Triangle Bldg. Products, Corp.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 257 (N.L.R.B. 2002)

TRIANGLE BLDG. PRODUCTS, CORP. 257
Triangle Building Products, Corp. and Local 1205,
International Brotherhood of Teamsters, AFL–
CIO, Petitioner and Local 2682, United Broth-
erhood of Carpenters and Joiners of America,
Intervenor. Case 29–RC–9662
September 30, 2002
DECISION ON REVIEW AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On July 2, 2001, the Regional Director for Region 29
issued a Decision and Direction of Election (relevant
portions of which are attached as an appendix) finding
the petitioned-for unit of drivers and other classifications
not appropriate but finding instead that a smaller unit of
drivers is appropriate. The Regional Director further
found that the Employer’s recognition of the Intervenor
as the representative of a wall-to-wall unit does not bar
an election in the unit of drivers because the Petitioner
had support of 30 percent of the driver unit at the time of
recognition. Thereafter, pursuant to Section 102.67 of
the National Labor Relations Board’s Rules and Regula-
tions, the Intervenor and the Employer filed timely re-
quests for review of the Regional Director’s determina-
tion, contending that a unit of drivers is not an appropri-
ate unit, and that in any event the recognition agreement
between the Intervenor and the Employer barred an elec-
tion in the driver unit. By Order dated August 2, 2001,
the Board granted the Intervenor’s and the Employer’s
requests for review. Thereafter, the Petitioner filed a
brief on review.
Having carefully considered the entire record, includ-
ing the brief on review, we find, contrary to the Regional
Director, that the Employer’s recognition of the Interve-
nor as the representative of a wall-to-wall unit bars the
present petition.
Facts
On March 21, 2001, the Employer, having reviewed
and verified authorization cards, stipulated that the Inter-
venor had support of a majority of its employees. On
that same date, the Employer and the Intervenor entered
into a recognition agreement designating the Intervenor
as the collective-bargaining representative of a wall-to-
wall unit including all production and maintenance em-
ployees, carpenters, material handlers, warehousemen,
forklift operators, truckdrivers, and checkers. Thereafter,
on March 26, 2001, a neutral arbitrator conducted an
election in the wall-to-wall unit. Of the eligible voters,
36 voted to have the Intervenor represent them for pur-
poses of collective bargaining. One month later, on
April 26, 2001, the Petitioner filed the present petition,
amended at the hearing, seeking to represent a portion of
the recognized unit.1
After conducting a hearing, the Regional Director
found that the petitioned-for unit was not appropriate.
The Regional Director found that most of the employees
that the Petitioner sought to represent had work-related
contact, were functionally integrated, and had inter-
change with employees excluded by the petition. The
Regional Director then found, however, that a smaller
unit of drivers was appropriate and directed an election in
that unit. In doing so, the Regional Director reasoned
that because the Petitioner had support of 30 percent of
the driver unit that predated the Employer’s recognition
of the Intervenor, the recognition agreement did not bar
an election. That the unit found appropriate was smaller
than the unit petitioned-for and the recognized unit was,
according to the Regional Director, of no consequence.
We disagree and find that the Employer’s voluntary rec-
ognition of the Intervenor does indeed bar an election in
the circumstances of this case.
Analysis
The Board first outlined the theory of a recognition bar
in representation cases in Sound Contractors, 162 NLRB
364 (1966), where it held that after an employer lawfully
recognizes a union as the representative of its employees
based on a showing of majority support, no petitions can
be processed for a reasonable period of time thereafter.
In Rollins Transportation System, 296 NLRB 793
(1989), the Board limited the application of the recogni-
tion bar in circumstances in which there was simultane-
ous campaigning by competing unions. Specifically, the
Board held that a petition was not barred by an em-
ployer’s voluntary recognition of another union if the
petitioning union was organizing employees at the same
time as the recognized union and if the petition was filed
within a reasonable period of time after recognition.
The Board modified the Rollins rule in Smith’s Food &
Drug Centers, 320 NLRB 844 (1996), to permit a peti-
tion by a competing union following voluntary recogni-
tion of another union only where the petitioning union
demonstrates that it had a 30-percent showing of interest

1 The unit petitioned-for included “all drivers, warehouse assistants,
warehouse driver/helpers, yard foremen, gate checkers, warehouse
foremen and forklift operators, excluding roof truss leadman, roof truss
stacker, truss plant production foremen, truss assemblers, wall paneler
sawyer, wall panel component assembly leadman, wall panel plant
production foreman, wall panel component assembler, component
sawyer, office clerical employees, security guards and other employees
by operation of the National Labor Relations Act.” There are approxi-
mately 21 employees in this unit. The Petitioner had the support of 30
percent of this unit when the Employer recognized the Intervenor. A
year prior to these events, the Petitioner had entered into a stipulated
election agreement in a larger unit than it currently seeks to represent.
338 NLRB No. 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
that predates the recognition. The Board explained that
the modification was warranted because the Rollins rule
unnecessarily discouraged employers from voluntarily
recognizing unions and unnecessarily frustrated the es-
tablishment of new collective-bargaining relationships by
permitting postrecognition challenges by competing un-
ions with little or no employee support.
Applying Smith’s Food, the Board in American Na-
tional Can, Inc., 321 NLRB 1164 (1996), found that the
employer’s voluntary recognition of a union was not a
bar to a petition filed by a competing union. In that case,
the employer voluntarily recognized the Glass, Molders,
Pottery, Plastics & Allied Workers International Union,
AFL–CIO, CLC as the bargaining representative of its
production and maintenance and skilled craft employees.
Prior to the recognition, the American Flint Glass Work-
ers Union was organizing a smaller unit of the em-
ployer’s apprentice and journeyman mold makers, and it
had obtained authorization cards from a majority of the
mold makers. The Board acknowledged that the peti-
tioned-for unit of 24 mold makers was substantially
smaller than the recognized unit of approximately 397
employees but found that, because the Smith’s Food re-
quirements were satisfied, that fact alone did not require
that the petition be dismissed. In so finding, however,
the Board specifically noted that the Regional Director
found, and no party disputed, that the petitioned-for unit
of mold makers was a separate appropriate unit for bar-
gaining.
The Regional Director likened the present case to
American National Can and concluded that because the
Petitioner had support of 30 percent of the unit found
appropriate by the Regional Director at the time the Em-
ployer recognized the Intervenor, there was no recogni-
tion bar. We disagree.
The Board in Rollins, as modified by Smith’s Food, cre-
ated a narrow exception to the recognition bar rule. Thus,
voluntary recognition bars all petitions except those filed
by a petitioner that can demonstrate that it had support of
30 percent of the employees in the petitioned-for unit at
the time of recognition. While the Board in American
National Can applied this exception in a situation where
the petitioned-for unit was smaller than the recognized
unit, critical to the Board’s analysis was the finding that
the petitioned-for unit was an appropriate unit.
Contrary to the Regional Director, we are unwilling to
extend this narrow exception of the recognition bar rule
to permit petitions for units that are not appropriate. To
do so would create instability and uncertainty regarding
voluntarily recognized units. This is particularly true in
the present case where the recognized unit is a presump-
tively appropriate overall unit, a neutral arbitrator con-
ducted an election in this unit, and the Petitioner waited
30 days after the recognition to file its petition. In sum,
we find that if a rival union fails to petition for an appro-
priate unit, the employer’s voluntary recognition of the
other union constitutes a bar to the petition.2
Here, the Regional Director found, and we agree for
the reasons stated by him, that the petitioned-for unit is
not appropriate. Accordingly, we reverse the Regional
Director and find that the Employer’s voluntary recogni-
tion of the Intervenor as the collective bargaining repre-
sentative of the employees in a wall-to-wall unit is a bar
to the petition.3
ORDER
This proceeding is remanded to the Regional Director
for further appropriate action consistent with this deci-
sion.

