Standard Drywall, supra at 478. ployer is bound to the Plan for the three sites purportedly covered by the arbitration award (see fn. 8, supra).10 It also questions whether Carpenters is bound to the Plan at all, based on Carpenters disaffiliation from the AFL– CIO. The Employer further contends that even were it bound to the Plan at three locations, because there are 97 projects at issue, a Plan decision will not definitively resolve the dispute. Finally, the Employer contends that there is no agreed-upon method because its contracts with Carpenters—the drywall master agreement (art. VI) and the Employer’s memorandum agreement—require that jurisdictional disputes be resolved by the Drywall Joint Adjustment Board (JAB), thereby subjecting the Employer to potentially conflicting decisions (i.e., “Plan” vs. “JAB”). The Employer contends that Carpenters’ threat to strike is proscribed conduct under Section 8(b)(4)(D).11 On the merits, the Employer argues that the disputed work should be awarded to the employees represented by Carpenters based on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, relative skills, and economy and efficiency of operations. Carpenters does not take a position on Plasterers’ mo- tion to quash. However, it concurs with the Employer that there is no voluntary method of resolving the dis- pute, based on its disaffiliation with the AFL–CIO. On the merits, Carpenters generally asserts that the work should be assigned to the employees it represents. D. Applicability of the Statute Before the Board may proceed with determining a dis- pute pursuant to Section 10(k) of the Act, there must be reasonable cause to believe that Section 8(b)(4)(D) has been violated. This standard requires that there is rea- sonable cause to believe that: (1) there are competing claims for the disputed work among rival groups of em- 10 Although the Employer’s vice president, Caya, admitted that he signed a letter of assent (LOA) for two of these projects, he denied that he did so for the third. The LOAs and their terms were not introduced into evidence, nor was the Plan. Rather, the Plan was merely appended to Plasterers’ brief. By letter dated June 2, the Employer objected to the inclusion of the arbitration award in the record. On July 17, the Employer filed a motion to strike Plasterers’ brief because the brief included, as attachments, the Plan and arbitration award, neither of which had been admitted into evidence. The docu- ments were intended to show that there was an agreed-upon mechanism to resolve the dispute. On July 19, Plasterers filed an opposition to the Employer’s motion to strike. 11 The Employer argues that there is no evidence that Carpenter’s threat to strike was not genuine and contends that the Region properly revoked Plasterers’ subpoena which would have amounted to a fishing expedition. CARPENTERS (STANDARD DRYWALL) 1253 ployees; (2) that a party has used proscribed means to enforce its claim to the work in dispute;12 and (3) the parties have no agreed-upon method for the voluntary adjustment of the dispute.13 On this record, we find that this standard has been met. 1. Competing claims for work The evidence establishes that Carpenters claims the dis- puted work. Such claim is shown by the fact that employ- ees it represents perform the work.14 In addition, Carpen- ters’ repeated threats to strike if the Employer reassigned any plastering work currently being performed by employ- ees whom Carpenters represents constitutes a clear claim to the work. This threat was made in Carpenters’ February 24 letter to the Employer and repeated at the hearing by Car- penters’ representative Hubel. Plasterers also claims the work in dispute. As resolved in the earlier proceeding, Plasterers’ lawsuit constitutes a claim for the work in dispute.15 The lawsuit claims, among other things, that the Employer is legally obligated to use appren- tices trained by a state-approved apprenticeship program, which requirement is allegedly satisfied only by Plasterers’ program. As a remedy, the lawsuit seeks an injunction re- quiring the Employer to use apprentices from Plasterers’ apprenticeship program and compensatory damages for those apprentices’ loss of work. In addition, Plasterers’ claim to the disputed work is shown by Plasterers’ Secretary-Treasurer Finley’s state- ments to Caya that he would try to get the lawsuit dropped if the Employer signed an agreement with Plas- terers covering the Employer’s California projects. That agreement would require the use of employees repre- sented by Plasterers. We, therefore, find that there is reasonable cause to be- lieve that there are competing claims for the work. 2. Use of proscribed means Plasterers’ contention that Carpenters’ threat to strike was representational and not jurisdictional, is not well founded. Evidence was presented that although the Em- ployer has hired from sources other than Carpenters’ hiring hall, these employees have become Carpenters under the union-security clause of Carpenters’ contract with the Employer. Carpenters made a threat to strike if the work in dispute was not assigned to these employees 12 See, e.g., Electrical Workers Local 3 (Slattery Skanska, Inc.), 342 NLRB 173, 174 (2004). 