Webasto Sunroofs, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 2004

342 N.L.R.B. 1222 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 124
1222
Webasto Sunroofs, Incorporated and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America
(UAW), AFL–CIO. Case 7–CA–43470
September 23, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 26, 2001, Administrative Law Judge Jerry M.
Hermele issued the attached decision. Counsel for the
General Counsel filed exceptions and a supporting brief.
The Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order.2
The complaint alleged that the Respondent violated
Section 8(a)(1) of the Act by distributing a memo to for-
eign-born employees with a provision entitled “Accept-
ing NO for an answer.” The judge found that the Re-
spondent did not violate Section 8(a)(1) of the Act by
distributing this memo to employees. We disagree for
the reasons set forth below. The complaint further al-
leged that the Respondent violated Section 8(a)(1) and
(3) of the Act by refusing to change temporary employ-
ees to full-time permanent status during the union orga-
nizing effort.3 Applying the test established in FES, 331
NLRB 9 (2000), appeal after remand 333 NLRB 66
(2002), enfd. 301 F.3d 83 (3d Cir. 2002), the judge dis-
missed this allegation. We agree with the judge’s finding
that the Respondent did not violate the Act in this regard;
however, we reach this conclusion by application of the
Board’s Wright Line test, rather than FES, as discussed
below.4

1 The judge included in his Decision a footnote observing that
“[u]pon any publication of this Decision by the National Labor Board,
changes may have been made by the Board’s Executive Secretary to the
original decision of the Presiding Judge.” It is the Board’s established
practice to correct any typographical or other formal errors before
publication of a decision in the bound volumes of NLRB decisions.
2 We shall substitute a new notice to conform to our decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), affd. 354 F.3d 534
(6th Cir. 2004).
3 The effort covered the period from May through August 2000.
4 The judge also found that the Respondent violated Sec. 8(a)(1) of
the Act by telling temporary employees, from May through August
2000, that they would not be hired as permanent employees during the
Union’s organizing drive. There were no exceptions to the judge’s
finding, and we therefore adopt it.
Background
The Respondent manufactures automobile sunroofs at
its Livonia, Michigan facility. There are 200 employees
at this facility, many of whom are foreign-born tempo-
rary employees.5 From 1998 through May 2000,6 the
Respondent worked with Olsten Staffing Services (Ols-
ten) to obtain temporary employees for its Livonia facil-
ity. The agreement between Olsten and the Respondent
stated that the Respondent “may hire any staffing service
assignment employee directly after that assignment em-
ployee remains on staffing service payroll for a period of
520 working hours,” or approximately 90 days. The Re-
spondent also had the additional requirement that any
temporary employees, in order to be eligible for perma-
nent status, must exhibit good work performance and a
permanent job opening must be available.
On May 1, the Respondent ended its relationship with
Olsten and began working with Kelly Temporary Ser-
vices (Kelly). The agreement between the Respondent
and Kelly was the same as that between the Respondent
and Olsten with the added requirement that Kelly would
require potential employees to take an English profi-
ciency exam before being hired as a temporary em-
ployee.
On May 17, the Union filed a petition to represent the
Respondent’s Livonia plant employees. During a regu-
larly scheduled meeting with employees in May, the Re-
spondent’s human resources manager, Jeff Croff, told
employees that no temporary employees could be legally
converted to permanent status until the union drive was
over and the Union was gone.7 Croff repeated this
statement at subsequent employee meetings.
The 8(a)(1) Allegation
In November, the Respondent required its foreign-born
employees to attend a training course entitled “Introduc-
tion to North American Business Culture for the Foreign
Born.” The course was ostensibly designed to acclimate
foreign-born employees to the American workplace. The
catalyst for this course was, among other things, an inci-
dent wherein several employees tried to persuade the
Respondent to rescind the termination of a fellow em-
ployee. Included in the course materials prepared by
instructor Kathy Emmenecker was a handout containing
a provision entitled “Accepting NO for an answer.” Un-
der this heading, there were two “bullet points” stating:
(1) Colleagues will not try to negotiate policies and deci-

5 Overall, the Respondent has approximately 1000 employees. A
majority of those employees work at the Respondent’s assembly plants
in Rochester Hills, Michigan and Kentucky. The Respondent refers to
its employees as colleagues.
6 All dates herein are 2000 unless otherwise indicated.
7 As noted above (fn. 4), Croff’s statements violated Sec. 8(a)(1).
WEBASTO SUNROOFS, INC. 1223
sions; and (2) Colleagues will understand that “no means
no” and will drop issues even when they don’t get the
answer they want. Other course topics included respect
for authority and colleagues, relationships between col-
leagues and managers, American individualism and
teamwork, the importance of good English, safety, atten-
dance, commitment to quality work, personal hygiene,
and housekeeping.
The judge found that neither the handout, nor the por-
tion of the seminar that it addressed, violated Section
8(a)(1). According to the judge, that segment of the
seminar was a small portion of the overall program, in
which the instructor addressed a range of issues. The
judge found nothing to suggest that the Respondent’s
goal in holding the seminar was to combat the Union or
undermine its employees’ Section 7 rights. The judge
reasoned that the relevant portion of the seminar was
aimed at discouraging workers from second-guessing
managerial policies and decisions, and that it must be
evaluated within the totality of the circumstances. He
further found that even if the “Accepting NO for an an-
swer” portion of the memo and seminar was evaluated in
a vacuum, there is nothing therein that implicates em-
ployee rights under Section 7.
The General Counsel excepts to the judge’s findings.
He argues that “Accepting NO for an answer” is equiva-
lent to an overly broad rule that tends to restrain and in-
terfere with employee rights under the Act. The Act con-
templates just the sort of concerted activity that the em-
ployees engaged in when, as a group, they questioned
management regarding the discharge of a colleague. The
General Counsel further points out that unlike Shen
Automotive, relied on by the judge, here, there is no am-
biguity about the language in dispute.8 Finally, the Gen-
eral Counsel argues that it is immaterial that the instruc-
tor never considered the Union when preparing for the
seminar.
We find merit in the General Counsel’s exception.
Section 7 of the Act protects employees’ rights “to en-
gage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.” 29
U.S.C. § 157. Concerted activities are those engaged in
with or on the authority of other employees, and not
solely by and on behalf of the employee himself.9 The

