NATIONAL CENTER
for the Study of Collective Bargaining in 
Higher Education and the Professions
E-Note

  
 
   
 
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February 2016
The National Center E-Note is a monthly electronic newsletter containing research and analysis relevant to collective bargaining in higher education and the professions. 

February 2016 Edition Contents:


10.    Loyola University Chicago: SEIU Seeks to Represent ESL Faculty Unit

11.    DePaul University: SEIU and AFT Compete to Organize Adjunct Faculty


    Register Now for the National Center's 2016 Conference 
Our Future is Now in Higher Education

Register now for the National Center's 2016 annual national conference. It will be taking place at the CUNY Graduate Center in New York City.  
 
The conference is being underwritten by a grant from TIAA-CREF with additional support from Segal/Sibson.  
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Duke University: SEIU Files Petition to Represent a Non-Tenure Track Faculty Unit at a Private Institution in a "Right to Work" State
Duke University, NLRB Case No. 10-RC-169472

On February 11, 2016, SEIU filed a petition with the National Labor Relations Board seeking to represent a bargaining unit of approximately 400 non-tenure track faculty at Duke University. 

The petition represents the first recent unionization effort by faculty at a private sector institution in a "right to work" state. The DOL Bureau of Labor Statistics reported in late January 2016 that North Carolina has one of lowest rates of union density in the country. 
 
In the National Center's 2012 Directory of U.S. Faculty Contracts and Bargaining Agents in Institutions of Higher Education, we identified only two private institutions with faculty collective bargaining in a southern State: Saint Leo University, with a bargaining unit of 96 and Edward Waters College with a bargaining unit of 50. Both schools are located in Florida. 

The following is the proposed unit set forth in the representation petition concerning Duke University non-tenure track faculty:

All full-time and part-time non-tenure-track faculty who teach undergraduate or graduate-level credit-earning courses or labs (including the following titles: Adjunct Professors, Lecturing Fellows, Lecturers, Consulting Professors, Consulting Associates, Clinical Professors, Scholars in Residence, Instructors, Research Professors, and Professors of the Practice) employed by Duke University in academic programs housed at its campus in Durham, North Carolina, including the Trinity College of Arts & Sciences, the Graduate School, and the Center for Documentary Studies. Excluding: All tenured faculty, tenure-track faculty, distinguished service faculty, research faculty who are not teaching credit-bearing courses, and emeritus faculty; all faculty at locations other than the facilities described above; all faculty teaching online courses only; employees who do not teach undergraduate or graduate-level credit-earning courses or labs; faculty at the Duke Divinity School, Duke Kunshan University, Duke-NUS Medical School, Fuqua School of Business, Nicholas School of the Environment, Pratt School of Engineering, Sanford School of Public Policy, Duke Law School, Duke University School of Medicine, Duke University School of Nursing, and Duke University Health System; faculty paid by entities other than Duke University(including governments and organizations); all administrators (including deans, directors, provosts, and chairs who may have teaching assignments); athletic coaches; all other employees employed by Duke University (including those who teach a class or course and are separately compensated for such teaching); curators; and managers, confidential employees, office clerical employees, professional employees, guards, and supervisors as defined by the Act.  
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University of Minnesota: SEIU Files for Combined Bargaining Unit
University of Minnesota, Case No. BMS Case No. 16PCE0644

On January 20, 2016, SEIU filed a representation petition seeking to represent a bargaining unit of approximately 2,500 faculty at the University of Minnesota.  Unlike the National Labor Relations Act, and some public sector collective bargaining laws, Minnesota's Public Employment Labor Relations Act defines the contours of faculty bargaining units at the University of Minnesota. The applicable Minnesota provision concerning the Twin Cities campuses states:

"The Twin Cities Instructional Unit consists of the positions of all instructional employees with the rank of professor, associate professor, assistant professor, including research associate or instructor, including research fellow, located on the Twin Cities campuses."
 