13 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422, 423 (2001). 14 Longshoremen ILWU Local 14 (Sierra Pacific Industries), 314 NLRB 834, 836 (1994). 15 Standard Drywall, supra at fn. 8. whom it currently represents. This is a different scenario than that presented in the cases cited by Plasterers.16 As the Board has clarified, “There must, in short, (for the dispute to be jurisdictional) be either an attempt to take a work assignment away from another group, or to obtain the assignment rather than have it given to the other group.”17 Here, Carpenters’ threat to the Employer that if it “attempts to reassign any work currently being performed by members of the Carpenters Union, we will immediately strike the Company,” clearly falls within that description. Similarly, Plasterers’ contention that Carpenters’ threat to strike did not have a jurisdictional objective because Carpenters seeks to preserve current work is clearly without merit. Industrial Workers (Recon Refrac- tory),18 and the other cases cited by Plasterers deal with a very different scenario.19 In those cases, the employer had unilaterally taken work away from employees who had traditionally performed it, and the union representing those employees sought to get it back. In this case, Car- penters traditionally performed the work, and the Em- ployer considered reassigning the work only because of Plasterers’ lawsuit. At that juncture, Carpenters threat- ened economic action if the work were reassigned. In such circumstances, the Board has found a jurisdictional dispute.20 Finally, Plasterers’ argument that Carpenters’ threat to strike cannot be considered jurisdictional, because Car- 16 Cf. Gimrock Construction, 344 NLRB 1033 (2005) (union had representational, not jurisdictional, objective when it did not seek the assignment of work to a specific employee or group but engaged in a strike to ensure that whatever employees performed that work would be included in the bargaining unit); Lymo Construction Co., supra at 423 (dispute over which of two unions would represent employees currently performing the work found to be representational, not jurisdictional); and Long Island Typographical Union No. 915 (Newsday, Inc.), 306 NLRB 874, 876–877 (1992) (dispute over which of two unions would represent as-yet-undesignated employees who would be selected for a newly-created position found to be representational, not jurisdictional). 17 Newsday, Inc., supra at 877, quoting Communications Workers (Mountain States Telephone), 118 NLRB 1104, 1107–1108 (1957). 18 339 NLRB 825, 826–827 (2003), enfd. 424 F.3d 980 (9th Cir. 2005). 19 Machinists District 190 (SSA Terminal, LLC), 344 NLRB 1018, 1020–1021 (2005); Teamsters Local 578 (USCP-Wesco, Inc.), 280 NLRB 818 (1986), enfd. sub nom. USCP-WESC, Inc. v. NLRB), 827 F.2d 581 (9th Cir. 1987). 20 See Operating Engineers Local 3 (Levin-Richmond Terminal Corp.), 299 NLRB 449, 450 (1990) (in response to employer statement that it might reassign work, union whose employees had traditionally performed work threatened to picket if the work were reassigned); Laborers Local 113 (Joseph Lorenz), 303 NLRB 379 (1991) (union representing employees who perform disputed work threatened con- certed action if employer made good on statement that it might reassign work). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254 penters’ contract with the Employer prohibits jurisdic- tional strikes, is also without merit.21 It is well established that absent affirmative evidence that a threat to take proscribed action is a sham or the product of collusion, the Board will find that it amounts to proscribed conduct under Section 8(b)(4)(D). Here, even though the Employer asked what Carpenters’ reac- tion would be if the Employer reassigned plastering work to employees represented by Plasterers, no evidence was presented that Carpenters’ threat to strike was not genu- ine. We, therefore, find no basis for finding collusion between Carpenters and the Employer.22 On this basis, we find that there is reasonable cause to believe that Carpenters used proscribed means to enforce its claim to the work in dispute. 