Bricklayers Local 5 (Jersey Panel Corp.)

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 168 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
337 NLRB No. 28
168
Bricklayers and Allied Craftworkers, Local #5-New
Jersey; Bricklayers and Allied Craftworkers,
Local #2-New Jersey; and International Union
of Bricklayers and Allied Craftworkers and Jer-
sey Panel Corporation and Operative Plasterers’
and Cement Masons’International Association
of the United States and Canada Local Union
No. 8, AFL–CIO

Bricklayers and Allied Craftworkers, Local #2-New
Jersey and Jersey Panel Corporation and Op-
erative Plasters’ and Cement Masons’ Interna-
tional Association of the United States and Can-
ada Local Union No. 8, AFL–CIO. Cases 4–CD–
1021, 4–CD–1025–1, 4–CD–1025–2, 4–CD–1026–
1, and 4–CD–1026–2
December 20, 2001
DECISION AND DETERMINATION OF DISPUTES
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
This is a consolidated1 proceeding under Section 10(k)
of the National Labor Relations Act, following the filing
of charges in Case 4–CD–1021 on April 17, 2000,2 by
Jersey Panel Company (the Employer or Jersey Panel); in
Cases 4–CD–1025–1 and 4–CD–1025–2 on May 12 by
the Employer; and in Cases 4–CD–1026–1 and 4–CD–
1026–2 on May 16 by the Employer. It is alleged in
Cases 4–CD–1021, 4–CD–1025–1, 4–CD–1025–2, and
4–CD–1026–1 that the International Union of Bricklay-
ers and Allied Craftworkers (BAC)3 violated Section
8(b)(4)(D) of the Act by engaging in certain proscribed
activity with an object of forcing or requiring the Em-
ployer to assign certain work to employees represented
by BAC rather than to employees represented by the Op-
erative Plasterers’ and Cement Masons’ International
Association of the United States and Canada Local Un-
ion No. 8, AFL–CIO (the Plasterers).
It is alleged in Case 4–CD–1026–2 that the Plasterers
violated Section 8(b)(4)(D) by engaging in certain pro-
scribed activity with an object of forcing or requiring the
Employer to assign certain work to employees repre-

1 An order consolidating cases and notice of hearing was issued on
June 6, 2000.
2 All dates refer to 2000 unless otherwise indicated.
3 The Respondent Union in Case 4–CD–1021 is International Union
of Bricklayers and Allied Craftsmen Local #5-New Jersey (BAC Local
5); the Respondent Union in Case 4–CD–1025–1 is the International
Union of Bricklayers and Allied Craftworkers; the Respondent Union
in Case 4–CD–1025–2 is International Union of Bricklayers and Allied
Craftworkers, Local #2-New Jersey (BAC Local 2); and the Respon-
dent Union in Case 4–CD–1026–1 is International Union of Bricklayers
and Allied Craftworkers, Local #2-New Jersey (BAC Local 2).
sented by the Plasterers rather than to employees repre-
sented by BAC.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.4
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.5
I. JURISDICTION
The parties stipulate, and we find, that the Employer, a
New Jersey corporation, with its principal office in Vine-
land, New Jersey, is engaged in the provision of exterior
contracting work for commercial and residential custom-
ers. During the past 12-month period, the Employer’s
gross revenues have exceeded $500,000 and during the
same period, the Employer has purchased goods and ser-
vices valued in excess of $50,000 directly from points
outside the State of New Jersey. We accordingly find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. We further
find, based on the stipulation of the parties, that BAC
Local 2, BAC Local 5, the International Union of Brick-
layers and Allied Craftworkers, and the Plasterers are
labor organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTES
A. Background and Facts of Disputes
The Employer performs exterior plastering work, in-
cluding prefabricated and field-constructed exterior wall
assembly throughout southern New Jersey. Dominic
Baruffi is the Employer’s president, and Larry Baruffi is
its vice president. The Employer employs a core group
of approximately five to eight employees who are cur-
rently represented by the Plasterers. These employees
have received in-house plastering training as well as pe-
riodic training by the manufacturers of plastering prod-
ucts.