8 Shen Automotive Dealership Group, 321 NLRB 586, 591 (1996)
(Board found employer threatened employee in violation of Sec. 8(a)(1)
when supervisor told employee he should make up his mind about the
union because he could not sit on the fence. Due to the asserted ambi-
guity of the statement, the threat was assessed in the context of other
violations committed during the pendency of the decertification peti-
tion.)
9 Meyers Industries, 268 NLRB 493, revd. sub nom. Prill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 971, decision on
record is clear that the handout provision “Accepting NO
for an answer” was inspired by, and in reaction to, em-
ployees’ group questioning of a managerial decision to
terminate a fellow employee. Such activity is classic
concerted activity and clearly falls under the Act’s pro-
tection.
We further agree that the “Accepting NO for an an-
swer” provision is invalid on its face and would have the
reasonable effect of thwarting concerted activity. When
a rule is clearly invalid on its face, it is unnecessary to
show that it is illegally motivated, discriminatorily en-
forced, or even enforced at all. Blue Cross-Blue Shield
of Alabama, 225 NLRB 1217, 1220 (1976), citing Con-
goleum Industries, 197 NLRB 534, 539 (1972). As long
as such a rule remains in existence, the possibility of its
application against employees engaged in protected ac-
tivity tends to coerce, restrain, and interfere with em-
ployees in the exercise of their Section 7 rights. J. C.
Penney Co., 266 NLRB 1223, 1224–1225(1983).
For the foregoing reasons, we find, contrary to the
judge, that through its handout provision “Accepting NO
for an answer” and the subsequent explanation of it dur-
ing the seminar, the Respondent violated Section 8(a)(1).
The basic test for an 8(a)(1) violation is whether the em-
ployer engaged in conduct, regardless of intent, which
reasonably tends to interfere with the free exercise of
employee rights under the Act. American Freightways
Co., 124 NLRB 146, 147 (1959). Here, the Respon-
dent’s prohibition on employees’ speaking as a group to
management and questioning management policies
would serve as a roadblock to classic concerted activity.
The fact that the Respondent’s intent was not shown to
include opposition to the Union is irrelevant. It is irrele-
vant for two reasons. First, intent or motive is not a nec-
essary part of this kind of Section 8(a)(1) violation. Sec-
ond, the 8(a)(1) violation is premised upon interference
with concerted activity, not union activity.
The 8(a)(3) Allegation
The Respondent used three criteria when determining
whether to convert temporary employees to full-time
status: the employee must (1) work for 520 hours or 90
days; (2) display good work performance; and (3) there
must be a permanent job available. This policy is clearly
communicated to each temporary employee when they
begin working for the Respondent.
In 2000, the Respondent converted approximately 64
temporary employees to full-time status.10 At the outset

remand sub nom. Meyers Industries, 281 NLRB 882 (1986), affd. 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
10 Following are the total number of temporary employees that the
Respondent converted to full-time employment at Livonia during 2000:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
of the Union organizing drive in May, Human Resources
Manager Croff was asked by temporary employees when
they would be converted to full-time positions. He re-
plied that “it’s against the law to do any hiring until the
Union leaves.” At subsequent meetings, Croff repeated
that he could not do any hiring until the Union left the
company. In August, at an employee meeting, Croff
announced that he had “good news, the union pull[ed]
out.” Croff further informed employees at this meeting
that the Respondent was “going to hire 24 people”—
apparently meaning that the Respondent would convert
24 temporary employees to permanent status.
The judge found that the Respondent’s justifications
for not hiring additional permanent employees in mid-
2000 were lawful business decisions, unrelated to the
Union, and therefore this failure to hire did not violate
Section 8(a)(3) of the Act. Specifically the judge relied
on the facts that a shift of employees had been eliminated
and that the Respondent would be implementing an
automated production plan, requiring less manpower.
The judge found that the Respondent possessed anti-
union animus. However, he also found that the Respon-
dent’s hiring policy was not an open-ended permanent
employment guarantee to temporary employees. Analyz-
ing the facts under FES, supra, the judge found no viola-
tion. According to the judge, even if the General Coun-
sel satisfied the requisite initial FES elements—that the
Respondent was hiring or had concrete plans to hire; that
the applicants were qualified; and that union animus con-
tributed to the decision not to hire—the Respondent suc-
cessfully rebutted the 8(a)(3) allegation with legitimate
business justifications.
The General Counsel excepts to the judge’s findings.
According to the General Counsel, FES does not provide
the appropriate analysis for this case. The General
Counsel argues that the FES requirement that actual job
openings be established is virtually impossible to meet
here because additional temporary employees could be
secured to cover the Respondent’s needs. Rather, the
General Counsel argues that the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), pro-
vides the better analysis. It is the General Counsel’s po-
sition that, under Wright Line, the Respondent failed to
rebut the General Counsel’s initial showing that the Re-
spondent had an unlawful motive in refusing to make
temporary employees permanent. According to the Gen-
eral Counsel, the Respondent failed to present evidence
that a reduction in shifts and the impending implementa-

