Rgc (usa) Mineral Sands, Incorporated v. NATIONAL LABOR RELATIONS BOARD, No. 01-1174 Respondent, INTERNATIONAL ASSOCIATION…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 RGC (USA) MINERAL SANDS,
INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, No. 01-1174 Respondent,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS,
Respondent-Intervenor. 
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, No. 01-1371  Petitioner-Intervenor,
v.
RGC (USA) MINERAL SANDS,
INCORPORATED,
Respondent. 
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(12-CA-19258, 12-CA-19499, 12-CA-20101)
Argued: November 2, 2001
Decided: February 22, 2002

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Before MICHAEL, KING, and GREGORY, Circuit Judges.
Petition denied in No. 01-1174, and cross-petition granted and order
enforced in No. 01-1371, by published opinion. Judge Michael wrote
the opinion, in which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: Michael J. Bobroff, BOBROFF, HESSE, LINDMARK &
MARTONE, P.C., St. Louis, Missouri, for RGC. Jeffrey Michael
Hirsch, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board. ON BRIEF: John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Sharon I. Block, Supervisory Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Board. Mary Jill Hanson,
HANSON, PERRY & JENSEN, P.A., West Palm Beach, Florida, for
Machinists.
OPINION
MICHAEL, Circuit Judge:
RGC (USA) Mineral Sands, Inc. (RGC) petitions for review of an
order of the National Labor Relations Board. RGC challenges two
principal findings of the Board: first, that the company violated
§§ 8(a)(1) and (3) of the National Labor Relations Act (the Act or the
NLRA) by imposing onerous shift assignments in retaliation for the
employees’ rejection of a shift assignment plan proposed by the com-
pany; and second, that a subsequent strike by RGC employees was
motivated in part by the retaliatory shift assignments. In addition,
RGC challenges the Board’s conclusion that the collective bargaining
agreement did not permit RGC to make shift assignments in a manner
that violated the Act. We conclude (1) that the Board’s findings are
supported by substantial evidence and (2) that the Board properly
determined that RGC could not exercise its contractual rights in viola-
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tion of the Act. We therefore deny RGC’s petition for review. The
Board cross-petitions for enforcement of its order, and we will
enforce it in full.
I.
RGC operates a titanium mine in Green Cove Springs, Florida. The
International Association of Machinists and Aerospace Workers (the
union) has represented the company’s production and maintenance
employees since 1972. RGC’s operation has three main work areas:
the wet mill, which does the actual mining; the dry mill, which pro-
cesses the mined material; and the front shop, which provides mainte-
nance. Not all maintenance employees (mechanics) are assigned to
the front shop. Some are assigned to the other two work areas.
Although RGC operates 24 hours a day, the mechanics have tradition-
ally worked only the day shift. In the mid-1990s RGC management
decided that the lack of mechanics on the evening and night shifts (the
swing shifts) was costing the company too much money. When
machinery broke down during a swing shift, RGC either had to suffer
the costs of lost production or pay overtime to mechanics who were
called in to repair the machinery. RGC tried several scheduling plans
to rotate mechanics into the swing shifts. After continuing disagree-
ment between the mechanics and RGC over the scheduling, manage-
ment finally came up with a new proposal in September 1997 under
which all mechanics from all three work areas would rotate to cover
the swing shifts. The proposal was presented for a vote to the entire
bargaining unit, that is, production as well as maintenance employees.
The employees voted down the proposal because they wanted to be
able to choose their shift assignments in order of seniority.
Immediately following the vote, Graeme Sloan, RGC’s general
manager, instructed Marvin Short, the senior maintenance supervisor,
to assign only mechanics from the front shop to cover the evening and
night shifts. This meant that mechanics from the other work areas, the
wet and dry mills, would not have to work the swing shifts. Short met
with the front shop mechanics to announce the new shift assignments:
eight mechanics from the front shop had been selected without regard
to seniority to cover the swing shifts. One mechanic asked why the
company had ignored seniority in making the new assignments, and
another commented that it was done to punish the mechanics. Short
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responded to these comments by slamming a folder on the table and
saying, "I’ll tell you how you were picked or why you’re going on
[the swing shifts, it’s] because [of the] bullshit that you went down
there to the Union hall and started [and] the way you all voted." Short
added that Sloan (the general manager) had ordered the assignments
because he was "tired of your bullshit and because of the vote you
took down [at] the fucking Union hall." Sloan, who was also present
at the meeting, told the mechanics that they were "bloody bullies"
who had "browbeat" the other employees into voting down the shift
assignment proposal. After the union filed grievances in October 1997
over the swing shift assignments, RGC posted bids for the positions.
