Town & Country Plumbing & Heating

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1212 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 139
1212
Town & Country Plumbing & Heating, Inc. and
Plumbers and Pipe Fitters Local 333, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO. Case 7–
CA–46572
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
Upon charges filed by the Union on September 3,
2003, against Town & Country Plumbing & Heating,
Inc. (the Respondent), the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleging
that the Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act by withdrawing recog-
nition from its employees’ designated collective-
bargaining representative. For the reasons discussed
below, we find merit in that allegation and shall issue an
appropriate remedial order.
On September 28, 2004, the General Counsel, the Re-
spondent, and the Union filed a stipulation of facts and
motion to transfer proceedings to the Board. The parties
agreed that the charges, the complaint and notice of hear-
ing, the stipulation with appended exhibits, the statement
of issues, and each party’s statement of position consti-
tute the entire record in this case, and that no oral testi-
mony is necessary or desired. The parties waived a hear-
ing and decision by an administrative law judge. On
January 27, 2005, the Board approved the stipulation and
transferred the proceeding to the Board for issuance of a
decision and order. Thereafter, the General Counsel, the
Union, and the Respondent filed briefs.
On the entire record and the briefs, the National Labor
Relations Board1 makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Michigan corporation with an of-
fice and place of business located in Bath, Michigan, is
engaged in the operation of a commercial and residential
plumbing service. In the course of conducting its busi-
ness operations during the calendar year ending Decem-
ber 31, 2002, the Respondent had gross revenues in ex-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
cess of $500,000 and purchased and received goods and
materials valued in excess of $50,000 at its Michigan
facility directly from points located outside the State of
Michigan.
The parties stipulated and we find that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that Plumbers
and Pipe Fitters Local 333, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL–CIO
(the Union), is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act when, on June 27,
2003, it withdrew recognition from the Union as the ex-
clusive representative of a unit of the Respondent’s em-
ployees without having bargained in good faith with the
Union for a reasonable period of time. The relevant facts
are as follows.
1. Background
On May 2, 2000, the Regional Director for Region 7
approved an informal settlement agreement entered into
between the Respondent and Union in Cases 7–CA–
42335–(1), –(2), –(3), and 7–CA–42820. Pursuant to this
agreement, the Respondent agreed, among other things,
to post certain notices, and to recognize the Union and
bargain in good faith toward an agreement.
Between May 2, 2000, and March 14, 2002,2 in com-
pliance with that settlement agreement, the Respondent
recognized the Union as the bargaining representative of
the unit employees,3 and the parties engaged in collective
bargaining. No agreement was reached.
On March 14, based on a petition received from its
employees, the Respondent withdrew recognition from
the Union.
After the Union filed unfair labor practice charges, a
complaint issued on May 21, alleging that the Respon-
dent engaged in numerous violations of the Act, includ-
ing making threats and other unlawful statements to em-
ployees, creating the impression of surveillance, unlaw-
fully discharging employees, and unlawfully withdraw-
ing recognition from the Union.

2 All dates hereafter are in 2002, unless stated otherwise.
3 The following employees of the Respondent constitute a unit ap-
propriate for the purposes of collective bargaining:
All full-time and regular part-time plumbers and helpers employed by
Respondent at and out of its Bath, Michigan facility, but excluding of-
fice clerical employees, guards and supervisors as defined in the Act.
TOWN & COUNTRY PLUMBING & HEATING 1213
On October 29, the parties entered into a formal set-
tlement stipulation providing for the entry of a consent
Order by the Board and for judicial enforcement of that
Order. The stipulation stated that it “is subject to the
approval of the Board, and it does not become effective
until the Board has approved it.”
On February 3, 2003, the Board issued a Decision and
Order approving the October 29 settlement stipulation.
The Board’s Order required, among other things, that the
Respondent cease and desist from engaging in the con-
duct alleged in the complaint, recognize and bargain in
good faith with the Union as the exclusive representative
of the unit employees, and reduce to writing any agree-
ment reached with the Union.
