Hart Coal Co.

National Labor Relations Board - Board Decisions

Nov 13, 1939

17 N.L.R.B. 641 (N.L.R.B. 1939)

In the Matter of HART COAL COMPANY AND HART COAL CORPORATION
and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED
WITH THE C . I. 0. and PROGRESSIVE MINE WORKERS OF AMERICA,
DISTRICT '•#5, AFFILIATED WITH THE A. F. of L., PARTY TO THE
CONTRACT
In the Matter of HART COAL COMPANY AND HART COAL CORPORATION
and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED
WITH THE C. I. 0.
Cases Nos. C-1419 and R-1607, respectively. Decided November
13, 1939
Coal Mining Industry-Settlement : stipulation providing for compliance with
the Act, including disestablishment of company -dominated union and reinstate-
ment with back pay in specified amount as to one employee-Order: entered on
stipulation-Investigation of Representatives : stipulated: respondent refuses to
recognize either of rival labor organizations unless certified by the Board-
Unit Appropriate for Collective Bargaining: stipulated: all persons employed in
the mining operations of the respondent as production employees , excluding
superintendents , mine foremen, section foremen, room bosses, face bosses, top
bosses, entry bosses, electricians in a supervisory capacity , all other supervisory
employees , and "guards" or "watchmen"-Representatives : eligibility to partici-
pate in choice : person reinstated pursuant to Board's Order ; stipulation as
to-Election Ordered: pursuant to stipulation.
Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert
D. Malarney, for the Board.
Gordon, Gordon cfc Moore, of Madisonville, Ky., for the
respondents.
Mr. Ed. J. Morgan, of Madisonville, Ky., and Mr. Earl E. Houck,
of Washington, D. C.,. for the United.
Mr. John R. Kane, of Springfield, Ill., for the Progressive.
Mr. Langdon West and Miss Margaret Holmes, of counsel to the
Board.
17 N. L. R. B., No. 53.
641
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine
Workers of America, District #23, affiliated with the Congress of
Industrial Organizations , herein called the United , the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Eleventh Region ( Indianapolis, Indiana ), issued
its complaint ' dated October 20 , 1939, against Hart Coal Company
and Hart Coal Corporation, Morton's Gap, Kentucky, herein called
the respondents , alleging that the respondents had engaged in and
were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. A copy of the complaint accompanied by notice of hearing
was duly served upon the respondents, the United , and Progressive
Mine Workers of America, District #5, affiliated with the American
Federation of Labor, herein called the Progressive. The respondents
did not file an answer to the complaint.
On or about October 18, 1939, the United filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondents
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On October 20 , 1939, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3 , Article III, Section 10 (c) (2 ), and Article II, Section
36 (b), of National Labor Relations Board Rules and Regula-
tions-Series 2, ordered an investigation upon the petition and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice and further ordered that
the two cases be consolidated.
On October 31, 1939, the respondent , the United , the Progressive,
and counsel for the Board entered into a stipulation in settlement
of the case subject to the approval of the Board. On November 10,
-1939, the respondent , the United , the Progressive , and counsel for
the Board entered into a supplemental stipulation amending the
s Although this case had been consolidated with several others by orders of the Board
dated August 9, 1937, May 3, 1939 , and July 17 , 1939 , respectively , these orders of con-
solidation were revoked by the Board 's order dated October 20, 1939.
HART COAL COMPANY 643
complaint. The stipulation and the supplemental stipulation are
set forth below :
STIPULATION
Hart Coal Company, 'hereinafter called the Respondent;
United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations, hereinafter sometimes
called the United; the Progressive Mine Workers of America,
affiliated with the American Federation of Labor, hereinafter
sometimes called the Progressive; and Arthur R. Donovan,
Regional Attorney for the Eleventh Region of the National
Labor Relations Board, Colonel C. Sawyer and Robert D.
Malarney, Attorneys, National Labor Relations Board, herein-
after sometimes called the Board, hereby stipulate and agree
that :
I
Upon amended charges duly filed by the United on August
31, 1939, the National Labor Relations Board, by its Regional
Director for the Eleventh Region, acting pursuant to authority
granted in Section 10 (b) of the National Labor Relations Act
(49 Stat. 449), hereinafter sometimes called the Act, and pur-
suant to authority granted by the Board's Rules and Regulations,
Series 2, Article 2, Section 5, issued its Complaint on the 20th
day of October 1939, against the Respondent.
