for the Study of Collective Bargaining in Higher Education and the Professions
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July-August 2020
Our July-August 2020 newsletter includes information about our webinar tomorrow, August 20, our Call for Papers concerning our 2021 annual national conference, additional details about our rescheduled 2020 conference on October 19-20, and our COVID-19 related research.

In the newsletter, we report on recent decisions by the Florida Public Employees Relations Commission permitting faculty unions to conduct online contract ratification votes during the COVID-19 pandemic, and rejecting objections filed by the College of the Florida Keys to a faculty representation election. We discuss other recent decisions involving faculty representation issues at the University of Pittsburgh, Plymouth State University in New Hampshire, Union County College in New Jersey, and Wright State University in Ohio. The newsletter also discusses two recent decisions impacting faculty labor rights at religiously affiliated institutions, and the expansion of public sector collective bargaining in Colorado.

Lastly, the newsletter welcomes the National Center's newest student research interns, provides information about upcoming events organized by our friends at the NYU Center for Labor and Employment Law, and includes links to articles in the current volume of the Journal of Collective Bargaining in the Academy.

As always, if you have comments or story ideas please email us.
Register Now: August 20 Higher Ed Legal Update Webinar
Thursday August 20: 12:00-1:30 PM EST (Register Here)
Legal Update on Higher Education Law
This webinar is our annual legal update panel, which will examine issues and cases over the past year including legal subjects related to the pandemic and the reopening of campuses.

Featured speakers:
Henry Morris Jr., Partner, Arent Fox LLP
Aaron Nisenson, Senior Legal Counsel, AAUP
Christian Gobel, SEIU Law Fellow
William A. Herbert, National Center, Hunter College, CUNY, Moderator
2021 Call for Papers: Abstracts Due September 11
The National Center invites scholars and practitioners from multiple disciplines to submit abstracts of proposed papers, panels, or interactive workshops for our 48th annual labor-management conference on April 18-20, 2021 in New York City.

The theme of the conference will be Collective Bargaining, Labor Relations, and COVID-19.

We welcome proposals involving recent research as well as proposals by authors of recently published books relevant to higher education, collective bargaining, labor relations, or labor history.

Those interested in proposing a presentation, panel, or workshop should upload an abstract by September 11, 2020 to 2021 Abstract Dropbox that includes a title and description along with a list of invited participants including their title, affiliation, and contact information. Questions concerning the call for papers should be emailed to 2021 National Center Annual Conference.
Proposed Topics for Papers or Interactive Workshops
We seek proposals on relevant and timely topics including but not limited to the following:

Lessons Learned from Bargaining During the Pandemic

Labor Organizing on Campus and COVID-19

COVID-19 Related Bargaining Subjects for the Common Good

Labor History: 1918 Flu Pandemic, Labor, and Higher Education

Update on Collective Bargaining for Graduate Assistants

An Analysis of Collectively Negotiated COVID-Related Agreements

Racial, Ethnic, and Gender Disparities in Layoffs

Gendered Impact of Remote Education

Collective Bargaining Issues for Essential Employees

Surveillance and Privacy in Online Education

Collective Bargaining Over Discrimination, Harassment, and Retaliation

Higher Education, Immigration Status, and Enforcement

The Future of International Students, Faculty, and Campuses

Community College Collective Bargaining Issues

Unionization and Collective Bargaining at Religious-Affiliated Institutions

The Arbitration of Contract Grievances

Health and Safety on Campus in the Future

Non-NLRB Procedures for Private Sector Representation

Free Speech, Activism, and Controversies on Campus

Bargaining Over School Consolidations and Closures

Contingent Faculty, Job Security, and Academic Freedom

The Meaning and Implications of the Strike Wave for Higher Ed

The Duty of Fair Representation in Higher Education
2020 Annual Conference to Take Place on October 19-20, 2020
The National Center's 47th annual conference has been rescheduled as a virtual conference and will take place on October 19-20, 2020.

The conference agenda will include some of the panels on inequality, collective bargaining, and higher education we had developed for the original conference agenda, with additional analysis related to the pandemic's impact.

Paid registrations for our 2020 conference will be applied to the rescheduled conference in October.

