Schwickert's of Rochester, Inc.

SCHWICKERT’S OF ROCHESTER, INC. 349 NLRB No. 65 687 Schwickert’s of Rochester, Inc. and United Union of Roofers, Waterproofers and Allied Workers Lo- cal Union No. 96. Schwickert, Inc. and United Union of Roofers, Wa- terproofers and Allied Workers Local Union No. 96. Cases 18–CA–16899, 18–CA–16936, 18–CA– 16900, 18–CA–16937, 18–CA–17029, and 18– CA–17031 March 30, 2007 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On July 28, 2006, Administrative Law Judge Jane Vandeventer issued the attached supplemental decision. The Respondents filed exceptions and a supporting brief. The General Counsel 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 supplemental decision and the record in light of the exceptions and briefs and has decided to adopt the judge’s rulings, findings1 and conclusions2 and to adopt the recommended Order. 1 There are no exceptions to the judge’s findings regarding the method for calculating gross backpay or the amount of backpay owed to discriminatees Ryan Augustin, Jerry Mundt, and Ben Pugh. 2 In reaching her conclusions, the judge rejected what she character- ized as the Respondents’ argument that they should have no liability for back contributions to the benefit funds because the Respondents pro- vided substitute benefits in lieu of the contractual union benefits. The judge found that this argument was not properly pleaded in the Re- spondents’ answer and amended answer, and that it also lacked merit. The Respondents contend that they never made the argument as- cribed to them by the judge. Rather, the Respondents state that they asserted “that, to the extent employees have a non-speculative future interest in the health and apprenticeship funds,” their liability should be limited to the portion of contributions needed to cover employees’ future interest in the funds, i.e., the percentage of contributions that went towards fund reserves, as opposed to current claims. Assuming arguendo that the Respondent’s actual argument is the one just stated, we find no merit in it. First, the Respondents concede that they did not make this argument with respect to the pension fund. Hence, that argument is not properly before us. Second, even if the judge mischaracterized the Respondents’ contention as to the health and welfare fund and apprenticeship fund, we agree with her ultimate finding that Board law does not permit this type of reduction. The Board has consistently recognized the economic stake of employees in the future viability of the types of funds involved here, and that diversion of contributions “undercut[s] the ability of those funds to provide for future needs.” Active Transportation Co., 340 NLRB 426, 426 fn. 2 (2003) (quoting Stone Boat Yard v. NLRB, 715 F.2d 441, 446 (9th Cir. 1983), cert. denied 466 U.S. 937 (1984)), enfd. 112 Fed.Appx. 60 (D.C. Cir. 2004). Further, the Respondents have made no showing in this case that such reductions could be ac- complished while still adequately protecting the employees’ future interests. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondents, Schwickert’s of Rochester, Inc. and Schwickert, Inc., Rochester, Minnesota, their officers, agents, successors, and assigns, shall take the action set forth in the Order. Kristyn A. Myers, Esq., for the General Counsel. Timothy B. Kohls, Esq., for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JANE VANDEVENTER, Administrative Law Judge. This case was tried on April 18 and 19, 2006, in Minneapolis, Minnesota. This is a supplemental proceeding for the purpose of determin- ing the remedy due three employees found by the Board to have been unlawfully discharged by Respondents, and the remedy due the trust funds on behalf of employees of the Respondents. The Board’s Decision and Order in this case is found at 343 NLRB 1044 (2004). Respondents operate roofing companies in Rochester and Mankato, Minnesota. Both companies participated in a multi- employer bargaining group from which, the Board found, they unlawfully withdrew on June 12, 2003, in violation of Section 8(a)(5) of the Act. The Board further found that Respondents unlawfully constructively discharged five employees in viola- tion of Section 8(a)(3) of the Act and engaged in a number of 8(a)(1) violations. Respondents waived their rights to appeal the Board’s Decision and Order. The compliance specification herein issued on January 31, 2006, setting forth the amounts owing to three employees whose backpay amounts are disputed and fringe benefit pay- ments to three trust funds on behalf of the three employees and Respondents’ unit employees for the period from June 19, 2003, through the end of the successor contract on May 31, 2005. Respondents filed an answer and later an amended an- swer, the latter on March 10, 2006, essentially denying that they owe any backpay or benefit payments. The issues raised by the amended answer will be set forth in detail below. After the conclusion of the hearing, the parties filed briefs which I have read. Based on the testimony of the witnesses, including particu- larly my observation of