II
Upon a Petition duly filed by the United on October 18, 1939,
the Board, on October 30, 1939, directed that an investigation of
bargaining representatives be made pursuant to Section 9 (c) of
the Act. Upon authorization by the Board, the Regional Direc-
tor for the Eleventh Region, issued notice of hearing on October
20, 1939. In the petition filed by the United, it was stated that
both the United and the Progressive claim to have been desig-
nated as collective bargaining representative by employees in
the unit alleged in said petition to be appropriate, and the United
and the Progressive are each a party to the proceeding,
(XI-R-235), instituted by said petition by virtue of the Board's
Rules and Regulations, Series 2, Article III, Section 3.
III
The respondent, the United, and Progressive withdraw all
motions and other pleadings filed by them in this proceeding,
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except that the United does not withdraw the amended charges
and the petition hereinbefore mentioned in Articles I and II of
this stipulation.
IV
The Respondent, the United, and the Progressive, hereby
waive their right to a hearing or hearings in these cases and all
parties expressly agree that the amended charges filed on August
31, 1939, the complaint issued on October 20, 1939, and notice of
hearing, the petition filed by the United on October 18, 1939, the
Order of the National Labor Relations Board directing an in-
vestigation and the notice of hearing pursuant to this Order for
investigation, and this stipulation, may be introduced in the
record in this proceeding by filing with the Chief Trial Exam-
iner of the National Labor Relations Board at Washington, D. C.
V
The Respondent, the United, and the Progressive, hereby
acknowledge service of the complaint and notice of hearing upon
the complaint and of the petition and notice of hearing pursuant
to the Board's Order directing investigation and hearing and
expressly waive any right or privilege which they may have for
ten (10) days notice of hearing and to the holding of a hearing
or hearings in these cases and also waive any right or privilege
which they may have to the making of findings of fact and con-
clusions of law by the Board.
VI
The Respondent specifically admits each and every allegation
in paragraphs I and II of the Board's complaint herein and
stipulates and agrees that it is engaged in interstate commerce
within the meaning of Section 2 (6) and (7) of the Act.
VII
The United, the Progressive, and the Independent Miners
Union, are, each and all of them, labor organizations within the
meaning of Section 2 (5) of the Act.
VIII
It is agreed by and between the Respondent and the Progres-
sive that the contract now in force and effect between the Re-
spondent and the Progressive is hereby cancelled and is void
and of no effect; provided, however, that nothing in this stipula-
HART COAL COMPANY 645
tion shall preclude the Respondent from hereafter making an
agreement with the Progressive or any other labor organization
(not established, maintained or assisted by an action defined in
the National Labor Relations Act as an unfair Labor practice)
requiring, as a condition of employment, membership therein,
if such labor organization is the representative of the employees
as provided in Section 9 (a) of the National Labor Relations
Act; and it is agreed that the Respondent will not recognize
the Progressive or any other labor organization as the exclusive
representative of its employees until and unless such labor or-
ganization is certified by the Board as such exclusive representa-
tive in the manner hereinafter provided.
IX
It is hereby stipulated and agreed that all production em-
ployees of the Respondent, excluding superintendents, mine
foremen, section foremen, room bosses, face bosses, top bosses, en-
try bosses, electricians in a supervisory capacity, all other super-
visory employees, and "guards" or "watchmen", constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
X
It is hereby stipulated and agreed by the Respondent, the
United and the Progressive, that a question has arisen concern-
ing the representation of the employees in the bargaining unit
set forth in Article IX of this stipulation in that the United
and the Progressive each claim to have been designated by em-
ployees in the unit set forth above as representative for purposes
of collective bargaining, within the meaning of the Act, and in
that the Respondent refuses to recognize either the United or
the Progressive as the exclusive representative of all the em-
ployees in said unit until and unless the Board has made a
certification pursuant to Section 9 (c) of the Act.