Since the mid-1980s, the Employer has been a party to
8(f) agreements with both BAC Local 5 and the Plaster-
ers. Until 1999, the Employer’s core employees were
represented by BAC Local 5. After the core employees
signed authorization cards to be represented by the Plas-
terers, the Employer entered into a collective-bargaining
agreement with the Plasterers on January 12, 2000.6

4 Member Walsh did not participate in the decision on the merits.
5 The hearing officer inadvertently omitted the Plasterers in the issue
statement portion of her report. As stated above, the Plasterers are the
Respondent in Case 4–CD–1026–2.
The Employer’s unopposed motion to correct an error in the tran-
script is granted.
6 As discussed below, BAC essentially contends, and in fact alleged
in an unfair labor practice charge, that the Employer unlawfully failed
BRICKLAYERS LOCAL 5 (JERSEY PANEL CORP .) 169
1. Cases 4–CD–1021, 4–CD–1025–1, and
4–CD–1025–2
Before beginning work on the projects that are in dis-
pute, the Employer worked on a job in Somers Point,
New Jersey. That project involved work that is similar to
the work in dispute. Dominic Baruffi testified to the
following events. In mid-February, BAC Local 5 Busi-
ness Agent Rich Tolson asked Dominic Baruffi about the
Somers Point job. Baruffi told Tolson he would be using
his own employees for this job. According to Baruffi,
Tolson stated that the Employer should use BAC Local 5
employees on the job. Baruffi refused this request. Tol-
son then stated, “[W]ell[,] you’re going to have a prob-
lem.”
The Employer began working on an exterior insulation
and finishing system (EIFS) job at the Sands Hotel and
Casino in Atlantic City, New Jersey, in April. The Em-
ployer employed a range of 5 to 15 employees, including
5 to 8 core employees to work on the project. The addi-
tional employees were referred by the Plasterers. On
April 17, at the direction of BAC Local 5 Business Agent
Tolson, BAC Local 5 set up a picket line at the jobsite.
The picket line was taken down later that day after the
general contractor for the project agreed to keep the Em-
ployer off the job until the dispute was resolved. That
Friday, the general contractor told Dominic Baruffi that
it was going to complete the job using its own employ-
ees. Following a telephone call to BAC Vice President
Dominic Spano, Baruffi secured Spano’s agreement not
to picket. On April 21, Jersey Panel’s employees re-
turned to work at the Sands jobsite.
On April 27, Baruffi met with Spano and BAC repre-
sentative, Anthony LaTorre, regarding the dispute. Ba-
ruffi told Spano and LaTorre that he intended to use his
core employees on every job, but that he was willing to
call BAC members if he needed additional workers.
Spano asked if BAC could get dues from the Employer’s
core employees. Baruffi replied that he did not know,
but would look into the matter. Baruffi subsequently told
Spano that he had been advised that he could not do this.
On May 1, BAC Local 5 transferred the membership
of all of its plasterer members to BAC Local 2.

and refused to bargain with BAC because, notwithstanding an auto-
matic renewal provision in the Employer’s expired agreement with
BAC Local 5, the Employer recognized the Plasterers as the exclusive
bargaining representative for the unit employees. The Regional Direc-
tor refused to issue a complaint on this charge, stating that, although the
Employer’s 8(f) obligation to BAC Local 5 continued under the agree-
ment’s automatic renewal provision, BAC Local 5 subsequently effec-
tively disclaimed interest in representing the Employer’s employees
when BAC transferred Local 5’s jurisdiction to the newly chartered
BAC Local 2. We have been administratively advised that BAC’s ap-
peal of the Region’s dismissal of the charge is pending.
On May 3, Baruffi met with Spano and LaTorre. Ba-
ruffi testified that the following occurred. Spano told
him that if BAC could not get the core employees back
as BAC members, then he wanted “it all,” i.e., he wanted
Baruffi to use BAC members rather than his core em-
ployees. Baruffi stated that he would use BAC members
only after using his core employees. Spano stated that
that was not good enough, and that if he did not get it all,
Baruffi was going to have problems and there would be a
picket line.7 (Baruffi also testified that Spano told him
that he did not care what happened to Baruffi’s employ-
ees.) The following Monday, BAC Local 2 set up a
picket line at the Sands Hotel and Casino site. By then,
the work was nearly completed.