MEMBER COWEN, dissenting.
Contrary to my colleagues, I would adopt the Regional
Director’s finding that the voluntary recognition agree-
ment between the Employer and the Intervenor does not
bar the processing of the Petitioner’s representation peti-
tion.
In brief, the relevant facts are these. The Employer is
engaged in the retail sale of lumber, cabinets, and related
building products. On March 21, 2001,1 it executed a
recognition agreement with the Intervenor. In this
agreement, the Employer recognized the Intervenor as
the majority bargaining representative of employees in
what appears to be a wall-to-wall unit including all pro-
duction and maintenance employees, carpenters, material
handlers, warehousemen, assemblers, forklift operators,
truckdrivers, and checkers. On March 26, an independ-
ent arbitrator conducted an election in this unit; of the
approximately 55 eligible voters, 36 voted to have the

2 Contrary to our dissenting colleague, Overnite Transportation, 331
NLRB 662 (2000), does not require a different result. In that case,
which did not involve a voluntary recognition, the union filed a petition
to represent certain employees, the parties litigated the appropriateness
of that unit and the alternative units, and the Regional Director made a
determination of the unit appropriate for collective bargaining. The
posture of this case is very different. Here, the Employer and the Inter-
venor entered into a valid recognition agreement covering an appropri-
ate unit of employees. The Petitioner now seeks to upset that recogni-
tion. The Regional Director’s role at this juncture is, first, to determine
if the recognition is valid and, second, to determine under Smith’s Food
and its progeny if there is any reason not to accord precedence to that
recognition. Under American National Can, the voluntary recognition
is not a bar if the unit sought by the Petitioner is appropriate. Where, as
here, the unit sought is not appropriate, the prior valid recognition
stands as a bar to the petition.
3 In finding that the rule enunciated in Smith’s Food & Drug Centers
and American National Can is not applicable here, Member Bartlett
does not reach the issue of whether those cases were correctly decided.
1 All dates refer to 2001 unless otherwise indicated.
TRIANGLE BLDG. PRODUCTS, CORP. 259
Intervenor represent them for purposes of collective bar-
gaining.
On April 26, the Petitioner filed a petition seeking to
represent a portion of the recognized unit.2 In its peti-
tion, the Petitioner also stated that it was prepared to rep-
resent an alternative unit found appropriate by the Board.
See Overnite Transportation Co., 331 NLRB 662, 663
(2000) (“[I]f [a] petitioned-for unit is not appropriate, the
Board may examine the alternative units suggested by
the parties, and also has discretion to select an appropri-
ate unit that is different from the alternative proposals of
the parties.”). Although the Regional Director found that
the petitioned-for unit was not an appropriate unit, he
found that a drivers-only unit consisting of approxi-
mately eight employees was appropriate. I agree with
these findings.
Applying Smith’s Food & Drug Centers, 320 NLRB
844 (1996), and American National Can, Inc., 321
NLRB 1164 (1996), the Regional Director found that the
recognition agreement between the Intervenor and the
Employer did not bar the Petitioner’s petition because the
Petitioner had obtained the support of, inter alia, 30 per-
cent of the drivers at the time the Intervenor and the Em-
ployer entered into the recognition agreement. My col-
leagues contend that the Regional Director incorrectly
extended the holdings of Smith’s Food & Drug Centers
and American National Can. I disagree.
In Smith’s Food & Drug Centers, 320 NLRB at 846,
the Board held that
in rival union organizing situations, a voluntary and
good-faith recognition of a union by the employer
based on an unassisted and uncoerced showing of in-
terest from a majority of unit employees will bar a peti-
tion by a competing union, unless the petitioner dem-
onstrates a 30-percent showing of interest that predates
the recognition. Where such interest is shown, an elec-
tion is warranted in order to guarantee employees an
opportunity to express their desires in a definitive way.
In American National Can, 321 NLRB at 1164, the
Board applied this rule to a situation involving a volun-
tarily-recognized unit of 397 employees and a petitioned-

2 The petitioned-for unit, which includes approximately 21 employ-
ees, is:
all drivers, warehouse assistants, warehouse drivers/helpers, yard
foremen, gate checkers, warehouse foremen and forklift operators, ex-
cluding roof truss leadman, roof truss stacker, truss plant production
foremen, truss assemblers, wall paneler sawyer, wall panel component
assembly leadman, wall panel plant production foreman, wall panel
component assembler, component sawyer, office clerical employees,
security guards and other employees by operation of the National La-
bor Relations Act.
The petitioner had the support of 30 percent of this unit when the
Employer recognized the Intervenor.
for unit of approximately 24 employees. Given that the
petitioner had secured the necessary 30-percent showing
of interest prior to the employer’s voluntary recognition
of the intervenor, the Board found that the recognition
bar did not apply. Id. And, the fact that the petitioner
sought a significantly smaller unit did not affect this
analysis. Id.; see also Smith’s Food & Drug Centers,
320 NLRB at 844 (petitioning unions sought to represent
units that were substantially smaller than the recognized
unit).
In reversing the Regional Director’s refusal to apply
the recognition bar to the Petitioner’s petition, my col-
leagues contend that the exception to the recognition bar
rule developed in Smith’s Food & Drug Centers (and
refined in American National Can) does not apply to
circumstances involving a petition for a unit that is not
appropriate. My colleagues offer no rationale for why
they have created this “exception” to the recognition bar
exception beyond their vague and speculative assertion
that it will prevent instability and uncertainty regarding
voluntarily recognized units.
My colleagues also ignore the fact that the Regional
Director, consistent with well-established Board law and
policy, considered an alternative unit (derived from the
petitioned-for unit), and found such a unit to be appropri-
ate. See Overnite Transportation Co., 331 NLRB at 663.
My colleagues offer no reason for why they have chosen,
here, to ignore a Regional Director’s customary exercise
of discretion in determining an appropriate unit. Indeed,
my colleagues have utterly failed to explain why a peti-
tioned-for unit in this context would be appropriate, but a
unit derived from the petitioned-for unit pursuant to
longstanding Board law and policy would not. In sum,
today’s change unduly burdens petitioners, adversely
affects employee free choice, and upsets settled prece-
dent without supplying any logical basis for doing so.
Thus, I would adopt the Regional Director’s Decision,
process the Petitioner’s petition, and direct an election.

APPENDIX
Upon the entire record in this proceeding, the Regional Di-
rector Alvin P. Blyer finds
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and hereby are affirmed.
2. The parties stipulated that Triangle Building Products
Corp., the Employer, a New York corporation, with its princi-
ple office and place of business located at 2599 Route 112,
Medford, New York (the Medford facility), is engaged in the
retail sale of lumber, cabinets, and related building products.
During the past year, which period represents its annual opera-
tions generally, the Employer derived gross annual revenues in
excess of $500,000 and purchased and received at its Medford
facility, goods, supplies, and materials valued in excess of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
$5000 directly from points located outside the State of New
York.
Based on the foregoing, and the record as a whole, I find that
the Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert
jurisdiction herein.
3. The labor organizations involved herein claim to repre-
sent certain employees of the Employer.
4. It appears from the record that on March 26, 2001, an in-
dependent arbitrator conducted an “election” among 55 em-
ployees of the Employer. According to the “certification of
results” of the arbitrator (dated March 26), 36 employees voted
for the Intervenor.1 The Intervenor and the Employer agreed
that the unit included all full-time and regular part-time drivers,
carpenters, checkers, warehousemen, assemblers, forklift opera-
tors, and “related” employees, excluding professional employ-
ees, guards, and supervisors.2 Sometime prior to the March 26
“election,” the Employer had been presented with 30 cards
from the Intervenor and checked those cards against W-4 signa-
tures. On March 21, 2001, the Employer executed a “card
count stipulation” indicating that it reviewed the cards, the
signatures, and the W-4 forms and found that the Intervenor
had majority status.3 Apparently, based on the card check that
preceded the “election” held by the arbitrator, the Employer
and the Intervenor executed a recognition agreement dated
March 21, 2001, designating the Intervenor as the collective-
bargaining representative of all “production and maintenance
employees, carpenters, material handlers, warehousemen, fork-
lift operators, truckdrivers and checkers, excluding office cleri-
cal employees, guards and supervisors.”4 The Employer and
the Intervenor both assert that their recognition agreement bars
the processing of the instant petition. In support of their posi-
tions, both parties cite Smith’s Food & Drug Centers, 320
NLRB 844 (1996). The Petitioner generally contends that the
recognition agreement should not operate as a bar and that the
facts of this case are distinguishable from Smith’s Foods and
more consistent with American National Can, Inc., 321 NLRB
1164 (1996).
Smith’s Food essentially stands for the proposition that, de-
spite the existence of active and simultaneous campaigns by
two competing unions, “a voluntary and good faith recognition
of a union by the employer based on an unassisted and unco-
erced showing of interest from a majority of unit employees,
will bar a petition by a competing union, unless the petitioner
demonstrates a 30-percent showing of interest that predates the
recognition.” The Board in Smith’s dismissed the petitions
involved therein because neither of the petitioning labor or-
ganizations had secured the requisite 30-percent showing prior
to the employer’s recognition of the Intervenor. Here, the In-
tervenor and the Employer essentially argue that, under
Smith’s, in order to circumvent a recognition bar, the Petitioner
must show that it had a 30-percent showing of interest in the
recognized unit. It is undisputed that the Petitioner did not