their demeanor while testifying, the documentary evidence, and the entire record, I make the fol- lowing FINDINGS OF FACT I. THREE EMPLOYEES A. Gross Backpay The backpay alleged to be due to Ryan Augustin, Jerry Mundt, and Ben Pugh was calculated using one of the three generally recognized formulas, that of using a group of compa- rable employees who worked for Respondents throughout the alleged backpay period. The periods of backpay, less than 2 years for each employee, are not disputed. The compliance officer, Roger Cziaia, testified that using a group of comparable DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688 employees to measure backpay was the most accurate method in this case. The compliance officer rejected the “replacement employee” method because there were no identifiable replace- ment employees. The third method, that of using the discrimi- natees’ earnings in a previous period, was not accurate in this case because of the fluctuating and seasonal nature of construc- tion and the roofing business in particular, according to the compliance officer’s testimony. In order to find a comparable group of employees, Cziaia as- certained which employees of similar job classifications and earnings levels as the discriminatees had worked for the entire backpay period. There were approximately 17 such employees, and Cziaia randomly selected six of these employees as the comparable group. Since the discriminatees varied in skill level, Cziaia chose comparable employees who also varied in skill level. Of the discriminatees, two functioned at a journey- man level, and one at an apprentice level. Of the comparable group, three were journeymen and three were apprentices. It is apparent from all the evidence, and I find, that the comparable employee group chosen by the compliance officer was an ap- propriately comparable group for purposes of calculating back- pay. The average earnings of the comparable group in the 2 quarters before the unfair labor practices is actually about $450 per quarter lower than the average earnings of the discriminatee group for the same period. Cziaia assessed the earnings of the comparable employees over each quarter of the backpay period, as compared with their earnings over the 2 quarters prior to the unfair labor practices. He took the percentage change in earnings, and used the same percentage to calculate the backpay for the discriminatees. Respondents do not dispute the General Counsel’s use of the comparable employee method of calculating backpay. Respon- dents, however, contend that the General Counsel should have chosen Respondents’ entire work force as the comparable group. This would mean that many of the employees would have been present in the work force for differing periods of time, necessitating the calculation of weekly, or even daily earnings for many employees. In their amended answer, Re- spondents stated that “all employees” should be the comparable group, but nowhere in the amended answer did Respondents specifically set forth their position as to whether “all employ- ees” meant every unit employee or only those unit employees whose employment lasted throughout the backpay periods. Respondents’ amended answer included no calculations to show the amounts that would have resulted from the use of this method, nor did it include specific employee names which would show which employees were meant by Respondents’ “all employees” language. Section 102.56(b) of the Board’s Rules and Regulations clearly provides that the answer must be spe- cific, i.e., it should have specified exactly the group alleged by Respondents to be comparable. The same section also provides that an answer to a compliance specification must include “ap- propriate supporting figures.” Respondents’ amended answer does not include any supporting figures regarding this conten- tion. Respondents failed to provide calculations in accordance with their position until the hearing. In that calculation, Re- spondents claimed to have used the group of approximately 17 employees who worked for Respondents for the entire backpay period, not all employees who worked for Respondents in the bargaining unit, as the amended answer appears to indicate. Evidence purporting to support Respondents’ calculations was contained in separate exhibits. Respondents’ calculations also used the wage rate contained in the offers of reinstatement sent to the three employees, not the wage rate contained either in the predecessor contract nor the wage rate contained in the contract the Union reached with the remaining members of the multi- employer group, as found in the underlying Board decision. It is unclear whether Respondents’ position is consistent with their calculations. At some places in the pleadings and the record herein, Respondents state as their position that “all em- ployees” be included in the comparable group, and at other places, Respondents state as their position that all (approxi- mately 17) employees who worked throughout the backpay period should be the comparable group. I reject Respondents’ assertion that the