3. No voluntary method for adjustment of dispute As described above, Plasterers contends that all parties are bound to the PSA at three jobsites. However, the Employer disputes whether it is bound at all three loca- tions, if at all, and questions whether Carpenters remains bound to that agreement because of its disaffiliation from the AFL–CIO. It is unnecessary to resolve whether all the parties are bound by the PSA. Thus, as argued by the Employer, no agreed-upon method for resolving a jurisdictional dispute should be found because such a resolution would not encompass all projects involved in the dispute,23 and because the record shows that there are potentially con- flicting forums for resolving the disputes.24 Here, assuming arguendo that the PSA resolves the ju- risdictional dispute at 3 of the projects, this would leave the dispute at 94 projects unresolved. Further, as de- scribed above, the Employer has presented evidence that both its master agreement and memorandum agreement with Carpenters provides for the arbitration of jurisdic- tional disputes. This could result in conflicting awards binding on the Employer 21 E.g., Lancaster Typographical Union No. 70 (C.J.S. Lancaster), 325 NLRB 449, 451 (1998) (the Board found reasonable cause to be- lieve that Sec. 8(b)(4)(D) had been violated even though the union’s threat to strike was made in the face of a no-strike clause in its contract with the employer). 22 See E & B Paving, Inc., supra at 1255, 1258 fn. 4 (2003), citing C.J.S. Lancaster, supra (no collusion found where, after union repre- sentative orally threatened to strike or picket, employer’s president requested repetition of threat in writing). We also find no basis for reversing the Region’s denial of the hear- ing officer’s partial revocation of Plasterers’ subpoena. 23 Ironworkers Local 563 (Spancrete Midwest Co.), 183 NLRB 1105 (1970). 24 Operating Engineers Local 318 (Kenneth E. Foeste Masonry, Inc.), 322 NLRB 709 (1996). We, therefore, find that the record does not show that there is an agreed-upon method for voluntary adjustment of the work in dispute.25 Based on the foregoing, we find that there are compet- ing claims for the disputed work, reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed on method for voluntary adjust- ment of the work in dispute. We, therefore, find that the dispute is properly before the Board for determination and deny Plasterers’ motion to quash. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors.26 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case.27 The following factors are relevant in making the de- termination of this dispute. 1. Certification and collective-bargaining agreements The evidence shows that the Employer’s California employees are covered by a memorandum agreement with Carpenters which is incorporated in a master agreement, both of which are effective from July 1, 2002 to June 30, 2006. The master agreement encompasses the 12 Southern California counties and specifically cov- ers plastering work. The Employer has assigned plaster- ing work to its Carpenters-represented employees as re- quired by this agreement. The Employer never has had a bargaining relationship with Plasterers. Although the Employer and Plasterers (and others) may be parties to the PSA, there is no evi- dence that Plasterers represents any employees at any of the Employer’s jobsites in California. We find that the factor of collective-bargaining agree- ments favors awarding the work in dispute to employees represented by Carpenters. 2. Employer preference and past practice Employer Vice President Caya testified that the Em- ployer prefers that employees represented by Carpenters perform the plastering work. Further, since 2002, when it began performing plastering work at public works pro- 25 We, therefore, find it unnecessary to pass on whether all three par- ties were bound by the Project Stabilization Agreement and Plan for the Settlement of Jurisdictional Disputes at three jobsites (see fn. 7), whether the Plan or arbitration award relating to those jobsites should be admitted into the record, or whether the Employer’s motion to strike Plasterers’ brief should be granted. 26 NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). 27 Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). CARPENTERS (STANDARD DRYWALL) 1255 jects in the 12 Southern California Counties, the Em- ployer has assigned the work to employees represented by Carpenters. We find that these factors favor awarding the work in dispute to the employees represented by Carpenters. 