Leslie Metal Arts Co., Inc.

LESLIE METAL ARTS CO. 547 Leslie Metal Arts Company, Inc. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW). Case 7-CA-9458 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On October 11, 1972, Administrative Law Judge Sydney S. Asher issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting bi ief, and Respondent filed a brief in answer to the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION SYDNEY S. ASHER, Administrative Law Judge: On April 13, 1972 International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), herein called the Union, filed charges against Leslie Metal Arts Company, Inc., herein called the Respondent, Grand Rapids, Michigan. Amended charges were filed on May 4, 1972. Based on these charges, the General Counsel of the National Labor Relations Board, herein called the General Counsel, issued a complaint on May 26, 1972, alleging that on or about April 6, 1972, the Respondent restricted the work movement of Robert Adgate, an employee, to specified areas of the plant and on or about May 1, 1972, issued a written reprimand to Adgate and on or about May 2, 1972, suspended him from his employment for 3 days, because of Adgate's activities on behalf of the Union and because of his giving testimony I The Respondent is, and at all material times has been , a Michigan corporation with its principal office and place of business, and four other plants, in the City of Grand Rapids, Michigan, where it manufactures, sells, and distributes steel stampings and assemblies and related products During the calendar year 1971, the Respondent received at its Grand Rapids, before the National Labor Relations Board, herein called the Board. It is alleged that this conduct violated Section 8(a)(1),(3), and (4) of the National Labor Relations Act, as amended (29 U.S.C. Section 151 et seq.), herein called the Act. Thereafter the Respondent filed an answer admitting that it had issued a written reprimand to Adgate on or about May 1, 1972, and suspended him for 3 days on or about May 2, 1972, but denying that it had restricted his work movements to specified area of the plant and denying that the reprimand had been issued or the suspension imposed for the reasons set forth in the complaint. Upon due notice, a hearing was held before me on August 17, 1972, at Grand Rapids, Michigan. All parties were represented and participated fully in the hearing. After the close of the hearing, the Respondent filed a brief, which has been duly considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the answer admits, and it is found, that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operation meet the Board's jurisdictional standards; I and that the Union is, and at all material times has been, a labor organization as defined in the Act. B. The Setting The Respondent operates a number of plants. The events related herein took place at plant 1. That plant operates, and at all material times has operated, on two shifts: a day shift and a night shift. The Union began organizing the employees of Respon- dent's plant 1 in 1970. In August 1970, the Union sent the Respondent a letter listing 40 employees who were "members of the UAW Organizing Committee" in that plant. The Respondent posted the letter on the bulletin board in plant 1. In February 1972, the Union and the Respondent each filed with the Board a petition seeking an election among the employees at plant 1 (Cases 7-RM-892 and 7-RC-11012). In the same month, the parties executed a Stipulation for Certification Upon Consent Election, and the Regional Director approved. Pursuant to this stipula- tion, the Board conducted an election among these employees on March 2, 1972. The vote was indecisive As the challenges were sufficient in number to affect the results of the election, the Regional Director (through a designated hearing officer) conducted a hearing on April 5 to determine the eligibility of voters whose ballots had been challenged. Meanwhile, as the result of charges filed with the Board by the Union in two other cases-one involving plant 1 and the other involving another plant-the Board in the Michigan, plants goods valued at more than $50,000 which were shipped directly from origins outside the State of Michigan During the same period, the Respondent shipped from its plants in Grand Rapids, Michigan, products valued at more than $50,000 directly to destinations outside the State of Michigan 202 NLRB No. 84 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fall of 1971 found that the Respondent had committed unfair labor practices, including the discriminatory dis- charge of an employee.2 C. Robert Adgate's Employment Through 1971 Robert Adgate began working for the Respondent in June 1968 at plant I as a floor inspector on the day shift. He has held that employment continuously