1 Board Exh. 4.
2 Board Exh. 3.
3 Intervenor Exhs. 1A and 1B.
4 Intervenor Exh. 1C.
have that showing. Instead, it has a sufficient showing of inter-
est in the petitioned-for unit only, which is substantially smaller
than the recognized unit.5
In American National Can, the facts surrounding the recogni-
tion are similar to the facts here. The employer recognized the
intervening union in a unit that was substantially larger than the
petitioned-for unit, and it was undisputed that the petitioner did
not have a 30-percent showing in the larger recognized unit.
However, all parties to that proceeding admitted that the peti-
tioned-for unit constituted a separate but smaller appropriate unit.
And, the petitioner therein secured the requisite 30-percent show-
ing of interest in the petitioned-for smaller unit prior to the volun-
tary recognition of the Intervenor. In those circumstances, the
Board did not accord the recognition bar quality.
From my reading of American National Can, it appears that
the recognition bar issue cannot be resolved until the appropri-
ateness of the petitioned-for unit is resolved. Accordingly, the
motion to dismiss on this ground will be addressed more fully
below, after the analysis of the unit issue.
5. The Petitioner seeks to represent drivers, warehouse assis-
tants, warehouse driver/helper, yard foremen,6 gate checkers,
warehouse foremen, and forklift operators, excluding roof truss
leadman, roof truss stacker, truss plant production foremen,
truss assemblers, wall paneler sawyer, wall panel component
assembly leadman, wall panel assembler, wall panel assembly
leadman, wall panel plant line leader, wall panel plant-
production foremen, wall panel component assemble, compo-
nent sawyer, office clerical employees, guards and supervisors.
Both the Intervenor and the Employer claim that a wall-to-wall
unit of production and maintenance employees, the recognized
unit, is appropriate, and that the petitioned-for unit is inappro-
priate. In this regard, both parties assert that because of the
Petitioner’s participation in a prior representation petition seek-
ing a larger unit, the only appropriate unit herein must be co-
extensive with the stipulation in the prior case. I disagree.
The record reflects that on March 31, 2000, a stipulated elec-
tion agreement was entered into in Case 29–RC–9445, where
5 The recognized unit consists of about 55 employees and the peti-
tioned-for unit includes approximately 21 employees (8 drivers, 8 fork-
lift operators, 1 warehouse foreman, 2 yard foremen, and 1 gate
checker).
6 The parties stipulated that all foremen are NOT statutory supervi-
sors within the meaning of Sec. 2(11) of the Act (Tr. 102). Thus, it
appears that all parties agree that any employee classified as a foreman
is eligible to vote. Despite this stipulation, the Petitioner, on p. 12 of its
brief, claims that the “yard foreman job description . . . describes a job
as largely supervisory, uses the word supervision several times and
describes the yard foreman as a supervisor.” Yet, on p. 13 of the brief,
the Petitioner claims that yard foremen share a community of interest
with drivers and forklift operators and constitute an appropriate unit. I
am uncertain of the Petitioner’s contention regarding the yard foremen.
However, it is clear from the record that the Petitioner did not take the
position that this classification is supervisory and the matter was not
fully litigated. Nor am I certain, based on the ambiguous language in
the brief, whether the Petitioner currently takes the position now that
this classification is supervisory. Thus, I presume that no party posits
that the foremen are supervisory and I will hold the Petitioner to its
stipulation that all foremen, including the yard foremen, are not 2(11)
supervisors.
TRIANGLE BLDG. PRODUCTS, CORP. 261
the Petitioner and the Employer agreed that the appropriate unit
included forklift operators, drivers, yard help in the truss de-
partment, wall panel department, mill department, lumber de-
partment, carpenters and woodworkers, excluding all other
employees.7 It is based on that stipulated election agreement
that the Employer and the Intervenor argue that the petitioned-
for unit is inappropriate.8 Despite the parties’ position in this
regard, the Board has long held that the appropriateness of a
particular unit that has not been litigated in a Board proceeding
is not given any weight in subsequent proceedings where the
unit issues are fully litigated. Coca-Cola Bottling Co. of Balti-
more, 156 NLRB 450, 452 (1965); Bowman Transportation,
Inc., 166 NLRB 982, 983 (1967); and Vangas, Inc., 167 NLRB
805, 806 (1967). Thus, certifications and unit findings that
resulted from stipulations of the parties are not binding on the
Board and the appropriateness of the stipulated unit is not con-
sidered a “Board pronouncement on the merits of the unit
sought.” Coca-Cola, supra. Accordingly, I reject the Em-
ployer’s and Intervenor’s argument that the petitioned-for unit
is inappropriate based on the Petitioner’s execution of a stipu-
lated election agreement in a larger unit and find that the stipu-
lation does not warrant a finding that the petitioned-for unit is
inappropriate. Instead, the appropriateness of the petitioned-for
unit shall be based on the record evidence.
Two witnesses testified regarding the unit issue, driver Al
Salvatore, and the Employer’s director of operations, Nicholas
Cardaci.
The Employer’s president is Bruce Meltzer. The chief fi-
nancial officer is Bruce Latham who reports to Meltzer. Car-
daci, the director of operations, reports directly to Meltzer as
does Tom (LNU), the vice president and the administration
manager. The general manager is John Sabean, who reports to
the vice president. There is one human resource manager, Jessi
Williamson, who reports to Latham. There are two managers,
Mike Bazoge and Michael McManus, whose responsibilities
are outlined more fully below.9
With respect to the layout of the Employer’s facility, upon
entering the Employer’s driveway, there is a building on the
right side of the property.10 This building is known as the roof
and floor truss assembly plant. That building houses truss as-
semblers who assemble the roof trusses. There are about six
truss assemblers.11 There are also two roof truss stackers who
take the completed trusses and stack them onto a forklift.
There are four unnamed roof truss leadmen who oversee the
operations on a truss table where the trusses are assembled.