2. Cases 4–CD–1026–1 and 4–CD–1026–2
The Employer was scheduled to begin EIFS work at
the Hilton Resort garage in Atlantic City, New Jersey, in
mid-May.8 Around that time, Baruffi spoke with Wil-
liam Taylor, a business representative for the Plasterers.
Taylor told Baruffi that he was contractually required to
use Plasterers on the job, and that the Plasterers would
picket the site if the Employer failed to use Plasterers.
The Employer was unable to start the job because the
general contractor told Baruffi that the owner did not
want picket lines on the job. At some point thereafter,
Baruffi asked LaTorre if Spano would picket the site.
According to Baruffi, LaTorre stated, “Dominic, he’s
going to picket you on the Hilton [and] he’s going to
picket you everywhere you go.” Pursuant to a consent
agreement, BAC agreed not to picket the job, and Jersey
Panel has worked on the job with its core employees.
B. Work in Dispute
The work in dispute involves the exterior plastering
and installation, and the installation of an exterior finis h-
ing system, at the Sands Hotel and Casino, Indiana and
Pacific Avenues, Atlantic City, New Jersey, and at the
Atlantic City Hilton Resort garage on Pacific Avenue,
Atlantic City, New Jersey.

7 Spano broadly denied that he made various remarks at these meet-
ings which were attributed to him by Baruffi. While the Board does not
make credibility findings in a 10(k) proceeding, “[a] conflict in test i-
mony does not prevent the Board from proceeding with a determination
of the dispute under Section 10(k).” Laborers Local 334 (C. H. Heist
Co.), 175 NLRB 608, 609 (1969). In this regard, “[t]he Board is not
charged with finding that a [8(b)(4)(D) violation] did in fact occur, but
only that reasonable cause exists for finding such a violation.” Id.
8 The charges relating to this project refer to the worksite as Bally’s
Hotel and Casino. Also, the Plasterers’ brief refers to the project as the
Bally’s project. However, it is undisputed that the project involved the
Hilton Resort garage, and that references to Bally’s and Hilton are to
the same project, i.e., the work in dispute.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
C. Contentions of the Parties
The Employer contends that there is reasonable cause
to believe that, with respect to Cases 4–CD–1021, 4–
CD–1025–1, and 4–CD–1025–2, BAC violated Section
8(b)(4)(D) and, therefore, the Board must make a deter-
mination of the merits of the disputes. The Employer
further contends that, with respect to Cases 4–CD–1026–
1 and 4–CD–1026–2, there is reasonable cause to believe
that BAC and the Plasterers, respectively, violated Sec-
tion 8(b)(4)(D) and, therefore, the Board must make a
determination of the merits of the disputes.
The Employer contends that the disputed work in each
case should be awarded to employees represented by the
Plasterers based on the factors of collective-bargaining
agreements, employer preference and past practice, rela-
tive skills, economy and efficiency of operations, and
loss of employment. The Employer further contends that
the Board should issue a broad order applicable to the
Employer’s further work in southern New Jersey.
The Plasterers contends that there is reasonable cause
to believe that BAC have violated Section 8(b)(4)(D).
The Plasterers further contends that the Employer has
made proper assignments of the disputed work to em-
ployees represented by the Plasterers, and that the factors
of collective-bargaining agreements, employer prefer-
ence and past practice, relative skills, economy and effi-
ciency of operations, and job loss favor an award of the
disputed work to employees represented by the Plaster-
ers. The Plasterers also contends that the Board should
issue a broad order.
BAC contends that the notice of hearing should be
quashed, alleging that these cases involve a representa-
tional dispute over who should represent the core group
of the Employer’s employees, not a jurisdictional dis-
pute. BAC further contends that its picketing addressed
alleged unfair labor practices (the Emp loyer’s alleged
failure to sign a new 8(f) agreement, among other
things), not a jurisdictional dispute. BAC alternatively
contends that, if the Board finds the statute applicable
and determines the disputes, the work should be awarded
to employees represented by BAC based on the factors of
relative skills and past practice.