On September 16, 2003, the United States Court of
Appeals for the Sixth Circuit entered a judgment enforc-
ing the Board’s Order.
2. Bargaining
On October 31, 2002 (right after the parties entered
into the Formal Settlement Stipulation), the Union’s or-
ganizer, David Knapp, sent a letter to the Respondent’s
president, Bernard Deyarmond, expressing the Union’s
interest “in getting back to the table as soon as possible.”
Knapp’s letter also requested information regarding the
unit employees, including each employee’s then-current
wage rate, and the date and amount of all wage increases
received by employees during the preceding 3 years.
The Respondent’s attorney, Timothy Ryan, responded
to Knapp by letter dated November 6, 2002, offering
November 20, 21, or 22, as potential bargaining dates.
Ryan’s letter also provided some of the information re-
quested by the Union.
Knapp accepted the November 20 proposed bargaining
date. However, Ryan subsequently advised Knapp that
November 20, “is not an available date” for the Respon-
dent. Ryan further stated:
I note that the formal settlement . . . requires that within
fourteen (14) days of an order from the [B]oard that
Town and Country recognize your Union and engage
in good faith collective bargaining. Since the Board
has not issued any such order as a technical matter, the
settlement agreement does not require Town and Coun-
try to recognize and meet with your union at this time.
However, it is not Town and Country’s intention to
wait until the Order is actually issued. Therefore, we
offer December, 2, 3, 4, and 5.
The parties thereafter agreed to meet on December 5.
However, prior to December 5, Knapp suffered a severe
illness.4 Jim Davis, the Union’s business agent, assumed

4 The illness left him fully disabled until March 2003.
Knapp’s lead bargaining role, and requested that the De-
cember 5 bargaining session be cancelled. The Respon-
dent did not oppose this request. The parties eventually
met for negotiations on January 16, 2003.5 This was the
first of three bargaining sessions that were held prior to
the June 27 withdrawal of recognition. Each session
lasted about 2 hours.
During the first bargaining session, the parties dis-
cussed economic issues. Respondent President Deyar-
mond requested a copy of the Union’s building trade
agreement, and expressed his desire for a proposal from
the Union that would keep the Respondent competitive.
Davis responded that the Respondent’s pay rates were
close to the Union’s rates. Deyarmond answered that the
inclusion of union benefits could impact the Respon-
dent’s ability to be competitive. The parties also dis-
cussed the implications of the fact that the Respondent’s
work was currently “portable,” with employees able to
work anywhere in the state without restriction. To that
end, Davis stated that the Union had a national residen-
tial agreement that could be adjusted to cover work per-
formed anywhere in the United States or Canada. Davis
said that the Union wanted to work with the Respondent,
that he would speak to union officials about adjusting the
geographic wage rates, and that he would need informa-
tion from the Respondent on the current cost of the Re-
spondent’s wage and benefit package.6
At the next negotiation session on February 13 (the
first after the Board approved the settlement stipulation),
the parties continued discussing economic issues. The
Union presented the Respondent with copies of the Un-
ion’s national residential agreement. Davis stated he
could set up a schedule A to the agreement, which would
be a special contractor agreement as to the total wage and
benefit package. The parties discussed the fact that the
Respondent could perform work anywhere in the United
States under the agreement, and they also discussed the
benefits the Respondent currently provided to its em-
ployees. At the end of the session, Davis stated that he
would prepare for the Respondent’s consideration a
schedule A attachment to the national residential agree-
ment.
On March 7, Davis faxed a schedule A proposal to
Ryan. By letter to the Union dated March 14, Ryan
counterproposed that the Respondent would be willing to
sign the national residential agreement with eight excep-
tions.7

5 All dates hereafter are in 2003, unless stated otherwise.
6 The Respondent provided certain wage information by letter dated
February 7.