XI
The Respondent, the United, and the Progressive stipulate
and agree that the Board shall forthwith issue a Direction of
Election. The election shall be conducted within thirty (30)
days from the issuance of the Direction of Election by the Board
and shall be conducted in accordance with and pursuant to the
Act, the Board's Rules and Regulations and decisions of the
Board in representation cases. The election shall be for the
646 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
purpose of determining whether the eligible employees desire
to be represented for the purposes of collective bargaining by
the United, the Progressive, or by neither. The employees eligi-
ble to vote in this election shall be all the employees in the
appropriate unit set forth in Article IX, above, on the payroll
of Respondent one week preceding issuance of a Direction of
Election pursuant to this Article and all those employees ordered
reinstated as a result of this stipulation. This stipulation and
the Election Report filed on the results of the election shall
constitute competent evidence upon which the Board may make
a certification pursuant to Section 9 (c) of the Act.
,XII
Upon the basis of the amended charges filed by the United
on August 30, 1939, the complaint herein and this stipulation,.
the Respondent herein expressly consents to the issuance by the
National Labor Relations Board of an Order to the following:
effect :
ORDER
Upon the basis of this stipulation and pursuant to Section 10,
(c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Hart Coal Company,.
Mortons Gap, Kentucky, its officers, agents, successors, and,
assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining or coercing
its employees in the exercise of their rights to self-organization,.
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activity for the purposes of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of
the National Labor Relations Act :
(b) Discouraging membership in the United Mine Workers of
America, District #23, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization of its em
ployees, or encouraging membership in the Progressive Mine.
Workers .of America, District #5, affiliated with the American
Federation of Labor, or) any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its em-
ployees or in any other manner discriminating in regard to their
hire and tenure of employment or any term or condition of their-
employment;
(c) Dominating or interfering with the administration of the
Independent Miners Union, or dominating or interfering with.
HART COAL COMPANY 647"
the formation or administration of any other labor organization
of its employees , or contributing support to any such labor-
organization ;
(d) Recognizing the Independent Miners Union as the rep-
resentative of any of its employees for the purposes of dealing
with the Respondent concerning grievances , labor disputes,.
wages, rates of pay, hours of employment, or other conditions of
employment.
2. Take the following affirmative action to effectuate the poli-
cies of the National Labor Relations Act;
(a) Offer to J. B. Cotton immediate and full reinstatement.
to his former position or to a position equivalent thereto without
prejudice to any rights and privileges previously enjoyed by
him :
(b) Make whole J. B. Cotton for wages lost in consequence
of his discharge by payment to him of the sum of one hundred'
dollars ($100) and by discharging any obligations of the said
J. B. Cotton to the Respondent which has arisen by virtue of
rent accruing between the time of his discharge and the time
of his reinstatement pursuant to this Order;
(c) Withdraw and continue to withhold all recognition of
the Independent Miners Union as a representative of any of its,
employees for the purpose of collective bargaining with the Re-
spondent in respect to rates of pay, wages, hours of employment,
and other terms or conditions of employment, and completely dis-
establish the Independent Miners Union as such representative;:
(d) Immediately post notices in conspicuous places through-
out its plant and maintain such notices for a period of sixty-
(60) consecutive days or for the period until the Board issues
its certification in Case No. XI-R-235, 'whichever period proves.
to be of shortest duration, stating (1) that the Respondent will
cease and desist as aforesaid,
(2) and that the Respondent will take the affirmative action
as aforesaid; this notice shall contain the substance of the Order,,
but need not be in the exact language thereof ;
(e) Notify the Regional Director for the Eleventh Region of
the National Labor Relations Board within a period of ten (10)
days after the entry of this Order what steps have been taken,
to comply with said Order.
XIII
The Respondent hereby consents to the entry by an appropriate,
United States Circuit Court of Appeals, upon application by the
Board, of a decree enforcing an Order of the Board as herein
set forth in Article XII, above, and hereby waives further notice-
247384-40-vol. 17-42
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the application for such decree. The United and the Pro-
gressive expressly waive any right or privilege to contest the
entry of this decree by an appropriate Circuit Court of Appeals
and hereby waive further notice of application for entry thereof.
XIV
Wherever the facts, spelling of names, titles or other material
and documents in the record of this proceeding shall appear
inconsistent with the names, titles or other material set out and
made part of this stipulation, the spelling of names, titles and
other material in this stipulation shall be considered correct.
XV
This stipulation shall be subject in all respects to the approval
of the Board and shall become effective immediately upon ap-
proval of the Board. If this stipulation is not approved by the
Board, it shall be of no force and effect and shall not be used
as evidence against the parties hereto in any subsequent proceed-
ing herein.
XVI
The entire agreement between all parties hereto is contained
within the terms of this stipulation, and there is no verbal agree-
ment of any kind which varies, alters, or adds to said stipulation
in any respect.