since then. His foreman is, and at all material times has been, Gordon Workman In 1970, Adgate signed a card authorizing the Union to represent him in collective bargaining and joined the Union's organizing committee. His name was among the 40 employees in the list sent by the Union to the Respondent and posted on the bulletin board in 1970, as described above. For a short while after this list was posted, some of the employees named, including Adgate, wore to work, and openly displayed, buttons about 2 inches in diameter which bore the legend: "Organizing Committee UAW." Donald B. Huizenga, the Respondent's personnel director, remarked to Adgate that he had noticed Adgate's name on the list, and asked whether Adgate was dissatisfied with his job. Adgate replied that he (Adgate) was satisfied but that many employees in the plant were not, and that he (Adgate) felt that there was "just reason" for trying to organize the employees. Huizenga "just shook his head" and the conversation ended. In 1970 Adgate, in addition to his duties as floor inspector, "took care of first aid." In the fall of that year, he was relieved of his responsibilities in this regard. At that time it was explained to Adgate that the change was made because "there was too much work in ... inspection" for him "to be tied up with first aid" and that the Respondent wanted Adgate "to spend [his] time concentrating on inspection work." No change in pay resulted. The Union filed with the Board a charge against the Respondent alleging that this conduct constituted an unfair labor practice. The charge was later withdrawn. On January 20, 1971, Adgate testified as a witness for the General Counsel at a formal hearing before a Trial Examiner (the designation used at that time) of the Board which ultimately resulted in a finding that the Respondent had committed certain unfair labor practices, Case 7-CA-8153 (previously referred to in In. 2 as 193 NLRB No. 44). D. The Alleged Restriction of Adgate's Movements 1. Facts As a floor inspector , Adgate moves around several departments, spot checking parts run off the presses and parts which have been welded. Using different gauges and instruments, he checks the parts to see if they meet blueprint specifications and whether they fit certain 2 See Leslie Metal Arts Company, Inc, 193 NLRB No 44, and Leslie Metal Arts Company, Inc, 194 NLRB No 20 Enforcement proceedings in the latter are currently pending before the United States Court of Appeals for the Sixth Circuit 3 Parts are partially made in pressroom I and sent to pressroom 2 for final piercing operations, form operations, and blanking operations They fixtures as required. Prior to the events described below, he worked in pressroom I (the automatic pressroom), press- room 2 (the manual pressroom),3 and the welding department. Prior to August 6, 1972, Adgate's work brought him into the shipping area several times daily, and occasionally to the toolroom. In February 1972, there were only two floor inspectors on the day shift: Adgate and Norman McClain. During that month, the Respondent's management determined that excess scrap was being produced in the pressrooms. It was therefore decided to obtain additional inspection coverage, primarily in pressroom 1, pressroom 2, and the welding department, so that "more inspection time could be given to each one of the departments." The reasoning was "that if there are additional inspectors on duty it is easier to catch the problems that may exist." Donald B. Huizenga, the Respondent's personnel director, was instructed to hire an additional inspector. Huizenga ran an advertisement in a local daily newspaper for several days beginning February 23.4 A job bid was also posted on the bulletin board at plant 1. Thomas Aldridge, then an inspector on the night shift at plant 1, successfully bid in the newly created job on the day shift, but before he could be transferred it became necessary to hire and train his replacement on the night shift. A new inspector was hired on about March 3 for the night shift and on May 8 Aldridge was transferred to the day shift.5 Meanwhile, on March 8, in furtherance of its objective of reducing scrap, the Respondent replaced the foreman in pressroom 1. Adgate was one of the Union's two observers at the Board-conducted election held on March 2. He also was a witness on the Union's behalf at the hearing on challenged ballots held on April 5. During the next workday after this hearing, April 6, a conversation took place between Adgate and Workman. Only Adgate testified as to this conversation. On direct examination Adgate described the incident as follows: Q. Will you tell us what took place on that day at work? A. I came to work at my regular shift. About ten fifteen Mr. Workman told me that from that time on I would not be working at press room one, there