7 See Board Exh. 7.
8 The record reflects that in 1996, an election was held pursuant to
an employer-filed petition in Case 29–RM–859. However, the Peti-
tioner herein was not party to that stipulated election agreement. In-
stead, the only union involved there was Long Island Regional Council
of Carpenters, United Brotherhood of Carpenters and Joiners. No other
labor organization expressed an interest in that case. See Board Exh. 8.
9 For an organizational chart, see Intervenor’s Exh. 3.
10 See Intervenor’s Exh. 2 for a rough layout of the Employer’s facil-
ity.
11 Initially, Cardaci testified that there are 12 truss assemblers (Tr.
133). However, later on in his testimony, he indicated that there are six
truss assemblers and six wall paneone assemblers (Tr. 135).
Generally, there is one forklift operator that works in the truss
plant and he lifts the plates for building the trusses.12 The truss
plant also has a saw located at the end of the plant, where wood
is delivered by a forklift operator. The wood is cut by the truss
plant sawyer. The truss plant foreman is Tony Ceglowski.13
All employees employed in the truss plant are supervised by
Mike Bazoge.
On the left side of the Employer’s facility, opposite the truss
plant, is the main office. Adjacent to the office is the wall
panel plant. The wall panel plant assembles prefabricated
walls. There are six wall panel assemblers who assemble the
walls.14 There are two wall panel component assembly lead-
men who assemble the materials used for the actual wall panel.
There are two wall panel sawyers15 who saw materials in the
wall panel plant. The sawyers can work in both the wall panel
and truss plants cutting lumber in either place. In addition there
are seven wall panel assembly leadmen.16 Finally, there are
two wall panel production foreman, George Dierlam and Mike
Scevola, who work in the truss plant on occasion. The wall
panel plant employees are also supervised by Bazoge. The
truss and wall panel plants together employ a total of 45 em-
ployees.
Adjacent to the wall panel plant there is a lumber shed, in
which lumber, nails, building materials, plywood, and sheet
rock are stored. There are no particular employees that are
assigned to that location. Rather, if an employee from the other
plant locations require materials from that area, they can access
it themselves.
There is also a window warehouse and a cabinet warehouse,
in which windows, doors, cabinets, hardware, locks, and mold-
ings are housed. A loading dock separates the window and
cabinet warehouses. At the moment, there is one warehouse
foreman, Bittner, who is responsible for the overall mainte-
nance and control of the warehouse.17 According to Cardaci,
there are two warehouse drivers, who have commercial driver
licenses and whose responsibility it is to drive cabinets and
windows to customers at jobsites. The warehouse drivers re-
port to the warehouse foreman, Bittner, who reports to
McManus.18
12 According to Cardaci, there is no particular employee that is as-
signed to operate the forklift in the truss plant. Rather, any employee
can operate the forklift, provided they have the appropriate certification
to do so.
13 According to Cardaci, there used to be two truss plant foremen
and now there is only one.
14 The six assemblers in the truss plant and the six assemblers in wall
panel plant have the ability to work in either plant location.
15 Initially, Cardaci testified that there are two sawyers (Tr. 134) but
later on he testified that there is only one full time component sawyer
(Tr. 142).
16 Cardaci testified that the Employer employs a total of 12 or 13
leadmen in various different plants. From the record, it appears that
there are four roof truss leadmen, two wall panel component assembly
leadmen, and seven wall panel assembly leadmen.
17 Although there is a job classification called warehouse assistant,
whom the Petitioner seeks to include, Cardaci testified that no one
occupies that position at the moment.
18 P. Exh. 2c.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
In the center of the facility is the yard. There are two yard
foremen, Jim Lynch and Doug Moore, who report to McManus,
the supervisor of the yard and the cabinet and window ware-
houses.
The Employer employs approximately eight drivers who
drive to construction sites to deliver building materials. All
drivers have commercial driver licenses. These drivers operate
any one of a number of the following kinds of trucks: tractor
trailer trucks for delivery of roof trusses and wall panels; box-
trucks for delivery of windows, doors, and other materials; and
lumber trucks for delivery of lumber.19 Tractor-trailers are
loaded in the front of the facility; the lumber and boxtrucks are
loaded in the back of the facility. There are two or three drivers
who regularly drive the tractor-trailers, four employees who
drive the lumber trucks and an unknown number of employees
who drive the boxtrucks. As indicated above, there appear to
be two warehouse drivers who deliver cabinets and windows to
customers and it appears that they drive the boxtrucks. They
report to McManus (through the warehouse foreman, Bittner).
The other drivers also report to McManus, through the yard
foremen, Moore and Lynch,20 except for the two tractor-trailer
drivers, who deliver roof trusses, and who are supervised by
Bazoge. (Tr. 105). Generally, the drivers are on the road for
most of the day. Salvatore, a driver, claims that he is present at
the Employer’s facility for 15 hours per week. According to
Salvatore, only the tractor-trailer drivers, boom truckdrivers,
spider and flatbed truckdrivers return to the facility during the
day to reload. The drivers wear a uniform of tan or black pants
along with the Employer’s T-shirt and hat and they receive an
allowance for footwear. All other employees are not required
to wear any uniform. Cardaci claims that 3 or 4 days a week,
the drivers are accompanied by helpers, particularly with box-
truck deliveries, and these helpers generally are assemblers
from the wall panel or truss plants.21
According to Cardaci, the Employer employs a total of eight
forklift operators22 who assist in loading and unloading trucks
and also assist in loading and unloading material that comes out
of the truss and wall panel plants and the warehouse (Tr. 139–
140). The forklift operators also move items within the wall
panel and truss plants. Four of the forklift operators are sta-
tioned in the lumber area and they load and unload lumber from
the trucks. The remaining forklift operators are stationed in the
truss plant area and they load trusses from the plant area. In
addition, there are three or four assemblers within the truss or
wall panel plants who operate forklifts inside the plants. The
forklift operators receive safety courses and are certified to

19 There are three kinds of lumber trucks: a boom truck that has a
crane, two spider trucks that have a forklift mounted on the back, and
one flatbed truck. According to Cardaci, there may be one truckdriver,
who drives a boxtruck, who does not possess a commercial driver li-
cense.
20 P. Exh. 2a.
21 Salvatore confirmed that assemblers have been helpers on box-
trucks, although he claims that this does not occur very often (Tr. 47).
22 Salvatore claimed that the Employer employs six forklift opera-
tors. Inasmuch as Cardaci is the director of operations, it is likely that
he is more familiar with the number of employees in each classification
than is Salvatore.
operate the forklifts. According to Salvatore, the forklift opera-
tors assist in loading trucks as do the warehouse employees (Tr.
43). The forklift operators who work solely in the lumber yard
are supervised by McManus and those working the truss and
wall panel plants are supervised by Bazoge.23
With respect to the flow of materials in and out of the Em-
ployer’s facility, it appears from the record that when materials
arrive at the Employer’s facility and require unloading, the
Employer pulls employees from various segments of its opera-
tion to perform that task. In this regard, the Employer takes
any available assemblers or forklift operators to unload incom-
ing vehicles. There is no specific set of employees that is re-
sponsible for this job. As for manufacturing of the truss and
wall panels, Bazoge prepares a production schedule based on a
particular customer’s needs and the dates that the customers
require delivery. The production schedule is posted on the wall
of the office, where a forklift operator retrieves it. The forklift
operator retrieves lumber from the lumber yard/shed, where
nails, building materials, plywood, and sheetrock are stored24
and delivers the lumber to the sawyer located in the truss
plant.25 The sawyer signs a document indicating receipt of the
lumber supplies and proceeds to cut the wood in accordance
with the production requirements.26 After the trusses are com-
pleted, there are stackers in the truss plant that bundle the fin-
ished roof trusses. The forklift operators lift the material from
the plant and place it in the yard, where it awaits shipment.
Then, the truss plant foreman informs the drivers’ foreman,
Doug Moore, that the truss package is ready for removal from
the plant. Either Doug Moore or one of the forklift operators
load the trusses onto a truck and the driver is advised of the
delivery schedule.
With respect to the movement of materials in the wall panel
plant, most of the materials used there are precut. Depending
on the material needed, the foremen in the wall panel plant,
Scevola or Dierlam, send the forklift operator to the lumberyard
to pull the items needed. The forklift operator leaves the mate-
rials at the loading dock of the wall panel plant and either
23 There was some testimony during the hearing that the assemblers
wear a tool belt and carry a hammer, while the forklift operators and
drivers do not. The Petitioner, in its brief, claims that “the fact that the
petitioned-for employees do not use these tools further proves the dif-
ferent job functions performed.” Although the Petitioner places em-
phasis on this issue, I am of the view that the tools carried, or not car-
ried, by a particular group of employees is not crucial to a determina-
tion of the appropriateness of the unit.
24 Most of the materials stored in the lumber shed are used by the
wall panel plant operation, but, according to Cardaci, at any time, an
assembler in either the wall panel or truss plants, or a warehouse em-
ployee, can access that area himself and retrieve the materials needed.
25 On occasion, a forklift operator will retrieve lumber that does not
precisely track the production order. If this occurs, the forklift operator
explains to the truss plant sawyer that he has substituted a particular
item with another due to unavailability.
26 Salvatore testified that it is “not very often” where a forklift opera-
tor drives into the truss plant. In this regard, Salvatore claims that a
forklift operator can deliver lumber to the sawyer without even entering
the facility because the saw is located right inside of the doorway en-
trance.
TRIANGLE BLDG. PRODUCTS, CORP. 263
foreman signs a receipt for the materials delivered.27 After the
production of the wall panel is complete, it is placed on rollers
and rolled out of the plant by assemblers. The forklift operators
are asked by the yard foremen to remove the wall panel mate-
rial from the rollers and place it in the yard where it awaits
shipment. When it is ready to be shipped, the forklift operators
place the wall panels onto the truck.
There is a cabinet and window warehouse where doors, win-
dows, moldings, trim, and locks are stored. It appears that the
only warehouse employee is the warehouse foreman, Bittner,
although there are two warehouse drivers who drive boxtrucks
and deliver the materials stored in the warehouse to the respec-
tive construction sites. The forklift operators remove ware-
house material and place it onto a truck for delivery. Cardaci’s
testimony implies that assemblers from the truss or wall panel
plants can also be called upon to help load warehouse materials
onto trucks.
When a shipment is ready to be delivered, the trucks are
loaded by forklift operators although it appears that other em-
ployees assist in the loading, which is discussed more fully
below. When the driver is ready to leave the facility, he must
pass through a gate checker who is stationed at the front of the
facility. The gate checker is responsible for checking the deliv-
eries that enter and exit the Employer’s facility. He checks the
invoices and logs the invoiced material on a chart. He also
indicates the driver’s destination point and the time the driver
left the facility. Upon a driver’s return to the facility, his deliv-
ery paperwork is turned into the gate checker. There is only
one gate checker. Because that employee only works until 5
p.m., no deliveries leave the Employer’s facility after that time.
As indicated above, the employees employed in the truss and
wall panel plants are supervised by Mike Bazoge. The employ-
ees in the lumberyard and warehouse are supervised by Mike
McManus. The gate checker is the only employee who reports
directly to Cardaci.28 All drivers are supervised by McManus,
except for the tractor-trailer drivers who are supervised by Ba-
zoge.
It appears from the record that the drivers, forklift operators,
and warehouse employees have more customer contact than
employees who work in the truss or wall panel plants. In this
regard, a customer can pick up a cabinet, window, or door in
the warehouse area where they encounter warehouse employ-
ees, or a customer may pick up lumber in the yard where they
encounter forklift operators. Drivers have customer contact
while on a jobsite.29
Salvatore claims that he and other drivers have no contact
with truss plant employees or with wall panel employees.
Salvatore admits that forklift operators have “little contact”
with truss and wall panel employees, mostly when the finished
product must be removed from those respective plants (Tr. 43).