D. Applicability of the Statute
Before the Board may proceed with a determination of
the disputes pursuant to Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated. This
requires a finding that there are competing claims to dis-
puted work between rival groups of employees and that
there is reasonable cause to believe that a party has used
proscribed means to enforce its claim. “This reasonable
cause standard is substantially lower than that required to
establish that the statute has in fact been violated. In
addition, the Board’s Section 10(k) procedure, unlike the
unfair labor practice procedure, does not call for assess-
ments of the credibility of witnesses.” Plumbers Local
562 (Charles E. Jarrell Contracting), 329 NLRB 529,
531 (1999), quoting Plumbers Local 562 (C & R Heating
& Service Co.), 328 NLRB 1235 (1999).
The parties stipulated that BAC Locals 5 and 2 and the
Plasterers all claim the work in dispute at the Sands Ho-
tel and Casino as defined in the notice of hearing. The
parties also stipulated that BAC Local 2 and the Plaster-
ers both claim the work in dispute at the Atlantic City
Hilton Resort garage as defined in the notice of hearing.
Accordingly, we find that BAC and the Plasterers both
claim the disputed work.
The Board must also find that no method for voluntary
adjustment of the dispute has been agreed on. Although
the parties did not stipulate that there is no agreed-on
method for a voluntary adjustment of the disputes, there
was no evidence presented that such a method exists.
Accordingly, we find that no method for voluntary ad-
justment of the disputes has been agreed on.
We now turn to the issue of whether there is reason-
able cause to believe that a party has used proscribed
means to enforce its claim to disputed work.
As stated above, before beginning work on the projects
that are in dispute, the Employer worked on a job in So-
mers Point, New Jersey. According to Dominic Baruffi,
Tolson stated that Baruffi would “have a problem” if he
did not use BAC Local 5 employees on that job.
In April, the Employer began EIFS work at the Sands
Hotel and Casino, and employed 5 to 15 employees, in-
cluding 5 to 8 core employees on this job. (The addi-
tional employees were referred by the Plasterers.) On
April 17, at Tolson’s direction, BAC Local 5 set up a
picket line at the jobsite. The picket line was taken down
later that day, and, on April 21, the Employer’s employ-
ees returned to work at the jobsite.
On April 27, Baruffi met with BAC Vice President
Spano, and Anthony LaTorre (another BAC official) to
try to resolve the dispute. At this meeting, Barufii told
Spano and LaTorre that he intended to use his core em-
ployees on every job, but that he was willing to use BAC
members if he needed additional workers. Spano asked
if BAC could get dues from the core employees; Baruffi
stated that he would look into it. (Baruffi testified that
his counsel advised him that he could not get the core
employees to pay dues to BAC.) On May 1, BAC Local
BRICKLAYERS LOCAL 5 (JERSEY PANEL CORP .) 171
5 transferred the membership of all its plasterer members
to BAC Local 2.9
Baruffi, Spano, and LaTorre met again on May 3. At
this meeting, according to Baruffi, Spano told him that if
BAC could not get the core employees back as BAC
members then he wanted “it all,” i.e., he wanted Baruffi
to use BAC members rather than the core employees.
Baruffi told Spano that he would only use BAC members
if he needed additional workers on a job. Spano told
Baruffi that this was not good enough. Spano also stated
that if he did not get “it all,” Baruffi was going to have
problems, and that BAC would put up a picket line. Fi-
nally, Spano stated that he did not care what happened to
Baruffi’s employees. The following Monday, BAC Local
2 set up a picket line at the Sands Hotel and Casino job-
site.
The Employer was to begin EIFS work at the Hilton
Resort garage in Atlantic City in mid-May. Around that
time, Baruffi spoke with William Taylor, a business rep-
resentative for the Plasterers. Taylor told Baruffi that
Baruffi was contractually required to use Plasterers em-
ployees on the job, and that the Plasterers would picket
the site if the Employer failed to do so.