comparable employee group should include all (approximately 17) employees for two reasons. First, the argument fails on procedural grounds, in that it was not properly plead and is not properly before me or the Board. The amended answer contained only a general denial, and the assertion that “all employees” should constitute the comparable group. No specific definition of the comparable group was plead, and no appropriate supporting figures were plead, as required by the rule. Therefore, neither the specific definition nor the calculations can be raised at or after the hear- ing. As Respondents’ own payroll records were within its con- trol at all times, there is no excuse for Respondents’ failure to define their contended comparable group specifically and for their failure to plead the calculations to support their contention in time to include them in the amended answer. 3 States Truck- ing, 252 NLRB 1088, 1089 (1980); Airport Service Lines, 231 NLRB 1272 (1977).1 Second, even if Respondents had prop- erly pleaded their position, and had made their position entirely clear, I would reject it as being less accurate than the method used by the General Counsel. Respondents’ method, as origi- nally plead, using all employees, is cumbersome and prone to inaccuracy due to the difficulty of ascertaining which periods of time each employee was employed by Respondent. There is no requirement that the compliance officer use the most burden- some calculation method possible in calculating backpay. The Board requires that the method used by the compliance officer must only be reasonable and reasonably accurate. In addition, the Respondent’s proposed group would necessarily include employees whose pay and skill levels were not comparable to those of the discriminatees, unlike the comparable group used by the General Counsel, which was demonstrably comparable, as set forth above. I find, contrary to Respondent’s contention, that its proffered use of all employees as a comparable group would be less accurate than the method used by the General Counsel. I find that the gross backpay established by the Gen- eral Counsel is proven, and has not been rebutted by Respon- dent.2 1 I also reject R. Exhs. 35, 36, 37, 38, and 39 in support of this con- tention which I received provisionally at the hearing. 2 The detailed listing of gross backpay is contained in GC Exh. 2. SCHWICKERT’S OF ROCHESTER, INC. 689 B. Interim Earnings and Expenses Proof of interim earnings is the burden of the Respondents, but here the General Counsel has set forth the interim earnings of each of the three discriminatees, and Respondents stipulated at the hearing to the accuracy of the interim earnings set forth by the General Counsel. All three discriminatees were em- ployed during every quarter of the backpay period, significantly mitigating Respondents’ damages. The interim earnings of the three employees are set forth in General Counsel Exhibit 2. Pugh, Augustin, and Mundt each testified about their interim employment, which took place at jobsites in and around the Minneapolis area. They each testified to their method of get- ting to their jobs at Respondents and the difference in their commute to their interim employment. Each employee had significantly greater commuting expenses because the interim job was at a greater distance than Respondents. The three em- ployees mitigated their commuting expenses by forming a car- pool and driving to Minneapolis together on most workdays. In addition, one of the discriminatees, Augustin, actually moved his household closer to his interim job during the backpay pe- riod, reducing his daily commute by some 50 miles and thus mitigating his commuting expenses even further. All three employees gave detailed testimony about their interim em- ployment and their commuting expenses. Their testimony was unrebutted, and they were otherwise credible witnesses. I credit their testimony, and find that they incurred interim ex- penses as asserted by the General Counsel. The interim ex- penses of the three discriminatees are set forth in General Counsel Exhibit 2. Respondents argue in their brief that the discriminatees’ in- terim expenses should be disallowed because their testimony was “vague.” However, Respondents offered no evidence in rebuttal of the evidence adduced by the General Counsel. It is a respondent’s burden to rebut the evidence of interim expenses offered by the General Counsel. See, e.g., Hanson Brothers Enterprises, 313 NLRB 599, 600 (1993). Respondents have not met this burden. I have credited the testimony of the three discriminatees, and I reject Respondents’ completely unsup- ported argument. I further find that the discriminatees are entitled to have their interim earnings reduced by the additional expenses they in- curred in order to hold that employment. Velocity Express, Inc., 342 NLRB 888, 889 (2004); Minette Mills, 316 NLRB 1009, 1011 (1995). II. BENEFIT FUNDS The Board ordered that Respondents “recognize the Union as the exclusive collective-bargaining representative of employees in the unit” and “upon request of the