had been a change, that I would be working only in press room two and the welding department. I was to go no other place in the plant except these two departments, and that I was to talk to nobody but the foremen of those two departments. . . . He told me that Mr. McClain, Norm McClain had more experience and he would be working in press room one. Q. Now do you know whether the other floor inspectors were restricted at the same time? A. No, I do not know. From my visual observation are then either shipped or routed to the welding department for further operations 4 All dates hereafter refer to the year 1972 5 Huizenga ran a second advertisement in the daily newspaper, specifically for a night shift inspector, for several days beginning April 20 LESLIE METAL ARTS CO. they worked all through the department, as I had up to that time. But on cross-examination he testified: Q. You testified to a meeting you had with Workman where he gave you specific instructions about where you were to work. Was anybody else present? A. No, nobody else was within hearing. Q. Do you recall a meeting approximately twelve o'clock April 6th between Mr. Workman, yourself and Mr. McClain? A. Vaguely, yes. Q. Vaguely. Do you recall Mr. Workman telling both you and Mr. McClain what your new responsibili- ties would be, namely, Mr. McClain was to be responsible for the automatic press room and you were to be responsible for press room number two and the welding department? A. Yes. Q. Do you recall Mr. Workman specifying to both of you that there was to be no talking to the operators, no personal phone calls, and no wandering around the plant, any problem comes up, it is to be taken up with the foreman only and not with other employees? Do you recall him discussing that kind of thing with either of you? A. I recall him saying about not talking to the employees, and getting a hold of the foreman in regard to working. Q. Do you recall him also talking about a critical quality control problem existing at this point? A. There has always been a critical, so to speak-I don't recall him saying that in that type of words. Q. Do you recall him giving this particular situa- tion any more urgency than he had in the past, particularly with respect to scrap and need for concentrated inspection? A. Yes. From this somewhat confused and self-contradicting evidences -the only evidence available concerning this episode-I find that Workman addressed Adgate and McClain jointly; that in the conversation Workman gave the subject of excess scrap and the need for concentrated inspection more urgency than he had in the past; that Workman explained that from then on Adgate would be responsible for inspection in pressroom 2 and the welding department, and McClain would be responsible for inspection in pressroom 1; that Workman instructed both Adgate and McClain (then the only two floor inspectors on the day shift) not to talk to the operators, and that problems which came up should be discussed only with the foremen. Since this discussion, Adgate has restricted his inspection duties to the two departments assigned to him; he has no longer carried out any inspection in pressroom 1. 6 At oral argument at the close of the hearing the General Counsel admitted that "there may be a certain amount of inconsistency in what he [Adgate ] said [in his testimony] ." 7 Adgate at first placed the date as May 5. As will appear below, Adgate was not at the plant May 5, because he was under disciplinary suspension. 549 So far as desirability as work area is concerned, there is no substantial difference between pressroom 1 and pressroom 2. Later that month 7 an incident occurred which Adgate described as follows: I had gone in Press Room 2 to make my rounds and I found there were bad parts being run . . . parts that in my estimation were not up to quality. I looked for the foreman of the department, John Wiltrakes. I didn't see him so I got a hold of the leadman-it would be the leadman of the department Eko Shoonmaker, and brought his attention to the parts that were bad. He said he knew about it, that John Wiltrakes had gone out to find Gordie Workman who was out in the shipping department with Jim Southway. I then left the job as it was for about ten or fifteen minutes. John Wiltrakes came back in the department and I asked him if he had gotten hold of Gordie [Workman]. He said no he hadn't seen him. So I felt that it was important to get a decision as soon as possible on these parts. I took some parts in my hand and walked back to the shipping area. As I approached the shipping area, Gordie Workman and [Superintendent] Jim Southway were coming back into the other part of the plant. I had the parts in my hand. I said Gordie I want to find out about these parts, and he said what are you doing back here. You ain't supposed to be back here. I said I just come back-I just come back here to show you these parts. I didn't get all the words and he said I don't give a shit why you are back here. Get the hell out of here, he said. You are not supposed to be back here. . . . I put the parts down and turned around and went back up to my working area. On or about May 8, Aldridge was transferred from the night shift to the day shift as a floor inspector. Since then, the Respondent has had three floor inspectors on the day shift: McClain, Adgate, and Aldridge. 