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Summary of NLRB Decisions for the Week of August 8-12, 2011

The Weekly Summary is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202-273-1991.

 

Summarized Board Decisions

Ace Car & Limousine Service, Inc.(29-RD-01140; 357 NLRB No. 43) Brooklyn, NY, August 8, 2011.

The Board majority (Chairman Liebman and Member Hayes), applying long-established precedent, affirmed the Regional Director’s decision that a collective-bargaining agreement containing an unlawful union-security provision did not bar the petition.  In the Decision on Review and Order, the Board agreed with the Regional Director that the agreement was not preserved as a bar by a “savings clause” in the introductory phrase of the union-security provision: “in the manner and to the extent permitted by law.”  The Board majority emphasized that the Board has rejected the argument that the presence of a “savings clause” creates an exception to Board precedent that a contract containing a facially unlawful union-security provision cannot serve as bar to an election.  Member Becker, dissenting, would have found that the specific savings language is sufficient to remove this case from the scope of Board precedent limiting unlawful union-security provisions, and therefore the contract is valid and bars the petition.  He also saw no reason why the law limiting union-security provisions should be enforced through an exception to the contract bar doctrine, which serves unrelated purposes.

Chairman Liebman and Members Becker and Hayes participated.

***

Avista Corporation(19-CA-33103; 357 NLRB No. 41) Spokane, WA, August 9, 2011.

Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case on the ground that the respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative.

Charge filed by International Brotherhood of Electrical Workers Local 77, AFL-CIO. Chairman Liebman and Members Becker and Hayes participated.

***

Erie Brush & Manufacturing Corporation(13-CA-43530; 357 NLRB No. 46) Chicago, IL, August 9, 2011.

The Board adopted the administrative law judge’s findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet and bargain with the Union from May 10, 2006 through June 21, 2006, and by withdrawing recognition from the Union based on an employee petition. While negotiating for a first contract, the parties mutually stated that they had reached impasse on the issues of union security and arbitration. After the Union requested resumed negotiations on economic issues, the Respondent sought assurances that the Union had changed position on union security before the Respondent would return to the bargaining table.  The majority found that the Respondent had not established that the parties reached a good-faith impasse or, even if there were impasse on the outstanding issues, that it led to a breakdown in the overall negotiations. Further, even if they had reached impasse, after the Union negotiator assured the Respondent that he would continue to discuss union security and arbitration with the Union and that he thought he had room for movement on the arbitration issue, any impasse was broken and the Respondent was obligated to resume bargaining. Dissenting, Member Hayes found that the Union’s repeated and unequivocal statements that there would be no contract without union security and that the parties were at impasse demonstrated that the parties were indeed at impasse, and the Respondent was entitled to take the Union’s assertions at face value.  He found that the Union failed to give the Respondent sufficient indication of changed circumstances to obligate the Respondent to return to the bargaining table. He also found that the petition was not tainted and that the Respondent did not violate the Act by withdrawing recognition.

Charges filed by Service Employees International Union, Local 1. Administrative Law Judge Arthur J. Amchan issued his decision on January 26, 2007.  Chairman Liebman and Members Pearce and Hayes participated. Member Becker recused himself and did not participate.

*** 

Presidential Maintenance, LLC(05-CA-36428 et al.; 357 NLRB No. 42) Richmond, VA, August 9, 2011. 

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint and ordered the Respondent to make whole the unlawfully discharged employees and offer them reinstatement to their former jobs.

Charges filed by individuals. Chairman Liebman and Members Becker and Pearce participated.

***

Mezonos Maven Bakery, Inc.(29-CA-25476; 357 NLRB No. 47) Brooklyn, NY, August 9, 2011.