Stay informed about the October 19-20 conference by visiting our website and our monthly newsletters, as conference plans may change.
TIAA is a sponsor of the National Center's 47th annual conference with additional funding provided by AFT, SEIU, and The Standard Insurance Company.
October Conference Keynote Speaker: Steven Greenhouse
Keynote Speaker: Steven Greenhouse

Steven Greenhouse, the former New York Times labor and workplace correspondent, will be the keynote speaker at our rescheduled annual conference in October.

Mr. Greenhouse will be analyzing labor's response to the pandemic in the context of the historical and contemporary themes set forth in his exceptional book Beaten Down, Worked Up: The Past, Present, and Future of American Labor (2019). His book traces U.S. labor history from the 20th Century up to and including the first two decades of the 21st Century. The book was published last year by Knopf, and
it was released in paperback last month:
October Conference Plenary: The Student Debt Crisis
The Student Debt Crisis: History, Consequences, and Post-Pandemic Solutions with Elizabeth Tandy Shermer, Associate Professor, Loyola University Chicago, Caitlin Zaloom, Associate Professor of Social and Cultural Analysis, New York University, Jennifer Mishory, Senior Fellow and Senior Policy Advisor, Century Foundation, and Suzanne Kahn, Deputy Director of the Great Democracy Initiative and Education Program at the Roosevelt Institute.

Professor Zaloom is the author of the new book titled Indebted: How Families Make College Work at Any Cost, published by Princeton University Press. Professor Shermer is working on an up-coming book examining the history of the student debt industry.

Jennifer Mishory and Suzanne Kahn are co-authors of a paper titled Bridging Progressive Policy Debates: How Student Debt and the Racial Wealth Gap Reinforce Each Other. Suzanne Kahn also recently authored another paper titled A Progressive Framework for Free College.
October Conference Panels
The following is a list of other confirmed panels for the October 19-20, 2020 conference:

Panel: Growth in Union Density Among Academic Labor, 2012-2019 with Jacob Apkarian, Assistant Professor of Sociology, Department of Behavioral Sciences, York College, CUNY and National Center Affiliated Researcher, Joseph van der Naald,
Graduate Student Researcher, Program in Sociology, Graduate Center, CUNY and National Center Affiliated Researcher, and William A. Herbert, Distinguished Lecturer and National Center Executive Director, Moderator and Presenter.

Panel: Affirmative Action in Higher Education, Post-Pandemic with Cara McClellan, Assistant Counsel, NAACP Legal Defense and Educational Fund, Risa Lieberwitz, General Counsel, AAUP and Professor of Labor and Employment Law, Cornell University School of Industrial and Labor Relations, Victor Goode, Associate Professor, CUNY Law School, and Lili Palacios-Baldwin, Deputy General Counsel for Labor, Employment & Litigation, Tufts University, Moderator.

Panel:The Old Wolf, Again: Latinx Faculty Negotiations, Recruitment, Retention, and Racism in the Academy with Theresa Montaño, California State University, Northridge, Chicana/o Studies, California Faculty Association and Michael Ortiz, Sul Ross University (panel in formation).

Panel: Negotiating for Part-Time Faculty Equity with Will Silvio, President, Berklee College of Music Faculty Union, Jay Kennedy, Berklee College of Music Vice President for Academic Affairs/Vice Provost, Darryl Wood, NYSUT Labor Relations Specialist, Dia M.Carleton, Chief Human Resources Officer, SUNY Oneonta, and Beth Margolis, Gladstein, Reif & Meginniss, LLP, Moderator.

Retirement Plan Trends and the COVID-19 Pandemic with Christina Cutlip, TIAA, Senior Managing Director | Institutional Relationships, Facilitator, Steven Kronheim, Managing Director & Associate General Counsel, TIAA, Patricia McConnell, Levy, Ratner, PC, and Susan E. Bernstein, Schulte, Roth & Zabel LLP.

Panel: Higher Education Funding After the Pandemic with Fred Floss, Professor and Chair, Department of Economics and Finance, SUNY Buffalo State University and Fiscal Policy Institute, Senior Fellow, Thomas Anderson, Executive Director, Union of Part-Time Faculty, AFT Local 477, AFL-CIO, Thomas L. Harnisch, Vice President for Government Relations, State Higher Education Executive Officers Association (panel in formation).