SUPPLEMENTAL STIPULATION
It is hereby stipulated, consented to and agreed, by and be-
tween Hart Coal Company; United Mine Workers of America,
District #23, affiliated with the Congress of Industrial Organi-
zations; the Progressive Mine Workers of America, District #5,
affiliated with the American Federation of Labor ; and Arthur
R. Donovan, Regional Attorney for the Eleventh Region of the
National Labor Relations Board, Colonel C. Sawyer and Rob-
ert D. Malarney, Attorneys, National Labor Relations Board, as
follows :
1. That paragraph VIII of the complaint in the above en-
titled proceedings, numbered XI-C-574, be deemed amended
by interlineation so that the first sentence thereof shall read as
follows :
"Thereafter, and on or about August 20, 1938, the Independent
became merged with the Progressive."
HART COAL COMPANY 649
On November 10, 1939, the Board issued its order approving the
above stipulation and supplemental stipulation, making them part
of the record in the case, and transferring the proceeding to the
Board for the purpose of entry of a decision and order by the Board.
Upon the basis of the above stipulation, supplemental stipulation,
and the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 2
Hart Coal Company, a Delaware corporation, is engaged in the
mining, sale, and distribution of coal at a place of business called
the White City mine near Morton's Gap, Kentucky.3
During the last several years the respondent, Hart Coal .Company,
has had an average annual production of 500,000 tons of coal. In
the course and conduct of its business, Hart Coal Company causes
and has continuously caused a substantial quantity of coal, consisting
of more than 50 per cent of the coal mined, sold, and distributed by
it, to be supplied, delivered, and transported in interstate commerce.
The respondent, Hart Coal Company, agreed that it is engaged in
interstate commerce within the meaning of the Act.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District #23, affiliated with
the Congress of Industrial Organizations; the Progressive Mine
Workers of America, District #5, affiliated with the American Fed-
eration of Labor; and Independent Miners Union, are labor organi-
zations as defined in Section 2 (5) of the Act.
III. THE QUESTION CONCERNING REPRESENTATION
In accordance with the terms of the stipulation, we find that the
United and the Progressive each claimed to have been designated by
employees in the unit hereinafter found to be appropriate for the
2 The facts set forth in this section are based upon allegations in the complaint admitted
by the respondent.
8 Hart Coal Corporation , a Delaware corporation , owned and operated the Victoria #k11
mine located near Madisonville , Kentucky , and the White City mine near Morton's Gap,
Kentucky . Pursuant to a petition in bankruptcy filed with the United States District
Court for the Western District of Kentucky by Hart Coal Corporation under Section 77
'(b) of the Bankruptcy Act, the Hart Coal Company was organized under the laws of the
State of Delaware . Subsequent to its organization, Hart Coal Company took over the
assets of Hart Coal Corporation and since October 1935 has operated the mining prop-
erties previously operated by Hart Coal Corporation . In January 1938 the Victoria #11
mine was closed by order of the Kentucky State Department of Mines and since that time
Hart Coal Company has operated only the White City mine.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining as their bargaining agent and that
the respondent refuses to recognize either the United or the Progres-
sive as the exclusive representative of all the employees in said unit:
until and unless the Board has made a certification pursuant to Sec--
tion 9 (c) of the Act, and that therefore a question has arisen con-
cerning representation of the employees of the respondent.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and',
tends to lead to labor disputes burdening and obstructing commerce-
and the free flow of commerce..
V. THE APPROPRIATE UNIT
We find, in accordance with the terms of the stipulation, that all
persons employed in the mining operations of the respondent as-
production employees, excluding superintendents, mine foremen,.
section foremen, room bosses, face bosses, top bosses, entry bosses,,
electricians in a supervisory capacity, all other supervisory em-
ployees, and "guards" or "watchmen," constitute a unit appropriate
for the purposes of collective bargaining, and that such unit will
insure to the said employees the full benefit of their right to self-
organization and collective bargaining and will otherwise effectuate-
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the employees of the respondent can best be resolved
by the holding of an election by secret ballot. In accordance with,_
the terms of the stipulation, we find that the employees eligible to
vote in the election shall be all employees in the appropriate unit
on the pay roll of the respondent 1 week preceding the issuance of-
the Direction of Election, infra, including the employee ordered re-
instated as a' result of the Board's order, infra.