January (28); February (0); March (26); April (1); May to September
(0); October (4); November (0) and December (5).
tion of automation would result in a loss of permanent
positions.
We agree with the General Counsel that Wright Line,
rather than FES, provides the appropriate analytical
framework for reviewing the General Counsel’s 8(a)(3)
allegations in this case. Nonetheless, we adopt the
judge’s conclusion that the Respondent did not violate
Section 8(a)(3) when it refused to convert temporary
employees to full-time permanent employees in mid-
2000.
The temporary employees in this case, as noted, were
provided first by Olsten Temps and later by Kelly Tem-
porary Services. The judge noted that these “temporary
employees shared many terms and conditions of em-
ployment with the permanent employees.” In these cir-
cumstances, the Respondent was at least an employer of
the temporary employees. Therefore, the relevant in-
quiry, unlike that posed by the General Counsel, is
whether the Respondent unlawfully refused to retain or
convert the temporary employees to permanent status
rather than whether the Respondent refused to hire new
employees. The Board’s analysis in FES is appropriately
applied in cases involving a refusal to hire, or consider
for hire, applicants for employment. Accordingly, as the
instant case involves a refusal to convert temporary em-
ployees to permanent status, Wright Line provides the
proper analysis for reviewing the 8(a)(3) allegation be-
fore us.
Under Wright Line, the General Counsel meets his ini-
tial evidentiary burden by establishing that: (1) the em-
ployee engaged in protected activity; (2) the employer
knew of that activity; and (3) the employer demonstrated
animus toward that activity.11 If the General Counsel
makes such a showing, the burden of persuasion shifts to
the employer “to demonstrate that that same action
would have taken place even in the absence of the pro-
tected conduct.” See Wright Line, supra at 1089.
Here, we find that the General Counsel met his initial
evidentiary burden. The Respondent clearly knew that
there was union activity. This fact is evidenced by
Croff’s comments, during several employee meetings,
that no hiring would take place until after the Union was
gone. Croff’s statements also provide evidence of ani-
mus and were separately found to violate Section 8(a)(1).
While we acknowledge that under Wright Line, the Gen-

11 Member Schaumber would find that the General Counsel must
also show a causal nexus between the Sec. 7 animus and the adverse
employment action. See Shearer’s Foods, Inc., 340 NLRB1093, 1094
fn. 4 (2003) for further explanation.
WEBASTO SUNROOFS, INC. 1225
eral Counsel met his burden, we further find that the Re-
spondent proved a meritorious rebuttal.12
The rebuttal to the prima facie case includes the fact
that a decrease in conversions began in April, i.e., before
the Union’s campaign. This suggests that the decrease
was not related to that campaign.
Further, even if the decrease was related to the cam-
paign, the Respondent has shown that it would have oc-
curred in any event irrespective of the campaign. Sig-
nificantly, the Respondent never guaranteed permanent
employment status to its temporary employees, even be-
fore the union organizing drive. We agree with the judge
that the Respondent’s hiring policy was not an open-
ended permanent employment guarantee to employees.
In our view, the Respondent has shown that it would not
have converted the temporary employees to permanent
status, even if there had been no union campaign. More
specifically, the judge credited the Respondent’s testi-
mony that, during the relevant period, there was a shift
reduction and plans for automation. Further, the record
establishes that the Respondent did, indeed, reduce the
number of shifts from three to two in June. The reduc-
tion in shifts took the form of the elimination of a shift,
in order to perform necessary maintenance operations.
During that time, the Respondent outsourced work to
other of its facilities.13 According to the Respondent’s
credited testimony, the elimination of the third shift re-
sulted in a loss of permanent employee jobs at the plant
involved herein. In addition, the Respondent presented
credible testimony that it would be automating in early
2001, resulting in the need for fewer employees. Even if
the Respondent’s plans for automation were delayed, as
suggested by the General Counsel, it would make little
sense for the Respondent to hire permanent employees
only to have to lay them off when automation was un-
derway.14
Thus, we find no merit in the General Counsel’s alle-
gation that, but for the union campaign, the Respondent