Panel: Contingent Faculty, Job Security, and Academic Freedom with Carl Levine, Levy Ratner P.C., Keila Tennant, Associate General Counsel and VP for Labor Relations, The New School, Sonam Singh, former Unit Chair, BCF-UAW Local 2110 and Barry Miller, Senior Policy Advisor on Labour Relations, Office of the Provost, York University, Moderator.
Panel: Reasonable Accommodations for Faculty and Teaching Assistants with Jamie Daniel, former AAUP National Field Service Representative, Alexandra (Sascha) Matish, Associate Vice Provost for Academic and Faculty Affairs and Senior Director, Academic Human Resources, University of Michigan, Laura Yvonne Bulk, President, Canadian Union of Public Employees, Local 2278, PhD Candidate, Rehabilitation Sciences, The University of British Columbia, John Rose, Dean for Diversity, Hunter College, and Barbara Aloni, Disability & Productivity Consultant, The Standard Insurance.

Panel: Collective Bargaining from All Sides: Unionism, the Faculty Senate, Contingent Faculty, and Academic Administration with Jon E. Bekken, Albright College, David Hamilton Golland, Governors State University, Nelson Ouellet, Université de Moncton, Naomi R Williams, Rutgers University, and Theodore Curry, Associate Provost, Associate VP, Michigan State University, Moderator and Commentator.

Panel: Mass Incarceration and Higher Education with Patrick Mitchell, Board Member, Community College Association, CTA, NEA, Michelle Jones, Doctoral Student, New York University, and Bidhan Chandra Roy, College of Arts and Letters, California State University, Los Angeles, Participant and Moderator (panel in formation).

Panel: LGBTQ Labor Issues in Higher Education After Bostock v. Clayton County with Barbara J. Diamond, Diamond Law, Portland, Oregon, Mellissa Sortman, Director of Academic Human Resources, Michigan State University, and Elizabeth S. Hough, Counsel to the President, United University Professions (panel in formation).

LERA Higher Ed Industry Council Panel: The Changing Place of Labor Studies in Higher Education with Marissa Brookes, University of California, Riverside, Tobias Schulze-Cleven, Rutgers University, Cedric de Leon, University of Massachusetts-Amherst, and Ruth Milkman, CUNY School of Labor and Urban Studies, Moderator.

Panel: BLM and Constructive Ways Labor and Management Can Use Collective Bargaining to Address Racism on Campus with Calvin Smiley, Assistant Professor, Sociology, Hunter College, CUNY, Paul Ortiz, University of Florida Chapter President, United Faculty of Florida NEA-AFT, Terri Givens, Center for Higher Education Leadership, CEO and Founder, and Alethea Taylor, Doctoral Lecturer/Internship Site Developer, Hunter College - School of Education, Department of Educational Foundations and Counseling, Participant and Moderator.

Panel: Title IX Regulations: Bargaining Issues for Unions and Institutions with Rana Jaleel, Assistant Professor, Gender, Sexuality, and Women's Studies, University of California, Davis, Judi Burgess, Director of Labor Relations, Boston University, Lance Houston, Consultant, Title IX/Employee Relations/Labor Law, Thomson Reuters Expert Witness Services, and Debra Osofsky, Negotiator, Educator and Contract Specialist.
Research on COVID-19 and Collective Bargaining
Consistent with our research mission, the National Center is examining the use of collective bargaining in higher education during the COVID-19 crisis.

To assist with this research project, we request institutions of higher education and unions representing faculty, graduate assistants, and other campus workers to upload copies of any written agreements reached in response to the pandemic. Questions concerning this research inquiry can be emailed here.

