Nlrb v. Amax Coal Co., 453 U.S. 322 (1981)

JUSTICE STEVENS, dissenting.

The key to this case, in my judgment, is the distinction between the process by which a person is appointed to office and the manner in which he performs that office after he has been appointed. Congress has provided that labor and management shall each appoint the same number of representatives to serve as trustees of jointly administered employee pension and welfare funds.{1} Giving each side of the bargaining table exclusive control of the appointment of half of the trustees does not compromise in any way the fiduciary obligations of the trustees after they assume office. Conversely, the imposition of fiduciary responsibilities on the trustees after they have been appointed surely does not lend any support to the Court’s quixotic notion that a union may interfere -- by a strike if necessary -- with management’s selection of its representatives.

Three quite different theories might provide a basis for deciding this case in favor of the United Mine Workers (the union). First, the Court might conclude that the union was merely trying to induce Amax to agree to contribute to the national multiemployer trust funds, and that it had no interest in the identity of the management trustees of those funds. Second, the Court might conclude that, because Amax, as a member of the Bituminous Coal Operators Association, actually participated in the selection of the management trustees of the union’s national trust funds, there is no basis for its claim that the union was interfering with that prerogative of management. Third, the Court might conclude that it is permissible for a union to restrain or to coerce an employer in the selection of its representatives for the purpose of administering joint employee pension and welfare funds.

If the Court relied on either of the first two rationales, or if its opinion could be read as resting on a blend of all three, this case would not be particularly significant. I believe, however, that the Court’s opinion will be read as holding that it is not an unfair labor practice for a union to attempt to exercise an economic veto over an employer’s selection of the management trustees of a jointly administered employee benefit fund.{2} In my opinion, that holding is foreclosed by rather plain statutory language, and is flagrantly at odds with the intent of Congress.

I

The equal representation requirement of § 302(c)(5) is one of a number of restrictions employed by Congress to prevent the mismanagement or misuse of employee benefit funds by union officials. See, e.g., Arroyo v. United States, 359 U.S. 419, 426; Associated Contractors, Inc. v. Laborers International Union, 559 F.2d 222, 226 (CA3 1977).{3} Equal representation was required, not to satisfy employer demands for a voice in benefit fund administration,{4} but to insure that money paid for the welfare of employees actually was used for that purpose. As Senator Taft explained:

Certainly, unless we impose some restrictions, we shall find that the welfare fund will become merely a war chest for the particular union, and that the employees for whose benefit it is supposed to be established, for certain definite welfare purposes, will have no legal rights and will not receive the kind of benefits to which they are entitled after such deductions from their wages.

* * * *

This amendment is, in effect, a provision to prevent the abuse of the right to establish such funds by collective bargaining, pending further study of the whole problem. Otherwise I think we shall find that the welfare fund will become a racket. In many unions, it is very easy for it to become a racket.

93 Cong.Rec. 4747 (1947). The requirement of equal labor-management representation is a central factor in the congressional formula to prevent such abuse. See, e.g., Associated Contractors, Inc., supra, at 227; Toensing v. Brown, 374 F.Supp. 191, 195 (ND Cal.1974), aff’d, 528 F.2d 69 (CA9 1975).

Although the Court repeatedly uses the word "trustee" to identify the persons who administer pension and welfare funds established in compliance with § 302(c)(5), Congress used the word "representative." See 29 U.S.C. § 186(c)(5). Congress’ use of this term does not, of course, qualify the fiduciary responsibilities of those persons.{5} It is nevertheless important for two reasons. First, it is a reminder that one of the means selected by Congress for insuring neutrality in the administration of a trust fund was to give each side of the bargaining table an equal voice in the selection of trustees. Second, it is a recognition of the fact that the administration of a trust fund often gives rise to questions over which representatives of management and representatives of labor may have legitimate differences of opinion that are entirely consistent with their fiduciary duties.

The Court’s extended discussion of the fiduciary responsibilities of employee benefit fund trustees has, in my judgment, little bearing on the question presented in this case. It is undisputed that such trustees are fiduciaries whose primary loyalty must be to the beneficiaries of the funds. The question with which we are confronted here is whether this fiduciary duty is necessarily wholly inconsistent with "representative" status. The Court answers this question in the affirmative by citing traditional principles of trust law and their federal statutory counterparts. This approach leads the Court into error because it ignores the purpose underlying § 302(c)(5) and the carefully designed means chosen by Congress to achieve that purpose.

