A majority of the stock of Darlington Manufacturing Company, a
textile mill, was owned by Deering Milliken, a marketing
corporation, and the National Labor Relations Board found that the
latter company was, in turn, controlled by Roger Milliken,
Darlington's president, and members of his family. An
organizational campaign by petitioner union at Darlington, although
strongly resisted by the company, including threats to close the
mill, was .successful. Shortly thereafter, the company was
liquidated, the plant closed, and the equipment sold. The National
Labor Relations Board found that the closing was due to Roger
Milliken's anti-union animus, a violation of § 8(a)(3) of the
National Labor Relations Act; that Darlington was part, of a single
integrated employer group controlled by the Milliken family through
Deering Milliken, operating 17 textile companies with 27 mills;
and, alternatively, since Darlington was part of the integrated
enterprise, Deering Milliken violated the Act by closing part of
its business for a discriminatory purpose. The Court of Appeals
held that, even assuming Deering Milliken was a single employer, it
had the right to terminate all or part of its business regardless
of anti-union motives.
Held:
1. It is not an unfair labor practice for an employer to close
his entire business, even if the closing is due to anti-union
animus. Pp.
380 U. S.
269-274.
2. Closing part of a business is an unfair labor practice under
§ 8(a)(3) of the Act if the purpose is to discourage unionism in
any of the employer's remaining plants and if the employer may
reasonably have foreseen such effect. Pp.
380 U. S.
274-275.
Page 380 U. S. 264
3. If those exercising control over a plant that is being closed
for anti-union reasons have an interest in another business,
whether or not affiliated with or in the same line of commerce as
the closed plant, of sufficient substantiality to promise a benefit
from nonunionization of that business, act to close their plant for
that purpose, and have a relationship to the other business which
makes it probable that its employees will fear closing down if
organizational activities are continued, an unfair labor practice
has been made out. Pp.
380 U. S.
275-276.
4. Since no findings were made by the Board as to the purpose
and effect of the Darlington closing with respect to the employes
of the other plants in the Deering Milliken group, the judgments
are vacated and the cases remanded to permit such findings to be
made. Pp.
380 U. S.
276-277.
325 F.2d 82, judgments vacated and remanded.
Page 380 U. S. 265
MR. JUSTICE HARLAN delivered the opinion of the Court.
We here review judgments of the Court of Appeals setting aside
and refusing to enforce an order of the National Labor Relations
Board which found respondent Darlington guilty of an unfair labor
practice by reason of having permanently closed its plant following
petitioner union's election as the bargaining representative of
Darlington's employees.
Darlington Manufacturing Company was a South Carolina
corporation operating one textile mill. A majority of Darlington's
stock was held by Deering Milliken, a New York "selling house"
marketing textiles produced by others. [
Footnote 1] Deering Milliken, in turn, was controlled by
Roger Milliken, president of Darlington, and by other members of
the Milliken family. [
Footnote
2] The National Labor Relations Board found that the Milliken
family, through Deering Milliken, operated 17 textile
manufacturers, including Darlington, whose products manufactured in
27 different mills, were marketed through Deering Milliken.
In March, 1956, petitioner Textile Workers Union initiated an
organizational campaign at Darlington which the company resisted
vigorously in various ways, including threats to close the mill if
the union won a representation election. [
Footnote 3] On September 6, 1956, the union won an
Page 380 U. S. 266
election by a narrow margin. When Roger Milliken was advised of
the union victory, he decided to call a meeting of the Darlington
board of directors to consider closing the mill. Mr. Milliken
testified before the Labor Board:
"I felt that, as a result of the campaign that had been
conducted and the promises and statements made in these letters
that had been distributed [favoring unionization], that if before
we had had some hope, possible hope of achieving competitive
[costs] . . . by taking advantage of new machinery that was being
put in, that this hope had diminished as a result of the election
because a majority of the employees had voted in favor of the
union. . . ."
(R. 457.) The board of directors met on September 12 and voted
to liquidate the corporation, action which was approved by the
stockholders on October 17. The plant ceased operations entirely in
November, and all plant machinery and equipment were sold piecemeal
at auction in December.