The Employer was unable to start this job on schedule
because the general contractor told Baruffi that the owner
did not want picket lines on the job. Baruffi telephoned
LaTorre and asked if Spano would picket the site. La-
Torre replied, “Dominic, he’s going to picket you on the
Hilton. And he’s going to picket you everywhere you
go.” Eventually, through a consent agreement, BAC
agreed not to picket the job, and the Employer has been
able to continue working on the job with its core em-
ployees.
BAC denies making the various above-mentioned
statements attributed to its officials. As stated above,
BAC contends that the instant cases involve a representa-
tional dispute (i.e., which union should represent the
Employer’s employees), not a jurisdictional dispute.
BAC further contends that the object of their picketing
was to address the Employer’s alleged unfair labor prac-
tices.
With respect to Case 4–CD–1026–2, which involves
the disputed work at the Hilton Resort garage, we find
reasonable cause to believe that the Plasterers violated
Section 8(b)(4)(D), as demonstrated by Taylor’s threat to
picket if the work was not assigned to employees repre-
sented by the Plasterers. Also, with respect to Case 4–
CD–1026–1, which also involves the disputed work at
the Hilton Resort garage, we find reasonable cause to
believe that BAC violated Section 8(b)(4)(D), as demo n-

9 See fn. 6, supra.
strated by LaTorre’s statement to Baruffi that Spano
would picket the Employer on the Hilton project.
We also find reasonable cause to believe that, in Cases
4–CD–1021, 4–CD–1025–1, and 4–CD–1025–2, BAC
violated Section 8(b)(4)(D) with respect to the disputed
work at the Sands Hotel and Casino.
Concededly, Spano’s statement at the April 27 meeting
discussed above is consistent with BAC’s contention that
these cases actually involve a representational dispute.
Spano asked Baruffi whether he could get Baruffi’s core
employees to pay dues to BAC. This does not reflect a
jurisdictional objective. On May 3, Spano told Baruffi
that if BAC could not get the core employees back as
BAC members, then he wanted “it all.” These comments
certainly reflect a primary representational objective (i.e.,
he wanted the core employees back as members). But,
they go further and also reveal a jurisdictional object,
should the representational goal fail. Namely, these
comments can reasonably be interpreted to mean that
Spano wanted Baruffi to use BAC members rather than
his core employees. Further evidence of this is that
Spano also told Baruffi that he did not care what hap-
pened to Baruffi’s core employees. And, Spano further
told Baruffi that if he did not get “it all,” Baruffi was
going to have problems and there would be a picket line.
The following Monday, BAC Local 2 set up a picket line
at the Sands Hotel and Casino worksite.
Contrary to BAC’s contentions, then, these May 3
comments demonstrate that there is reasonable cause to
believe that a purpose behind the earlier BAC Local 5
picketing at the Sands Hotel and Casino worksite and the
subsequent picketing and threatened picketing at that
worksite (and the threatened picketing at the Hilton Re-
sort garage), was to compel the Employer to reassign the
disputed work to employees represented by BAC, includ-
ing, if necessary, replacing the Employer’s core employ-
ees. Even if BAC hoped to get the core employees to
switch back to BAC (or at least pay dues to the BAC),
Spano’s May 3 comments support the reasonable infer-
ence that if BAC did not achieve that goal, an object of
its picketing and threats to picket was jurisdictional.
Although BAC contends that its picketing was de-
signed to inform the public about unfair labor practice
charges it filed against the Employer, we find, under the
circumstances, that reasonable cause exists to believe
that an object of the picketing (as well as the threats to
picket) was to force or require the Employer to reassign
the disputed work from employees represented by the
Plasterers to employees represented by BAC. Specifi-
cally, as discussed above, Spano’s above-mentioned re-
marks to Baruffi demonstrate that BAC was motivated to
picket (and threaten to picket), at least in part to compel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
the Employer to reassign the work to employees repre-
sented by BAC, and that this included, if necessary, re-
placing the core employees with BAC members. Be-
cause “[o]ne proscribed object is sufficient to bring a
union’s conduct within the ambit of Section 8(b)(4)(D),”
we find reasonable cause to believe that a violation of the
statute has occurred. Plumbers Local 305 (Abington
Constructors) , 307 NLRB 1048, 1049 (1992).