12 We recognize that the Respondent told employees that it could not
hire permanent employees until the union campaign was over. There
are no exceptions to the finding that this statement was unlawful under
Sec. 8(a)(1). However, the statement was that the Respondent under-
stood the law to be that it could not lawfully do any such hiring. Al-
though this was a misunderstanding of the law, it violated Sec. 8(a)(1)
and is an appropriate part of the General Counsel’s initial showing
under Wright Line. However, it does not take away the Respondent’s
Wright Line defense or, for that matter, the ability of Respondent to
meet the General Counsel’s prima facie case with contrary evidence.
The latter is not relevant to the disposition of this case, however.
13 There are no allegations that the shift reduction and outsourcing
were discriminatorily motivated.
14 We recognize that the Respondent said, in August, that it would
hire 24 employees. However, as noted in fn. 10, the Respondent did
not hire anywhere near that number.
would have converted temporary employees to full-time
status during the relevant period.
Our colleague seizes on the fact that the Respondent
converted some temporaries in October and December.
In her view, this undermines the Respondent’s defense
that, because of a shift reduction and automation, there
was no need for conversions in the period from May to
September. However, the Respondent has credibly ex-
plained that, by October, there was a need to convert a
few temporaries in order to motivate them to stay. Our
colleague presumes that the same need would have ex-
isted in the period of May to September. The presump-
tion has no basis in fact. To the contrary, the longer the
period of nonconversion, the more likely it is that tempo-
raries will leave, and the more necessary it is to take
steps to retain them.
Our dissenting colleague also notes that the resumption
of converting temporaries coincided with the end of the
Union’s campaign. She therefore finds it “utterly im-
plausible” to find that the resumption was tied to the le-
gitimate reasons set forth above. However, the fact is
that the original cessation of hiring temporaries (no tem-
poraries converted) began before the union campaign,
and the number went back to zero in the month after the
Union announced its withdrawal from the campaign. In
sum, it is surely not “utterly implausible” that the need to
resume was tied to the need to retain temporaries. In-
deed, the judge who heard the Respondent’s explanation
credited it.15
We likewise find no merit in the General Counsel’s ar-
gument that because permanent employees were working
overtime during the 4-month period when the Respon-
dent was not hiring, the Respondent had permanent posi-
tions available. The Respondent made clear that it did
not want to have too many permanent employees, and
then have to eventually lay them off due to automation
and job shift reduction. The Respondent’s policy was to
maintain a flexible work force, which it could best ac-
complish by relying on the use of temporary employees.
Accordingly, we adopt the judge’s finding that the Re-
spondent did not violate Section 8(a)(1) and (3) by fail-
ing to convert temporary employees to full-time status.
The Respondent has shown that a reduction in shifts and
its planned automation would require fewer full-time
employees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and

15 The dissent says that the Respondent followed a bi-monthly hiring
pattern. No party to this proceeding has even suggested that this was
so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
orders that the Respondent, Webasto Sunroofs, Incorpo-
rated, Livonia, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(b) and reletter
the remaining paragraphs accordingly.
“(b) distributing to employees a document entitled
‘Accepting NO for an answer.’”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER LIEBMAN, dissenting in part.
The Respondent employer here followed a practice of
granting permanent status to some number of temporary
employees, on a roughly bi-monthly basis. It told em-
ployees, unlawfully as now admitted, that it was sus-
pending that practice because of the Union’s organizing
campaign. After the Union’s campaign failed, the Re-
spondent told employees that because the Union had
“pulled out,” it was resuming the tenure practice. And it
did so: some temps once again were made permanent.
The majority rightly acknowledges that, under Wright
Line,1 the General Counsel has carried his initial burden
of proving that the suspension of the tenure practice was
unlawfully motivated. It errs, however, in finding that
the Respondent has established its defense: that, regard-
less of its unlawful motive, it still would have not have
granted permanent status to any temporary employees
during the suspension period.
The Respondent made temporary employees perma-
nent both before and after the Union’s organizing cam-
paign, which lasted from May to September 2000:

January: 28
February: 0
March: 26
April: 1

May: 0
June: 0
July: 0 [Union Organizing Campaign]
August: 0
September: 0

October: 4
November: 0
December: 5

It seems clear to me that the Respondent would also have
granted at least some temporaries permanent status during
the period covered by the campaign, if there had been no
campaign in the first place. It certainly gave employees no