7 The eight listed exceptions were:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
The parties met for a third, and what turned out to be
their final, negotiation session on May 21. At this meet-
ing, the Union presented proposals covering commercial
and residential work that the parties had previously dis-
cussed in 2001.8
The parties also discussed the Respondent’s March 14
counteroffer. Knapp said that the Union could work with
the Respondent on some of the items it had counterpro-
posed, including wages and cost containment in the ex-
cavation side of the Respondent’s business. Deyarmond
and Ryan responded that they were concerned about the
cost of the Union’s health care proposal. Knapp said that
in order to evaluate the Respondent’s concern, the Union
needed information on the Respondent’s current health
insurance costs. Knapp stated that he would confer with
Davis upon receipt of the requested information, and also
indicated that the Union would offer a counterproposal
on the benefit issues at the next negotiation session. The
Respondent subsequently provided the requested infor-
mation.
On June 27, the Respondent withdrew recognition
based on its receipt of a petition signed by a majority of
its unit employees indicating that they no longer wished
to be represented by the Union. As of that date, the par-
ties had agreed on most of the terms of the contract, but
remained apart on the economic issues. The parties were
not at impasse.
B. The Parties’ Contentions
The General Counsel contends9 that the Respondent
was obligated to bargain in good faith for a reasonable
period of time of at least 6 months as a consequence of

(1) The exclusion of any excavation work from the
agreement.
(2) The Respondent would continue to provide its current
Physicians Health Plan coverage to full time employees, but
would not contribute to the Union’s Health and Welfare Plan.
The Respondent would pay an additional $1 per hour in wages to
any employee who voluntarily declined coverage.
(3) The Respondent would make pension contributions of $1
per hour for all employees.
(4) The Respondent would not contribute to the Union’s
S.U.B., Scholarship, Training, or Industry Funds.
(5) The June 1, 2004, “and or” [sic] June 1, 2005, wage rates
would be increased by 3.5%.
(6) The Respondent would retain the right to pay higher
wages than those required by Schedule A.
(7) The contract would terminate on June 1, 2005.
(8) The rates set forth in Schedule A would apply throughout
the State of Michigan, except for the counties of Washtenaw,
Oakland, and Wayne.
8 Some portions of both proposals had been tentatively agreed to
during the 2001 negotiations.
9 The Union replicates the General Counsel’s arguments.
the October 29, 2002 settlement stipulation.10 The Gen-
eral Counsel argues that the reasonable period of bar-
gaining commenced on one of two dates: February 3, the
date the Board approved the settlement agreement, or
January 16, the date the parties first met in face-to-face
negotiations.11 The General Counsel asserts that, under
either date, the Respondent had not bargained for a rea-
sonable period when it withdrew recognition on June 27.
The General Counsel further argues that even if the rea-
sonable period had commenced on an earlier date—and
thus the Respondent had bargained in good faith for at
least 6 months—the particular circumstances here require
extending the reasonable period beyond 6 months, and
that the reasonable time for bargaining had not elapsed
when the Respondent withdrew recognition.
The Respondent argues that it withdrew recognition
following a reasonable period of bargaining. It contends
that the reasonable period should be measured from the
date the settlement was approved by the Regional Direc-
tor, on October 29, 2002, and thus nearly 8 months had
elapsed before it withdrew recognition. The Respondent
further asserts that there are no particular circumstances
in this case that warrant extending the reasonable period
beyond a minimum of 6 months.
As explained below, we find that the reasonable period
for bargaining commenced no earlier than January 16,
and that the parties did not bargain for a reasonable pe-
riod of time before the Respondent withdrew recognition
of the Union. Therefore, the Respondent’s withdrawal of
recognition violated Section 8(a)(5) and (1) as alleged.