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State College of Florida: UFF Files to Represent Full-Time Unit
State College of Florida, Florida PERC Case No. 2016-004

On February 3, 2016, the United Faculty of Florida filed a representation petition with the Florida Public Employment Relations Commission seeking to represent a proposed bargaining unit that includes full-time faculty and professionals at the State College of Florida.  Temporary full-time, part-time, and adjunct faculty are excluded from the proposed unit.  The petition states that the approximate size of the unit is 40 employees but the petition was submitted with showing of interest statements from 81 employees in the proposed unit. 

The following is the description of the proposed unit set forth in the representation petition:

Included: All full-time teaching faculty, librarians, counselors, professor/directors, and professor/program managers.

Excluded: President of the College; all administrative, professional, and non-instructional positions; department chairs; temporary full-time faculty; and part-time and adjunct faculty.    
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Boston University: SEIU Files to Represent a Unit of Librarians
Boston University, NLRB Case No. 01-RC-169125

On February 4, 2016, SEIU filed a representation petition with NLRB Region 1 seeking to represent a proposed bargaining unit of approximately 12 librarians at Boston University.

The following is the description of the proposed unit in the representation petition:

Included: All regular professional, non-supervisory Librarians in the ranks of Librarian I, Librarian II, and Librarian III employed at the Pappas Law Library, the Frederick S. Pardee Management Library, the School of Theology Library, and the Stone Science Library at the Charles River campus.

Excluded: Guards, watchmen, supervisors, other professional employees, confidential employees, all technical and clerical as defined by the act, and temporary, seasonal, casual and student employees. 
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Cayuga Comm. Coll.: NY PERB Rejects a Combined Faculty Unit
Cayuga Community College and County of Cayuga, NYPERB Case No. C-6254

On January 25, 2016, the New York State Public Employment Relations Board (PERB) issued an important unit composition decision concerning adjunct faculty at Cayuga Community College.

In its decision, the PERB Board affirmed a decision by an Administrative Law Judge (ALJ) that the approximate 200 adjunct faculty at the community college should be placed in a new separate unit rather than added to the preexisting unit of 60 full-time faculty at the college.  The decision stems from a representation petition filed on April 22, 2014 by the Cayuga Community College Part-Time Faculty Association, which is represented by the New York State United Teachers, AFT-NEA.

The representation petition sought certification of an exclusive bargaining representative for a unit of only adjunct faculty at the college.  In response to the petition, the joint employer, Cayuga Community College and County of Cayuga, argued that the adjunct faculty should be added to the full-time faculty because the faculty groups shared a community of interests.  In 2015, the ALJ rejected the joint employer's argument and concluded that the adjunct faculty belong in a separate unit because they do not share a strong community of interests with the full-time faculty, and because there were significant conflicts between the two faculty groups.

In affirming the ALJ's decision, the PERB Board found "that the fundamentally different institutional roles played by the full-time faculty and the adjunct faculty are sufficient to create a conflict of interest precluding placing the adjunct faculty in the same bargaining unit as the full-time faculty."   It noted that adding the adjunct faculty to the full-time unit "would effectively drown out the voice of the full-time faculty" because they would be outnumbered by the approximate 200 adjunct faculty members. 

As part of its analysis, the PERB Board quoted extensively from its decision in Board of Higher Education of the City of New York, 2 PERB 3056 (1969):

"{A]s the nontenured instructional staff comprises a large number of persons who hold other positions from which they receive substantial fringe benefits and to which they owe their primary professional loyalty, their interests and ambitions relative to the City University are different from those of faculty-rank-status personnel.

"The faculty-rank-status personnel are the heart of the university. It might be compromising to their independence and to the very stability of the university for nontenured instructional personnel, in numbers almost equal to that of faculty-rank-status personnel, to be included in the unit of faculty-rank-status personnel. 
  
"We believe that the differences between faculty-rank-status employees and nonannual lecturers-whether they teach more or less than six hours a week are of sufficient magnitude to preclude their being placed in the same negotiating unit. Faculty-rank-status personnel are all permanent staff in that they are tenured or hold positions leading to tenure.  Nonannual lecturers, on the other hand, are appointed and reappointed for only one semester at a time.   Faculty-rank-status employees receive many and various fringe benefits, the cost and value of which are considerable.  Nonannual lecturers, on the other hand, do not receive these fringe benefits.     