In a compliance-stage proceeding, a three-member Board panel unanimously held that under the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board lacks remedial authority to award backpay to undocumented immigrant workers.  In Hoffman, the Court so held where the undocumented discriminatee had violated the Immigration Reform and Control Act of 1986 (IRCA) by presenting his employer with fraudulent work-authorization documents.  In Mezonos, by contrast, the employer was the IRCA violator.  Based on that difference, the administrative law judge distinguished Hoffman and recommended awarding the discriminatees backpay.  The Board reversed, concluding that the language and policy rationale in Hoffman demonstrated the Court’s intention to foreclose backpay awards to undocumented immigrant workers regardless of which party—worker or employer—violated IRCA.

In a concurring opinion, Chairman Liebman and Member Pearce reviewed the “undesirable consequences” of Hoffman “as a matter of federal labor and immigration policy,” and they indicated a willingness “to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”  Member Hayes did not join his colleagues in their critique of Hoffman, stating that the Board’s role is to enforce controlling Supreme Court precedent “without critical comment” and to leave it to Congress “to determine whether to alter the law in response to the Court’s decision.”  He also declined to join his colleagues’ remarks concerning possible alternative remedies.

Administrative Law Judge Steven Davis issued his decision on November 1, 2006.  The charge was filed by the Puerto Rican Legal Defense and Education Fund.  Chairman Liebman and Members Pearce and Hayes participated; Member Becker was recused.

***

International Brotherhood of Electrical Workers, Local Union No. 34, AFL-CIO, CLC(13-CB-18961 et al.; 357 NLRB No. 45) Chicago, IL, August 10, 2011.

The Board adopted the Administrative Law Judge’s finding that the Respondent International and Local Unions violated their duty of good faith, and thereby Sec. 8(b)(1)(A), by maintaining a requirement that non-member Beckobjectors renew their objections annually.  The Board found that the case is governed by L-3 Communications, 355 NLRB No. 174(2010), and Colt’s Manufacturing Co., 356 NLRB No. 164 (2011), and that most of the Unions’ arguments in defense of the requirement were rejected in L-3.  It rejected the additional arguments that the requirement ensures that the Unions will neither give Beck dues reductions to represented employees who no longer want them nor over-refund objectors who cease to be covered by a union-security clause during the year.  The Board did not adopt the Administrative Law Judge’s dismissal of the complaint on his own initiative with respect to the International Union, finding that the International has a duty of fair representation to a Beck objector even where it is not a signatory to the collective-bargaining agreement covering the objector, where the International was primarily responsible for creating and implementing the Unions’ Beck procedure.  Member Hayes, citing his concurrence in L-3 and his dissent in Colt’s, concurred but would have found that the annual renewal requirement violated objectors’ statutory right to refrain from assisting a union and therefore required a stricter standard of review than that imposed under the duty of fair representation.  Member Hayes would also have found that the requirement was discriminatory.  Member Pearce, citing his dissent in L-3 and his concurrence in Colt’s, dissented and would have found the requirement lawful. 

Administrative Law Judge William G. Kocol issued his decision on December 19, 2008. The charges were filed by employee John Lugo.  Chairman Liebman and Members Becker, Pearce, and Hayes participated.

***

The Continental Group, Inc.(12-CA-24045 et al.; 357 NLRB No. 39) Miami Beach, FL, August 11, 2011.

The Board affirmed the judge’s findings, including inter alia the findings that two employees were unlawfully discharged and that Respondent The Continental Group, a condominium management firm, maintained an unlawfully broad no-access policy pertaining to off-duty employees. However, the Board reversed the judge’s finding that a written warning issued to employee Phillip Gonzalez pursuant to the rule was unlawful.

In finding the warning unlawful, the judge relied on Double Eagle Hotel & Casino, 341 NLRB 112 (2004).  Chairman Liebman and Member Becker, however, found that the principles outlined in that case did not apply to Gonzalez’s warning, which was prompted by concerns that Gonzalez was sleeping or living on the premises, conduct not protected by Section 7 of the Act.  Chairman Liebman and Member Becker clarified the Double Eagle rule (discipline imposed pursuant to an overbroad rule is unlawful), stating that such discipline is unlawful where an employee violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.  Nevertheless, an employer will avoid liability for discipline imposed pursuant to an overbroad rule if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or otherwise actually interfered with the employer’s operations, and that the interference, rather than the violation of the rule, was the reason for the discipline.  Chairman Liebman and Member Becker also discussed the allocation of evidentiary burdens under the clarified rule. 