No qualified mechanic bid on the positions, and in December 1997
RGC made permanent six of the original eight swing shift assign-
ments. In January 1998 Calvin Coon, a union shop steward and one
of the mechanics assigned to a swing shift, filed an unfair labor prac-
tice charge with the NLRB alleging that RGC had taken eight
mechanics off straight day shift and placed them on swing shifts in
retaliation for the defeat of the company’s shift assignment proposal.
In the meantime, the collective bargaining agreement’s expiration
date, August 30, 1998, was drawing near. RGC and the union held a
number of bargaining sessions in July and August in an effort to
negotiate a new contract. The union argued throughout the bargaining
that shift assignments should be based on seniority, but RGC would
not agree. After RGC’s final offer on August 23, 1998, which did not
provide for seniority in shift assignments, the employees met to con-
sider a strike. During these meetings the employees repeatedly
expressed concern about the company’s unwillingness to consider
seniority. For example, one employee said, "if they’ll do the senior
mechanics the way they have, they will do anybody that way." The
parties failed to reach a new agreement, and the employees went on
strike when the old agreement expired at the end of August. RGC
then hired 44 replacement workers, and in April 1999 all 46 striking
employees offered unconditionally to return to work. RGC refused the
offer, stating that it considered the strike to be economic. The union
responded that the striking employees were entitled to reinstatement
because they had been involved in an unfair labor practice strike.
The two charges against RGC mentioned above (relating to retalia-
tory shift assignments and the refusal to reinstate the strikers) as well
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as other charges were litigated before an administrative law judge
and, ultimately, the Board. In affirming the ALJ, the Board deter-
mined that RGC violated §§ 8(a)(1) and (3) of the Act in two princi-
pal ways. First, the Board found that the company committed an
unfair labor practice by assigning mechanics to more onerous shifts
in retaliation for protected § 7 activities (relating to the vote rejecting
the company’s shift assignment proposal). Second, the Board found
that the company’s unlawful shift assignments were one of the causes
of the subsequent strike. As a result, the Board concluded that the
company violated §§ 8(a)(1) and (3) of the Act by refusing to rein-
state the striking employees immediately after their unconditional
offer to return to work.
The Board also adopted the ALJ’s findings that RGC had engaged
in a number of additional unfair labor practices. According to the
Board’s order, RGC did not file exceptions to the ALJ’s findings that
it violated § 8(a)(1) of the Act by creating an impression of surveil-
lance of its employees’ union activities, by threatening to retaliate for
the union vote, by threatening an employee because he filed a safety
complaint, by telling employees that it was improper to make safety
complaints, by interrogating employees about their safety complaints
and unfair labor practice charges, by preventing a union steward from
coming onto company property to investigate potential grievances, by
interviewing an employee in connection with possible disciplinary
action without honoring his request to consult with a union represen-
tative, and by refusing to accept employee grievances. In addition, the
Board’s order noted that the company did not file exceptions to the
ALJ’s findings that it violated §§ 8(a)(1), (3), and (4) of the Act by
issuing disciplinary warnings to two employees because they (among
other things) assisted the union and were named in an unfair labor
practice charge and by terminating one of these employees because
he engaged in union activities and filed an unfair labor practice
charge.