"Faculty-rank-status personnel exercise important responsibilities regarding the operation of the university by their service on departmental committees.  Nonannual lecturers, on the other hand, rarely serve on departmental committees. Faculty-rank-status personnel have their primary personal commitment to the City University; nonannual lecturers, on the other hand, are likely to be full-time high school teachers working at the university at night, or businessmen, accountants, lawyers, or graduate students whose primary professional commitments are elsewhere."

Lastly, the PERB Board in Cayuga Community College and County of Cayuga concluded that separate faculty bargaining units were warranted at the community college because neither faculty group wanted a combined unit, the full-time unit had previously rejected an opportunity to organize the adjunct faculty based on a perceived conflict, and the fact that the unit description set forth in contract for the existing faculty unit is limited to full-time academic staff.

The next step in the PERB administrative process will be a determination of whether the petitioning union should be certified as the exclusive representative of the new adjunct faculty bargaining unit based on a demonstration of majority status through a card check or a representation election.
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Loyola University Chicago: Adjunct Faculty Vote in Favor of Unionization
Loyola University Chicago, NLRB Case Number: 13-RC-164618

On January 27, 2016, NLRB Region 13 tallied the mail ballots in a representation election stemming from a petition filed by SEIU concerning the following unit of approximately 326 contingent faculty at Loyola University Chicago:

Unit Description

Including: All full-time and part-time graduate and undergraduate non-tenure-track faculty (Adjuncts, Adjunct Professors, Adjunct Instructors, Adjunct Lecturers, Accompanists, Instructors, Lecturers, Lab Instructors, Senior Lecturers, and Visiting Faculty) employed by Loyola University Chicago in academic programs housed at its Main campus, 1032 W. Sheridan Rd, Chicago, IL 60660, including the College of Arts & Sciences, the English Language Learning Program, and the Graduate School.

Excluding: All tenured faculty, tenure-track faculty, distinguished service faculty, research faculty who are not teaching credit bearing courses, and emeritus faculty; all faculty in non-degree granting programs, unless expressly included above; all faculty teaching in programs housed or facilities and addresses other than those described above; all faculty teaching online courses only; employees who do not teach undergraduate or graduate level credit-earning courses or labs, unless expressly included above; the Water Tower Campus, the Health Sciences Campus, the Retreat and Ecology Campus, the Rome Campus, the Beijing Campus, the Vietnam Center; the School of Continuing and Professional Studies, the Marcella Niehoff School of Nursing, the Stritch School of Medicine, the Quinlan School of Business, the School of Education, the Corboy Law Center, the School of Social Work, the School of Communications, the Institute of Pastoral Studies, the Arrupe College, the Loyola University Museum of Art (LUMA), faculty paid by entities other than Loyola University Chicago (including governments and organizations); all administrators (including deans, directors, trustees, provosts, and chairs who may have teaching assignments); graduate students; athletic coaches; academic advisors, including those with teaching assignments;-all other employees employed by the University, including those who teach a class or course and are separately compensated for such teaching; and managers, confidential employees, office clerical employees, professional employees, guards and supervisors as defined in the Act.
 
Election Results

Of the 224 ballots counted, 142 faculty members voted in favor of being represented by SEIU, 82 voted against, and 12 ballots were challenged.
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Wells College: Adjunct Faculty Vote to Unionize with SEIU
Wells College, NLRB Case No. 03-RC-166366

On January 29, 2016, NLRB Region 3 tallied the ballots in a representation election based on a petition filed by SEIU seeking to represent a bargaining unit of approximately 35 contingent faculty at Wells College in New York.  The following is a description of the at-issue bargaining unit:

Unit Description

Included: All non-tenured and non-tenure track faculty, including but not limited to those with the titles Lecturer, Visiting Lecturer, Visiting Assistant Professor, and Instructor who have taught at least one-credit hour since the beginning of the fall 2015 semester.