27 Contrary to Cardaci’s testimony, Salvatore claims that it is “not
possible” for forklift operators to drive the forklift into the wall panel
plant because there is insufficient room for it to enter.
28 About 2 weeks prior to the hearing, the Employer created a new
position of dispatcher. It appears that the Petitioner does not seek to
include this position in the unit.
29 In its brief, the Petitioner places emphasis on this factor in support
of its contention that the petitioned-for unit is appropriate.
Cardaci confirms that forklift operators have contact with as-
sembly employees in the truss and wall panel plants, but his
testimony implies that the contact is more frequent. In this
regard, as noted above, he contends that when material is
needed in either plant, a requisition form is prepared and given
to the forklift operator who pulls the material needed either
from the lumber yard or the warehouse and brings it to the wall
panel or truss plants. In addition, a forklift operator that is
stationed within the truss and wall panel plant can retrieve ma-
terials from the door and bring it inside the plant. As for the
warehouse employees, of which there appears to be only one
(the foreman), Salvatore claims that said employee has no con-
tact at all with truss and wall panel plant employees.
The Employer’s basic shift times for all of its employees
commences at 6 a.m. and ends at 2:30 p.m. The Employer has
a second shift, from 2:30 to 11 p.m. However, this shift is only
applicable to the truss and wall panel plant employees. Accord-
ing to Cardaci, there are four assemblers who work on the
nightshift, as do three leadmen. Cardaci testified that six fork-
lift operators work the dayshift and the remaining two forklift
operators work the nightshift.
With respect to interchange among employees in the dis-
puted classifications, Salvatore claims that drivers, forklift op-
erators, and warehouse employees do not perform any work in
the truss or wall panel plants. Cardaci testified to the contrary.
In this regard, Cardaci claims that somewhere between 1 to 3
times per week, the forklift operators perform assembly work if
production requires such assistance (Tr. 157–158). Cardaci
also claims that, for the most part, this happens on an overtime
basis, i.e., forklift operators do not perform assembly work
during the week, but only on an overtime basis when it is
needed (Tr. 237, 265). There are only two or three forklift
operators that have experience as assemblers and can perform
that function (Tr. 237). Cardaci also claims that drivers have
worked as assemblers in the wall panel and truss plants, but no
specific examples were given (Tr. 159).30 However, Salvatore
named one driver, Salley, who has, in the past, assisted in as-
sembly of trusses in the truss plant (Tr. 54).31 Salvatore did
admit that, on occasion, in order to meet production require-
ments, drivers work overtime shifts in the truss and wall panel
plants, but this has not occurred in the last 1-1/2 or 2 years (Tr.
72–73). Although Salvatore’s testimony implies that the truss
and wall panel assemblers do not have the appropriate certifica-
tion for operation of a forklift, Cardaci testified that there are
three assemblers who are forklift certified and operate that
equipment inside the plants (Tr. 155). On an infrequent basis, a
truss assembly employee can operate as a helper on a boxtruck
to assist in loading and unloading the truck (Tr. 47), or any
30 Cardaci also testified that when the winter season approaches and
deliveries slow down a bit, the Employer offers drivers the opportunity
to work inside the production plants. (Tr. 259). However, Cardaci
claims that drivers are not required to perform production work, and, no
specific examples were given as to which drivers have actually opted to
work in the production plant in the recent past.
31 Salvatore named one forklift operator, Davis, who also performed
assembly work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264
other trucks coming into the Employer’s facility (Tr. 163).32
The truss and wall panel plant assemblers can assist the forklift
operators in loading and unloading trucks and, according to
Cardaci, when the Employer receives a shipment of cabinets on
a large tractor-trailer, the assemblers, forklift operators, and/or
the warehouse foreman can assist in unloading the merchandise
(Tr. 163, 180–181). The same is the case if the Employer re-
ceives a shipment: any one of the Employer’s employees, in-
cluding assemblers or sawyers, can assist in unloading a truck
(Tr. 163, 180–181).33 According to Cardaci, this kind of assis-
tance in unloading trucks can occur 1 or 2 times per week for a
large tractor-trailer. In the same vain, 40 percent of the time,
the unloading of a truck requires assistance from truss or wall
panel plant assemblers (Tr. 181). If an assembler, who gener-
ally works for Bazoge, is assigned to load or unload a truck, he
is supervised temporarily by McManus, who supervisors the
warehouse and yard operations. The warehouse foreman, Bitt-
ner, has worked overtime as an assembler (Tr. 265).
With respect to permanent transfers, Salvatore claims that
drivers and forklift operators have never transferred to the truss
plant, but he admits that one truss employee, Glassner, became
a driver after having obtained a commercial driver’s license
(Tr. 47, 59, 72). According to Cardaci, a wall panel assembly
employee, Lenny Rodriquez, became a warehouse assistant in
the window portion of the warehouse about 2 years ago. In
addition, Kenny Williamson, a night foreman in the wall panel
shop became a forklift operator (Tr. 224).34 Tim Murphy was
hired as a truss assembler, became a truss foreman, a wall panel
leadman, a yard foreman, and a forklift operator. Doug Moore,
the current yard foreman, was once a forklift operator. Eric
Bowen, an assembler, became a forklift operator. Even
Salvatore admits that he was hired as a forklift operator, then
was transferred for a few months to the truss plant where he
worked on the night shift performing assembly work. Thereaf-
ter, he reverted to a forklift operator in the lumberyard area and
eventually became a truckdriver (Tr. 53–54, 64, 70).
With respect to the wage rates of the disputed classifications,
the truckdrivers (including tractor trailer drivers) and the fork-
lift operators earn between $16.25 and $19.25 per hour. There
are two non-CDL drivers, who earn between $15.06 and $17.06
per hour. The gate checker earns between $8.40 and $10.40 per
hour. The truss and wall panel assemblers earn between $9.45
and $11.45 per hour. The sawyers earn between $13.92 and
$15.92 per hour. The foremen earn between $15.92 and $18.02
per hour.35