The Board’s order requires RGC to cease and desist from engaging
in the unfair labor practices and from interfering with, restraining, or
coercing employees in the exercise of their § 7 rights. Specifically,
the Board’s order requires the company to offer the 46 strikers imme-
diate reinstatement to their former jobs and to reimburse them for any
lost earnings. In addition, the one discharged employee must be rein-
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stated with back pay. RGC has filed a petition for review, challenging
the NLRB’s determinations regarding the swing shift assignments and
the nature of the strike. The Board cross-petitions for enforcement of
its order, noting that it is entitled to summary enforcement of those
parts of the order that are based on the ALJ’s unchallenged unfair
labor practice findings. RGC does not object to summary enforcement
as to matters that are truly uncontested, but it contends that it filed
exceptions to two of the ALJ’s findings that the Board characterizes
as uncontested, specifically, that the company threatened retaliation
for the vote and that it created an impression of surveillance.
II.
Section 7 of the Act gives employees the right to "engage in . . .
concerted activities for the purpose of collective bargaining or other
mutual aid or protection." 29 U.S.C. § 157. It is an unfair labor prac-
tice for an employer to "interfere with, restrain, or coerce employees
in the exercise of" their § 7 rights, 29 U.S.C. § 158(a)(1), or to "dis-
criminat[e] in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in
any labor organization," 29 U.S.C. § 158(a)(3). RGC argues that the
NLRB erred (1) in finding that the shift assignments were in retalia-
tion for protected activity, (2) in concluding that the collective bar-
gaining agreement did not authorize shift assignments made in
violation of the Act, and (3) in finding that the strike was motivated
in part by retaliatory shift assignments. We review the Board’s find-
ings of fact only to determine whether they are supported by substan-
tial evidence in the record as a whole. See Universal Camera Corp.
v. NLRB, 340 U.S. 474, 487-88 (1951); NLRB v. CWI of Maryland,
Inc., 127 F.3d 319, 326 (4th Cir. 1997). In reviewing legal conclu-
sions, we defer to the Board’s interpretation of the Act "so long as its
reading is a reasonable one." Holly Farms Corp. v. NLRB, 517 U.S.
392, 409 (1996).
A.
We first assess the NLRB’s finding that RGC assigned certain
mechanics to swing shifts in retaliation for concerted activity pro-
tected by § 7 of the Act. Because RGC’s motive is relevant to the
underlying unfair labor practice charge, the Board evaluated the evi-
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dence under its long-established standard from Wright Line, 251
N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981). To
make out what Wright Line calls a prima facie case, the NLRB’s Gen-
eral Counsel must show (1) that the employee was engaged in pro-
tected activity, (2) that the employer was aware of the activity, and
(3) that the protected activity was a substantial or motivating factor
for the employer’s action. FPC Holdings, Inc. v. NLRB, 64 F.3d 935,
942 (4th Cir. 1995) (citing Wright Line; NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393 (1983)). The Wright Line standard requires the
General Counsel to "prove by a preponderance of the evidence that
a discriminatory motive was a substantial or motivating factor" in the
employer’s action. CWI of Maryland, 127 F.3d at 331. If the General
Counsel makes out a prima facie case, "[t]he burden then shifts to the
employer to prove affirmatively that the same action would have been
taken even in the absence of the employee’s union activity." FPC
Holdings, 64 F.3d at 942.
We turn to the General Counsel’s prima facie case. Wright Line’s
first element is satisfied because RGC agrees that the vote at the
union hall on the shift assignment proposal constituted protected
activity. As to the second element, whether RGC was aware of the
protected activity, RGC concedes that it knew that the employees
took part in the vote on the shift assignment proposal. Nevertheless,
RGC argues that because it did not know which employees had voted
for the proposal and which had voted against, the NLRB cannot show
that it punished any particular employee because of his vote. RGC
cannot get off the hook so easily, for "the Board need not show that
the employer knew of any particular employee’s union involvement
to show that the employer acted out of union animus." WXGI, Inc. v.
NLRB, 243 F.3d 833, 843 (4th Cir. 2001). Otherwise, an employer
could retaliate against employees for all secret ballot votes and plead
ignorance about the votes of specific employees. Adverse employ-
ment action in retaliation for concerted activity "violate[s] the NLRA,
even if the employer wields an undiscerning axe, and anti-union
employees suffer along with their pro-union counterparts." NLRB v.
Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991). Thus, the sec-
ond element of Wright Line is satisfied because RGC knew that the
employees voted and that some of them voted against the proposal.
To prove the third element, discriminatory motive, the General
Counsel may rely on either direct or circumstantial evidence. FPC
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Holdings, 64 F.3d at 942. Here, circumstantial evidence was unneces-
sary because Short, RGC’s maintenance supervisor, stated directly
that the swing shift assignments were made because of the union vote.
Likewise, Sloan, the general manager, called the mechanics "bloody
bullies" who had "browbeat" the other employees into voting down
the company’s proposal. This constitutes direct evidence that the shift
assignments were motivated by anti-union animus. See Alpo Petfoods,
Inc. v. NLRB, 126 F.3d 246, 250, 252-53 (4th Cir. 1997). The General
Counsel therefore established a prima facie case. Once the General
Counsel satisfies his burden, the Board is free to find a violation
unless the employer can prove that it would have made the same deci-
sion absent the protected conduct. FPC Holdings, 64 F.3d at 942.
This traditional statement of the employer’s burden does not quite fit
this case, for the protected conduct was the vote rejecting the pro-
posal. Had the employees approved the proposal, RGC presumably
would have implemented it. RGC made shift assignment choices only
because the employees voted down the proposal. Thus, as applied to
these facts, RGC’s burden was to prove that it would have made the
same shift assignments absent its retaliatory motivation.
Short testified that he made the assignment decisions by evaluating
the relative talents of the mechanics. RGC argues that Short’s angry
statement in the meeting simply reflected his frustration that the union
had voted down a proposal that he and others had worked hard to
develop, not that the assignments were punishment or retaliation for
the vote. However, Short’s statement came in direct response to ques-
tions about the reason for the new assignments. Short responded, "I’ll
tell you . . . why you’re going on [the swing shifts, it’s] because [of
the] bullshit you went down there to the Union hall and started [and]
the way you all voted." Testimony to this effect constitutes "relevant
evidence [that] a reasonable mind might accept as adequate to support
[the] conclusion" that the assignment decision was actually motivated
by anti-union animus. Pirelli Cable Corp. v. NLRB, 141 F.3d 503,
514 (4th Cir. 1998) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Short’s explicit statement at the meeting and
Sloan’s verbal attacks on the mechanics provide substantial evidence
to support the Board’s rejection of RGC’s claim that the shift assign-
ments were based on talent. FPC Holdings, 64 F.3d at 944. Moreover,
even if Sloan made the specific assignments on the basis of talent, the
assignments still constitute an unfair labor practice because Short’s
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and Sloan’s statements show that the basic decision to assign the
swing shifts to eight front shop mechanics without regard to seniority
was motivated by anti-union animus. In all events, substantial evi-
dence supports the Board’s finding that the shift assignment decision
was actually in retaliation for the vote against the company’s pro-
posal.
B.
RGC also attempts to assert a contractual defense to the charge of
retaliatory shift assignments. The company argues that its decision to
unilaterally assign the front shop mechanics to swing shifts without
regard to seniority, and without acquiring union consent, was within
its discretion under the collective bargaining agreement. There is a
dispute as to whether RGC retained this power under the agreement,
but we will assume for the sake of argument that it did. RGC argues
that because it was acting within its discretion under the collective
bargaining agreement, its motives are irrelevant and its actions cannot
violate the NLRA. The Board, in line with longstanding precedent,
rejected this argument, explaining that the contract does not authorize
"attempts to assign employees to more onerous shifts against their
will . . . where the employer has . . . made [the assignments] because
of the employees’ union activities." RGC (USA) Mineral Sands, Inc.,
332 N.L.R.B. No. 172, 2001 WL 44225, *7 (Jan. 10, 2001). See also
Reno Hilton Resorts, 326 N.L.R.B. 1421, 1430 (1998), enforced, 196
F.3d 1275 (D.C. Cir. 1999). We agree with the Board that an
employer cannot exercise contractual rights to punish employees for
protected activity. See Reno Hilton Resorts v. NLRB, 196 F.3d 1275,
1281 (D.C. Cir. 1999) (noting "the general principle that a party can-
not exercise its contractual rights in violation of the law"); Capitol
Steel & Iron Co. v. NLRB, 89 F.3d 692, 697 (10th Cir. 1996) ("The
provision in question here entitled the Company to implement raises
unilaterally during the term of the contract. However, when the Com-
pany undermined the union’s role as the employees’ sole bargaining
agent by raising wages in a manner engineered to influence employ-
ees to vote in its favor at a key moment in the bargaining process, it
improperly exploited that waiver and violated §§ 8(a)(5) and (1) of
the NLRA."); NLRB v. Joy Techs., Inc., 990 F.2d 104, 110-11 n.7 (3d
Cir. 1993) ("[E]ven if the contract provision gives the Employer the
discretion to transfer positions under other circumstances, contract
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language does not exempt the Employer from its obligation to act
lawfully under the NLRA.").