Upon the basis of the above findings of fact, stipulation, supple-
mental stipulation, and upon the entire record in the case, the Board'.
makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District #23, affiliated with:-
the Congress of Industrial Organizations, and Progressive Mine-
HART COAL COMPANY 651
Workers of America, District #5, affiliated with the American Fed-
eration of Labor, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. A question affecting commerce has arisen concerning the repre-
,sentation of employees of Hart Coal Company, Morton's Gap, Ken-
tucky, within the meaning of Section 9 (c) and Section 2 (6) and
,(7) of the National Labor Relations Act.
3. All persons employed in the mining operations of the respond-
ent as production employees, excluding superintendents, mine fore-
men, section foremen, room bosses, face bosses, top bosses, entry bosses,
electricians in a supervisory capacity, all other supervisory em-
ployees, and "guards" or "watchmen," constitute a unit appropriate
for collective bargaining, within the meaning of Section 9. (b) of
the Act.
ORDER
Upon the basis of the above findings of fact, stipulation, supple-
mental stipulation, and the entire record in the case and pursuant
to Section 10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that the Hart Coal Company,
Morton's Gap, Kentucky, its officers, agents, successors, and assigns
shall
1. Cease and desist from :
*(a) In any manner interfering with, restraining or coercing its
employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activity for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7, of the National Labor
Relations Act;
(b) Discouraging membership in United Mine Workers of
America, District #23, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, or
encouraging membership in the Progressive Mine Workers of
America, District #5, affiliated with the American Federation of
Labor, or any other labor organization of its employees, by dis-
charging or refusing to reinstate any. of its employees or in any
other manner discriminating in regard to their hire and tenure of
employment or any term or condition of their employment;
(c) Dominating or interfering with the administration of the
Independent Miners Union, or dominating or interfering with the
formation or administration of any other labor organization of its
employees, or contributing support to any such labor organization;
(d) Recognizing the Independent Miners Union as the repre-
sentative of any of its employees for the purposes of dealing with
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment.
2. Take the following affirmative action to effectuate the policies
of the National Labor Relations Act :
(a) Offer to J. B. Cotton immediate and full reinstatement to his
former position or to a position equivalent thereto without prejudice
to any rights and privileges previously enjoyed by him;
(b) Make whole J. B. Cotton for wages lost in consequence of
his discharge by payment to him of the sum of one hundred dol-
lars ($100) and by discharging any obligation of the said J. B.
Cotton to the respondent which has arisen by virtue of rent accru-
ing between the time of his discharge and the time of his rein-
statement pursuant to this Order;
(c) Withdraw and continue to withhold all recognition of the
Independent Miners Union as a representative of any of its em-
ployees for the purpose of collective bargaining with the respondent
in respect to rates of pay, wages, hours of employment, and other
terms or conditions of employment, and completely disestablish the
Independent Miners Union as such representative;
(d)' Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of sixty (60) consecu-
tive days or for the period until the Board issues its certification in
Case No. R-1607, whichever period proves to be of shortest duration,
stating (1) that the respondent will cease and desist as aforesaid,
(2) and that the respondent will take the affirmative action as afore-
said ; this notice shall contain the substance of the Order, but need
not be in the exact language thereof ;
(e) Notify the Regional Director for the Eleventh Region of the
National Labor Relations Board within a period of ten (10) days
after the entry of this Order what steps have been taken to comply
with said Order.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of.the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Hart Coal Company, Morton's Gap, Kentucky, an election by
secret ballot shall be conducted within thirty (30) days from the date
of this Direction under the direction and supervision of the Regional
Director for the Eleventh Region, acting in this matter as agent for
HART COAL COMPANY 653
the National Labor Relations Board and subject to Article. III, Sec-
tion 9, of said Rules and Regulations, among all persons employed
in the mining operations of the Hart Coal Company, Morton's Gap,
Kentucky, as production employees on the pay roll of the respondent
1 week preceding the issuance of this Direction of Election, including
J. B. Cotton, but excluding superintendents, mine foremen, section
foremen, room bosses, face bosses, top bosses, entry bosses, electricians
in a supervisory capacity, all other supervisory employees, and
"guards" or "watchmen," to determine whether they desire to be
represented by United Mine Workers of America, District #23, affili-
ated with the Congress of Industrial Organizations, or Progressive
Mine Workers of America, District #5, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or by
neither.