Excluded: Managerial Employees (including Head Coaches, Assistant Coaches (except to the extent they teach and then only with respect to their teaching duties and not other jobs with the College) and Head Athletic Trainers), confidential employees, guards, and supervisors as defined by the Act and full time staff (except to the extent they teach and then only with respect to their teaching duties and not with respect to their full time positions with the College), tenured and tenure track faculty, deans, (including associate and assistant deans), provosts, and department chairs and all other employees.
 
 Election Results

Of the 27 ballots counted, 21 faculty members voted in favor of union representation, 6 voted against, and 5 ballots were challenged.   
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USC: Adjunct Faculty Vote to Unionize with SEIU in 2 of 3 Elections
University of Southern California
NLRB Case Nos.
31-RC-164864, 31-RC-164868 31-RC-164871

On February 2, 2016, NLRB Region 31 tallied the ballots in three representation elections involving adjunct faculty at the University of Southern California.  The elections were conducted based upon representation petitions filed by SEIU seeking to represent three separate faculty units.  In 2 of 3 elections, the faculty voted in favor of being represented by SEIU. 

The following are the descriptions of the at-issue units and the election results:

Case No. 31-RC-164864

Unit Description


Included: All full-time and part-time non-tenure track faculty who are employed by
the University of Southern California, including those who also hold a position as a Program Director or Coordinator, and who teach at least one credit-earning class, section, lesson, or lab within the academic unit known as the USC Dana and David Dornsife College of Letters, Arts and Sciences at the Employer's instructional facilities at the University Park Campus.

Excluded: All tenure or tenure-track faculty; all visiting faculty; all faculty teaching
at an academic unit other than the USC Dana and David Dornsife College of Letters, Arts and Sciences; all faculty regularly employed by the Employer at any location other than the University Park Campus; all faculty teaching online courses exclusively (regardless of location); all emeritus faculty; all registrars and librarians; all Athletic Department coaches; all graduate students; all post-doctoral scholars; all lab assistants, graduate assistants, clinical fellows, teaching assistants, and research assistants; all mentors who do not have teaching responsibilities;,all department chairs, regardless of their faculty status; the President of the University; the Provost; all Associate Provosts, Vice Provosts, and Vice Presidents; all Deans, Vice Deans, Associate Deans and Assistant Deans, regardless of their faculty status; all non-faculty employees; all volunteers; all other represented employees; and all managers, supervisors, and guards as defined in the Act.

Election Results: Non-Tenure Track Faculty Vote Down Unionization

In a bargaining unit composed of approximately 337 faculty members, 127 voted against representation, and 113 voted in favor with an additional 13 ballots challenged.
   

Case No. 31-RC-164868

Unit Description

Included: All full-time and part-time non-tenure track faculty who are employed by
the University of Southern California and who teach at least one credit-earning class, section, lesson, or lab within the academic unit known as the USC Roski School of Art and Design at the Employer's instructional facilities at the University Park Campus or at the Graduate Fine Arts Building, located at 3001 South Flower Street, Los Angeles, California 90007.

Excluded: All tenured or tenure-track faculty; all faculty whose primary teaching
responsibilities are within an academic unit other than the USC Roski School of Art and Design; all faculty whose primary area of practice and/or scholarship is outside the following areas: ceramics, critical studies, design, intermedia, painting and drawing, photography, printmaking, or sculpture; all faculty regularly employed by the Employer at any location other than the University Park Campus or the Graduate Fine Arts Building; all faculty teaching online courses exclusively (regardless of location); all emeritus faculty; all registrars and librarians; all Athletic Department coaches; all graduate students; all post-doctoral scholars; all lab assistants, graduate assistants, clinical fellows, teaching assistants, and research assistants; all mentors who do not have teaching responsibilities; all department chairs, regardless of their faculty status; all administrators, including those who have teaching responsibilities; the President of the University; the Provost; all Associate Provosts, Vice Provosts, and Vice Presidents; all Deans, Associate Deans and Assistant Deans, regardless of their faculty status; all non-faculty employees; all volunteers; all other represented employees; and all managers, supervisors, and guards and defined in the Act.