The trustees of employee benefit funds often exercise broad discretion on policy matters with respect to which management and labor representatives may reasonably have different views. Besides describing the trustees as "representatives," Congress expressly recognized in § 302(c)(5) that such differences would arise, for it provided a procedure to resolve such differences in the event of a deadlock between "the employer and employee groups." Nothing in the statute or the legislative history suggests that differences along labor-management lines are in any way inconsistent with the trustees’ fiduciary duty to the trust beneficiaries. Indeed, it is precisely because management and the union can have legitimate differences with respect to matters of trust administration that the equal representation requirement serves as an effective safeguard. Although the Court seems to ignore this principle in its decision today, it has been recognized in the past by other federal courts{6} and by the commentators.{7}

The trust agreement at issue in this case allows ample room for such labor-management differences. For example, it authorizes the trustees to determine how much money each operator shall contribute to the fund on account of the production of salvaged coal. See App. 98k-98l. That kind of detail could be covered in the basic collective bargaining agreement or left to the trustees for resolution in the light of changing circumstances. When the trustees resolve such an issue, one surely could not charge a management representative with a breach of trust merely for favoring a lower rate than the union representatives suggest.

The Court states that the trustees may never "compromise the clans of the union or the employer with regard to the latter’s contributions" to the fund. Ante at 336. But what if one contributor to a multiemployer fund is unable to pay its bills currently? Do trustees have no power to enter into temporary arrangements or compromises?{8} In making decisions regarding the investment of the assets of the fund, legitimate differences among faithful trustees certainly may arise. Conceivably, management representatives may favor conservative investment policies that are best designed to guarantee the long-range solvency of the fund while labor representatives may favor investments with higher yields that will support a demand for more liberal benefits at the next bargaining session. No written trust agreement can entirely eliminate the need for discretionary decisions by trustees, nor make it impermissible for the trustees to give consideration to the interests that they represent when confronting day-to-day administrative problems.

Some of the issues the trustees must resolve in processing applications for benefits are almost identical to those that arise in grievance proceedings. Rights to pension benefits and to seniority are measured, in part, by the employee’s length of service. Either in the adjustment of a grievance over seniority or in the trustees’ approval or disapproval of a claim for retirement benefits, it may be necessary to resolve a dispute over how to measure the period of employment. Bargaining units tend to develop an unwritten "law of the shop" to resolve such recurring minor disputes; it seems to me equally permissible for trustees to develop a similar common law of their own and for representatives of the two sides of the bargaining table to reflect different points of view as that law develops. The guarantee of impartiality in making decisions of this kind is not a total divorce of every trustee from the interests that he represents; rather, neutrality is guaranteed by having an equal number of "representatives" of the two conflicting interests make the decisions, subject always to their basic obligation as fiduciaries. That this is the scheme of the statute is perfectly clear from its terms.{9}

It is equally clear that this scheme will be compromised if the employer’s selection of his representatives is now to be a subject of collective bargaining. The danger to the legislative scheme is not mitigated by the fact that the employer need not agree with the union’s demand that a particular person be named a management trustee. The employer may consider it less costly to give the union a veto over the selection of the management trustees than to grant a wage increase.{10} Any bargaining over the identity of a trustee inevitably will destroy the precise balance that Congress intended by directing that each side shall select its own representatives. AS JUSTICE BLACKMUN aptly stated while a member of the Court of Appeals for the Eighth Circuit:

[T]o permit the union in any degree to participate in the choice of employer representatives does violence to the statutory standard of equal representation.

Blasie v. Kroger Co., 345 F.2d 58, 72 (1965).{11} In my opinion, the Court today "does violence to the statutory standard" because it misapprehends the safeguard established by Congress in § 302(c)(5), and instead applies to this case principles of trust law and statutory provisions that have little, if any, relevance to the precise question presented.

II

In addition to arguing that there is an inherent inconsistency between the duties of a "trustee" and the duties of a "representative" -- and therefore that the trustees of an employee benefit fund cannot be representatives even though they are so named by Congress -- the Court suggests that, in any event, these representatives are not selected "for the purposes of collective bargaining or the adjustment of grievances" within the meaning of § 8(b)(1)(B), 29 U.S.C. § 158(b)(1)(B).{12} The Court seems to read this provision as a narrow, precisely defined prohibition against interference with the selection of a relatively small number of representatives whose primary function is to represent the employer in collective bargaining negotiations or in the adjustment of grievances. Once again, the Court overlooks the distinction between interfering with the selection process and interfering with the performance of a supervisor’s duties after he has been selected. I believe the Court’s narrow construction was not intended by Congress, and that the statute prohibits union interference with management’s selection of all personnel who have any, however minor, collective bargaining or grievance-adjustment responsibilities. When § 8(b)(1)(B) is read in light of its purpose and legislative history, it is plain that the prohibition applies to the selection of the employer’s representatives in the administration of joint benefit funds.