32 Salvatore concedes that the drivers are present when the forklift
operators load their trucks but contends, contrary to Cardaci, that as-
semblers load trucks of any kind.
33 In general, Salvatore claims that assemblers never assist in loading
or unloading trucks. On the other hand, Cardaci claims that because the
Employer does not have specific employees whose responsibilities
solely include loading or unloading, any employee may be called upon
to do so.
34 Contrary to Cardaci’s testimony, Salvatore claims that there have
been no truss or wall panel plant employees who have become forklift
operators.
35 P. Exh. 1.
With respect to benefits, all of the employees employed by
the Employer are subject to the same vacation, holidays, sick
leave, and personal day policies. The medical benefits are
available to all of the Employer’s employees who wish to con-
tribute to it. The Employer’s disciplinary policy as outlined in
its handbook is applicable to all employees.36 The Employer
has some safety rules that, according to Cardaci, are signed by
all employees and that apply to all of the Employer’s employ-
ees. The Employer has two breakrooms that are used for lunch
by all employees except for the drivers who take their lunch
while on the road.
It is well established that a certifiable unit need only be an
appropriate unit, not the most appropriate unit. Morand Bros.
Beverage, 91 NLRB 409 (1950), enfd. 190 F.2d 576 (7th Cir.
1951); Omni International Hotel of Detroit, 283 NLRB 475
(1987); P. J. Dick Contracting, 290 NLRB 150 (1988); and
Dezcon, Inc., 295 NLRB 109 (1989). The Board’s task, there-
fore, is to determine whether the petitioned-for unit is an ap-
propriate unit, even though it may not be the only appropriate
unit or the ultimate unit. In making unit determinations, the
Board first looks to the unit sought by the petitioner. If it is
appropriate, the inquiry ends and the Board does not evaluate
any competing unit contentions. If, however, the unit is inap-
propriate, the Board will scrutinize the employer’s proposal.
Dezcon, Inc., supra at 111. Also see Overnite Transportation,
325 NLRB 612 (1998). In assessing the appropriateness of any
proposed unit, the Board considers community of interest fac-
tors such as employee skills and functions, degree of functional
integration, interchangeability and contact among employees,
and whether the employees have common supervision, work
sites, and other terms and conditions of employment.
Bearing these principles in mind, I find that the petitioned-
for unit of drivers, warehouse drivers/helpers, warehouse fore-
men, yard foremen, gate checker, and forklift operators to be
inappropriate.37 The three most compelling factors in finding
this unit to be inappropriate are: (1) the work related contact
between the petitioned-for employees and the excluded classifi-
cations; (2) the functional integration of the Employer’s opera-
tions particularly among the employees that remain at the Em-
ployer’s facility during the course of the day; and (3) the degree
of interchange between the petitioned-for unit and the classifi-
cations the Petitioner seeks to exclude.
It is undisputed that the drivers spend large portions of their
day away from the Employer’s facility, while the remaining
employees, including forklift operators, the warehouse fore-
man, the yard foremen, and the gate checker, remain at the
facility. It appears that there is frequent work-related contact
and a degree of functional integration between the forklift op-
erators and the assemblers in the truss and wall panel plants.
For instance, the forklift operators retrieve materials for the
wall panel and truss plants, deliver the materials to those loca-
36 It appears from the record that the Employer maintains an em-
ployee manual that is undergoing some revision. This manual (P. Exh.
6) is maintained in the Employer’s human resource office and all of the
provisions therein apply to all of the Employer’s employees.
37 Although the petitioned-for unit seeks warehouse assistants, it ap-
pears from the record that there are no employees that occupy that
classification.
TRIANGLE BLDG. PRODUCTS, CORP. 265
tions, and have daily contact with the sawyers and the assem-
blers inside those plants. After the production of the wall pan-
els and trusses are complete, the forklift operators move them
from the respective plants into the yard, upon the direction of
the yard foremen, all of whom remain at the facility all day.
The yard foremen also deal directly with the forklift operators
in moving materials around the yard. The forklift operators,
and if need be, assemblers in the truss and wall panel plants,
retrieve materials needed from the window or cabinet ware-
house, where there is only one employee, a warehouse foreman,
who remains onsite during the day. Shipments are loaded on
trucks by forklift operators, assemblers, the warehouse foreman
and, if need be, any employee that is available to assist. All
shipments are checked by the gate checker before the trucks
enter the facility and when drivers leave the facility with the
Employer’s product. Similarly, forklift operators, assemblers,
and warehouse employees unload shipments when they arrive
at the Employer’s facility. Thus, in my view, the job duties and
responsibilities of the forklift operators, warehouse foreman,
yard foremen, and gate checker are functionally integrated, they
have regular and daily contact with one another, and share a
sufficient community of interest with the production employees
to conclude that the classifications sought cannot appropriately
constitute their own unit.
I also note that there is a large degree of temporary inter-
change among petitioned-for classifications with those whom
the Petitioner seeks to exclude. In this regard, there are two or
three forklift operators who have the capacity to perform as-
sembly work and do so one to three times per week on an over-
time basis. There are some assemblers who have the requisite
certification and operate forklifts inside the production plants.
Although there was some testimony that drivers, in the past,
assisted in assembly work, Cardaci was unable to provide spe-
cific examples and Salvatore claims that it has not occurred in
at least a year and a half. Moreover, I note that the drivers are
not permanently stationed at the Employer’s location, thus, it is
less likely that they would temporarily be assigned assembly
work, or other production related work, based on their time
away from the Employer’s location.
Although the Board generally places greater emphasis on
temporary rather than permanent transfers, the record estab-
lishes that there are a number of production employees, i.e.,
assemblers that have become forklift operators or warehouse
employees, and visa-versa. In this regard, employees
Rodriquez, Williamson and Bowen, employees in either the
wall panel or truss plants, became forklift operators, warehouse
employees, or yard foremen. One can become a driver only if a
commercial drivers’ license is obtained, and this happened on
one occasion. Thus, it appears more likely that employees will
move from the production plants to positions as forklift opera-
tors, warehousemen, or yard employees because special driving
skills are not required.
In its brief, the Petitioner argues that the petitioned-for unit is
appropriate for a number of reasons, each of which I reject.
First, the Petitioner contends that the unit sought is primarily
engaged in transportation of the Employer’s product while the
employees it seeks to exclude are primarily engaged in produc-
tion of the Employer’s product. Contrary to the Petitioner’s
contention in this regard, the record does not support the Peti-
tioner’s conclusion in this regard. Although the Petitioner
claims that the petitioned-for unit is engaged in the transporta-
tion of the Employer’s product, the record established that the
drivers are the only employees that bear the responsibility to
deliver the product to the customer. Certainly, the forklift op-
erators, the warehouse foreman, the yard foremen and the gate
checker have a hand in the transportation process by assisting
in loading the truck and checking the trucks before they leave
the facility. However, at best, they initiate the transportation
process by preparing the materials for shipping, loading the
materials onto the trucks and logging the invoices upon exit
from the facility. Once the shipments leave the Employer’s
facility, these employees have other daily responsibilities: the
forklift operators move materials directly to and from the pro-
duction plants and the warehouse; the warehouse foreman is
solely responsible for maintaining inventory there; the yard
foremen maintain the yard, prepare products for shipping and
move products from the plant to the yard; and the gate checker
logs all the traffic in and out of the yard. Thus, while the trans-
portation process originates with these employees, they have
other duties during the day that establish their community of
interest with the production operation and not the drivers.38
The Petitioner also argues that the petitioned-for employees
require specialized certifications compared with those the Peti-
tioner seeks to exclude. While it is true that the drivers require
commercial drivers’ licenses, and that the forklift operators
require certification, the yard foremen, the gate checker and the
warehouse foreman do not require these licenses or certifica-
tions. Accordingly, I reject the Petitioner’s argument in this
regard.39
The Petitioner also argues that the petitioned-for unit em-
ployees are compensated at a greater hourly rate than those that
it seeks to exclude from the unit. However, the Board has held
that a distinction in the rate of pay does not necessarily affect
unit determinations. See Four Winds Services, 325 NLRB 632
(1998), where the Board held that differences in compensation
rates do not destroy a community of interest among employees
and would not require that they be in separate units. Moreover,