2. Contentions of the parties The General Counsel contends that Adgate has been a prominent supporter of the Union since 1970, and that his prounion activities were well known to the Respondent, especially through his testimony at two Board hearings and his acting as observer for the Union at the election. The General Counsel further maintains that the Respondent harbored animus toward the Union, and toward Adgate for his aid and assistance to the Union. Contending that Adgate's testimony on April 5 "certainly was not favorable for the Respondent" the General Counsel argues that "the Respondent came home that evening and he had on his mind . . . [that] Adgate's actions should be clipped." It is the General Counsel's position that the April 6 verbal order restricting Adgate to working in only two depart- ments and limiting his communication with other employ- ees was intended "just to clip Adgate's wings," and therefore was illegally motivated. Adgate later testified this incident took place 2 or 3 weeks before his suspension on May 2. He testified that this incident occurred before he was a witness in the representation hearing (April 15) but later changed this. From this somewhat confused testimony and the context in which the incident occurred, I find that it took place after April 6 but before May 1. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent acknowledges Adgate's prominence in union affairs and its own knowledge of his union activities. However, it questions the adequacy of the General Counsel's proof that the Respondent harbored animus toward the Union, but in any event argues that "there has to be some independent evidence other than basic union animus to establish discriminatory action." In its brief, the Respondent urges that "the fact that Adgate had testified the day before in an NLRB proceeding is at best coincidence," and that "there is ample evidence of a legitimate and persuasive business purpose to be served in revising the area of Adgate's work." 3. Conclusions I agree with the General Counsel that the two decisions of the Board in 1971 holding that the Respondent had committed violations of the Act (including the discrimina- tory discharge of an employee) sufficiently demonstrate the Respondent's animosity toward the Union. 8 It is well settled that the discriminatory discharge of an employee because of his union activities goes to the very heart of the Act .9 Accordingly, by proving Adgate's extensive union activities, the Respondent's knowledge thereof, the Re- spondent's animus toward the Union, Adgate's testimony in the representation hearing, and the timing and nature of the restrictions imposed the very next day, the General Counsel has established a prima facie case that the restrictions were discriminatorily motivated. However, the Respondent has presented a strong defense. There is convincing evidence that the matter of scrap was presented urgently to the inspectors by Work- man on April 6, and that the Respondent took steps-the removal of a supervisor and the hire of an additional inspector-to improve inspection and eliminate scrap. Adgate also admitted under cross-examination that, prior to his testimony in April, Workman had talked to Adgate about "cutting back on conversations [Adgate] had with other employees." Finally, and most persuasive, Adgate was not the only inspector so restricted; similar restrictions were imposed on the other inspector on the day shift, although he was not shown to have been active on the Union's behalf. I find singularly unpersuasive the General Counsel's argument that "assuming . . . all two inspectors were restricted that day [April 6], that was merely an attempt to restrict Adgate." On balance, I conclude that the restrictions imposed on Adgate and McClain on April 6 were motivated by legitimate business considerations, and not in any substantial part by Adgate's support of the Union or testimony before the Board. Thus the defense presented is, in my opinion, of sufficient strength to overcome the General Counsel's prima facie case. It follows, and I find, that while the matter is not entirely free from doubt, the General Counsel has failed to establish by a preponderance of the evidence that the Respondent's conduct in this respect was violative of Section 8(a)(1) of the Act. E. The Disciplinary Layoff of