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
reason, other than the union campaign, for suspending its
practice and then for resuming it.
The judge found that the late 2000 hires to permanent
status were in part intended as an incentive to the temps
to continue working for the Respondent. Supervisor
John Reis admitted that “it is important to hire some
temps so they are motivated to stay.” Even assuming a
decrease in manpower needs based on a reduction of
shifts and imminent automation—which my colleagues
credit as completely explaining the failure to grant any
temps permanent status during the Union’s campaign—
the need to provide an incentive to the temps would pre-
sumably have remained a constant throughout the cam-
paign, as well as before and after it. That the Respondent
might well have granted permanent status to fewer temps
(as it did after the union campaign ended) does not estab-
lish that it would have made no temps permanent during
May, June, July, August, and September.
The majority seeks to explain away the significance of
the fact that the Respondent resumed making temps per-
manent as soon as the union campaign ended. My col-
leagues recognize that some grants of permanent status
were necessary to motivate the other temps to continue
working for the Respondent. Rather than recognizing the
obvious—that the Respondent’s suspension and resump-
tion of the practice were linked to the union’s campaign,
just as the Respondent told employees they were—my
colleagues assert that the practice was resumed only be-
cause the need to do so mounted as the suspension period
continued. The problems with this analysis are plain.
First, it ignores the reasons that the Respondent gave
employees for its actions. Second, it is utterly implausi-
ble that the need to resume what was an established prac-
tice reached a critical point precisely when the Union
announced its withdrawal, but not before.
The majority asserts that the Respondent’s cessation of
conversion of temporaries to permanent status was not
determined by the union campaign because it began in
April before the campaign started. But my colleagues’
assertion ignores the evident bi-monthly hiring pattern
followed by the Respondent. Thus, the Respondent
granted permanent status to 28 employees in January, 0
employees in February, 26 employees in March, and 1
employee in April. In other words, well before the Re-
spondent’s loss of a shift and implementation of its
automation plan, it regularly converted no employees to
permanent status on a bi-monthly basis. Similarly, the
fact that the Respondent hired no employees in the
month after the Union announced its withdrawal simply
reflects its established hiring practice, as the Respondent
hired four employees the previous month and five em-
ployees in the subsequent month. The point is that the
WEBASTO SUNROOFS, INC. 1227
Respondent suspended this hiring practice as soon as the
Union campaign began and expressly resumed it because
the Union withdrew.
On this record, the Respondent has failed to establish
its Wright Line defense. The only real issue, then, is how
many temps would have been made permanent. I would
remand that issue to the judge, to reopen the record if
necessary and to make the findings necessary to deter-
mine an appropriate remedy for the Respondent’s viola-
tion of Section 8(a)(3).2

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 threaten temporary employees during a
union organizing drive that they will not be hired as per-
manent employees, if jobs exist for them.
WE WILL NOT distribute to employees a document enti-
tled “Accepting NO for an answer.”
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.

WEBASTO SUNROOFS, INCORPORATED

Amy J. Roemer, Esq., for the General Counsel.
Maurice G. Jenkins and Ryan K. Mulally, Esqs. (Dickinson
Wright PLLC), of Detroit, Michigan, for the Respondent.
Betsey A. Engel, Esq., of Detroit, Michigan, for the Union.

2 For example, while it is clear from the judge’s decision that 80
Kelly temporaries met the 520-day tenure requirement for permanent
status in the period from May through December of 2000, there is no
indication how many of these employees would have met the perform-
ance requirements. Moreover, additional evidence may be necessary in
order for the judge to determine the effects of the loss of a shift in June
and the preparation for automation on the numbers of permanent posi-
tions the Respondent would have granted during the relevant time
period.
DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, U.S. Administrative Law Judge. In a
January 31, 2001 complaint, the General Counsel alleges that
the Respondent, Webasto Sunroofs, Incorporated (Webasto),
violated Section 8(a)(1) and (3) of the National Labor Relations
Act by suppressing a 2000 union organizing drive at one of its
facilities in Livonia, Michigan. Specifically, it is alleged that
the Respondent refused to promote temporary employees to
full-time status during the brief union effort, and thereafter
violated those employees’ Section 7 rights. In a February 14,
2001 answer, however, the Respondent denied these allega-
tions.
This case was tried in Detroit, Michigan, on April 23 and 24,
2001, during which the General Counsel called seven witnesses
and the Respondent called four witnesses. Both parties then
filed briefs on June 11, 2001.2
II. FINDINGS OF FACT
The Respondent, based in Rochester Hills, Michigan, manu-
factures automobile sunroofs. In addition to the assembly
plants in Rochester Hills, there is one assembly plant in Ken-
tucky and one manufacturing plant in Livonia, Michigan. An-
nually, the Respondent derives over $500,000 in gross reve-
nues, and sells and distributes over $50,000 in interstate prod-
uct (GC Exhs. 1(e), (f); Tr. 17–18, 282, 322). Overall, the Re-
spondent has approximately 1000 employees, including about
200 at Livonia, of which many are temporary employees pro-
vided by a job service (Tr. 26–27, 283, 296).
In that regard, Olsten Staffing Service (Olsten) supplied its
employees to the Respondent’s Livonia plant beginning in
1998. Olsten’s agreement with the Respondent provided that
“Webasto may hire any staffing service assignment employee
directly after that assignment employee remains on staffing
service payroll for a period of 520 working hours,” or approxi-
mately 90 days, which is a common threshold in the industry
(GC Exh. 2; Tr. 44–45, 325). Because regular Webasto em-
ployees received better pay and benefits, the temporary em-
ployees sought to get hired by Webasto (Tr. 145–146). We-
basto’s policy, communicated to the temporary employees upon
their commencement of work, was that Webasto would con-
sider them for permanent employment if they accrued 520
hours, if they exhibited good work performance, and if a per-
manent job opening existed (Tr. 30–31, 136, 325, 332). One
such temporary worker, Khaled Abdullah, was hired by We-
basto in July 1999, after working at Livonia for 6 months and
being rated favorably by management (GC Exh. 20; Tr. 105).
Moreover, Matthew Travis started as a temporary worker in
1997, and advanced to the position of second shift superinten-
dent in early 2000 (Tr. 278–281).