Election Results: Non-Tenure Track Faculty Vote in Favor of Unionization:

In a bargaining unit composed of approximately 45 faculty members, 31 voted in favor of representation, and 6 voted against with an additional 2 ballots challenged.   

A Challenge by USC Expected

In a letter dated February 2, 2016, USC Provost Michael W. Quick stated that USC intended to challenge the earlier decision by the NLRB Region 31 Director who rejected the university's argument that the adjunct faculty in Cases 31-RC-164864 and 31-RC-164868 were managerial, and therefore exempt from associational rights granted by the National Labor Relations Act.

Case No. 31-RC-164871

Unit Description

Included: All full-time and part-time lecturers who are employed by the University of Southern California and who teach at least one class, section, lesson, or lab within the program known as the USC International Academy at the Employer's instructional facilities at the University Park Campus.

Excluded: All tenured or tenure-track faculty; all visiting faculty; all faculty teaching at an academic unit other than the USC International Academy; all faculty regularly employed by the Employer at any location other than the University Park Campus; all faculty teaching online courses exclusively (regardless of location); all emeritus faculty; all registrars and librarians; all Athletic Department coaches; all graduate students; all post-doctoral scholars; all lab assistants, graduate assistants, clinical fellows, teaching assistants, and research assistants; all mentors who do not have teaching responsibilities; all department chairs; all administrators, including those who have teaching responsibilities; the President of the University; the Provost; all Associate Provosts, Vice Provosts, and Vice Presidents; all Deans, Vice Deans, Associate Deans and Assistant Deans, regardless of their faculty status; all non-faculty employees; all volunteers; and all managers, supervisors, and guards as defined in the Act.
 
Election Results: Lecturers Vote in Favor of Unionization:

In a bargaining unit composed of approximately 44 lecturers, 32 voted in favor of representation, and 3 voted against. 
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Loyola University Chicago: SEIU Seeks to Represent ESL Faculty Unit
Loyola University Chicago, NLRB Case No. 13-RC-168082

On January 21, 2016, SEIU filed a representation petition seeking to represent a separate unit of approximately 12 full-time and part-time ESL faculty at Loyola University Chicago.  The following is a description of the at-issue unit in SEIU's representation petition:

Included: All full-time and part-time English Language Learning Program I ESL faculty and team members (adjunct instructors, instructors, ESL professors, ESL teachers, and ESL tutors) employed by Loyola University Chicago in the English Language Learning Program at its Main campus, 1032 W Sheridan Rd, Chicago, IL 60660.

Excluded: All tenured faculty and tenure-track faculty; all faculty only teaching in program or facilities other than those described above; all administrators, all other employees employed by the University, including those who teach a class or course and are separately compensated for such teaching; all managers, confidential employees, office clerical employees, professional employees, guards and supervisors as defined in the Act.

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DePaul University:  SEIU and AFT Compete to Organize Adjunct Faculty
According to an article in the independent student newspaper The DePaulia, SEIU and the AFT are engaged in competitive campaigns to organize the adjunct faculty at DePaul University in Chicago.  Active competition among unions to represent adjunct faculty at a particular private sector institution of higher education has been rare over the past few years.  
 
In response to the organizing effort, the DePaul University Office of Academic Affairs created a website that includes a letter from the Provost Martin denBoer that provides instructions to the faculty on how to seek to revoke authorization cards provided to SEIU. 

In an editorial published in Inside Higher Ed on January 28, 2016, DePaul University President Rev. Dennis H. Holtschneider criticized the NLRB's Pacific Lutheran University decision concerning that agency asserting jurisdiction over religiously affiliated colleges and universities.  President Holtschneider's editorial strongly suggests that DePaul University will resist, on jurisdictional grounds, a representation petition filed by AFT or SEIU with the NLRB. 