C. Discussion
It is well settled that the Act requires an employer to
bargain in good faith for a reasonable period of time after

10 The General Counsel cites in support AT Systems West, Inc., 341
NLRB 57, 61 (2004) (holding that a union is entitled to a “reasonable
period of time” of good-faith bargaining after settlement of unfair labor
practices that have disrupted bargaining before an employer may with-
draw recognition based on lack of majority status); and Lee Lumber &
Building Material Corp., 334 NLRB 399, 402 (2001), enfd. 310 F.3d
209 (D.C. Cir. 2002) (reasonable period of time for bargaining follow-
ing such interruption [with incumbent union] should be at least 6
months). We note that in Lee Lumber the Board stated that it “shall
decide in other cases, where the issues are presented, what constitutes a
reasonable time for bargaining when an employer . . . entered into a
settlement agreement requiring bargaining. . . .” Lee Lumber, supra at
fn. 7.
11 In support of commencing the reasonable period on February 3,
the General Counsel cites Gerrino Restaurant, 306 NLRB 86, 89
(1992), and King Soopers, Inc., 295 NLRB 35, 38 (1989), which in-
volved informal settlement agreements wherein the reasonable period
for bargaining commenced on the date the settlements were approved
by the Regional Director. In support of a commencement date of Janu-
ary 16, when the parties first met, the General Counsel cites Jasco
Industries, 328 NLRB 201 (1999) (extension of the certification year is
measured from the date “when face-to-face negotiations began”).
TOWN & COUNTRY PLUMBING & HEATING 1215
the settlement of unfair labor practices that disrupted
bargaining. Only then may an employer lawfully chal-
lenge the union’s majority status and withdraw recogni-
tion.12
The parties do not dispute this basic principle. As set
forth above, however, they do disagree over the date on
which the reasonable period of bargaining commenced
and whether the parties had bargained for a reasonable
period.
Addressing the commencement date for measuring the
period of bargaining, we note that the cases cited by the
parties do not specifically address the circumstances
here, i.e., when bargaining is required pursuant to a for-
mal Board settlement. Based on those cases, however,
the parties have suggested three possible commencement
dates: (a) October 29, 2002, the date the Regional Direc-
tor approved the parties’ formal settlement; (b) January
16, 2003, the date of the parties’ first face-to-face bar-
gaining session; and (c) February 3, 2003, the date the
Board approved the formal settlement.
The Respondent endorses October 29, the first and ear-
liest possibility. The Respondent correctly points out
that, when bargaining is required pursuant to an informal
settlement of unfair labor practice charges, the reason-
able period is measured from the date the settlement was
approved by the Regional Director. See AT Systems
West, 341 NLRB 57, 62 (2004); Gerrino Restaurant, 306
NLRB 86, 89 (1992). The Respondent contends that the
Regional Director’s approval of the parties’ formal set-
tlement should, likewise, commence the reasonable pe-
riod for bargaining. We disagree.
The Respondent’s contention glosses over a crucial
distinction between a Regional Director’s approval of an
informal settlement and his approval of a formal settle-
ment. A Regional Director’s approval of an informal
settlement triggers the parties’ duties under the settle-
ment, including any provided-for duty to bargain.13 By
contrast, a Regional Director’s approval of a formal set-
tlement, including one containing a bargaining obliga-
tion, is tentative and conditional. The proposed formal
settlement remains contingent on the approval of the
Board. See Section 101.9(c)(2) of the Board’s Rules and
Regulations.
That distinction between formal and informal settle-
ments, moreover, is clearly embraced by the parties’ Oc-

12 See generally AT Systems West, supra at 61; Poole Foundry &
Machine Co., 95 NLRB 34, 36 (1951), enfd. 192 F.2d 740 (4th Cir.
1951), cert. denied 342 U.S. 954 (1952).