3. Area and industry practice Caya testified that in Southern California approxi- mately 50 percent of the plastering work is not union- ized, and about 30 to 40 percent of the lathe and plaster- ing work has been assigned to employees represented by Carpenters. Several major competitors of the Employer assign plastering work to Carpenters represented em- ployees. About 14 percent of the area plastering work goes to employees represented by Plasterers Local 200. Carpenters has between 35,000 to 40,000 members in this area, contrasted with 1100 to 1200 members of Plas- terers Local 200, of whom about 100 are active (that is, working) members. Plasterers’ Business Manager Robert Pullen testified that Plasterers has 63 signatory contractors and that Plas- terers represents a majority of the employees (86–88 per- cent) who perform plastering work on public works pro- jects in Southern California. Pullen testified that 2 to 4 percent of this work is performed by employees repre- sented by Carpenters and that 10 percent is done by non- union employees. He further testified that the Board’s decision in the earlier proceeding inaccurately listed the number of active Plasterers members at 100 instead of approximately 900. Based on the foregoing, we find that this factor does not favor awarding the work in dispute to employees represented by either union.28 4. Relative skills The Employer asserts that Carpenters trains its mem- bers in the full drywall installation process. Thus, Caya testified that Carpenters maintains a state-of-the-art ap- prenticeship program, which cross-trains “plasterers to do framing work, read plans, do finishing, and tapers to do plaster work.” According to the Employer, because of this apprenticeship program, employees represented by Carpenters use technologically-advanced products and innovative techniques in performing plastering work. The Employer asserts that Plasterers did not address the Employer’s criticism that Plasterers’ apprenticeship pro- gram is outdated and does not train its employee in the work processes needed for the Employer’s operations. 28 In the earlier proceeding, this factor, as well as the factor of rela- tive skills, was found to favor the employees represented by Carpenters. Standard Drywall, supra at 478. However, as described above, Plaster- ers presented evidence on both these factors which it did not present in the earlier proceeding. Plasterers introduced into evidence its apprenticeship standards and outline of study for its plastering appren- ticeship classes. Plasterers’ Business Manager Pullen testified that the program covers “[a]ll the work proc- esses in our scope of work for plastering, blueprint read- ing, EIFS,29 scratch brown, exterior scratch brown, finish interior, mold work.” He also testified that Plasterers’ apprenticeship program is the only apprenticeship pro- gram approved by the State of California to teach plaster- ing in Southern California. Based on the foregoing, this factor does not favor awarding the work to either group of employees. 5. Economy and efficiency of operations Plasterers’ Business Manager Pullen testified that he visited an unidentified project of the Employer’s in Santa Barbara and observed what he considered to be an ineffi- cient plastering operation. According to Pullen, the em- ployees had done about a third of what a crew of em- ployees represented by Plasterers could have done in the same time period. Employer Vice President Caya conversely testified that assigning the full drywall installation process to em- ployees represented by a single union has reduced over- head costs, increased the Employer’s efficiency, reduced employee turnover, and increased employee satisfaction, even though the Employer has paid the employees repre- sented by Carpenters at a higher rate. Caya also testified that although the Employer has previously used employ- ees represented by Plasterers for some plastering work, it is more efficient to use Carpenter-represented employees because the latter are able to perform duties other than plastering work. This factor tends to favor assigning the work to the employees represented by Carpenters.30 Conclusion After considering all the relevant factors, we conclude that employees represented by Carpenters are entitled to perform the work in dispute. We reach this conclusion relying on the following relevant factors: collective- bargaining agreements, employer preference and past practice, and economy and efficiency of operations. In making this determination, we are awarding the disputed work to employees represented by Carpenters, not to that labor organization or its members. 29 This refers to “Exterior Insulation and Finish System,” as de- scribed in the parties’ stipulation of the work in dispute. 