The Court’s narrow view of § 8(b)(1)(B) has its source in Florida Power & Light Co. v. Electrical Workers, 417 U.S. 790 -- a case that did not involve any direct interference with the employer’s selection of supervisors. In that case, we held that "a union’s discipline of one of its members who is a supervisory employee can constitute a violation of § 8(b)(1)(B) only when that discipline may adversely affect the supervisor’s conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer." Id. at 804-805. Thus, to make out a violation of the statute in such a case, it is not enough to show that the union disciplined a supervisor who had some collective bargaining or grievance-adjustment responsibilities; the discipline itself must relate directly to the supervisor’s performance of those duties. See also American Broadcasting Cos. v. Writers Guild, 437 U.S. 411, 429-430. This direct relationship is an appropriate element of a § 8(b)(1)(B) violation in a case involving union discipline of a supervisor, because such discipline only indirectly affects the "selection" of management representatives, the primary focus of the statute. However, whenever the union conduct has a direct impact on the employer’s selection of a representative, it is not necessary that that conduct bear a direct relationship to the representative’s collective bargaining or grievance-adjustment duties; it is sufficient that the union attempt to coerce or to restrain management in the selection of a representative who will have such duties, even if they will constitute only a small portion of his overall responsibilities.

The legislative history of § 8(b)(1)(B) supports a broad reading of the prohibition against union conduct aimed directly at the actual selection of employer representatives. Section 8(b)(1)(B) was intended to protect the basic management prerogative of selecting foremen and more senior executives who exercise supervisory authority over employees and represent the company in its relationship with employees and their collective bargaining agent. The sparse comments on the provision in the legislative history persuade me that Congress intended the description of "representatives for the purposes of collective bargaining or the adjustment of grievances" to refer to a category of employer representatives whose selection was exclusively a matter of management prerogative.

Thus, Senator Taft explained the provision by using the example of an unpopular foreman who may well have had no specific responsibility for either collective bargaining or adjusting grievances. He said:

This unfair labor practice referred to is not perhaps of tremendous importance, but employees cannot say to their employer, "We do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y." That has been done. It would prevent their saying to the employer, "You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you have to fire him, or we will not go to work."

93 Cong.Rec. 3837 (1947).

A few days later, in a brief discussion of provisions in the bill intended to deal with "strikes invading the prerogatives of management," Senator Ellender identified § 8(b)(1) as covering the coercion of an employer "either in the selection of his bargaining representative or in the selection of a personnel director or foreman, or other supervisory official." 93 Cong.Rec. 4143 (1947). His description of the provision surely supports a broad reading of the prohibition against strikes invading the prerogatives of management, rather than a narrowly restricted reference to a precisely defined category of representatives principally involved in collective bargaining and grievance adjustment.{13}

Therefore, to sustain its position in this case, it seems to me that the Court must establish that no part of the duties of an employee benefit fund trustee involve collective bargaining or grievance-adjustment activities. But even if one gives the narrowest literal reading to the term "collective bargaining," it is clear that employee benefit trust agreements generally, and the trust agreement involved in this case, in particular, authorize the two groups of representatives to engage in collective bargaining activity. The statute broadly defines collective bargaining to encompass any conference with respect to "the negotiation of an agreement, or any question arising thereunder." 29 U.S.C. § 158(d).{14} Such negotiation is manifestly a part of a trustee’s duties.{15}

In addition to the provision delegating to the trustees the power to fix the contribution rate for salvaged coal production, see supra at 345, the agreement in this case provides that the trustee representing the union and the trustee representing the employers shall select the neutral trustee.{16} When the trustee representing the union and the trustee representing the employers select the neutral trustee, they surely are resolving a question arising under the agreement. It is therefore perfectly clear that they are literally engaged in collective bargaining as that term is defined in the Act. Indeed, whenever they confer about various questions that arise in connection with the administration of the trust agreement, they inevitably are engaged in that activity as defined in the statute. The fact that differences between labor and management trustees in the administration of the fund are to be resolved through the neutral umpire procedure established in § 302(c)(5), rather than through strikes or lockouts, does not in any way change the character of the trustees’ function.