It is unclear, however, whether the university would be amenable to negotiating a procedural alternative to the NLRB asserting jurisdiction. Under a negotiated alternative procedure, the university can grant voluntary recognition to a union following a showing of majority status by one of the competing unions. A negotiated non-NLRB procedure can include card check, neutrality, and the resolution of disputes by a third party.  Another procedural option that avoids NLRB jurisdiction but respects the the right of faculty to unionize would be an agreement for a representational election to be conducted by a neutral organization such as the American Arbitration Association. 
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Carroll College: NLRB Regional Director Declines to Assert Jurisdiction
Carroll College, NLRB Case 19-RC-165133  
 
On January 18, 2016, NLRB Regional 19 Director Ronald K. Hooks issued a decision declining to assert jurisdiction over a petition filed by the Associated Faculty of Carroll College, MEA-MFT, NEA, AFT, AFL-CIO, seeking to represent a unit composed of tenured and tenure-track teaching employed at Carroll College in Helena, Montana.  The college is a small Catholic liberal arts college with approximately 1,500 students and 97 faculty members. 

Applying the standards articulated in Pacific Lutheran University, 361 NLRB No. 157 (2014), Regional Director Hooks found that the college holds itself as providing a religious educational environment.  With respect to the second prong of those standards, he found that it holds the at-issue faculty as performing a specific role in creating and maintaining that environment based solely on a provision in a handbook that states that faculty members can be terminated for the "continued serious disrespect or disregard for the Catholic character or mission" of the school.  The record did not include any other evidence that the school holds the faculty out as having a specific role in maintaining a religious educational environment.

In the alternative, Region Director Hooks concluded that the evidence established that the at-issue faculty members at the small college were managerial under the standards delineated in Pacific Lutheran University.  All 97 faculty members are required to participate in the college's faculty assembly and related committees, the primary decision-making mechanism.  Regional Director Hooks concluded that the faculty were managerial because they exercise decision-making authority over academic programs, academic policies and personal policy and decisions.  
 
 
On February 2, 2016, Associated Faculty of Carroll College filed a Request for Review of the Regional Director's Decision with the NLRB.  The Request for Review argues that the handbook reference relied on by Regional Director Hooks is insufficient for a finding the that the NLRB should decline jurisdiction.  It further argues that the faculty are not managerial because the College's Board, President, and other executives actually manage and govern the institutions with the faculty presenting ideas and recommendations. 
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Green River Adjunct Faculty Member Retaliation Complaint Can Proceed
On January 6, 2016, Washington Public Employment Relations Commission Unfair Labor Practice Manager Jessica J. Bradley issued a procedural order permitting Green River College adjunct faculty member Keith Hoeller to proceed with his amended retaliation complaint against the college.  Hoeller is an adjunct faculty activist and the editor of a book entitled Equality for Contingent Faculty: Overcoming the Two-Tier System (2014).

Hoeller's amended complaint alleges that that the college engaged in unlawful discrimination against him for his protected union activities by: assigning faculty hostile to him to observe and evaluate his teaching; modifying the description of a tenure-track position to exclude him from qualifying for it; insisting that he be evaluated during a period that he was ill; failing to offer him teaching assignments for the summer 2015 academic quarter; and modifying the course offering schedule to preclude him for teaching more than 2 courses during the Fall 2015 academic quarter.  Other aspects of Hoeller's amended complaint against the college and the Green River United Faculty Coalition were dismissed.

According to a recent media report, Green River College and its faculty union have ratified a successor agreement.
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The Journal of Collective Bargaining in the Academy

Journal of CBA Logo  
  
  
  
  
  
  
  
  
  
The National Center's Journal of Collective Bargaining in the Academy (JCBA) is our peer review on-line journal.  It is co-edited by Jeffrey Cross, Associate Vice President for Academic Affairs, Eastern Illinois University, and Steve Hicks, Associate Professor of English, Lock Haven University of Pennsylvania.  The journal is hosted by the institutional repository of Booth Library, Eastern Illinois University.

The purposes of the journal are to advance research and scholarly thought related to academic collective bargaining, and to make relevant and pragmatic peer-reviewed research readily accessible to practitioners and to scholars in the field.  Submissions are encouraged from a wide community of scholars and practitioners including, but not limited to, college and university professors, graduate students, administrators, union leaders, and others with an interest in collective bargaining in the academy. 
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