30 As noted in Standard Drywall, supra at 483, the Board does not rely on differing rates of pay of employees in determining a jurisdic- tional dispute. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256 F. Scope of the Award The Employer requests a broad award covering all its future work in the 12 Southern California counties. It argues that because the dispute has arisen in the past, and is likely to recur, such an order is appropriate. Plasterers argues that in the earlier proceeding, the Board declined Carpenters’ request for a broad award, i.e., the work in dispute covering all the Employer’s op- erations in Southern California. The basis for the Board’s denial was its established policy of “declin[ing] to grant a broad area-wide award in cases where the charged party represents the employees to whom the work is awarded and to whom the employer contem- plates continuing to assign the work.”31 Thus, Plasterers contends that here Carpenters has returned with a Section 10(k) claim for exactly what the Board denied it in the original proceeding. As found in the earlier proceeding, the Board typically does not grant areawide awards in cases, such as this, where the charged party represents the employees to whom the work is awarded and to whom the employer contemplates continuing to assign the work.32 However, the Board will not restrict the scope of its determination to specific jobsites if there is evidence that similar dis- putes may occur in the future. In Laborers Local 1184 (Massey Sand and Rock Co.),33 the Board granted a broad award to a union that was the charged party in an earlier proceeding between the same two unions and where there was evidence that “similar disputes may oc- cur in the future.”34 Given the wide breadth of Carpenters’ threat here as well as the continuation of Plasterers’ lawsuit, the possi- bility of similar disputes arising in the future seems well founded. Therefore, we hold that the determination of this dispute applies not only to the jobs in which the dis- pute arose but to all similar work done or to be done by the Employer on any other public works projects in the 12 Southern California counties, where the jurisdiction of the two Unions overlap. 31 Standard Drywall, supra at 483. 32 Laborers Local 243 (A. Amorello & Sons), 314 NLRB 501, 503 (1994). 33 198 NLRB 77, 79 (1972). 34 Thus, in order to grant a broad order, the Board requires evidence that: (1) the disputed work has been a source of controversy in the relevant geographical area and that disputes may recur; and (2) the charged party has a proclivity to engage in wrongful conduct in order to obtain work similar to that in dispute. Bricklayers (Sesco, Inc.), 303 NLRB 401 (1991). DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute: Employees of Standard Drywall, Inc. represented by Southwest Regional Counsel of Carpenters are entitled to perform the work in dispute: Plastering work at the public works projects in the 12 Southern California counties. Plastering work is defined as follows: A. Corner beads when stuck on. B. All interior or exterior plastering using gyp- sum, Portland Cement plaster (excepting cement bases 6 inches (6”) or lower, stucco, radian heat fill material, marble-crete, imitation brick or masonry, embedding of chips and stones, the finishing of same and mortars applied by the normal methods used by plasterers. C. The waterproofing of plaster including such materials as Thoroseal and Ironite. D. The bonding and scratching of all ceilings and walls to receive terrazzo and tile; and bonding, scratching and browning to receive thin set tile. E. The sticking, nailing and screwing on of all plaster caps and ornaments. F. The application of bond coat plasters, bond dash coats and bonding agents to which plaster is to be applied regardless of tools used, method of appli- cation, color of material or type of base to which it is applied. G. The application of materials used for contract fireproofing, fireproofing, acoustical finish, or deco- rative finish. H. All moldings run in place. The making of all templates and the horsing of molds for interior and exterior work. The sticking in place of all staff work and plaster enrichments. I. The initial cleaning of areas immediately adja- cent to the plastering and concurrent with the plaster- ing operation. J. Plasterers shall have the autonomy governing the mixing and applying of all materials used for plaster patching. K. The installation of Exterior Insulation Finish Systems (EIFS), starting with the foam. L. The carving or texturing of “positive” rock and other theme work created from gypsum, Port- land cement, or acrylic plaster.