RGC urges us to adopt the rule articulated by the Sixth Circuit in
"Automatic" Sprinkler Corp. of America v. NLRB, 120 F.3d 612, 620
(6th Cir. 1997), which held that if an employer’s action is within its
powers under the terms of the collective bargaining agreement, anti-
union motivation is irrelevant and does not turn the action into an
unfair labor practice. A strong dissent in Automatic Sprinkler argued
that "[t]he [company’s] otherwise neutral act of subcontracting, as
permitted by the collective bargaining agreement, became an unfair
labor practice, because it was . . . motivated, primarily, by anti-union
animus." Id. at 622. The rule stated by the majority in Automatic
Sprinkler has not been cited with approval outside the Sixth Circuit.
See Reno Hilton, 196 F.3d at 1281. We believe that the Automatic
Sprinkler rule has not caught on for good reason.
The principle that otherwise lawful acts can be rendered unlawful
when motivated by improper intentions is widely accepted and
appears repeatedly throughout the law. For example, the otherwise
legal act of giving a gift to a public official only becomes bribery
when the giver intends for the gift to influence a decision. See 18
U.S.C. § 201 (2001). Likewise, otherwise legal adverse employment
action is rendered illegal when motivated by race, color, religion, sex,
or national origin. See 42 U.S.C. § 2000e et seq. (2001); Spriggs v.
Diamond Auto Glass, 165 F.3d 1015, 1020 (4th Cir. 1999). Even
assuming that RGC was within its rights under the collective bargain-
ing agreement to unilaterally impose shift assignments, RGC cannot
act with the intent to punish or discourage protected concerted activ-
ity. To hold otherwise would be to eviscerate both the rights found in
§ 7 of the Act and the protection afforded the exercise of those rights
by §§ 8(a)(1) and (3). An employer could retaliate against workers for
protected activity so long as the employer retaliated by acting within
its powers under the collective bargaining agreement. This would be
contrary to the clear language of §§ 8(a)(1) and (3), which prohibits
any form of retaliation for protected § 7 activities. We therefore reject
the Automatic Sprinkler rule and adhere to the "general principle that
a party cannot exercise its contractual rights in violation of the
[NLRA]." Reno Hilton Resorts, 196 F.3d at 1281.
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C.
RGC argues that even if the shift assignments amounted to an
unfair labor practice, the assignments were not a motivating factor for
the strike, which occurred ten months later. Accordingly, RGC says
that the strike was an economic strike, not an unfair labor practice
strike. A strike is classified as an unfair labor practice strike if it is
"initiated in whole or in part in response to unfair labor practices
committed by the employer." Pirelli Cable, 141 F.3d at 515 (empha-
sis added) (quotations omitted). Significant consequences attach to an
unfair labor practice strike: "[u]nfair labor practice strikers are enti-
tled to immediate reinstatement upon their unconditional offer to
return to work, or if reinstatement is a result of litigation, reinstate-
ment with back pay." Id.