Union, rejoin multiem- ployer bargaining and bargain with the Union on that basis.” The Board further ordered Respondents to “make whole each bargaining-unit employee for any losses or expenses incurred as a result of the changes in wages, benefits, and other terms and conditions of employment that were implemented on or about June 19, 2003, without first bargaining with the Union.” A. Events Relating to the Multiemployer Bargaining The multiemployer group which began bargaining with the Union in 2003 was called Sheet Metal, Air Conditioning, and Roofing Contractors Association (SMARCA), and the four employers on whose behalf SMARCA bargained were the two Respondents herein, as well as Kiker Brothers Roofing (Kiker) and Winona Heating and Ventilation (Winona). The factual findings in the underlying unfair labor practice case make clear that after the Respondents unlawfully withdrew from the multi- employer bargaining group, the remaining part of the group (Kiker and Winona) and the Union resumed bargaining and, on July 22, 2003, reached a tentative agreement which was ratified by the employees a week later. These findings may not be challenged in this proceeding. At the time of the trial of the unfair labor practices in February 2004, the collective- bargaining agreement reached in July had not yet been executed by the parties. On March 9, 2004, identical copies of the agreement3 were signed by each of the employers remaining in the multiemployer group. B. Positions of the Parties The parties do not dispute the measure of benefit payments for the period June 19 through July 20, 2003. Both agree that the collective-bargaining agreement which immediately pre- ceded the July 22, 2003 agreement (the “predecessor contract”) provides the appropriate measure. The General Counsel has used the successor contract reached on July 22, 2003, and signed on March 9, 2004, as the measure of benefit payments for the purpose of the make-whole remedy. The General Coun- sel argues that it is a normal Board remedy for a respondent which unlawfully withdraws from a multiemployer group to be bound by the contract later negotiated by that group. The Re- spondents argue that the measure should be the benefits in ef- fect under the collective-bargaining agreement which preceded the July 22, 2003 agreement. The administrative law judge stated in the underlying decision, “Respondents are bound to the multiemployer negotiations and any resulting agreement.” [Emphasis added.] Based on the Board’s customary remedies, and on the quoted language in the decision which was affirmed by the Board, I find that the General Counsel’s position is the correct one, and that fringe benefit calculations should be based on the successor collective-bargaining agreement negotiated by the remainder of the multiemployer group, and to which Re- spondents were bound. Independent Steel Products, LLC, 344 NLRB 904 (2005); James Luterbach Construction Co., 315 NLRB 976, 979–980 (1994). Therefore, the calculations stipu- lated by the parties to be correct and contained in Joint Exhibit 4, parts A and C are the amounts that Respondents must pay to the benefit funds on behalf of the bargaining unit employees named therein. This amount was stipulated to be $521,642.91. When actually paid, to this amount should be added any addi- tional amounts due the funds computed in the manner set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). 3 The only difference was the name of the employer. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690 C. Respondents’ Contentions Reducing or Eliminating Benefit Payments 1. Substitution of benefits Respondents argued at the hearing and in their brief that they provided unit employees with essentially substitute benefits that took the place of the benefits under the contract. They pro- vided health insurance, in-house training, and a 401(k) retire- ment benefit in lieu of the contractual benefits of health and welfare, apprenticeship, and pension funds. This contention was not mentioned in Respondents’ amended answer, and thus is not properly before me. Section 102.56(b) of the Board’s Rules and Regulations clearly precludes me from considering this late-raised defense. Airport Service Lines, above. Even if the argument were properly before me, I would find that it lacks merit. First, the evidence showed that the benefits were by no means equivalent. The 401(k) plan existed prior to June 19, 2003, and thus was a benefit of unit employees in addition to the pension fund. Nonpayment of the pension fund benefits would be a deprivation of a benefit previously enjoyed by employees. Likewise, Respondents’ in-house training ex- isted prior to June 19, 2003, and therefore cannot be a replace- ment for the apprenticeship program, since it was an employ- ment condition which existed in addition to the apprenticeship program. Second, Board law regarding remedies does not nor- mally permit this type of offset to its traditional remedies. Board law holds that where an employer has unlawfully repudi- ated a bargaining relationship, to permit it to evade or reduce its liability for unpaid contributions by reason of substitute bene- fits would leave the unfair labor practice unremedied, and would not restore the affected employees to the status quo ante. See, e.g., Manhattan Eye, Ear & Throat Hospital, 300 NLRB 201 (1990). 