The union filed charges with the Labor Board claiming that
Darlington had violated §§ 8(a)(1) and (3) of the National Labor
Relations Act by closing its plant, [
Footnote 4]
Page 380 U. S. 267
and § 8(a)(5) by refusing to bargain with the union after the
election. [
Footnote 5] The
Board, by a divided vote, found that Darlington had been closed
because of the anti-union animus of Roger Milliken, and held that
to be a violation of § 8(a)(3). [
Footnote 6] The Board also found Darlington to be part of
a single integrated employer group controlled by the Milliken
family through Deering Milliken; therefore Deering Milliken could
be held liable for the unfair labor practices of Darlington.
[
Footnote 7] Alternatively,
since Darlington was a part of the Deering Milliken enterprise,
Deering Milliken had violated the Act by closing part of its
business for a discriminatory purpose. The Board ordered back pay
for all Darlington employees until they obtained substantially
equivalent work or were put on preferential hiring lists at the
other Deering Milliken mills. Respondent Deering Milliken was
ordered to bargain with the union in regard to details of
compliance with the Board order. 139 N.L.R.B. 241.
Page 380 U. S. 268
On review, the Court of Appeals, sitting en banc, set aside the
order and denied enforcement by a divided vote. 325 F.2d 682. The
Court of Appeals held that, even accepting
arguendo the
Board's determination that Deering Milliken had the status of a
single employer, a company has the absolute right to close out a
part or all of its business, regardless of anti-union motives. The
court therefore did not review the Board's finding that Deering
Milliken was a single integrated employer. We granted certiorari,
377 U.S. 903, to consider the important questions involved. We hold
that, so far as the Labor Relations Act is concerned, an employer
has the absolute right to terminate his entire business for any
reason he pleases, but disagree with the Court of Appeals that such
right includes the ability to close part of a business no matter
what the reason. We conclude that the cause must be remanded to the
Board for further proceedings.
Preliminarily it should be observed that both petitioners argue
that the Darlington closing violated § 8(a)(1) as well as § 8(a)(3)
of the Act. We think, however, that the Board was correct in
treating the closing only under § 8(a)(3). [
Footnote 8] Section 8(a)(1) provides that it is an
unfair labor practice for an employer "to interfere with, restrain,
or coerce employees in the exercise of" § 7 rights. [
Footnote 9] Naturally, certain business
decisions will, to some
Page 380 U. S. 269
degree, interfere with concerted activities by employees. But it
is only when the interference with § 7 rights outweighs the
business justification for the employer's action that § 8(a)(1) is
violated.
See, e.g., Labor Board v. United Steelworkers,
357 U. S. 357;
Republic Aviation Corp. v. Labor Board, 324 U.
S. 793. A violation of § 8(a)(1) alone therefore
presupposes an act which is unlawful even absent a discriminatory
motive. Whatever may be the limits of § 8(a)(1), some employer
decisions are so peculiarly matters of management prerogative that
they would never constitute violations of § 8(a)(1), whether or not
they involved sound business judgment, unless they also violated §
8(a)(3). Thus, it is not questioned in this case that an employer
has the right to terminate his business, whatever the impact of
such action on concerted activities, if the decision to close is
motivated by other than discriminatory reasons. [
Footnote 10] But such action, if
discriminatorily motivated, is encompassed within the literal
language of § 8(a)(3). We therefore deal with the Darlington
closing under that section.
I
We consider first the argument, advanced by the petitioner union
but not by the Board, and rejected by the Court of Appeals, that an
employer may not go completely out of business without running
afoul of the Labor Relations Act if such action is prompted by a
desire to
Page 380 U. S. 270
avoid unionization. [
Footnote
11] Given the Board's findings on the issue of motive,
acceptance of this contention would carry the day for the Board's
conclusion that the closing of this plant was an unfair labor
practice, even on the assumption that Darlington is to be regarded
as an independent unrelated employer. A proposition that a single
businessman cannot choose to go out of business if he wants to
would represent such a startling innovation that it should not be
entertained without the clearest manifestation of legislative
intent or unequivocal judicial precedent so construing the Labor
Relations Act. We find neither.
So far as legislative manifestation is concerned, it is
sufficient to say that there is not the slightest indication in the
history of the Wagner Act or of the Taft-Hartley Act that Congress
envisaged any such result under either statute.