Thank you for your cooperation.
Florida: Faculty Unions Allowed to Conduct Electronic Ratification Votes
FUSA Chapter of Hillsborough Community College, FPERC Case No. MS-2020-022
United Faculty of Florida, FPERC Case No. MS-2020-020
United Faculty of Florida, FPERC Case No. MS-2020-016
United Faculty of Florida, FPERC Case No. MS-2020-019

Since the onset of the COVID-19 pandemic, the Florida Public Employees Relations Commission (FPERC) has issued a series of decisions granting emergency requests by faculty unions for variances from the statutory requirement that ratification elections take place at a meeting or by mail. For health and safety reasons associated with the pandemic, FPERC granted the applications to permit the unions to conduct bargaining unit communications, balloting, tallying, and announcements of the ratification vote results by electronic means.
College of the Florida Keys: UFF Certified to Represent New Unit
College of the Florida Keys, FPERC Case No. RC-2019-029

On June 1, 2020, the Florida Public Employees Relations Commission (FPERC) issued a decision rejecting objections filed by the College of the Florida Keys to a mail ballot election concerning a petition filed by United Faculty of Florida (UFF) seeking to represent a unit of 34 full-time faculty and other professional staff. A mail ballot election was conducted between March 30 and April 9, 2020 resulting in a vote of 20-13 in favor of UFF representation.

In its challenge to the conduct of the election, the College of the Florida Keys alleged that a faculty member engaged in misconduct by asking another faculty member to send a photograph of her ballot showing she voted in favor of union representation so that the photograph could be shared with UFF representatives. In support of its objections, the college submitted an affidavit by the faculty voter who claimed that she felt intimidated and concerned because elections are supposed to be conducted by secret ballots.

In its decision, FPERC stated that the alleged conduct was "shocking and inappropriate" because encouraging "a voting member in a [representation] election to send a photograph of that member’s marked ballot so that the photographed ballot could then be forwarded to others is in direct contravention of the procedures that have been implemented to preserve anonymity so that voting members can freely cast their ballots."

Nevertheless, the agency found the conduct was an isolated incident and insufficient to set aside the election. FPERC noted that there was no evidence presented demonstrating that the conduct impacted other voters or that other voters claimed that they that they had also been urged to take photographs of their marked ballots.

As a result, FPERC verified the results of the mail ballot election and certified UFF as the exclusive representative of the following bargaining unit at the College of the Florida Keys:

Included: All full-time faculty, academic services advisors, assistant director learning resources center, and assistant director student success services.
Excluded: All other employees of The College of the Florida Keys.
University of Pittsburgh: Appeal of Hearing Officer's Decision Denied
University of Pittsburgh, PLRB Case No. PERA-R-19-2-W

On July 21, 2020, the Pennsylvania Labor Relations Board (PLRB) denied exceptions filed by the University of Pittsburgh to a Hearing Officer's order sustaining objections by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (USW) to the eligibility list submitted by the university concerning a USW petition seeking to represent a unit of full-time, regular part-time, and non-tenure track faculty, and librarians.

The hearing officer concluded that the university's eligibility list was factually and legally inaccurate by including supervisory and managerial employees as well as casual employees without a sufficient community of interest with the full-time and regular part-time employees. Therefore, he ordered that the case be remanded to the PLRB Secretary of the Board to determine whether USW had submitted a sufficient showing of interest based on a revised eligibility list consistent with his decision.

In rejecting the university's exceptions, PLRB reiterated its longstanding rule prohibiting exceptions to hearing officer preliminary rulings during a pending representation avoid unnecessary delays in processing the case to completion. In its decision, PLRB noted that factual and legal arguments can be raised during the administrative hearing scheduled for September 14, 2020 on the question of the appropriateness of the bargaining unit proposed by USW.
Plymouth State University: SEIU Seeks to Represent NTT Faculty
Plymouth State University, NHPELRB Case No. 2020-107

A New Hampshire Public Employee Labor Relations Board (NHPELRB) hearing officer has issued a ruling rejecting that argument by Plymouth State University that research faculty should be excluded from a proposed unit of 48 non-tenure track faculty sought in a representation petition filed by SEIU. The hearing officer found that the research faculty had sufficient community of interest with the other non-tenure track faculty even if their teaching load differs.