2. Respondents’ contention that their remedial obligations end on March 9, 2004 Respondents contend that the multiemployer bargaining group ended on March 9, 2004, the date employers Kiker and Winona signed identical collective-bargaining agreements with the Union. Respondents base their argument solely on the fact that employers Kiker and Winona did not sign one agreement, but two identical agreements. Respondents ask that based on this one action, I find the multiemployer group was disbanded, and that the Union consented to the dissolution of the group. Respondents presented no witnesses, such as officials from the other companies, Kiker and Winona, in support of this con- tention. Robert Danley, who represented the Union in the ne- gotiations, did testify, however. It appears from the record evidence as a whole that the confusion caused by Respondents’ actions and the litigation of the unfair labor practices in Febru- ary 2004 resulted in Kiker and Winona demanding to sign two separate but identical contracts, rather than one contract. Danley, in order to get the contract signed which, as the Board found, had been agreed since July 22, 2003, prepared the two separate but identical contracts, and the two employers exe- cuted them, as did the Union. It is well-settled and longstand- ing Board law that the mere signing of separate, but identical, agreements does not, in and of itself, negate the existence of a multiemployer bargaining group. Fish Industry Committee, 98 NLRB 696, 697–698 (1954). After the Board Order issued against Respondents in De- cember 2004, Danley sent identical contracts naming the two Respondents to SMARCA, accompanied by a letter describing them as the multiemployer agreement, and requesting that Re- spondents execute them. This Respondents did not do. Danley further testified that at no time either before or after December 2004 did anyone ever inform him that SMARCA did not repre- sent Respondents for purposes of collective bargaining. Danley’s testimony was uncontradicted, and based on that fact as well as on his demeanor, I credit Danley. Thus, the record is bare of any evidence that the multiemployer group dissolved in March 2004, nor is there any evidence that the Union consented to a dissolution of the group. It is axiomatic that without such consent, the dissolution of a multiemployer group would be tantamount to unlawful withdrawal by each employer. I find that the multiemployer bargaining group did not dissolve on March 9, 2004. I find that the multiemployer bargaining group endured at least through May 31, 2005, the end of the contract negotiated and signed by the remaining members of the group. To the extent Respondents argue that the Union’s act of con- senting to the execution of separate identical contracts by the remaining two employers in the multiemployer group can be seen as implicit consent to the dissolution of the group, I find that argument deficient in factual support as well as legal sup- port. It is a traditional legal principal that waiver will not be lightly implied. With regard the claim of implied consent by the Union to the dissolution of the multiemployer group, it is clear under Board law that only a course of “affirmative action which is clearly antithetical to the union’s claims” could result in such a finding. See, e.g., Preston H. Haskell Co., 238 NLRB 943, 948 (1978), enf. denied on other grounds 616 F.2d 136 (5th Cir. 1980). There is no evidence in the record of such a course of conduct on the part of the Union. I find that there was no dissolution of the multiemployer group, and that there was no union consent to such a dissolution. I find the position of Respondents that the Union acquiesced in or implicitly con- sented to any hypothetical dissolution of the multi-employer bargaining group to be without merit. To find otherwise would be inconsistent with the findings of the Board in the underlying unfair labor practice case. It would also be inconsistent with the finding above that there was a collective-bargaining agreement negotiated by the multi- employer group which was in effect from July 21, 2003, through May 31, 2005, and that Respondents were bound by it. 3. Respondents’ contention that no benefit payments are due on behalf of their employees Respondents contend that their current employees are not now covered by a collective-bargaining agreement which in- cludes the Union’s benefit plans, and that therefore no employ- ees should get fringe benefit fund credits for the nearly 2-year period from July 2003, through May 2005. Respondents also contend that employees who were not vested in the pension plan by June 2003, or by May 2005, could have no possible interest in obtaining their pension credits. In support of their “future interest” argument, Respondents assume that their em- SCHWICKERT’S OF