As for judicial precedent, the Board recognized that "[t]here is
no decided case directly dispositive of Darlington's claim that it
had an absolute right to close its mill, irrespective of motive."
139 N.L.R.B. at 250. The only language by this Court in any way
adverting to this problem is found in
Southport Petroleum Co.
v. Labor Board, 315 U. S. 100,
315 U. S. 106,
where it was stated:
"Whether there was a
bona fide discontinuance and a
true change of ownership -- which would terminate the duty of
reinstatement created by the Board's order -- or merely a disguised
continuance of the old employer, does not clearly appear. . .
."
The courts of appeals have generally assumed that a complete
cessation of business will remove an employer
Page 380 U. S. 271
from future coverage by the Act. Thus, the Court of Appeals said
in these cases: the Act
"does not compel a person to become or remain an employee. It
does not compel one to become or remain an employer. Either may
withdraw from that status with immunity, so long as the obligations
of any employment contract have been met."
325 F.2d at 685. The Eighth Circuit, in
Labor Board v. New
Madrid Mfg. Co., 215 F.2d 908, 914, was equally explicit:
"But none of this can be taken to mean that an employer does not
have the absolute right, at all times, to permanently close and go
out of business . . . for whatever reason he may choose, whether
union animosity or anything else, and without his being thereby
left subject to a remedial liability under the Labor Management
Relations Act for such unfair labor practices as he may have
committed in the enterprise, except up to the time that such actual
and permanent closing . . . has occurred. [
Footnote 12]"
The AFL-CIO suggests in its
amicus brief that
Darlington's action was similar to a discriminatory lockout, which
is prohibited
"because designed to frustrate organizational efforts, to
destroy or undermine bargaining representation, or to evade the
duty to bargain. [
Footnote
13]"
One of the purposes of the Labor Relations Act is to prohibit
the discriminatory use of economic weapons in an effort to obtain
future benefits. The discriminatory lockout designed to destroy a
union, like a "runaway shop," is a lever which has been used to
discourage collective employee activities
Page 380 U. S. 272
in the future. But a complete liquidation of a business yields
no such future benefit for the employer if the termination is
bona fide. [
Footnote
14] It may be motivated more by spite against the union than by
business reasons, but it is not the type of discrimination which is
prohibited by the Act. The personal satisfaction that such an
employer may derive from standing on his beliefs, and the mere
possibility that other employers will follow his example, are
surely too remote to be considered dangers at which the labor
statutes were aimed. [
Footnote
15] Although employees may be prohibited from engaging in a
strike under certain conditions, no one would consider it a
violation of the Act for the same employees to quit their
employment
en masse, even if motivated by a desire to ruin
the employer. The very permanence of such action would negate any
future economic benefit to the employees. The employer's right to
go out of business is no different.
We are not presented here with the case of a "runaway shop,"
[
Footnote 16] whereby
Darlington would transfer its
Page 380 U. S. 273
work to another plant or open a new plant in another locality to
replace its closed plant. [
Footnote 17] Nor are we concerned with a shutdown where
the employees, by renouncing the union, could cause the plant to
reopen. [
Footnote 18] Such
cases would involve discriminatory employer action for the purpose
of obtaining some benefit in the future from the employees in the
future. [
Footnote 19] We
hold here only that, when
Page 380 U. S. 274
an employer closes his entire business, even if the liquidation
is motivated by vindictiveness toward the union, such action is not
an unfair labor practice. [
Footnote 20]
II
While we thus agree with the Court of Appeals that, viewing
Darlington as an independent employer, the liquidation of its
business was not an unfair labor practice, we cannot accept the
lower court's view that the same conclusion necessarily follows if
Darlington is regarded as an integral part of the Deering Milliken
enterprise.
The closing of an entire business, even though discriminatory,
ends the employer-employee relationship; the force of such a
closing is entirely spent as to that business when termination of
the enterprise takes place. On the other hand, a discriminatory
partial closing may have
Page 380 U. S. 275
repercussions on what remains of the business, affording
employer leverage for discouraging the free exercise of § 7 rights
among remaining employees of much the same kind as that found to
exist in the "runaway shop" and "temporary closing" cases.