On June 23, 2020, NHPELRB issued an order of election on SEIU's petition, requiring the university to file a voter eligibility list with the agency.
Union County Coll.: Challenge to Adding Position to AAUP Unit Rejected
Union County College v. Union County College Chapter of the American Association of University Professors, Court Docket No. A-3625-1812

On July 28, 2020, the Superior Court of New Jersey issued a decision rejecting a lawsuit by Union County College seeking to challenge a decision by the New Jersey Public Employment Relations Commission (NJPERC) that added the non-tenure track title of academic specialist to an instructional and library staff bargaining unit represented by the Union County College AAUP. The court affirmed the conclusion of NJPERC that the academic specialist, who have instructional and administrative responsibilities, are not supervisors and including them in the pre-existing bargaining unit would not create a conflict of interest.
Wright State University: Effort to Add NTT Faculty to AAUP Unit Rejected
Wright State University, OSERB Case No. 2019-REP-07-0061

On July 2, 2020, the Ohio State Employment Relation Board (OSERB) dismissed a representation petition filed by the AAUP Chapter at Wright State University seeking to amend its certification of representation to add non-tenure track faculty at the School of Professional Psychology to the bargaining unit. The petition was dismissed based finding the OSERB finding that AAUP was estopped from seeking to add the at-issue faculty based on a prior consent election agreement that excluded them, and the absence of changed circumstances.
Supreme Court: Religious School Faculty Unprotected Under Title VII
Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020)

The United States Supreme Court issued an opinion on July 8, 2020 holding that the First Amendment’s Religious Clauses prohibit courts from determining discrimination claims brought by religious school faculty, when a school presents evidence demonstrating that the faculty members perform specific responsibilities in fulfilling the institution’s religious educational mission. The decision extends the so-called “ministerial exception” to Title VII, originally adopted by the Court. See, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, (2012).

While the Our Lady of Guadalupe School decision involved elementary school teachers, it is likely that the ruling will be extended to faculty at religiously-affiliated higher education institutions.
Bethany College: NLRB Dismisses Unfair Labor Practice Charges
Bethany College, NLRB Case Nos. 14-CA-201546 and 14-CA-201584

On June 10, 2020, the National Labor Relations Board (NLRB) issued a decision dismissing, on jurisdictional grounds, two unfair labor practice complaints against Bethany College that challenged, inter alia, the termination of two faculty members for engaging in protected concerted activities protected by the National Labor Relations Act.

In Bethany College, the NLRB concluded that it was required to decline jurisdiction over the unfair labor practice complaints based on NLRB v. Catholic Bishop of Chicago 440 U.S. 490 (1979) and its progeny. In Catholic Bishop of Chicago, the Supreme Court ruled that the NLRB should not exercise jurisdiction over cases involving faculty of religious schools because the assertion of jurisdiction would lead to a significant risk of violating the Religious Clauses of the First Amendment.

In reaching its decision in Bethany College, the NLRB overruled the jurisdictional test announced in Pacific Lutheran University, 361 NLRB 1404 (2014), which included consideration of whether faculty members at religiously affiliated institutions are held out as performing a specific function tied with the school's religious educational mission.

Instead, the NLRB adopted the three-prong jurisdictional test set forth in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Under the Great Falls test, NLRB jurisdiction must declined over an institution that (a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”

It is noteworthy that the jurisdictional test in University of Great Falls v. NLRB and Bethany College is not consistent with the approach recently applied by the Supreme Court in Our Lady of Guadalupe for determining whether a religious institution is exempt from Title VII litigation. Unlike the Great Falls test concerning NLRB jurisdiction, the Court in Our Lady of Guadalupe examined evidence about the specific duties performed by the faculty at religiously affiliated schools in determining that the lawsuits should be dismissed to avoid violating the First Amendment’s Religious Clauses.
Colorado: Enacts Law Granting State Public Sector Collective Bargaining
On June 16, 2020, Colorado Governor Jared Polis signed into law the Colorado Partnership for Quality Jobs and Services Act that grants public sector collective bargaining rights to state workers who are a part of the Personnel System of the State, Colorado's merit and fitness system. While the new law is an important expansion of collective bargaining, it is inapplicable to faculty at the state universities because they are excluded from the Personnel System of the State pursuant to Article 13 of the Colorado state constitution.
National Center Welcomes Hunter Undergraduate Research Interns
The National Center is very fortunate to have two extraordinary Hunter College undergraduates assisting us with our ongoing research projects:

Sarah Mathai is a student in Hunter College's Roosevelt Honors Scholars Program, for students interested in policy and governance. She is a Political Science major and is pursuing a minor in Economics. As an active member of the Pre-Law Program, Sarah served as an intern for Hon. Ruth Pickholz. Her intention is to one day go to law school and become a practicing attorney.
Anna Xia is a student in Hunter College's Athena Honors Program and an active member of the Pre-Law Program. She aspires to become an immigration lawyer to help those in her community seeking a better life. In pursuit of a future career in law, she has been studying a broad range of subjects to enable her to become a well-rounded and knowledgeable attorney.
NYU Center for Labor and Employment Law Events
Our friends at the NYU Center for Labor and Employment Law have announced two important upcoming programs:

COVID-19 Challenges
for Workplace Safety & Dispute Resolution

Thursday, September 17, 2020

The current pandemic raises new questions about the boundaries of employer obligations and employee rights regarding a safe workplace. How do we protect employee privacy and safety while also sustaining business and jobs during an economic crisis and expected rise in COVID related lawsuits? In addition, employers and workers, like all litigants, will need guidance on how to move claims to resolution in an increasingly virtual pandemic setting. Topics covered include Employment Dispute Resolution (Litigation, Arbitration & Mediation, Collective Bargaining) and Workplace Safety (OSHA, Worker's Compensation, State Tort Liability). Join the Webinar to explore these important issues.

The NYU 73rd Annual Conference on Labor:
Pay Equity and Issues of Inequality at Work



Is Income Inequality Getting Worse and If So, Why?
Prof. Richard B. Freeman (Harvard)

Causes of Inequality in the Workplace
Prof. Matthew Bodie (St. Louis Univ. School of Law)

Corporate Reporting Requirements, Shareholder Activism & State Law Approaches
Michael Delikat (Orrick)

EEOC Pay Disclosure Initiatives, Past and Future
David Lopez (Rutgers Law School; former GC, EEOC)

Role of Internal Audits: Pay Equity Claims
Joseph O’Keefe (Proskauer)


Joint Employer’ Issues
Prof. Michael C. Harper (Boston Univ.)

Bolstering Union Power
Prof. Catherine Fisk (Berkeley Law School)

Role of Antidiscrimination & Equal Pay Litigation
Joseph Sellers (Cohen Milstein)

No-Compete Clauses as a Brake on Employee Wage Gains
Prof. Orly Lobel (Univ. of San Diego Law School)



Prof. Edward Rock (NYU School of Law)

Prof. Joseph Blasi (Rutgers School of Management)

Jeffrey Kessler (Winston Strawn)

Craig Leen, Director (USDOL, OFCCP)

Wendi Lazar (Outten & Golden)
Littler Mendelson International Offices:
Hannah Mahon, London
Sari Springer, Toronto
Juan Carlos Varela, Caracas
Hironobu Tsukamoto (Nagashima Ohno)

Speakers TBA

This event is seeking approval for New York State CLE credit. If approved, it will be appropriate for both experienced and newly admitted attorneys. In the past, this program has received approximately 11.5 hours of CLE credit, including 1.5 hours of ethics/professionalism.


Journal of Collective Bargaining in the Academy, Vol. 11
Journal of CBA Logo
Below are links to articles that appear in Volume 11 of the Journal of Collective Bargaining in the Academy, our peer review multi-disciplinary journal co-edited by Jeffrey Cross, Eastern Illinois University (Emeritus), and Gary Rhoades, University of Arizona.



Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih,

Practitioner Perspectives

We encourage scholars and practitioners in the fields of collective bargaining, labor relations, and labor history to submit articles for potential publication for Volume 12 of the Journal.

The Journal of Collective Bargaining in the Academy is supported, in part, by a generous contribution from TIAA and is hosted by the institutional repository of Eastern Illinois University.
National Center for the Study of Collective Bargaining
in Higher Education and the Professions
Hunter College, City University of New York
425 E 25th St.
Box 615
New York, NY 10010
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