1 Upon any publication of this Decision by the National Labor Rela-
tions Board, changes may have been made by the Board’s Executive
Secretary to the original decision of the Presiding Judge.
2 Also on June 11, the General Counsel filed an unopposed motion to
correct the transcript. It will be granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
On May 1, 2000, Kelly Temporary Services (Kelly) suc-
ceeded Olsten as the provider of temporary workers to the
Livonia plant. Again, the Kelly-Webasto agreement gave We-
basto the option to hire any temporary worker who had worked
for 520 hours (GC Exh. 3; Tr. 55). Approximately 12 Olsten
workers had already accrued over 520 hours (Tr. 66). Kelly
and Webasto officials told the temporary workers of the
changeover and informed them that their accrued hours from
Olsten would carry over to Kelly for purposes of benefits, in-
cluding vacation and holiday pay. But Webasto’s “Human
Resource Manager” Jeff Croff added that all temporary workers
would have to take an English proficiency test prompting a
brief walkout by some, including Mosad Musa (Tr. 56–57,
136–139, 160, 206–207, 240–241). For the remainder of 2000,
Kelly supplied 436 temporary workers to Webasto (Tr. 65, 73).
Of those 436, 80 reached 520 hours in 2000, but only approxi-
mately seven of those were hired as regular Webasto employees
late in the year (GC Exh. 4; Tr. 60–61). As for the other tem-
porary workers who reached the 520-hour, or 90-day mark,
they would often ask Webasto management when they would
be hired (Tr. 110–111, 120, 210–211, 285).
On May 17, 2000, the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of Amer-
ica, filed a petition, pursuant to Section 9 of the Act, seeking to
represent the employees at 11 facilities of Magna International
(Magna), which included the three Webasto facilities in Roch-
ester Hills and the 220 employees at the Livonia plant (GC
Exhs. 6-7). Shortly thereafter, the Union distributed leaflets, in
English and Arabic, to employees at Livonia (Tr. 90, 115–116).
Webasto likewise leafleted, urging employees to reject the Un-
ion (GC Exhs. 14–15). In a regularly scheduled meeting with
employees in May, including the temporary workers, manage-
ment was again asked about being hired as regular Webasto
employees. This time, Jeff Croff said that no temporary em-
ployee could legally be hired until the union drive was over and
the Union was gone. Croff repeated this answer in several
subsequent employee meetings (Tr. 113–115, 140–141, 213–
214, 243). Supervisor Travis was present at at least one such
meeting (Tr. 142), and, according to Travis, Croff is no longer
employed by Webasto (Tr. 297, 307). But according to Croff’s
successor, John Reis, management did not discuss any new
hiring policy regarding the temporary employees during the
union organizing campaign (Tr. 321, 324).
In June 2000, the Livonia plant dropped its third shift opera-
tion in order to be able to service several machines (Tr. 282).
This loss of the third shift resulted in a loss of jobs at the plant
and an outsourcing of that capacity elsewhere (Tr. 284, 338).
Also contributing to a loss of jobs at Livonia was an automation
proposal, which management began to implement sometime in
mid-2000 (Tr. 314–315, 318, 337). In early June 2000, the
Union dropped the Webasto facilities from its election petition
because Webasto claimed it was no longer part of Magna. The
Union then so informed the Webasto employees that the elec-
tion was postponed but that it would try again in July (GC
Exhs. 8–10; Tr. 91). Later, in August 2000, Croff told the em-
ployees in another meeting “good news, the union pull[ed] out”
and that 24 temporary employees would be hired (Tr. 144,
244). But only seven temporary employees were hired in late
2000, in part to provide incentive to other temporary employees
that they might be hired too. Indeed, Supervisor John Reis
testified that “it is important to hire some temps so they are
motivated to stay.” (R. Exh. 1; Tr. 339–340). But in Septem-
ber, Musa and several other temporary workers quit after being
told they would have to take yet another English test (R. Exh.
1; Tr. 160–161). And on December 4, Reis informed Kelly that
Webasto “will no longer consider Kelly Services temporary
employees for permanent positions at Livonia because of our
planned introduction of automation” which would be imple-
mented in 2001, and result in the reduction of 46 temporary
employees. Reis also wrote that “the 520 hour assignment ceil-
ing is lifted for your employees in Livonia and they may remain
on assignment until such time as that assignment is ended with
the onset of automation” (GC Exh. 5). Overall for 2000, We-
basto hired 29 temporary workers in January for the Livonia
plant, none in February, 27 in March, one in April, none from
May to September, four in October, none in November and five
in December (GC Exh. 21).
In late 2000, Webasto engaged Kathy Emmenecker to teach
a course to the Arab employees on the American workplace.
Emmenecker is a “cross-cultural” trainer who attempts to ac-
climate foreign employees to American employers. In the case
of Arabs, she believes that they inappropriately attempt to ne-
gotiate too many nonnegotiable matters with employers, such
as trying to persuade a supervisor to rescind the termination of
a fellow employee (Tr. 123–127, 268–276). Accordingly, she
prepared the course for the Livonia employees, which included
the following written material:

Accepting NO for an answer
Colleagues will not try to negotiate policies and deci-
sions.
Colleagues will understand that No means No and will
drop issues even when they don’t get the answer they
want.