Concurring in part, Member Hayes agreed that the warning to Gonzalez was lawful and that the Double Eagle rule should not apply in these circumstances, where the discipline was imposed for employee conduct that was clearly unprotected. He found it unnecessary in this case to consider the validity of the Double Eagle rule’s application in other circumstances or the allocation of evidentiary burdens under the rule.

Administrative Law Judge George Carson II issued his decision on March 15, 2006.  The charges were filed by Local 11, Service Employees International Union.  The case was decided pursuant to a remand from the Court of Appeals for the District of Columbia circuit, consistent with the United States Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).  Chairman Liebman and Members Becker and Hayes participated.

***

Insulation Maintenance & Contracting, LLC(28-CA-23198 et al.; 357 NLRB No. 50) Las Vegas, NV, August 11, 2011.

The Acting General Counsel sought default judgment in this case pursuant to the terms of an informal settlement agreement.  The Board having found that the respondent engaged in certain unfair labor practices, ordered the respondent to take certain affirmative action designed to effectuate the policies of the Act.  Specifically, the respondent is to comply with the terms of the settlement agreement approved by the Acting Regional Director for Region 28 on March 3, 2011, by posting a Notice to Employees, making discriminatees whole by the payment of backpay provided for in the settlement agreement, and expunging from its files any reference to their discharges and informing them in writing that it has taken that action and that the expunged material will not be used against them in any way.

Charge filed by Las Vegas Insulators Local 135, affiliated with International Association of Heat and Frost Insulators and Allied Workers, AFL-CIO. Members Becker, Pearce and Hayes participated.

***

Santa BarbaraNews-Press(31-CA-27950 et al.; 357 NLRB No. 51) Santa Barbara, CA, August 11, 2011.

The Board found that the Employer, a newspaper publisher, violated the Act by cancelling a union supporter’s column, lowering the evaluation scores of four union supporters, and discharging eight union supporters, six of whom had hung a banner from a footbridge urging motorists to cancel their newspaper subscriptions. The Board also found that the Employer violated the Act by coercively interrogating employees concerning union activities, engaging in surveillance of union activities, requiring employees to remove buttons and signs, and terminating a supervisor because he refused to commit an unfair labor practice. In doing so, the Board rejected the Employer’s arguments that the employees’ actions were not protected because they dealt with editorial content rather than wages and benefits, and that the Board’s order would interfere with its First Amendment right to control the newspaper’s editorial content. Member Hayes concurred with the Board’s findings on more limited grounds.

Administrative Law Judge William G. Kocol issued his decision on December 26, 2007. The charge was filed by the Graphics Communications Conference, International Brotherhood of Teamsters. Chairman Liebman and Members Becker and Hayes participated.

***

Daycon Products Company, Inc.(05-CA-35043; 357 NLRB No. 52) Upper Marlboro, MD, August 12, 2011.

The Board reversed the judge, finding that the employer violated Section 8(a)(5) and (1) and Section 8(d) by unilaterally reducing the contractual wage rates of 8 bargaining unit employees. The Board reasoned that, once the parties entered into a new contract, the employer was barred from unilaterally altering wage rates and rejected the judge’s reasoning that the employer was merely correcting administrative errors, which required no bargaining.

Administrative Law Judge Bruce D. Rosenstein issued his decision on January 8, 2010. The charge was filed by Teamsters Local Union No. 639 in affiliation with International Brotherhood of Teamsters. Chairman Liebman and Members Pearce and Hayes participated.

***

Miceli & Oldfield, Inc.(07-CA-52862; 357 NLRB No. 49) Taylor, MI, August 12, 2011.