Accordingly, for these reasons, and without any
requirement to resolve conflicts in the testimony,10 we
find that the disputes are properly before the Board for
determination.
E. Merits of the Disputes11
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of these disputes.
1. Certifications and collective-bargaining agreements
Neither BAC nor the Plasterers has been certified by
the Board as the collective-bargaining representative of
the employees performing the disputed work. Accord-
ingly, this factor is not helpful in determining the dis-
putes.
As noted above, the Employer has a collective-
bargaining agreement with the Plasterers. The agreement
is effective from December 1, 1999, through December
1, 2004. This agreement states, inter alia, that it “shall
apply to all field plastering work performed by Jersey
Panel in field operations.” (Emphasis in original.) The
agreement further states, inter alia, that work jurisdiction
includes:

[T]he unloading, stock piling, general distribution and
erection, the carrying, handling and transportation as-
sociated with scaffolding, mud sills, plasterer materials,
masking and protections, spray fireproofing, ornamen-
tal plaster, prepare and mix all materials used on job,
plaster pump operation, insulation in conjunction with
EIFS, taping and finishing of drywall and gypsum
board including but not limited to veneer plaster sys-

10 See Operating Engineers Local 12 (Winegardner Masonry), 331
NLRB 1669 (2000), and cases cited therein at fns. 4 and 5.
11 The following discussion refers to the merits of the disputes in all
of the consolidated cases.
tems, and any other aides to the plasterer such as sub-
strate reinforcement for plaster systems including ny-
lon, polymer, wire meshes and pertinent screeds and
stops of similar materials integral to the plaster sys-
tems.

As stated above, BAC alleged in an unfair labor prac-
tice charge that, even though BAC Local 5’s collective-
bargaining agreement with the Employer expired on Oc-
tober 31, 1999, this agreement renewed itself pursuant to
an automatic renewal clause. The Regional Director
refused to issue a complaint on this charge (Case 4–CA–
28941), and we have been administratively advised that
BAC’s appeal is pending.12 Essentially, the Regional
Director reasoned that, because BAC International (the
Union) transferred jurisdiction over plastering and ce-
ment masons’ work in southern New Jersey from BAC
Local 5 to BAC Local 2 on April 24, this constituted a
constructive disclaimer of BAC Local 5’s interest in rep-
resenting employees formerly under its jurisdiction. The
Regional Director’s refusal to issue a complaint on this
charge does not, of course, constitute a binding adjudica-
tion of this matter.13 Thus, since BAC Local 5 continues
to claim the work in dispute at the Sands Hotel and Ca-
sino and asserts that its agreement with the Employer
automatically renewed, we will assume arguendo for
purposes relating to this 10(k) determination only,14 that
BAC Local 5’s agreement with the Employer is applica-
ble to the disputed work at the Sands Hotel and Casino.15
This agreement states, in article 3 (“Scope of Work”),
that it includes all “EIF systems and related work.”
In view of the quoted provisions of its collective-
bargaining agreement with the Employer, we find that
the Plasterers current collective-bargaining agreement
arguably covers the disputed work at both the Sands Ho-
tel and Casino and the Hilton Resort garage sites. In
view of the quoted provision of its purported collective-
bargaining agreement with the Employer, we find that
BAC Local 5’s collective-bargaining agreement with the
Employer arguably covers the disputed work at the Sands
Hotel and Casino and the Hilton Resort garage sites.
Because both the Plasterers’ and BAC Local 5’s collec-
tive-bargaining agreements reasonably can be read as

12 See fn. 6, supra.
13 See, e.g., NLRB v. Food & Commercial Workers Local 23, 484
U.S. 112, 124 (1987); Sheet Metal Workers Local 28 (American Elgen),
306 NLRB 981, 982 (1992); Machinists Local Lodge 790, 150 NLRB
565, 571 (1964).
14 The purpose of a 10(k) proceeding is not to litigate the merits of
an unfair labor practice.
15 We also assume arguendo, for purposes of this proceeding only,
that the agreement applies to BAC Local 2’s claim to perform the dis-
puted work at the Sands Hotel and Casino and the Hilton Resort garage
jobsites.