38 In its brief, the Petitioner also claims that the Employer structured
its business in such a way that the production departments and the
transportation departments are separate. Thus, the Petitioner argues
that a separate unit of “transportation-related” employees would be
appropriate. However, as noted above, the petitioned-for unit does not
merely constitute “transportation” employees. There are other employ-
ees who perform other work during the day. It is true that the Board is
cognizant of the “administrative set-up” of the employer’s operations
and that the manner in which a plant is structured has a “direct bearing
on the community of interest among various groups of employees.” See
International Paper Co., 96 NLRB 295, 298 fn. 7 (1951). However, in
the final analysis, the manner in which an employer has administra-
tively structured its operations must be analyzed in conjunction with an
examination of how employees interact so as to carry out the em-
ployer’s business purpose. Gustave Fisher, Inc., 256 NLRB 1069
(1981).
39 I also note that the Employer has two or three assemblers who are
forklift certified, yet the Petitioner seeks to exclude them even though
they, like some of the petitioned-for employees, have similar certifica-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266
I note that some of the foremen sought in the petitioned-for unit
earn the same wage rates as those in the production plant,
whom the Petitioner seeks to exclude. Also, some of the saw-
yers (whom the Petitioner seeks to exclude) earn more than the
gate checker (included in the unit sought) and some sawyers
may even have similar wage rates as the drivers. Thus, the
record does not support the notion that the petitioned-for em-
ployees are uniformly compensated at a higher hourly rate than
the production employees whom the Petitioner seeks to ex-
clude. In addition, the Petitioner claims that the petitioned-for
employees receive better benefits because they are the Em-
ployer’s most senior employees. Thus, the Petitioner claims
that they are eligible for more vacation time, sick leave, and
personal days due to their length of service. However, the mere
fact that employees’ seniority affords them additional time off
does not establish that the two groups receive completely dif-
ferent benefits. The Petitioner also claims that the production
employees have a second shift and that the petitioned-for em-
ployees generally work only on the first shift. Even assuming
that the two groups of employees work separate shifts, this
factor, in and of itself, is not a basis for carving out a separate
unit for the petitioned-for employees, particularly where there
is some evidence that the warehouse foreman and forklift op-
erators have worked on the second shift (i.e., on an overtime
basis) as assemblers.40
Finally, although the Petitioner argues that the petitioned-for
employees have little or no contact with the employees that
work in the Employer’s production plants, the record does not
support this conclusion. As noted above, there is a substantial
amount of work related contact between the petitioned-for clas-
sifications and those the Petitioner seeks to exclude: forklift
operators interact with truss and wall panel assemblers during
delivery of materials and upon completion of production; the
yard foremen direct the movement of the finished product from
the production plants; and assemblers from the production
plants and the warehouse foreman assist in loading and unload-
ing trucks. Moreover, as noted above, there is a substantial
amount of temporary interchange: the forklift operators can and
do perform assembly work; some assemblers are forklift certi-
fied and perform that function inside the plant; and the ware-
house foreman, on an overtime basis, has performed assembly
work.41 And, there is evidence that assemblers have made the

40 In its brief, the Petitioner asserts that the production employees are
subject to different rules and regulations, i.e., they have “component
rules” requiring certain safety glasses, hammers, tape, knives, and tool
belts, whereas the forklift operators and truckdrivers have “safety rules
and regulations,” i.e., covering speed limitations, loading procedures,
maintenance, and vision requirements. The Petitioner also argues that
the drivers are required to wear the Employer’s logo shirt. These fac-
tors, on their own, fall short of establishing that the petitioned-for em-
ployees share a distinct community of interest separate from the re-
mainder of the Employer’s employees, particularly where the Employer
has an employee handbook, which is applicable to all of the Employer’s
employees.
41 In its brief, the Petitioner claims that even assuming that the
“transportation employees occasionally perform production work . . .
the company’s own job descriptions make no reference to employees
performing work outside their job descriptions, so such work must not
be significant.” Br. at p. 10. Job descriptions are not dispositive in
transition from that classification to warehouse or yard employ-
ees. Thus, I reject the Petitioner’s argument that there is little
work related contact or an insignificant amount of interchange
between the petitioned-for employees and those that it seeks to
exclude.
Having found that the petitioned-for unit is inappropriate, I
now turn to whether the wall-to-wall unit, as suggested by the
Employer and Intervenor, is appropriate, or whether an alterna-
tive unit can also be appropriate. As noted above, once a peti-
tioned-for unit is found to be inappropriate, the “Board may
examine the alternative units suggested by the parties, and also
has discretion to select an appropriate unit that is different from
the alternate proposals of the parties. The Board generally
attempts to select a unit that is the “smallest appropriate unit”
encompassing the petitioned-for employee classifications.” See
Overnite Transportation Co., 331 NLRB 662 (2000). In Acme
Markets, Inc., 328 NLRB 1208 (1999), the Board held that a
Regional Director may consider alternative units where the
petitioning union indicates a willingness to proceed to an elec-
tion in any unit found appropriate. Inasmuch as the Petitioner
herein has indicated a willingness to proceed to an election in
any unit found to be appropriate, in my view, the smallest ap-
propriate unit includes all of the Employer’s drivers.
To be sure, a wall-to-wall unit, inclusive of all of the Em-
ployer’s employees, can also be appropriate, as argued for by
the Intervenor and the Employer. See Marks Oxygen Co., 147
NLRB 228, 230 (1964), where the Board held that a plant wide
unit is presumptively appropriate. However, the Board has
found that drivers may constitute an appropriate unit apart from
warehouse and production employees unless they are so inte-
grated with a larger unit that they have lost their separate iden-
tify. See Overnite Transportation Co., 322 NLRB 723 (1996);
Mc-Mor-Han Trucking, 166 NLRB 700, 701 (1967); and E. H.
Koester Bakery, Co., 136 NLRB 1006, 1011 (1962). The
Board has acknowledged that truckdrivers often have a dual
community of interest, with certain factors supporting their
inclusion in the same unit as other plant employees and certain
factors favoring their representation in a separate unit. See
Pacemaker Mobile Homes, 194 NLRB 742, 743 (1971). They
perform certain traditionally distinct functions (i.e., spending
most of their time on the road driving, interacting with custom-
ers), which support their representation in a separate unit. Mc-
Mor-Han Trucking Co., supra. At the same time, their work is
closely integrated with the work of other employees at their
employer’s facility. This integration favors their inclusion in a
more comprehensive unit. Where both a separate unit of driv-
ers and a more inclusive unit are appropriate, the Board bases
its unit determination on the wishes of the petitioning union.
See Pacemaker supra, and Mc-Mor-Han Trucking. Here, it can
be argued that both a wall-to-wall unit is appropriate (inclusive
of drivers) and that a separate but smaller unit of drivers alone
is also appropriate. I am mindful of the Board’s view that it
generally attempts to select a unit that is the “smallest appropri-
ate unit” encompassing the petitioned-for employee classifica-

making unit determinations, and, the mere fact that a job description
fails to mention that an employee may perform work outside of their
classification does not mean that it does not occur.
TRIANGLE BLDG. PRODUCTS, CORP. 267
tions, and based on the record evidence as a whole, I conclude a
separate unit of drivers constitutes an appropriate unit because
they have a separate and distinct community of interest.
In general, drivers have been found to be so functionally in-
tegrated with plant employees as to preclude separate represen-
tation where the drivers spend a substantial amount of time
performing the same function as other employees at the termi-
nals, some of whom performed driving duties, and where the
drivers have the same supervision, pay scale and benefits as
other employees. See Standard Oil Co., 147 NLRB 1226
(1964) (where drivers were found to be appropriately included
with other employees because they share similar terms and
conditions of employment, they have the same supervision and
they spend a substantial amount of time in the performance of
the same functions as other employees, some of whom also
perform driving duties); Calco Plating, 242 NLRB 1364 (1979)
(where drivers were included in a unit of production and main-
tenance employees because the drivers spent a substantial
amount of time working with production employees, they regu-
larly perform production work, assist in pulling inventory, one
driver occasionally engages in his former production job, and
production and maintenance employees perform drivers’ work
by assisting in loading and unloading, making customer deliv-
eries).42 In Overnite Transportation Co., 325 NLRB 612
(1998), the Board held that a separate unit of drivers constituted
an appropriate unit, even though the employer there claimed
that there was functional integration between the drivers and
the mechanics, whom the employer sought to include. In that
case, the employer argued that the integration included contact
between drivers and mechanics when mechanics performed
inspections, when drivers report vehicle concerns to the me-
chanics and when breakdowns occur on the road. The em-
ployer also argued that mechanics perform driving work when
there is an emergency repair of vehicles. The Board concluded
that despite all of the foregoing, a unit of drivers was an appro-