The Board agreed with the administrative law judge’s finding that the employer did not unlawfully refuse to allow an employee to have a union representative present during a disciplinary meeting.  The judge, whose findings the Board adopted, found that the employer met with the employee in order to present him with a previously prepared disciplinary notice, and that the meeting therefore was not the type of investigatory meeting at which an employee is entitled to the presence of a union representative.

Charges filed by an individual. Administrative Law Judge Keltner W. Locke issued a banch decision on October 27, 2010 and a certification on December 3, 2010. Chairman Liebman and Members Becker and Pearce participated.

***

Locals 1827, 1506, and 209, United Brotherhood of Carpenters and Joiners of America (United Parcel Service, Inc.)(28-CC-00933 et al.; 357 NLRB No. 44) Las Vegas, NV, August 12, 2011.

The Board found that the Unions’ stationary banner displays did not violate the Act’s provisions making it an unfair labor practice for unions or their agents “to threaten, coerce, or restrain” persons or industries engaged in commerce with an object of “forcing or requiring any person to cease doing business with any person.”  The Board majority (Chairman Liebman and Members Becker and Pearce) relied on its decision in Carpenters Local No. 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (August 27, 2010), and several other decisions that followed, all of which found that similar banner displays did not “threaten, coerce or restrain.”  In finding that the banner displays in United Parcel Service were not coercive, the Board majority addressed customer reactions to the banner displays, the positioning of the banners, and the conduct of individuals distributing handbills on connection with the banners.  Member Hayes dissented, reiterating the view stated in his joint dissent with former Member Schaumber in Eliason & Knuth that the display of banners was unlawful as coercive conduct.  He also argued that the banner displays in United Parcel Service were in several instances more confrontational than those in Eliason.

Charges filed by United Parcel Service; Eliason & Knuth of Arizona, Inc.; Associated General Contractors of America San Diego Chapter, Inc.; Today's IV, Inc., d/b/a Westin Bonaventure Hotel and Suites; King's Hawaiian Retail, Inc., d/b/a King's Hawaiian Restaurant and Bakery; and Eliason & Knuth of Denver, Inc. Administrative Law Judge Lana H. Parke issued her decision on May 9, 2003. Chairman Liebman and Members Becker, Pearce, and Hayes participated. 

***

CHS, Inc.(18-RD-02722; 357 NLRB No. 54) Grand Forks and Minot, ND, August 12 2011.

The Board adopted the hearing officer’s recommendation to overrule the challenge to an individual's ballot, finding that the union failed to meet its burden of showing supervisory status. The Board reversed the hearing officer’s determination that the employer’s challenge to another ballot was untimely given that a timely initial challenge had been filed and the ballot had been segregated.  Under these circumstances, the Board remanded with instructions that the Regional Director open and count the ballots of three voters whose challenges had been withdrawn and take further action to address the merits of the voting eligibility of a fourth if his ballot remains determinative.

The hearing officer’s report issued on February 11, 2011.  One individual's ballot was challenged by Local 638 and 120, International Brotherhood of Teamsters and another's ballot was challenged by the employer. Chairman Liebman and Members Pearce and Hayes participated.

 

Decisions of Administrative Law Judges

American Baptist Homes of the West d/b/a Piedmont Gardens (32-CA-25247 et al.; JD(SF)-29-11) Oakland, CA. Charge filed by Service Employees International Union, United Healthcare Workers-West. Administrative Law Judge Burton Litvack issued his decision on August 9, 2011.

Local 471, Rochester Regional Joint Board, Workers United (Sodexo, Inc.) (03-CB-09173 et al.; JD(ATL)-22-11) Albany, NY. Charge filed by individuals. Administrative Law Judge Robert A. Ringler issued his decision on August 9, 2011.

Dynamic Energy Inc., and M&P Services, Inc., a single employer (09-CA-45772 et al.; JD-45-11) Beaver, WV. Charge filed by United Mine Workers of America, AFL-CIO. Administrative Law Judge David I. Goldman issued his decision on August 10, 2011.