See
supra, pp.
380 U. S.
272-273. Moreover, a possible remedy open to the Board
in such a case, like the remedies available in the "runaway shop"
and "temporary closing" cases, is to order reinstatement of the
discharged employees in the other parts of the business. [
Footnote 21] No such remedy is
available when an entire business has been terminated. By analogy
to those cases involving a continuing enterprise, we are
constrained to hold, in disagreement with the Court of Appeals,
that a partial closing is an unfair labor practice under § 8(a)(3)
if motivated by a purpose to chill unionism in any of the remaining
plants of the single employer and if the employer may reasonably
have foreseen that such closing would likely have that effect.
While we have spoken in terms of a "partial closing" in the
context of the Board's finding that Darlington was part of a larger
single enterprise controlled by the Milliken family, we do not mean
to suggest that an organizational integration of plants or
corporations is a necessary prerequisite to the establishment of
such a violation of § 8(a)(3). If the persons exercising control
over a plant that is being closed for anti-union reasons (1) have
an interest in another business, whether or not affiliated with or
engaged in the same line of commercial activity as the closed
plant, of sufficient substantiality to give promise of their
reaping a benefit from the discouragement of unionization in that
business; (2) act to close their plant with the purpose of
producing such a result; and
Page 380 U. S. 276
(3) occupy a relationship to the other business which makes it
realistically foreseeable that its employees will fear that such
business will also be closed down if they persist in organizational
activities, we think that an unfair labor practice has been made
out.
Although the Board's single employer finding necessarily
embraced findings as to Roger Milliken and the Milliken family
which, if sustained by the Court of Appeals, would satisfy the
elements of "interest" and "relationship" with respect to other
parts of the Deering Milliken enterprise, that and the other Board
findings fall short of establishing the factors of "purpose" and
"effect" which are vital requisites of the general principles that
govern a case of this kind.
Thus, the Board's findings as to the purpose and foreseeable
effect of the Darlington closing pertained only to its impact on
the Darlington employees. No findings were made as to the purpose
and effect of the closing with respect to the employees in the
other plants comprising the Deering Milliken group. It does not
suffice to establish the unfair labor practice charged here to
argue that the Darlington closing necessarily had an adverse impact
upon unionization in such other plants. We have heretofore observed
that employer action which has a foreseeable consequence of
discouraging concerted activities generally [
Footnote 22] does not amount to a violation of §
8(a)(3) in the absence of a showing of motivation which is aimed at
achieving the prohibited effect.
See Teamsters v. Labor
Board, 365 U. S. 667, and
the concurring opinion therein, at
365 U. S. 677.
In an area which trenches so closely upon otherwise legitimate
employer prerogatives, we consider the absence of Board findings on
this score a fatal defect in its decision. The Court of Appeals,
for its part,
Page 380 U. S. 277
did not deal with the question of purpose and effect at all,
since it concluded that an employer's right to close down his
entire business because of distaste for unionism, also embraced a
partial closing so motivated.
Apart from this, the Board's holding should not be accepted or
rejected without court review of its single employer finding,
judged, however, in accordance with the general principles set
forth above. Review of that finding, which the lower court found
unnecessary on its view of the cause, now becomes necessary in
light of our holding in this part of our opinion, and is a task
that devolves upon the Court of Appeals in the first instance.
Universal Camera Corp. v. Labor Board, 340 U.
S. 474.
In these circumstances, we think the proper disposition of this
cause is to require that it be remanded to the Board so as to
afford the Board the opportunity to make further findings on the
issue of purpose and effect.
See, e.g., Labor Board v. Virginia
Elec. & Power Co., 314 U. S. 469,
314 U. S.
479-480. This is particularly appropriate here, since
the cases involve issues of first impression. If such findings are
made, the cases will then be in a posture for further review by the
Court of Appeals on all issues. Accordingly, without intimating any
view as to how any of these matters should eventuate, we vacate the
judgments of the Court of Appeals and remand the cases to that
court with instructions to remand them to the Board for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEWART took no part in the decision of these
cases.
MR. JUSTICE GOLDBERG took no part in the consideration or
decision of these cases.
* Together with No. 41,
National Labor Relations Board v.