BRICKLAYERS LOCAL 5 (JERSEY PANEL CORP .) 173
covering the work in dispute at the Sands Hotel and Ca-
sino and the Hilton Resort garage sites, we find that the
factor of collective-bargaining agreements does not favor
awarding the work in dispute to either group of employ-
ees.
2. Employer preference and past practice
The Employer stated a preference for having the dis-
puted work at the Sands Hotel and Casino and the Hilton
Resort garage assigned to its own employees, i.e., its
core employees who are currently represented by the
Plasterers. Therefore, employer preference favors the
assignment of the disputed work in each case to employ-
ees represented by the Plasterers.
The record reflects that the Employer’s past practice
has been to use its core employees (sometimes supple-
mented by additional employees who are represented by
the Plasterers or BAC) to perform work that is similar to
the disputed work. The Employer’s core employees
were represented by BAC from the mid-1980s until De-
cember 1999. They became represented by the Plasterers
in December 1999. The events herein occurred in April
and May 2000. In light of this large time differential, the
factor of employer past practice favors awarding the
work in dispute to employees represented by BAC.
3. Area and industry practice
BAC presented evidence that BAC-represented em-
ployees have performed work similar to the disputed
work in southern New Jersey (including Atlantic County,
the county in which the disputed work is located). The
Plasterers presented evidence that employees represented
by the Plasterers have performed work similar to the dis-
puted work in southern New Jersey (including Atlantic
County). Baruffi, the Employer’s president, testified that
employees represented by BAC have performed work
similar to the disputed work in southern New Jersey (in-
cluding Atlantic County). Accordingly, we find that this
factor does not favor awarding the disputed work to ei-
ther group of employees.
4. Relative skills
Baruffi testified that EIFS work involves the applica-
tion of layers of materials that create an insulation barrier
on the exterior of a building, and the application of a
finished coating. The work involves, inter alia, the utili-
zation of a hawk and a trowel.
Baruffi testified that his employees periodically re-
ceive in-house training and are periodically trained by
manufacturers. The record shows that the vast majority
of Plasterers-represented employees have been trained in
the application and installation of EIFS products. The
record also shows that BAC conducts training programs
through the International Masonry Institute relating to
plastering skills, and that some BAC-represented em-
ployees have received training relating to EIFS work.
Accordingly, we find that this factor does not favor
awarding the disputed work to either group of employ-
ees.
5. Economy and efficiency of operations
The Employer argues that it would be more economi-
cal and efficient for it to assign the disputed work to its
employees.
In this regard, Baruffi testified without contradiction
that he prefers to use his own employees because of, in-
ter alia, “efficiency in making the numbers work . . . [that
is,] the ability to do a job cost effectively, to make it
work, to have guys that know what they’re doing to pro-
duce the project.”
He further testified about what he perceived to be inef-
ficiencies associated with the work of supplemental em-
ployees represented by BAC who had worked for the
Employer. In response to a question about additional
supervision allegedly required for certain supplemental
employees represented by BAC, Baruffi testified:

You could train them yourself. You could try to, it
slows you down. And so what you’re doing is you’re
actually showing them in detail . . . what you’re doing.
So, you know, I don’t think, I would never question the
integrity that I know of, of any of these individuals. So
I mean, they were full bodied individuals to work. But
if someone doesn’t come to you knowing exactly what
you’re doing, then what you’re doing is your pace is
brought down. And you have to spend more time with
them making sure, and checking with them that the de-
tails are complete and sufficient for quality and longev-
ity.

Although the factor of economy and efficiency of opera-
tions is a close question, we find that since BAC did not
present any relevant evidence or contentions, it favors
awarding the disputing work in each case to employees rep-
resented by the Plasterers.
6. Interunion agreements
BAC contends that, pursuant to an interunion agree-
ment between BAC and the Plasterers, BAC-represented
employees were to perform all plastering work in all of
southern New Jersey except for Camden, Gloucester, and
Salem Counties. However, this agreement was not of-
fered into evidence.