13 In the event of noncompliance, the Regional Director is empow-
ered to set aside the settlement and institute, or reinstitute, formal pro-
ceedings against the respondent. See Secs. 101.7 and 101.9(e)(2) of the
Board’s Rules and Regulations.
tober 29 settlement and by the Respondent’s statements
at the time. By its terms, the settlement was “subject to
the approval of the Board” and did “not become effective
until the Board ha[d] approved it.” Further, the Respon-
dent emphasized that fact in its November 20 letter to the
Union stating, “Since the Board has not issued [an] order
. . . the settlement agreement does not require [the Re-
spondent] to recognize and meet with [the Union] at this
time.” In these circumstances, we are unable to accept
the Respondent’s contention that the reasonable period
for bargaining commenced on October 29.14
We thus are left to consider the General Counsel’s pro-
posed dates, i.e., whether the period for bargaining
should be measured from January 16, 2003, the date of
the parties’ first postsettlement bargaining session, or
February 3, 2003, the date the Board approved the formal
settlement agreement. As explained below, however, we
find that the reasonable period had not elapsed even
when measured from the earlier of those dates. Accord-
ingly, we find it unnecessary to choose between them or
to consider alternative, later commencement dates (which
the General Counsel has not advocated).15
Our finding that the parties had not bargained for a
reasonable period, even assuming a January 16 com-
mencement date, is based on the following factors, set
forth in AT Systems West, Inc., supra at 61, and cases
cited therein:
[W]hether the parties were bargaining for an initial
agreement, the complexity of the issues being negoti-
ated and the parties’ bargaining procedures, the total
amount of time elapsed since the commencement of
bargaining and the number of bargaining sessions, the
amount of progress made in negotiations and how near
the parties were to agreement, and the presence or ab-
sence of a bargaining impasse.16
Applying these factors, we find at the outset that the
first and last factors weigh in favor of finding that a rea-

14 As a result, we find it unnecessary to consider the General Coun-
sel’s argument that the Respondent’s withdrawal of recognition was
unlawful even if the reasonable period had commenced on that date.
15 Thus, we find it unnecessary, for example, to consider whether the
reasonable period should be measured from an even later date in these
circumstances, i.e., from February 13, 2003, when the parties held their
first bargaining session following the Board’s approval of the formal
settlement.
16 Also, see generally Lee Lumber, supra at 402–405, and cases cited
therein. As noted above, the General Counsel argues that under Lee
Lumber the reasonable period of time in this case must be at least 6
months. However, there the Board declined to decide whether a 6-
month minimum applies when parties enter into a settlement agreement
requiring bargaining. Because we find, under the traditional factors
listed above, that the parties had not bargained for a reasonable period
from January 16 to June 27—some 5–½ months—we find it unneces-
sary to address whether a minimum 6-month period is mandated here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
sonable period for bargaining had not elapsed. Indeed, it
is undisputed that the parties were bargaining for an ini-
tial contract and that they were not at impasse when the
Respondent withdrew recognition.
The second factor, the complexity of the issues and the
parties’ bargaining procedures, weighs somewhat in fa-
vor of finding that a reasonable period for bargaining had
expired. Although only three bargaining sessions shed
light on this factor, the record does not reveal that the
parties experienced any particular bargaining complexi-
ties, either with respect to the issues or the procedures.17
The third factor, however, the amount of time elapsed
and number of bargaining sessions, weighs heavily in
favor of finding that the parties had not bargained for a
reasonable period. The period of bargaining prior to the
Respondent’s withdrawal of recognition lasted 5–½
months, at most. During that period, the parties held just
three negotiating sessions, each lasting 2 hours. There
was also one exchange by fax and mail, but that was lim-
ited to the Union sending the Respondent a schedule A to
its national residential agreement, and the Respondent
answering that it would sign that agreement with certain
exceptions. By any standard, this amounts to only a
small amount of actual bargaining time. As such, it indi-
cates that a reasonable period of bargaining had not
elapsed when the Respondent withdrew recognition.18
The final factor, the amount of progress and how near
the parties were to agreement, does not weigh heavily in
either direction in the circumstances. As the Board ex-
plained in Lee Lumber, supra at 404, “which way th[is]
factor cuts depends on the context.” Thus, “when nego-
tiations have nearly produced a contract, it is reasonable
that the parties should have some extra time in which to
attempt to conclude an agreement.” Id. That reasoning,
however, typically does not apply when the parties

17 As explained above, the parties bargained by working off of cop-
ies of the Union’s existing agreements, the national residential agree-
ment and the building trades agreement. They also agreed at their
second meeting to set up a schedule A to the residential agreement in
order to address wages and benefits. Further, at the parties’ third and
(what turned out to be) final bargaining session on May 21, the Union’s
negotiator (Davis) expressed a willingness to move towards several of
the Respondent’s positions, and added that he would offer a new pro-
posal on benefits at their next meeting. Thus, the record shows that the
parties engaged in constructive, albeit very limited, contract discussions
during the bargaining period.