The rest of the course addressed such matters as respect for
authority, respect for fellow colleagues, relationships between
colleagues and managers, American individualism and team-
work, the importance of good English, safety, attendance,
commitment to quality work, and personal hygiene, and house-
keeping (GC Exh. 11).
III. ANALYSIS
Again, in 2000, after succeeding Olsten as Webasto’s tempo-
rary employee service, Kelly supplied 436 temporary workers
to the Respondent. While Webasto compensated its temporary
work force less in terms of wages, temporary employees at the
Livonia plant shared most other terms and conditions of em-
ployment applicable to the regular employees. Hence, We-
basto’s temporary employees enjoyed the same rights as any
other employee under the Act. See Outokumpu Copper Frank-
lin, Inc., 334 NLRB 263 (2001); M. B. Sturgis, Inc., 331 NLRB
1298 (2000).
A. The 8(a)(1) Allegations
The General Counsel alleges that by repeatedly informing its
temporary employees in mid-2000 that Webasto would not be
hiring for permanent positions until the union drive was termi-
WEBASTO SUNROOFS, INC. 1229
nated, and by disseminating a specific document at its Ameri-
can business culture seminar in November of 2000, Webasto
twice violated Section 8(a)(1) of the Act.
1. Mr. Croff’s statements
Mosad Musa, Mohamed Awad, and Salah Masrah all credi-
bly testified that Jeff Croff, a supervisor no longer employed by
Webasto, repeatedly told temporary employees in mid-2000
that they could not be hired until the Union left. This testimony
is unrebutted, as Croff did not testify. As the General Counsel
correctly notes, where a witness does not deny, or generally
denies without further specificity, adverse testimony from an
opposing witness, an adverse inference is warranted. Asarco,
Inc., 316 NLRB 636, 640 fn. 15 (1995). Thus it is clear that
Croff made statements to Webasto’s temporary employees
suggesting that such employees, regardless of their employment
record, would not be hired during the Union’s organizing cam-
paign.
Croff’s statements were similar to 8(a)(1) violations commit-
ted in New Silver Palace Restaurant, 334 NLRB 290 (2001),
where the Respondent stated that it would hire employees only
if the Union did not seek to represent them. In both, manage-
ment associated a refusal to hire with the Union. Moreover, not
only did Croff blame Webasto’s hiring freeze on the Union, but
he later told these same temporary employees that hiring would
resume because of the Union’s “pull out.” Thus, Croff’s state-
ments “interfere with, restrain, or coerce employees” in the
exercise of their Section 7 rights by unjustly associating the
Union with Webasto’s decision to freeze its hiring of temporary
workers. Because Croff’s statements violated Section 8(a)(1)
of the Act, the Respondent will be ordered to post an appropri-
ate remedial notice.
2. Accepting NO for an answer
The late 2000 seminar, headed by independent training spe-
cialist Kathy Emmenecker, was on American business culture
and was designed to acclimate Arab employees to the American
workplace. The “Accepting NO for an Answer” section of
Emmenecker’s program was a small section of a comprehen-
sive seminar. Emmenecker also addressed a range of issues
from respect for authority to personal hygiene and housekeep-
ing. According to Emmenecker’s unrebutted testimony, We-
basto was well justified in hosting such a program designed for
its Arab employees. As a “cross-cultural” specialist, she credi-
bly testified that because of cultural differences Arabs often
behave in ways inappropriate to the American workplace.
Moreover, Emmenecker never considered the Union in prepar-
ing for the seminar, nor did she reference it during the seminar
itself.
Unlike Blue Cross-Blue Shield of Alabama, 225 NLRB
1217, 1220 (1976), where the Board found that the Respon-
dent’s rule prohibiting employees from discussing their wages
with other employees was invalid on its face, nothing suggests
that Webasto’s goal in holding the seminar was to combat the
Union or undermine its employees’ Section 7 rights. The por-
tion of the seminar that aimed to discourage workers from sec-
ond-guessing managerial policies and decisions was but one of
the several cultural concerns that the seminar sought to resolve,
and therefore should be evaluated within the totality of the
circumstances. Shen Automotive Dealership Group, 321 NLRB
586, 591 (1996) (citing TRW v. NLRB, 654 F.2d 307, 313 (5th
Cir. 1981). And even if the “Accepting NO for an Answer”
portion was evaluated in a vacuum, there is simply nothing
therein that implicates Webasto’s employee’s Section 7 rights,
as the General Counsel alleges. Simply put, the “Accepting
NO for an Answer” document is not an attempt, by Webasto, to
make the waiver of Section 7 rights a condition of employment.
Compare Teamsters Local Union No. 171 v. NLRB, 863 F.2d
946, 952–954 (D.C. Cir. 1988) (where the court affirmed that it
is a violation of Section 8(a)(1) to condition employee rein-
statement on a waiver of Section 7 rights). For the above rea-
sons, the presiding judge finds that Webasto’s seminar, and its
“Accepting NO for an Answer” portion, did not violate Section
8(a)(1) of the Act.
B. The 8(a)(3) Allegation
The General Counsel also alleges that, from May to August
2000, Webasto violated Section 8(a)(1) and (3) by refusing to
hire temporary employees provided by temporary employment
services to permanent employee status upon reaching the 520-
hour mark. To sustain an 8(a)(3) charge, the General Counsel
must show (a) that the Respondent was hiring or had “concrete
plans” to hire, (b) that the applicants were qualified, and (c) that
union animus contributed to its decision not to hire. FES, 331
NLRB 9 (2000). And if the General Counsel succeeds in estab-
lishing these three elements, the burden shifts to the Respon-
dent to show that it would not have hired the applicants even
absent any union activity or affiliation.
Webasto’s arrangements with both Kelly and Olsten were