Dish Network Corporation (16-CA-27316 et al.; JD(ATL)-23-11) North Richland Hills and Farmers Branch, TX. Charge filed by Communications Workers of America Local 6171. Administrative Law Judge George Carson II issued his decision on August 11, 2011.

Hotel Bel-Air (31-CA-29841; JD(SF)-30-11) Los Angeles, CA. Charge filed by Unite Here Local 11. Administrative Law Judge Jay R. Pollack issued his decision on August 12, 2011.

The American Bottling Company, Inc., d/b/a Dr. Pepper Snapple Group (08-CA-39327; JD-46-11) Twinsburg, OH. Charge filed by Teamsters Local Union No. 293, a/w The International Brotherhood of Teamsters. Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 12, 2011.

 

Appellate Court Decisions

Regency Grande Nursing and Rehabilitation Center, No. 22-CA-26231 (355 NLRB No. 99) (3d Cir. decided August 10, 2011)

In an unpublished decision, the Court enforced the Board's order, directing the employer to reimburse employees $74,852.71, plus interest, in unlawfully-deducted union dues.

In 2006, the Board found that the employer unlawfully recognized a minority union on January 8, 2004. To remedy the violation, the Board ordered the employer and the minority union to jointly and severally reimburse employees for dues withheld, except for employees who voluntarily joined the union before the date of the unlawful recognition. The General Counsel provided a list of employees who had dues deducted during the backpay period, which the Board held satisfied his burden of showing gross backpay. Rejecting the employer's argument, the Board placed the burden of proving which employees voluntarily joined the union before the unlawful recognition on the employer, because such proof "would be in the form of mitigation of [the employer's] liability," per the Board's traditional backpay rules. The Court agreed, "see[ing] no error" in the Board's allocation of burdens. Further, the Court affirmed the Board in concluding that the union's alleged inability to afford any dues reimbursement did not constitute an undue burden for the employer.

Finally, the Court found no error in Member Becker's decision to deny the employer's motion for his recusal, using the identical analysis it applied in a case involving the same employer that the Court decided on August 8. Thus, after noting Member Becker's explanation of the principles that would guide his recusal decisions in Service Employees Local 121RN (Pomona Valley Med. Ctr.), 355 NLRB No. 40 (2010), the Court concluded that the employer "has not shown that Member Becker's participation in this matter violated the [standards described in Pomona Valley], or that there was any other reason for him to excuse himself...." The Court therefore upheld Member Becker's participation in this case.

***

Regency Grande Nursing and Rehabilitation Center, No. 22-CA-28331 (355 NLRB No. 109) (3d Cir. decided August 9, 2011)

In an unpublished decision, the Third Circuit upheld the Board's unfair labor practice findings, enforced its broad order against the employer, and affirmed Member Becker's decision denying the employer's motion for recusal.

On the unfair labor practice findings, the Court held that substantial evidence supported the Board's finding that employer unlawfully interrogated an employee, and created the impression of surveillance, by asking her why she had met with a union organizer at a coworker's home near the facility. The Court further agreed that the employer acted unlawfully in asking another employee which union she had voted for in the election. Next, the Court affirmed the Board's conclusion that the employer unlawfully discharged a prounion worker for posting an antiunion flyer; as the Court observed in rejecting the employer's ostensible explanation for the termination, "there was no reasonable basis for [the employer] to believe that the [discriminatee] had posted the flyer." Thus, based on the Board's credibility determinations and the deference due its legal evaluations under the Act, the Court enforced the Board's ULP findings. Finally, because the employer had committed two violations in a previous case, Regency Grande Nursing, 347 NLRB 1143 (2006), and then committed the instant misdeeds immediately after the Third Circuit enforced that order, 265 F. App'x 74 (3d Cir. 2008), the Court agreed with the Board that the employer's "attitude of opposition to the purposes of the Act provides a basis for a broad remedial order."