Darlington Manufacturing Co. et al., also on certiorari to the
same court.
[
Footnote 1]
Deering Milliken & Co. owned 41% of the Darlington stock.
Cotwool Manufacturing Corp., another textile manufacturer, owned
18% of the stock. In 1960, Deering Milliken & Co. was merged
into Cotwool, the survivor being named Deering Milliken, Inc.
[
Footnote 2]
The Milliken family owned only 6% of the Darlington stock, but
held a majority stock interest in both Deering Milliken & Co.
and Cotwool,
see n 1,
supra.
[
Footnote 3]
The Board found that Darlington had interrogated employees and
threatened to close the mill if the union won the election. After
the decision to liquidate was made (
see infra), Darlington
employees were told that the decision to close was caused by the
election, and they were encouraged to sign a petition disavowing
the union. These practices were held to violate § 8(a)(1) of the
National Labor Relations Act,
n
4,
infra, and that part of the Board decision is not
challenged here.
[
Footnote 4]
National Labor Relations Act, §§ 8(a)(1) and (3), as amended, 61
Stat. 140 (1947), 29 U.S.C. §§ 158(a)(1) and (3) (1958 ed.),
provide in pertinent part:
"(a) It shall be an unfair labor practice for an employer
--"
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7 [section 157 of this
title];"
"
* * * *"
"(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization. . . ."
[
Footnote 5]
The union asked for a bargaining conference on September 12,
1956 (the day that the board of directors voted to liquidate), but
was told to await certification by the Board. The union was
certified on October 24, and did meet with Darlington officials in
November, but no actual bargaining took place. The Board found this
to be a violation of § 8(a)(5). Such a finding was in part based on
the determination that the plant closing was an unfair labor
practice, and no argument is made that § 8(a)(5) requires an
employer to bargain concerning a purely business decision to
terminate his enterprise.
Cf. Fibreboard Paper Products Corp.
v. Labor Board, 379 U. S. 203.
[
Footnote 6]
Since the closing was held to be illegal, the Board found that
the gradual discharges of all employees during November and
December constituted § 8(a)(1) violations. The propriety of this
determination depends entirely on whether the decision to close the
plant violated § 8(a)(3).
[
Footnote 7]
Members Leedom and Rodgers agreed with the trial examiner that
Deering Milliken was not a single employer. Member Rodgers
dissented in arguing that Darlington had not violated § 8(a)(3) by
closing.
[
Footnote 8]
The Board did find that Darlington's discharges of employees
following the decision to close violated § 8(a)(1).
See
n 6,
supra.
[
Footnote 9]
NLRA § 7, as amended, 29 U.S.C. § 157 (1958 ed.), provides:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 8(a)(3) [section 158(a)(3) of this
title]."
[
Footnote 10]
It is also clear that the ambiguous act of closing a plant
following the election of a union is not, absent an inquiry into
the employer's motive, inherently discriminatory. We are thus not
confronted with a situation where the employer "must be held to
intend the very consequences which foreseeably and inescapably flow
from his actions. . . ." (
Labor Board v. Erie Resistor
Corp., 373 U. S. 221,
373 U. S.
228), in which the Board could find a violation of §
8(a)(3) without an examination into motive.
See Radio Officers
v. Labor Board, 347 U. S. 17,
347 U. S. 42-43;
Teamsters Local v. Labor Board, 365 U.
S. 667,
365 U. S.
674-676.
[
Footnote 11]
The Board predicates its argument on the finding that Deering
Milliken was an integrated enterprise, and does not consider it
necessary to argue that an employer may not go completely out of
business for anti-union reasons. Brief for National Labor Relations
Board, p. 3, n. 2.
[
Footnote 12]
In New Madrid the business was transferred to a new employer,
which was held liable for the unfair labor practices committed by
its predecessor before closing. The closing itself was not found to
be an unfair labor practice.
[
Footnote 13]
Brief for AFL-CIO, p. 7, quoting from
Labor Board v. Truck
Drivers Local, 353 U. S. 87,
353 U. S. 93.
This brief was incorporated by reference as Point I of the
petitioner union's brief in this Court.