42 The Intervenor, in its brief, cites Calco in support of its claim that
a plantwide unit, inclusive of the drivers is appropriate. However, I
find this case factually distinguishable from the facts in Calco in two
particular respects. First, in Calco, the drivers performed a substantial
amount of production work and worked side by side with those em-
ployees frequently. That is not the case here. And, in Calco, there
were production and maintenance employees who performed driving
work, also a factor not present here.
The Intervenor cites two other cases in its brief that I also find factu-
ally distinguishable. The Board in American Sunroof Corp., 243
NLRB 1128, 1130 (1979), included drivers in a production and mainte-
nance unit. However, in that case, there was evidence, not present here,
that drivers occasionally perform “detailing” work performed by the
production and maintenance employees, and, similarly, the production
and maintenance employees occasionally performed driving work.
Here, there is little evidence that the drivers perform production work
on a regular basis, or, visa versa, that the production employees per-
form driving work.
As for the final case cited by the Intervenor, Calpine Containers,
251 NLRB 1509, 1510 (1980), there the Board included truckdrivers
and forklift operators in a larger production unit partially because they
all performed forklift work and the drivers, in the off season, performed
production work. Here, there is little evidence to establish that drivers
perform production work with regularity.
priate unit. Also see Overnite Transportation Co., 322 NLRB
347 (1996), reconsidered in Overnite Transportation Co., 322
NLRB 723 (1996), where the Board found a driver unit to be
appropriate.
It is undisputed that the approximately eight drivers in ques-
tion spend some amount of the time at the Employer’s facility
loading their trucks. At most, they return to the facility one
time for reloading. Otherwise, they spend the remainder of
their day delivering the Employer’s product to customers. The
amount of time the drivers spend at the Employer’s facility and
in contact with the Employer’s other employees is limited.
Although there is some evidence that drivers can work as as-
semblers in the Employer’s truss or wall panel plants, there
were no recent examples in the record to show they have.
Moreover, it appears that no other employee may perform the
work of a driver, particularly where a CDL is required to drive
the Employer’s trucks. There is evidence that the drivers are, in
some sense, jointly supervised because the tractor-trailer driv-
ers are supervised by Bazoge and the remaining drivers are
supervised by McManus. Although some of the drivers are
supervised by McManus, who also supervises the forklift op-
erators and other yard employees (including the yard foremen),
the lack of specific separate supervision is insufficient to negate
a finding that drivers constitute a separate appropriate unit. The
Board, in Overnite Transportation Co., 331 NLRB 662 (1999),
specifically excluded drivers from a plant wide wall-to-wall
unit partially because the drivers spent most of their day away
from the employer’s facility and there was little evidence that
drivers performed work at the plant, or that plant employees
performed driving work. In find the factual circumstances here
to be similar.
Based on all of the foregoing, I find the following classifica-
tions to constitute an appropriate unit within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time drivers43 employed by the
Employer at its 2599 Route 112, Medford, New York, facil-
ity, excluding warehouse assistants, yard foremen, gate
checkers, warehouse foremen, forklift operators, roof truss
leadman, roof truss stackers, truss plant production foremen,
truss assemblers, wall paneler sawyers, wall panel component
assembly leadmen, wall panel assemblers, wall panel assem-
bly leadmen, wall panel plant line leaders, wall panel plant
production foremen, wall panel component assemble, compo-
nent sawyer, office clerical employees, guards and supervi-
sors.
Motion to Dismiss
As indicated earlier in this Decision, both the Employer and
the Intervenor moved to dismiss the instant petition on the
grounds that the Petitioner did not have a 30-percent showing
of interest in the recognized unit, a plantwide wall-to-wall unit,
43 Included in this unit should be all employees who drive the Em-
ployer’s trucks. From my reading of the record, they include drivers of
tractor-trailers, boom truckdrivers, spider truckdrivers, flatbed truck-
drivers, and boxtruck drivers. Also, the record indicates that there is a
classification called warehouse driver/helper and that these employees
drive boxtrucks. They too shall be included in the unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268
at the time when the Intervenor was recognized. It is undis-
puted that the Petitioner did not have a 30-percent showing of
interest in the recognized unit at the time that recognition was
extended to the Intervenor. In Smith’s Foods, the petitioning
unions sought units that were smaller than the recognized units
but the petitioners did not have the requisite 30-percent show-
ing even in those smaller units at the time of the recognition.
Thus, the recognition was afforded bar quality. However, in
American National Can, supra, the petitioner secured a 30-
percent showing in the petitioned-for unit of 24 mold makers
prior to the recognition of the larger unit, which consisted of
397 employees. The Board held that the petitioner’s attempt to
seek a smaller unit than urged by the recognized union “does
not alter [the] conclusion that the employer’s voluntary
recognition . . . does not constitute a bar.” Thus, I interpret
American National Can as follows: if a petition seeks a unit
smaller than the recognized unit, and the unit sought, or some
other smaller unit is appropriate, and the petitioning union has
the requisite 30-percent showing of interest in the smaller
appropriate unit prior to the extension of recognition, the rec-
ognition agreement will not be afforded bar quality. Here,
although I have found that the petitioned-for unit is inap-
propriate, I also found that a smaller unit, a unit of drivers,
constitutes a separate appropriate unit. Moreover, the
Petitioner has indicated a willingness to proceed to an election
in any unit found appropriate. Having conducted an
administrative investigation of the showing of interest among
that unit, I find that the Petitioner had a 30-percent showing of
interest in a unit of drivers prior to the recognition agreement.
Accordingly, inasmuch as the drivers constitute a separate
appropriate unit, and the Petitioner has a requisite showing of
interest in that unit that predates the recognition, I find that the
Employer’s recognition of the Intervenor in the wall-to-wall
unit does not bar the processing of the instant petition. The
motion to dismis

s is therefore denied.44DIRECTION OF ELECTION
An election by secret ballot shall be conducted by the under-
signed among the employees in the unit found appropriate at
the time and place set forth in the notice of election to be issued
subsequently subject to the Board’s Rules and Regulations.
Eligible to vote are employees in the unit who were employed
during the payroll period ending immediately preceding the
date of this Decision, including employees who did not work
during that period because they were ill, on vacation or tempo-
rarily laid off. Also eligible are employees engaged in an eco-
nomic strike that commenced less than 12 months before the
election date and who retained their status as such during the
eligibility period and their replacements. Those in the military
44 If I had found that the wall-to-wall unit was the only appropriate
unit, such a result would warrant dismissal of the petition for the fol-
lowing reasons: the Petitioner does not have an adequate showing of
interest in that unit that predated the recognition agreement and as such,
the recognition agreement would bar. Even though the Petitioner indi-
cated a willingness to proceed in any unit found appropriate, it would
have to secure an additional showing of interest, which, at this juncture,
would postdate the recognition.
services of the United States who are employed in the unit may
vote if they appear in person or at the polls. Ineligible to vote
are employees who have quit or been discharged for cause
since the designated payroll period, employees engaged in a
strike who have been discharged for cause since the com-
mencement thereof and who have not been rehired or reinstated
before the election date and employees engaged in an economic
strike which commenced more than 12 months before the elec-
tion date and who have been permanently replaced. Those
eligible to vote shall vote whether they desire to be represented
for collective bargaining purposes by Local 1205, International
Brotherhood of Teamsters, AFL–CIO, Local 2682, United
Brotherhood of Carpenters and Joiners of America, or neither
labor organization.
LIST OF VOTERS
In order to assure that all eligible voters may have the oppor-
tunity to be informed of the issues in the exercise of the statu-
tory right to vote, all parties to the election should have access
to a list of voters and their addresses that may be used to com-
municate with them. Excelsior Underwear, Inc., 156 NLRB
1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759
(1969). Accordingly, it is hereby directed that within 7 days of
the date of this Decision, four copies of an election eligibility
list, containing the full names and addresses of all the eligible
voters, shall be filed by the Employer with the undersigned who
shall make the list available to all parties to the election. North
Macon Health Care Facility, 315 NLRB 359 (1994). In order
to be timely filed, such list must be received in the Regional
Office, One MetroTech Center North-10th Floor (Corner of Jay
Street and Myrtle Avenue), Brooklyn, New York 11201 on or
before July 2, 2001. No extension of time to file the list may be
granted, nor shall the filing of a request for review operate to
stay the filing of such list except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objec-
tions are filed.
NOTICES OF ELECTION
Please be advised that the Board has adopted a rule requiring
that election notices be posted by the Employer at least three
working days prior to an election. If the Employer has not
received the notice of election at least five working days prior
to the election date, please contact the Board agent assigned to
the case or the election clerk.
A party shall be estopped from objecting to the nonposting
of notices if it is responsible for the nonposting. An Employer
shall be deemed to have received copies of the election notices
unless it notifies the Regional office at least five working days
prior to 12:01 a.m. of the day of the election that it has not re-
ceived the notices. Club Demonstration Services, 317 NLRB
349 (1995). Failure of the Employer to comply with these post-
ing rules shall be grounds for setting aside the election when-
ever proper objections are filed.