In this case, there is no need to decide when, or indeed if ever, the refusal of one trustee to confer with another might constitute a refusal to bargain in good faith, and therefore an unfair labor practice. It may well be true that the fiduciary obligations imposed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., or by other provisions of the LMRA, may make a different remedy appropriate for a violation of the trustee’s statutory duties. In this case, however, we are merely confronted with the question whether the employer’s right to designate its representative to the board of a jointly administered trust fund is a matter for negotiation with the union or is strictly a matter of management prerogative. The language of the statute, its structure, its purpose, and the history of administration of trust funds pursuant to the Act since it was passed all support the conclusion that this is a matter of management prerogative over which the union has no right to strike.{17} In my opinion, the Court of Appeals’ judgment should be affirmed. I therefore respectfully dissent.

1. Section 302(a) of the Labor Management Relations Act, 1947, generally prohibits payments by employers to representatives of their employees. 29 U.S.C. § 186(a). Section 302(c)(5) creates an exception to this general prohibition for payments to certain trust funds established for the sole benefit of employees. 29 U.S.C. § 186(c)(5). The statute contains detailed requirements that trust funds must satisfy to qualify for the exception:

The provisions of this section shall not be applicable . . . with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the District Court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities.

29 U.S. C § 186(c)(5).

2. The Court states that

close examination of the latter provision [§ 8(b)(1)(B)] makes it even clearer that it does not limit the freedom of a union to try to induce an employer to select a particular § 302(C)(5) trustee.

Ante at 334.

3. In addition to containing numerous specific references to John L. Lewis and the United Mine Workers central fund, see, e.g., S.Rep. No. 105, 80th Cong., 1st Sess., 52 (1947), reprinted in 1 Legislative History of the Labor Management Relations Act, 1947, 458 (Leg.Hist. LMRA); 93 Cong.Rec. 3564-3569, A1910 (1947); id. at 4678, 4746-478, 5015; the legislative history is replete with general expressions of concern about union mismanagement and misuse of employee benefit funds. See, e.g., S.Rep. No. 105, 80th Cong., 1st Sess., 52 (1947), 1 Leg.Hist. LMRA 458; 93 Cog. Rec. 3569 (1947); id. at 4678, 4746-4747, 4752-4753. The equal representation requirement was a direct response to these concerns. As Senator Ball explained:

In other words, when the union has complete control of this fund, when there is no detailed provision in the agreement creating the fund respecting the benefits which are to go to employees, the union and its leadership will always come first in the administration of the fund, and the benefits to which the employees supposedly are entitled will come second.

Id. at 4753. See also S.Rep. No. 105, 80th Cong., 1st Sess., 52 (1947), 1 Leg.Hist. LMRA 458; 93 Cong.Rec. 3564 (1947); id. at 4678, 4746.

4. Indeed, opponents of the bill that became § 302 argued that many employers wanted absolutely nothing to do with the administration of employee benefit funds. See, e.g., id. at 4749, 4751-4752.

5. However, the fact that Congress used the term "representative" rather than "trustee" is significant in light of the Court’s reliance on the principle that

[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.

Ante at 329.

6. In Associated Contractors, Inc. v. Laborers International Union, 559 F.2d 222 (CA3 1977), the decision on which the Court of Appeals relied in this case, the court recognized that the inevitable conflict between the views of labor and the views of management with respect to the administration of employee benefit funds was an essential feature of the statutory protection designed by Congress:

The starting point for analysis must be the candid recognition that the relationship between employer and employee trustees of an employee benefit trust fund is quasi-adversarial in nature. Naturally, the trustees of such a trust fund function as fiduciaries for the funds’ beneficiaries, but they also serve as representatives of the parties who appoint them. Insofar as it is consistent with their fiduciary obligations, employer trustees are expected to advance the interests of the employer, while employee trustees are expected to further the concerns of the union in the ongoing collective bargaining process between them. . . . The trustees’ efforts to improve the position of the parties they represent are completely legitimate -- indeed, they are essential to the operation of section 302(c)(5). Congress envisioned the conflict of views of employer and employee as a distilling process which would provide safeguards against trust fund corruption.

Id. at 227-228 (citations omitted). See also Ader v. Hughes, 570 F.2d 303, 308 (CA10 1978); Lamb v. Carey, 162 U.S.App.D.C. 247, 251, 498 F.2d 789, 793 (1974), cert. denied sub nom. Carey v. Davis, 419 U.S. 869; Toensing v. Brown, 374 F.Supp.191, 195 (ND Cal.1974), aff’d, 528 F.2d 69 (CA9 1975).

7. One commentator described the statutory scheme as follows:

The governing trust agreement separately entered into by the parties to the collective bargaining agreement may specify general categories of benefits, but it normally delegates to the trustees broad discretion to determine specific benefit levels and eligibility requirements, to modify the benefit plan, and to administer the plan.