[
Footnote 14]
The Darlington property and equipment could not be sold as a
unit, and were eventually auctioned off piecemeal. We therefore are
not confronted with a sale of a going concern, which might present
different considerations under §§ 8(a)(3) and (5).
Cf. John
Wiley & Sons, Inc. v. Livingston, 376 U.
S. 543;
Labor Board v. Deena Artware, Inc.,
361 U. S. 398.
[
Footnote 15]
Cf. NLRA § 8(c), 29 U.S.C. § 158(c) (1958 ed.).
Different considerations would arise were it made to appear that
the closing employer was acting pursuant to some arrangement or
understanding with other employers to discourage employee
organizational activities in their businesses.
[
Footnote 16]
E.g., Labor Board v. Preston Feed Corp., 309 F.2d 346;
Labor Board v. Wallick, 198 F.2d 477. An analogous problem
is presented where a department is closed for anti-union reasons
but the work is continued by independent contractors.
See,
e.g., Labor Board v. Kelly & Picerne, Inc., 298 F.2d 895;
Jays Foods, Inc. v. Labor Board, 292 F.2d 317;
Labor
Board v. R. C. Mahon Co., 269 F.2d 44;
Labor Board v. Bank
of America, 130 F.2d 624;
Williams Motor Co. v. Labor
Board, 128 F.2d 960.
[
Footnote 17]
After the decision to close the plant, Darlington accepted no
new orders, and merely continued operations for a time to fill
pending orders. 139 N.L.R.B. at 244.
[
Footnote 18]
E.g., Labor Board v. Norma Mining Corp., 206 F.2d 38.
Similarly, if all employees are discharged but the work continues
with new personnel, the effect is to discourage any future union
activities.
See Labor Board v. Waterman S.S. Co.,
309 U. S. 206;
Labor Board v. National Garment Co., 166 F.2d 233;
Labor Board v. Stremel, 141 F.2d 317.
[
Footnote 19]
All of the cases to which we have been cited involved closings
found to have been motivated at least in part, by the expectation
of achieving future benefits.
See cases cited in notes
16 18 supra. The two cases which are urged as
indistinguishable from
Darlington are
Labor Board v.
Savoy Laundry, 327 F.2d 370, and
Labor Board v. Missouri
Transit Co., 250 F.2d 261. In
Savoy Laundry, the
employer operated one laundry plant where he processed both retail
laundry pickups and wholesale laundering. Once the laundry was
marked, all of it was processed together. After some of the
employees organized, the employer discontinued most of the
wholesale service, and thereafter discharged some of his employees.
There was no separate wholesale department, and the discriminatory
motive was obviously to discourage unionization in the entire
plant.
Missouri Transit presents a similar situation. A
bus company operated an interstate line and an intrastate shuttle
service connecting a military base with the interstate terminal.
When the union attempted to organize all of the drivers, the
shuttle service was sold, and the shuttle drivers were discharged.
Although the two services were treated as separate departments, it
is clear from the facts of the case that the union was attempting
to organize all of the drivers, and the discriminatory motive of
the employer was to discourage unionization in the interstate
service, as well as the shuttle service.
[
Footnote 20]
Nothing we have said in this opinion would justify an employer's
interfering with employee organizational activities by threatening
to close his plant, as distinguished from announcing a decision to
close already reached by the board of directors or other management
authority empowered to make such a decision. We recognize that this
safeguard does not wholly remove the possibility that our holding
may result in some deterrent effect on organizational activities
independent of that arising from the closing itself. An employer
may be encouraged to make a definitive decision to close on the
theory that its mere announcement before a representation election
will discourage the employees from voting for the union, and, thus,
his decision may not have to be implemented. Such a possibility is
not likely to occur, however, except in a marginal business; a
solidly successful employer is not apt to hazard the possibility
that the employees will call his bluff by voting to organize. We
see no practical way of eliminating this possible consequence of
our holding short of allowing the Board to order an employer who
chooses so to gamble with his employees not to carry out his
announced intention to close. We do not consider the matter of
sufficient significance in the overall labor-management relations
picture to require or justify a decision different from the one we
have made.
[
Footnote 21]
In the view we take of these cases, we do not reach any of the
challenges made to the Board's remedy afforded here.
[
Footnote 22]
See n 10,
supra.