Adgate 1. Facts On May 1, Adgate was scheduled to work until 4 p.m. (As his normal quitting hour was 3:30 p.m., this encom- passed a half hour of overtime.) An urgent personal matter arose necessitating a long distance telephone call by Adgate to his insurance carrier during the carrier's business hours. During the 9:30 a.m. break, and again during the afternoon break, with Workman's permission, Adgate attempted without success to get through to his party on the Respondent's telephone. Also during his lunch period that day Adgate used a public pay telephone in the plant (not however in his assigned work areas) to call, again to no avail. At approximately 3:25 p.m., Adgate tried once more to telephone from the pay booth and succeeded in reaching his party. Adgate had been in the booth about 4 minutes when Workman passed by, saw Adgate, and motioned for Adgate to get out. Adgate hung up, although not finished with his call, and returned to work. In a discussion of the matter a little later, Workman informed Adgate that "he [Workman] was going to have to write me [Adgate ] up for using the phone" during working hours. Angry, Adgate retorted in a voice reflecting his anger: "Go ahead. I don't give a shit." 10 Nothing more was said to Adgate about the matter that day. On the next day, May 2, Adgate was summoned to the office. Present were Workman, Donald Tassel (the Re- spondent's vice president), Herb Flynn (plant manager), Southway, and Huizenga. Tassel asked Adgate if he had used the telephone during working hours without permis- sion; Adgate admitted it. Next, Tassel asked Adgate whether he knew this was contrary to company policy; Adgate responded that he had seen other employees using the telephone during worktime. Southway remarked that other such incidents had been checked, and it had been determined in those cases that the foreman had given his permission. Adgate was then asked by one of the management representatives if he had said to his foreman: "I don't give a shit"; Adgate admitted using those words. When asked why he had done so, Adgate stated, "I had my reasons," and that he did not feel that whatever he said at that time would be of benefit to him. He added: "If you are going to give me a reprimand, give it to me." Flynn then announced that Adgate would be given a 3-day disciplinary layoff for insubordination, which would be confirmed by Workman and Southway. The meeting ended with this. Later that day, Workman gave Adgate two papers. One read: On 5-1-72 at 3:28 P.M. R Adgate was observed by me making a phone call on company time, without permission, in the telephone booth outside the time- keeper office. His quitting time this day is 4:WP.M. When I asked R Adgate about useing [sic] the phone on company time, he stated that he had to call his insurance agent. I stated that because he was told 8 In so holding, I do not rely upon the settlement stipulation in 10 Adgate testified that he used these words because they "were the same Case 7-CA-9310. See N.L.R. B. v. Local 926, International Union of words he had used to me previously" when Adgate had gone to the Operating Engineers, AFL-CIO, 267 F.2d 418 (C.A. 5). assembly department to show Workman some questionable parts, as 9 A. J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071; and Schultz, described above. Snyder & Steele Lumber Company, 198 NLRB No. 72, In. 2 LESLIE METAL ARTS CO. several times in the past that he could not make personal calls on company time I would write out a written warning. R. Adgate's answer, was, "Go ahead I don't give a shit." This is to serve as a written reprimand. It is to advise R. Adgate that he may not make phone calls on company time without permission and his attitude must improve or further disciplinary action will be taken. The other read: On 5-1-72 when R. Adgate was told he would get a written reprimand for making a personal phone call on company time without permission his answer was, "Go ahead I don't give a shit." This action on the part of R. Adgate shows a vary [sic] poor attitude and shows insubordination toward his foreman and the company policies. I feel that because of his poor attitude further disciplinary action is required. 3 days off without pay starting on 5-3-72. Both were signed by Workman and Southway. 2. Applicable workrules and discipline of other employees The employee handbook distributed to employees of the Respondent contains, among others, the following provi- sions: ARTICLE XIII RULES OF CONDUCT C. PHONE CALLS ... Employees are not permitted to use Company phones except in emergencies with permission of their foremen. SHOP RULES ... The following penalties will generally be im- posed for each violation: CLASS A-Warning in writing CLASS B-Layoff of one (1) day CLASS C-Layoff of three (3) days CLASS D-Discharge CLASS A s 5. Wasting time or loitering in toilets or on any Company property during working hours. 