ROCHESTER, INC. 691 ployees will stay with Respondents for the rest of their work lives, and that the employees will never choose to be repre- sented by the Union in the future. Respondents ignore the fact that over one-third of their employees were vested in the pen- sion plan. Respondents also ignore the fact that they are in the construction industry, where employees often move from one employer to another. Respondents’ argument is not well grounded either in com- mon sense or in the law. Congress, in crafting the National Labor Relations Act, and the Board, in administering the Act, have both recognized the distinctive features of the construction industry. One of these distinctive features is the predominance of short periods of employment on building projects of limited duration. It is expected that in the construction industry em- ployees will frequently move from job-to-job, and even from employer-to-employer. In the construction industry, therefore, employees’ benefit plans being in trust funds administered jointly by employers and unions serves as a stable and worka- ble method to allow employees to accumulate seniority, pen- sions, and other benefits of stable long-term employment within the industry, despite the short-term nature of many jobs. It follows, therefore, that Respondents’ employees might change employers in the future, or might seek union representa- tion in the future. Respondents can no more predict which of their employees will remain in their employment rather than seek employment at an employer which does participate in the benefit trust funds than they can predict whether the employees will in future choose to be represented by the Union once again. In either case, the benefit credits due them under the terms of the Board’s Order herein will be a source of real value to them, not, as Respondents assert, a “future value” of no use to the employees. Respondents’ legal argument is based on inapposite cases, most prominently a Second Circuit decision declining to en- force a Board order, Manhattan Eye, Ear & Throat Hospital v. NLRB, 942 F.2d 151 (2d Cir. 1991). Respondents’ reliance on this case is misplaced. Most importantly, the law which applies is Board law, unless and until changed by the Supreme Court. A circuit court decision is not proper authority for ignoring established Board law. In addition, the case is distinguishable on its facts. The employer in that case was a hospital, not a construction industry employer. In the cited case, the employer had a greater expectation that its employees would be a stable work force than does a construction industry employer. Also in that case, the union involved had disclaimed interest in repre- senting the employees further, which is not true in the instant situation. It should be noted that Respondent made no proffer of evidence in support of this contention. Respondent’s argu- ment is based solely on the suppositions outlined above and on the cited case. Respondents’ position is likewise in conflict with a finding previously made herein to the effect that Respondents are bound by the successor agreement negotiated by the multi- employer group throughout the period in question. That agreement calls for payment of benefits to the trust funds. I therefore reject Respondents’ defense and find that Respon- dents must pay the benefit contributions for all bargaining unit employees to the three trust funds, the health and welfare fund, the pension fund, and the apprenticeship fund, as called for in the successor contract, and as set forth in detail in Joint Exhibit 4 in the record herein. III. NOTICE OF POSTING The Board’s Order called for the posting of a notice which was included in its Decision in the underlying unfair labor prac- tice case. This notice should have been posted as soon as Re- spondents decided they would not challenge the Board’s Order in the circuit court. Respondents have raised no issues with respect to the posting of the notice in their amended answer. To the extent Respondents have not heretofore posted the no- tice as ordered by the Board, I find that they must do so imme- diately. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondents, Schwickert’s of Rochester, Inc. and Schwickert, Inc., their officers, agents, successors, and assigns, shall pay backpay as follows, with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and less taxes required by law to be withheld: Ryan Augustin $ 4,669.64 Jerry Mundt 23,526.00 Ben Pugh 38,893.00 and shall further pay on behalf of the unit employees named in Joint Exhibit 4, parts A and C, in the record herein, to the Un- ion’s benefit funds, i.e., the pension trust fund, the health and welfare trust fund, and the apprenticeship trust fund, the amounts set forth in said exhibit, totaling $521,642.91, plus any additional amounts due the funds computed in the manner set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Further, the Respondents shall post the notice as ordered by the Board in its Decision and Order issued on December 16, 2004. 4 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.