18 See generally, Lee Lumber, supra at 405–406 (five bargaining ses-
sions in little over a month weighed heavily against finding that a rea-
sonable period elapsed); Driftwood Convalescent Hospital, 302 NLRB
586, 589 (1991) (reasonable period did not elapse after two negotia-
tions during an 83-day period); Stant Lithograph, 131 NLRB 7 (1961),
enfd. 297 F.2d 782 (D.C. Cir. 1961) (three bargaining sessions of 2
hours each over a 1–½-month period did not constitute a reasonable
period for bargaining).
merely made progress but were still not close to reaching
an agreement. Id. at 404–405.
Here, the parties made progress, but it does not appear
that they were on the verge of concluding an agreement.
Indeed, they were still negotiating virtually all of the
economic issues when the Respondent withdrew recogni-
tion. The plentitude of unresolved issues is not surpris-
ing, however, given the brief time the parties spent nego-
tiating. Consequently, even if this factor suggests that a
reasonable period had elapsed, it does only slightly, be-
cause the parties held only three negotiation sessions for
their first contract.
In sum, application of the pertinent factors to the par-
ticular facts here demonstrates that the parties did not
bargain for a reasonable period of time before the Re-
spondent withdrew recognition. The most probative
facts are that the parties were bargaining for their first
contract, that they were not at impasse, and that they held
just three, 2-hour, bargaining sessions. Those facts
clearly outweigh the countervailing considerations, i.e.,
that the parties neither experienced any particular bar-
gaining complexities nor were they on the verge of an
agreement. Accordingly, we find that the Respondent’s
withdrawal of recognition violated Section 8(a)(5) and
(1) as alleged.
REMEDY
Having found that the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act by withdrawing recognition from the Un-
ion, we shall order the Respondent to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. For the reasons set forth be-
low, we shall enter an affirmative bargaining order,
which requires bargaining for at least a reasonable period
of time as the appropriate remedy for the Respondent’s
unlawful withdrawal of recognition from the Union.
We adhere to the view, reaffirmed by the Board in
Caterair International, 322 NLRB 64 (1996), that an
affirmative bargaining order is “the traditional, appropri-
ate remedy for an 8(a)(5) refusal to bargain with the law-
ful collective-bargaining representative of an appropriate
unit of employees.” Caterair International, supra at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
the Board to justify, on the facts of each case, the imposi-
tion of an affirmative bargaining order. See, e.g., Vin-
cent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727
(D.C. Cir. 2000); Lee Lumber & Building Material Corp.
v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997);
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C.
Cir. 1994). In Vincent Industrial Plastics, supra, the
court stated that an affirmative bargaining order “must be
TOWN & COUNTRY PLUMBING & HEATING 1217
justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’
Section 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargain-
ing representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.” 209
F.3d at 738. Consistent with the court’s requirement, we
have examined the particular facts of this case and we
find that a balancing of the three factors warrants an af-
firmative bargaining order.19
(1) As the Board stated in Parkwood Developmental
Center, Inc.,20 an affirmative bargaining order in this
case vindicates the Section 7 rights of the unit employees
who were denied the benefits of collective bargaining by
the Respondent’s unlawful withdrawal of recognition and
resulting refusal to bargain with the Union for a collec-
tive-bargaining agreement. The Respondent withdrew
recognition from the Union without allowing for a rea-
sonable period of bargaining following its formal settle-
ment of the unfair labor practice allegations in Case 7–
CA–44939–(1), –(2). At the same time, an affirmative
bargaining order, with its attendant bar to raising a ques-
tion concerning the Union’s continuing majority status
for a reasonable time, does not unduly prejudice the Sec-
tion 7 rights of employees who may oppose continued
union representation, as the order is not of indefinite du-
ration but for a reasonable period of time sufficient to
allow the good-faith bargaining that the Respondent’s
unlawful withdrawal of recognition cut short. It is only
by restoring the status quo ante and requiring the Re-
spondent to bargain with the Union for a reasonable pe-
riod of time that employees’ Section 7 right to union rep-
resentation is vindicated. It will also give employees an
opportunity to fairly assess the Union’s effectiveness as a
bargaining representative and determine whether contin-
ued representation by the Union is in their best interests.