9. Leaving your own department work area or the plant during working hours without permission. CLASS B * * * * * 551 20. Abusive language to any employee or supervi- sion. These rules do not necessarily cover all of the offenses for which an employee may be given a written reprimand, time off, or a discharge. The Respondent's records reveal that Marie Flowers, an employee, had received a disciplinary layoff for 1 day in January for using "abusive language" to her foreman. In February, Richard Rogalski, another employee, had been given a 1-day disciplinary layoff for using "abusive language" to his foreman after a previous warning. In March, Ronald Green, another employee, had received a written reprimand for deliberately slowing down pro- duction, insubordination to his foreman, and wasting time loitering in other departments. Finally, on May 17 (a little more than 2 weeks after the disciplinary action against Adgate) Neal Baughn, an employee, received a 3-day disciplinary layoff for "second offense of abusive language to a foreman;" he had previously been given a 1-day disciplinary layoff for the first such offense. 3. Position of the parties The General Counsel maintains that Adgate's union activities and/or testimony at the Board hearing of April 5 motivated in substantial part the discipline Adgate re- ceived on May 1 and 2. He argues that "the rules don't provide for a 3-day suspension for this kind of conduct," and points to the punishment of other employees which he maintains were much less harsh than that accorded Adgate. From this he would draw the inference that Adgate's conduct on May 1 was seized upon by the Respondent as a reason for disciplining Adgate, and to cover up the true reason-union activities. The Respondent admits that Adgate was given a 3-day disciplinary layoff on May 2. However, it maintains that Adgate's admitted use of the telephone during work time on May 1 and his admitted remarks to his foreman later that day amply justified the punishment received. As for the rules and disciplines of other employees, the Respon- dent points to the catch-all language at the end of the shop rules, and also to the fact that Adgate's offense was a double one: improper use of the telephone plus insubordi- nation to his foreman. 4. Conclusions Adgate admitted making the unauthorized telephone call on company time. He also admitted using some rather abusive words to his foreman. Punishment under such circumstances, in the interest of plant discipline, surely was neither unexpected nor unusual. The thrust of the General Counsel's case therefore seems to be merely that the punishment was too harsh. Of this type argument, it has been said: The Board's error is the frequent one in which the existence of the reasons stated by the employer as the 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis for the discharge [here the discipline] is evaluated in terms of its reasonableness. If the discharge [here the discipline] was excessively harsh, if lesser forms of discipline would have been adequate, if the discharged [here disciplined] employee was more, or just as, capable as the one left to do the job, or the like then, the arguments runs, the employer must not actually have been motivated by managerial considerations, and (here a full 180 degree swing is made) the stated reason thus dissipated as pretense, nought remains but antiunion purpose as the explanation. But as we have so often said: management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Manage- ment can discharge [here discipline] for good cause, or bad cause, or no cause at all. It has, as the master of its own business afairs, complete freedom with but one specific, definite qualification: it may not discharge [here discipline] when the real motivating purpose is to do that which Section 8(a)(3) forbids." I conclude that the General Counsel has failed to establish by a preponderance of the evidence that the discipline imposed on Adgate on May I and 2 was discriminatory or that it violated the Act. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Leslie Metal Arts Company, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in, or is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), or (4) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 12 ORDER The complaint is dismissed in its entirety. 11 N.L.R.B. v. McGahey, 233 F.2d 406,412-413 (C.A. 5). 102.48 of the Rules and Regulations, be adopted by the Board and become 12 In the event no exceptions are filed as provided by Sec. 102.46 of the its findings, conclusions , and Order, and all objections thereto shall be Rules and Regulations of the National Labor Relations Board, the findings , deemed waived for all purposes. conclusions , and recommended Order herein shall, as provided in Sec.