such that Webasto could hire temporary employees to perma-
nent status once workers had served at least 520 hours at the
Livonia plant. The criteria with which Webasto considered
temporary employees for permanent employee status were the
hours requirement, work performance, and whether positions
were available. Therefore, Webasto’s hiring policy was in no
way an open-ended permanent employment guarantee to tem-
porary employees.
The Respondent’s 8(a)(1) violation, evidenced by Croff’s il-
legal statements, shows that Webasto possessed union animus.
And surely at least some of the many temporary workers per-
formed well enough to become permanent employees. But the
General Counsel has failed to show that actual positions were
available or that the Respondent had concrete hiring plans at
the Livonia plant. First, Webasto’s hiring history does not
support such an inference. The Union effort began on May 17,
2000, and effectively ended in August 2000. In that 4-month
period, Webasto promoted no temporary employees to perma-
nent status, compared to 56 such promotions from January to
March 2000. But only one hiring occurred in April, before the
union drive began, and only a scant seven or nine occurred
through the end of the year. Second, the General Counsel ar-
gues that because permanent positions were vacated at the
Livonia plant and that the remaining employees were working
overtime during the time period that Webasto was not hiring,
Webasto had permanent positions available. However, this
theory is nothing more than conjecture regarding Webasto’s
hiring plans. Third, Personnel Supervisor John Reis candidly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
testified that “it is important to hire some temps so they [other
temporary workers] are motivated to stay.” While Reis’ de-
scription of Webasto’s actual hiring practices may seem un-
scrupulous or misleading in its treatment of its temporary
workers, his candor helps show that Webasto had no real hiring
plan. Fourth, Croff’s August 2000 statement to the temporary
employees that 24 of them would be hired in view of the Un-
ion’s failed effort is also not credible evidence of a hiring plan.
Indeed, only seven or nine such hirings occurred and then only
much later in the year.
On the facts of this case, the presiding judge recognizes the
difficulties faced by the General Counsel in proving the first
prong of the FES test. Indeed, Webasto’s hiring practices were
unlike a traditional employer’s hiring effort through placing
newspaper ads or seeking employment applications. See
Terry’s Excavating, Inc., 334 NLRB 596 (2001). Nevertheless,
had the General Counsel satisfied the requisite FES elements,
the Respondent still had sufficient legitimate business justifica-
tion for not hiring additional permanent employees during mid-
2000 to rebut the 8(a)(3) charge. Webasto maintains that it quit
hiring because the plant was implementing an automated pro-
duction system and had just recently gone from a three-shift to
a two-shift schedule. While the Respondent’s evidence regard-
ing automation is weak, Supervisors Matthew Travis and John
Reis credibly testified that the elimination of the third shift in
June 2000 resulted in a loss of jobs at the plant. In short, noth-
ing in the record suggests that Webasto was stretching its work
force thin in order to accommodate its hiring freeze; a hiring
freeze based supposedly on union animus. Rather, Webasto’s
hiring practices seem completely consistent with the justifica-
tions proffered for not hiring during the relevant time period.
In keeping a relatively large staff of temporary workers, the
Respondent employed a limber work force that could more
easily adapt to how the proposed changes would affect the
plant. Thus, Webasto’s justifications for not hiring additional
permanent employees in mid-2000 were lawful business deci-
sions, unrelated to the Union, and therefore did not violate Sec-
tion 8(a)(3) of the Act. See Laboratory Furniture Midwest, 301
NLRB 819 (1991).
IV. CONCLUSIONS OF LAW
1. The Respondent, Webasto Sunroofs, Incorporated, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW), AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
telling temporary employees, from May through August 2000,
that they would not be hired as permanent employees during
the Union’s organizing drive, as alleged in paragraphs 8 and 11
of the General Counsel’s complaint.
4. The Respondent did not violate Section 8(a)(1) of the Act
by distributing a memo to employees in late 2000, as alleged in
paragraphs 7 and 11 of the complaint.
5. The Respondent did not violate Section 8(a)(1) and (3) of
the Act by failing and refusing to convert temporary employees
to full-time status from May through August 2000, as alleged in
paragraphs 9, 10, and 12 of the complaint.
6. The unfair labor practice of the Respondent described in
paragraph 3, above, affects commerce within the meaning of
Section 2(6) and (7) of the Act.
ORDER
Accordingly, it is ordered3 that the Respondent, Webasto
Sunroofs, Incorporated, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening temporary employees that they will not be
hired as permanent employees during a future union organizing
drive if jobs exist for them; and
(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Do the following:
(a) Within 14 days after service by the Region, post at its fa-
cility in Livonia, Michigan, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent 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 current employees and former employ-
ees employed by the Respondent at the Livonia facility at any
time since May 17, 2000; and
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the General Counsel’s June 11,
2001 motion to correct the transcript is granted.
IT IS FURTHER ORDERED that paragraphs 7, 9, 10, and 12 of
the General Counsel’s complaint are dismissed.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 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.”