Lastly, the Court found no error in Member Becker's decision to deny the employer's motion for his recusal. After noting Member Becker's explanation of the principles that would guide his recusal decisions in Service Employees Local 121RN (Pomona Valley Med. Ctr.), 355 NLRB No. 40 (2010), the Court concluded that the employer "has not shown that Member Becker's participation in this matter violated the [standards described in Pomona Valley], or that there was any other reason for him to excuse himself...." The Court therefore upheld Member Becker's participation in this case. 

***

Leiferman Enterprises, LLC, No. 18-CA-18134 (355 NLRB No. 66) (8th Cir. decided August 12, 2011)

In a published decision, the Court enforced the Board's order, directing a successor employer to reimburse employees for its predecessor's unilateral changes to their terms and conditions of employment.


The Board found that Leiferman, the original employer, violated its duty to bargain in good faith under Section 8(a)(5) and (1) of the Act by, among other things, making unilateral changes in employees' terms and conditions of employment without having bargained to impasse.  By the time the Board had decided the case, however, Leiferman was no longer operating the business itself.  It had defaulted on a loan to a secured creditor, been placed into receivership, and had its assets sold by the creditor to a third entity, Auto Glass Repair and Windshield Replacement Service (WRS), which then operated the business.  In a supplemental compliance proceeding, the Board found that WPS was a successor to Leiferman under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), financially responsible for Leiferman's  $54,518 unfair labor practice liability.  The Eighth Circuit agreed, granting the Board's application for enforcement and denying WRS's cross-petition for review.
 
Applying Golden State and its own decision in NLRB v. Winco Petroleum Co., 668 F.2d 973 (8th Cir. 1982), the Court found WRS to be a successor because WRS purchased the business with knowledge of the unfair-labor-practice allegations, and then operated the business without interruption and without substantial change, with a workforce composed principally of former Leiferman employees.  The Court then rejected WRS's remaining "novel legal arguments," including its contention that the state court's having approved its purchase "free and clear of any liens and encumbrances" excused its Golden State successorship obligations. 
 

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Kindred Healthcare, Inc. d/b/a Kindred Hospital-San Francisco Bay Area (32-RC-05616) August 8, 2011. Decision and certification of representative. 

MeadvilleRehabilitation and Nursing Center, Inc. (06-RC-12807) August 8, 2011. Order denying request for review.

Albert Lea Select Foods, Inc. (18-RC-17746) August 10, 2011. Decision and certification of representative.

The New York and Presbyterian Hospital, Westchester Division (02-RC-23583) August 10, 2011. Order amending the Acting Regional Director’s Decision to permit Licensed Practical Nurses, the X-ray Technician, the CASAC and the Senior CASAC, the access service representative and the senior access service representative, to vote under challenged ballot, and the Employer’s request for review is denied in these and all other respects. 

Kaiser Foundation Health Plan, Inc.; Kaiser Foundation Hospitals; Southern California Permanente Medical Group; The Permanente Medical Group, Inc. (32-RC-05775) August 10, 2011. Order granting motions, remanding to the Regional Director for further appropriate action.

MV Public Transportation, Inc. (29-RC-12055) August 11, 2011. Order denying request for review.

Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino (28-RC-06747) August 12, 2011. Decision and direction of second election.

C Cases

Consulate Health Care d/b/a Ashland Nursing & Rehab Center, Inc. (05-CA-60739) August 8, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before August 22, 2011.

Jung Sun Laundry Group Corp. (29-CA-29946) August 8, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before August 22, 2011.

Starrs Group Home, Inc. (05-CA-36537) August 11, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before August 25, 2011.

El PasoDisposal, L.P. (28-CA-21654 et al.) August 11, 2011. Order granting joint motions to withdraw exceptions and cross-exceptions and remanding to the Regional Director for further appropriate action.

El PasoDisposal, L.P. (28-CA-22252 et al.) August 11, 2011. Order granting joint motions to withdraw exceptions and cross-exceptions and remanding to the Regional Director for further appropriate action.

 

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