Exercise of this discretionary power may involve important questions of policy or judgment on which union and employer trutees may well differ. This potential divergence of interests was the underlying reason for the statutory requirement of equal representation. Employer representatives were intended to act as a check on the untrammeled discretion of the union. The possibility of adverse interests leading to dispute is recognized by the statutory provision for breaking deadlocks through appointment of an impartial umpire.

Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L.Rev. 911, 922-923 (1970) (footnote omitted). See also Goetz, Employee Benefit Trusts Under Section 302 of Labor Management Relations Act, 59 Nw.U.L.Rev. 719, 748 (1965).

8. The trust agreement in this record suggests the contrary:

The Trustees shall take such action as they deem appropriate to collect any such delinquencies, and shall advise the International Union and the appropriate Districts and Locals of the Union, on at least a monthly basis, of such delinquencies, as long as such delinquencies continue.

App. 98p.

9. As noted above, the word "trustee" does not appear in § 302(c) of the LMRA. That section does require that

employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute. . . .

29 U.S.C. § 186(c)(5)(B). It seems to me that this statutory language is quite inconsistent with the Court’s view that the trustees are essentially fungible once they have been appointed.

10. Because the equal representation requirement primarily benefits the fund’s beneficiaries, rather than the employer, it is unlikely that an employer would be willing to risk a strike or other economic pressure on the part of the union in order to preserve its right to choose its own representatives to the employee benefit fund. As the legislative history suggests, seen. 4, supra, many employers probably view the equal representation requirement as an unwelcome burden, at best, rather than as an essential right worth defending at the risk of extended labor strife. Cf. Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 290, 314 (1948) ("The provisions dealing with employer contributions to union trust funds set the employer up as watchdog, although it has no interest in the fund").

11. See also Associated Contractors, Inc., 559 F.2d at 227; Quad City Builders Assn. v. Tri City Bricklayers Union, 431 F.2d 999, 1003 (CA8 1970) .

12. Section 8(b) of the National Labor Relations Act provides, in pertinent part:

It shall be an unfair labor practice for a labor organization or its agents --

(1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. . . .

29 U.S.C. § 158(b)(1)(B).

13. Senator Ellender’s full statement on this point reads as follows:

I shall now deal briefly with strikes invading the prerogatives of management.

The bill prevents a union from dictating to an employer on the question of bargaining with union representatives through an employer association. The bill, in subsection 8(b)(1) on page 14, makes it an unfair labor practice for a union to attempt to coerce an employer either in the selection of his bargaining representative or in the selection of a personnel director or foreman, or other supervisory official. Senators who heard me discuss the issue early in the afternoon will recall that quite a few unions forced employers to change foremen. They have been taking it upon themselves to say that management should not appoint any representative who is too strict with the membership of the union. This amendment seeks to prescribe a remedy in order to prevent such interferences.

93 Cong.Rec. 4143 (1947).

14. In pertinent part, § 8(d) of the National Labor Relations Act reads:

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. . . .

29 U.S.C. § 158(d).

15. The wall between collective bargaining activities and the duties of welfare fund trustees on which the Court’s opinion is based simply does not exist. As one commentator has observed:

[T]he subjects about which the trustees confer are within the scope of mandatory collective bargaining under the Act.

* * * *

Despite the unusual setting, the deliberations of trustees of these funds may be looked upon as an extension of the collective bargaining process within contractual and statutory limits.

Goetz, supra,n. 7, 55 Cornell L.Rev. at 922, 923. See also Toensing v. Brown, 374 F.Supp. at 195-196.

16. The agreement provides:

Section(e) Responsibilities and Duties of Trustees

(1) Each Trust shall be administered by a Board of three Trustees, one of whom shall be appointed by the Employers; one of whom shall be appointed by the Union; and one of whom shall be a neutral party, selected by the other two.

App. 98n (emphasis added).

17. This conclusion is in no way inconsistent with the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 94 Stat. 1209, the Court’s statement to the contrary notwithstanding. See ante at 338-339, n. 22. While Congress sought, in that Act, to enhance the stability of multiemployer plans, it did not address the question presented in this case, nor did it prohibit the withdrawal of employers from such plans. Rather, Congress provided that withdrawing employers must fund a proportional share of a plan’s unfunded vested benefits. MPPAA § 104, 94 Stat. 1217. Thus, the general expressions of concern in the legislative history of this Act must be read in light of the action Congress actually took to allay those concerns.