BAC further contends that a decision of the Governing
Board of Presidents of the Building and Construction
Trades Department of the AFL–CIO demonstrates that
BAC and the Plasterers were required to adhere to certain
geographical areas for purposes of performing plastering
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
work. The hearing officer did not accept exhibits relat-
ing to this decision into evidence. Instead, the exhibits
were placed in the rejected exhibits file. There is no evi-
dence that the decision pertains to the disputed work.
Further, there is no evidence that the Employer is bound
by this decision.16 Accordingly, this factor does not fa-
vor an award of the disputed work to either group of em-
ployees.
Conclusions
After considering all of the relevant factors, we con-
clude that employees represented by the Plasterers are
entitled to perform the work in dispute. We reach this
conclusion relying on the factors of employer preference
and economy and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by the Plasterers, not to
that Union or its members.
Scope of the Award
The Employer and the Plasterers contend that, based
on the actions of BAC, a broad order with respect to
plastering work in various New Jersey Counties17 is nec-
essary to avoid similar jurisdictional disputes in the fu-
ture. The Board has held that it will restrict the scope of
its determination to a specific jobsite (or sites, as is the
case here) unless there is evidence that similar disputes
may occur in the future. See, e.g., Operating Engineers
Local 12 (Winegardner Masonry), 331 NLRB at 1669
(2000). There is no evidence that BAC has claimed
similar work to be performed by the Employer in the
future. Further, the evidence does not show that BAC
has a proclivity to engage in unlawful conduct to obtain
work similar to the disputed work. Accordingly, the pre-

16 See Plumbers Local 562 (Grossman Contracting), 329 NLRB
516, 525 (1999).
In light of our resolution of this factor, we find it unnecessary to ad-
dress the Plasterers request to admit a subsequently issued decision of
the Building and Construction Trades Department into evidence as
after-acquired evidence.
17 The Plasterers specifically request that the award cover all plaster-
ing work for the Employer in Atlantic, Cape May, Ocean, Burlington,
and Cumberland Counties. The Employer requests that the award
“cover the geographic region in which [the Employer] performs work”
including Atlantic County.
sent determination is limited to the particular controver-
sies that gave rise to this proceeding.
DETERMINATION OF DISPUTES
The National Labor Relations Board makes the follow-
ing Determinations of Disputes.
1. Employees of Jersey Panel Corporation represented
by Operative Plasterers’ and Cement Masons’ Interna-
tional Association of the United States and Canada Local
Union No. 8, AFL–CIO are entitled to perform the ext e-
rior plastering and insulation, and the installation of an
exterior finishing system at the Sands Hotel and Casino,
Indiana and Pacific Avenues, Atlantic City, New Jersey,
and at the Atlantic City Hilton Resort garage on Pacific
Avenue, Atlantic City, New Jersey.
2. Bricklayers and Allied Craftworkers, Local #5-New
Jersey, and Bricklayers and Allied Craftworkers Local
#2-New Jersey and International Union of Bricklayers
and Allied Craftworkers are not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force Jersey
Panel Corporation to assign the disputed work at the
Sands Hotel and Casino, Indiana and Pacific Avenues,
Atlantic City, New Jersey, to employees represented by
it. Bricklayers and Allied Craftworkers, Local #2-New
Jersey and Operative Plasterers’ and Cement Masons’
International Association of the United States and Can-
ada Local Union No. 8, AFL–CIO are not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Jersey Panel Corporation to assign the disputed
work at the Atlantic City Hilton Resort garage on Pacific
Avenue, Atlantic City, New Jersey, to employees repre-
sented by them.
3. Within 14 days from this date, Bricklayers and Al-
lied Craftworkers, Local #5-New Jersey; Bricklayers
and Allied Craftworkers, Local #2-New Jersey; and In-
ternational Union of Bricklayers and Allied Craftwork-
ers, and Operative Plasterers’ and Cement Masons’ In-
ternational Association of the United States and Canada
Local Union No. 8, AFL–CIO, shall notify the Regional
Director for Region 4 in writing whether they will refrain
from forcing Jersey Panel Corporation, by means pro-
scribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with this determination.