(2) An affirmative bargaining order also serves the
Act’s policies of fostering meaningful collective bargain-
ing and industrial peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging
support for the Union, and it ensures that the Union will
not be pressured to achieve immediate results at the bar-

19 Chairman Schaumber does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” He
agrees with the United States Court of Appeals for the District of Co-
lumbia Circuit that a case-by-case analysis is required to determine if
the remedy is appropriate. Saginaw Control and Engineering, 339
NLRB 541, 546 fn. 6 (2003). He recognizes, however, that the view
expressed in Caterair International, supra, represents extant Board law.
Flying Foods, 345 NLRB 101, 109 fn. 23 (2005), enfd. 471 F.3d 178
(D.C. Cir 2006).
20 347 NLRB 974, 976 (2006), enfd. 521 F.3d 404 (D.C. Cir. 2008).
gaining table—results that might not be in the employ-
ees’ best interests. It fosters industrial peace by reinstat-
ing the Union to its rightful position as the bargaining
representative chosen by a majority of the employees.
Also, as mentioned, providing this temporary period of
insulated bargaining will afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the effects of the Respondent’s unlawful
withdrawal of recognition and refusal to bargain.
(3) As an alternative remedy, a cease-and-desist order
alone would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the
Union, because it would allow another challenge to the
Union’s majority status before the employees had a rea-
sonable time to regroup and bargain with the Respondent
through their chosen representative in an effort to reach a
collective-bargaining agreement. Such a result would be
particularly unfair where the Respondent’s unlawful re-
fusal to recognize and bargain with the Union has con-
tinued since June 27, 2003, and has likely undermined
employee support for continued union representation.
Such a result would also be particularly unfair here,
where litigation of the Union’s charges took several
years and, as a result, the Union needs to reestablish its
representative status with unit employees. Indeed, per-
mitting a decertification petition to be filed immediately
might very well allow the Respondent to profit from its
own unlawful conduct. We find that these circumstances
outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who op-
pose continued union representation.21
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violation in this case.
ORDER
The Respondent, Town & Country Plumbing & Heat-
ing, Inc., Bath, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unlawfully withdrawing recognition from the Un-
ion, Plumbers and Pipefitters Local 333, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
AFL–CIO, and refusing to bargain with it as the exclu-
sive collective-bargaining representative of the employ-
ees employed in the bargaining unit described below.

21 Parkwood, supra at 977; see also Goya Foods of Florida, 347
NLRB 1118, 1123 (2006), enfd. 525 F.3d 1117 (11th Cir. 2008); Smoke
House Restaurant, 347 NLRB 192, 194 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time plumbers and help-
ers employed by Respondent at and out of its Bath,
Michigan facility, but excluding office clerical employ-
ees, guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its Bath, Michigan facility, copies of the attached notice
marked “Appendix.”22 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 27, 2003.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unlawfully withdraw recognition from
the Union, Plumbers and Pipe Fitters Local 333, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL–CIO, and refuse to bargain with it as
the exclusive collective-bargaining representative of our
employees employed in the bargaining unit described
below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time plumbers and help-
ers employed by Respondent at and out of its Bath,
Michigan facility, but excluding office clerical employ-
ees, guards and supervisors as defined in the Act.
TOWN & COUNTRY PLUMBING & HEATING, INC.