The NLRB points out that seniority in shift assignments was a
major issue throughout the contract negotiations. Indeed, union lead-
ers stated publicly that the strike was in protest of the company’s
refusal to consider seniority in employment decisions. RGC concedes
that seniority in shift assignments was an issue in contract negotia-
tions. But RGC argues that although the strike may have been moti-
vated in part by the employees’ desire for a seniority-based shift
assignment clause in the contract, there was insufficient evidence to
establish that the strike was initiated to protest RGC’s past retaliatory
assignment practices. As RGC appears to concede, there is substantial
evidence that the strikers were motivated by a desire for a contract
clause that would require the company to consider seniority in making
shift assignments. More importantly, there is also substantial evidence
that the desire for such a clause was triggered, at least in part, by fears
created by RGC’s prior retaliatory assignment of the eight front shop
mechanics to swing shifts without considering their seniority. Accord-
ing to a union negotiator, one of the union’s proposals in the contract
negotiations was aimed at preventing "[t]he discrimination based on
the shift assignments which had occurred in the latter part of ’97 [and]
. . . which ultimately led to the Board charges." And, as one employee
contemplating the strike put it, "if they’ll do the senior mechanics the
way they have, they will do anybody that way." On this evidence the
Board did not err in finding that the unlawful shift assignments were
one of the causes of the strike. The strike was therefore an unfair
labor practice strike, and RGC violated §§ 8(a)(1) and (3) of the Act
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by refusing to reinstate the strikers when they made an unconditional
offer to return to work.
D.
We conclude that substantial evidence supports the NLRB’s find-
ing that the shift assignments constituted retaliation and punishment
for the employees’ exercise of their protected § 7 rights. The collec-
tive bargaining agreement did not allow RGC to make retaliatory shift
assignments because an employer cannot exercise its contract rights
in violation of the NLRA. Substantial evidence also supports the
Board’s finding that the retaliatory shift assignments were a motivat-
ing factor in the subsequent strike. Accordingly, we will enforce the
NLRB’s order awarding reinstatement and back pay to the strikers
and requiring RGC to cease and desist from certain unlawful conduct
in the future.
III.
The NLRB seeks summary enforcement of those parts of its order
that would remedy violations based on unfair labor practice findings
of the ALJ that were not objected to by RGC. A number of the viola-
tions found by the ALJ are uncontested, and the Board is entitled to
summary enforcement of its order as it relates to those violations.
Frigid Storage, 934 F.2d at 509. Nevertheless, RGC opposes sum-
mary enforcement on two violations that it says it contested before the
Board. Specifically, the company asserts that it filed exceptions to the
ALJ’s findings that it violated §§ 8(a)(1) and (3) when Short threat-
ened the mechanics with onerous shift assignments and when Sloan
created the impression of company surveillance of the employees’
union activities. See RGC (USA) Mineral Sands, Inc., 332 N.L.R.B.
No. 172, 2001 WL 44225, *23-24 (Jan. 10, 2001) (NLRB order, pars.
1(a) and 1(f)). At oral argument the Board acknowledged that RGC
had filed an exception to the ALJ’s finding of the threat. In addition,
RGC’s exceptions clearly include a reference to the ALJ’s finding
that Sloan had created an impression of surveillance. Accordingly, the
NLRB is not entitled to summary enforcement of those parts of its
order that rely on these findings. Even so, we will enforce those parts
of the order if the underlying findings are supported by substantial
evidence. Just as Short’s statement that the new shift assignments
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were made because of the bullshit at the union hall and the vote pro-
vides substantial evidence that the assignments were in retaliation for
union activity, that same statement may reasonably be interpreted as
a threat of retaliation. In addition, Sloan’s statement that the mechan-
ics were bloody bullies who had browbeaten the other employees into
rejecting the shift assignment proposal constitutes substantial evi-
dence that RGC created an impression that it was monitoring the
mechanics’ union activities with respect to the vote. Thus, these find-
ings support enforcement of the parts of the Board’s order that require
the company to refrain from threats of retaliation and from creating
an impression of surveillance of union activities.
IV.
For the foregoing reasons, we deny RGC’s petition for review, and
we grant the Board’s cross-petition for enforcement of its order.
No. 01-1174 - PETITION DENIED
No. 01-1371 - CROSS-PETITION GRANTED AND
ORDER ENFORCED
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