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Will the Supreme Court Overrule Farmworker Union Rights?

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Not long before Donald Trump’s election in 2016, the Pacific Legal Foundation filed suit against California’s farmworker access rule in federal court on behalf of two companies—Cedar Point Nursery in Siskiyou County and the Fowler Packing Company in Fresno. The foundation is a conservative libertarian group that holds property rights sacred and campaigns against racial equity. It fought hard for the appointment of Amy Coney Barrett to the high court.

The access regulation, which took effect after the passage of the Agricultural Labor Relations Act in 1975, allows union organizers to come onto a grower’s property in the morning before work to talk with workers. According to the labor board’s handbook, “The access regulations of the Agricultural Labor Relations Board are meant to insure that farm workers, who often may be contacted only at their work place, have an opportunity to be informed with minimal interruption of working activities.”

The board requires that the union give notice to the employer before taking access, and that organizers not disrupt work. They can talk only for an hour before and after work and during lunch, and can take access for only a total of 120 days during a year.

Growers have always hated the access rule, and many at first refused to obey. Former United Farm Workers organizer Fred Ross Jr. remembers being arrested several times in Santa Maria for taking access. “This was all about power and who had it,” he says. “Growers had it all, and their workers none. They wanted to dominate. For them, workers didn’t even have the right to talk.”

The suit filed by the PLF, Cedar Point Nursery v. Hassid, attracted more than the predictable support of the California and American Farm Bureaus. Amicus briefs came from a host of right-wing legal bodies, including the Mountain States and Southeastern Legal Foundations, the Pelican and Cato institutes, and even the Republican attorneys general of Oklahoma, Arizona, Arkansas, Kentucky, Missouri, Nebraska, and Texas. The company brief conjured up visions of “stampedes of third-party organizers” and warned, “If such a rule proliferates, property owners throughout much of the nation will see their rights greatly diminished as governments increasingly sanction invasions of their property.”

POLITICAL ATMOSPHERE

Had the political atmosphere in the country not changed in the 40 years since the regulation has been in effect, the suit might never have been filed at all. Agribusiness challenged the access rule from its inception and went all the way to the California Supreme Court, where the growers lost in 1976. In the last decade, however, visions of a liberal U.S. Supreme Court evaporated in the final years of the Obama administration, and Trump’s election led to the appointment of three right-wing justices, giving the court a 6-3 conservative majority.

When the U.S. Supreme Court agreed on Nov. 13 to hear the growers’ appeal from their loss at the U.S. Court of Appeals, many legal observers became concerned. “State court decisions over state issues used to be respected by the U.S. Supreme Court,” says Jerry Cohen, who helped write the law as the legal director for the UFW. “States’ rights used to be a Republican issue. Now the end product is all that matters.”

That end product is a continued erosion of power for farmworker unions. “Without the rule the union seems to workers like it’s not legitimate, and there really is no right to talk,” Ross says. “Losing it reinforces the growers’ power and control. It’s one more blow to the right to organize.”

The mundane genesis of the current suit was a short strike in Dorris, near the Oregon border, where hundreds of farmworkers migrate from Southern California every year to trim young strawberry plants. In 2015, according to one worker, Jessica Rodriguez, the company paid low wages, had dirty bathrooms and harassed and intimidated workers. They called the United Farm Workers, which sent organizers and filed under the access rule to talk with them on the property. The strike lasted for just a day. At Fowler Packing the union filed for access to talk with an unrelated group of workers, and the company simply refused to let organizers onto the property.

A VITAL TOOL

Over the years the access rule became a valuable tool for organizing workers. Jerry Cohen remembers his discussions with UFW founder Cesar Chavez, during negotiations with then-Gov. Jerry Brown, who signed the law during his first term in 1975. “Cesar told us to get things that were practical, that could help workers organize,” he recalls. “Where workers are together it’s easier for the union to talk with them.”

The access regulation came into effect at a time when the UFW was strong. The balance of power between workers and growers had shifted, and by the early 1980s more than 40,000 farmworkers had union contracts. To Eliseo Medina, who grew up in a farmworker family and became a leading organizer, “The rule was a very clear example that growers were not all-powerful. It was a huge change. People saw organizers coming onto the properties, and could have a conversation at work about their future. It gave people confidence that change was possible.”

In 1996, when a huge campaign began to organize the strawberry industry in Watsonville, organizers visited picking crews in dozens of fields. They taped butcher paper on the walls of the Porta Potties, and held meetings where strawberry workers wrote down their demands for raising some of the lowest wages in agriculture, for health benefits and an end to discrimination in hiring. Then in field meetings they planned marches to the company offices, where the demands were announced.

In 2015 the access rule was used in McFarland in the San Joaquin Valley, where workers angry over a wage cut went on strike. They called in UFW organizers, who used meetings in the fields during lunch and after work to collect signatures on an election petition. After workers voted overwhelmingly for the union, the blueberry pickers chose a ranch committee and eventually negotiated a contract with Gourmet Trading.

How a Labor Law Evened the Balance of Power in California’s Fields

In the winter of 1976, a year after the Agricultural Labor Relations Act took effect, lettuce cutters at George Arakelian Farms Inc. began organizing a union. The men lived in Mexicali, Mexico, just south of California’s Imperial Valley. Every day they left home at 2 a.m. and walked to the border. After crossing it, the company labor contractor put them into cars. As each clunker was filled, it took off for the Palo Verde Valley, a two-hour drive across the desert.

Union organizers also met the workers at the border and followed the cars. When they all arrived at the fields, however, the crews couldn’t immediately start work. In the winter, water freezes inside the lettuce. If a cutter grabs a head to harvest it, the ice cuts into the leaves and they wilt. Everyone has to wait for the ice to melt, when work can start.

Next to the fields, workers lit fires in 55-gallon drums. In those moments when they stood warming their hands and talking with the organizers, the union at Arakelian Farms began to take form. The laborers asked about the benefit plans, their rights under the new labor law and when they might be able to vote the union in. They set up a ranch committee to make decisions and convince the unconvinced.

When the ice finally melted, they began to cut, almost running down the rows with their knives. Packers followed, tossing boxes of lettuce onto trucks. No one took lunch. When the company filled its daily order, workers jumped into their cars and drove back to the border. They walked home with just with enough time to eat, say hi to their kids, catch a few hours’ sleep, and then wake up again and leave at 2.

Organizing their union this way was possible because of the access regulation, formulated by the Agricultural Labor Relations Board. The regulation allowed the organizers to come onto Arakelian’s property in the morning before work to talk with the lettuce cutters. After a few weeks of field meetings, workers and organizers filed a petition for an election, which the union won 139-12.

Like many growers, however, Arakelian refused to negotiate a contract. It took nearly 10 years before the California Supreme Court found Arakelian had violated its obligation to bargain with its workers. Other parts of the law had to be changed to solve that problem, and George Arakelian Farms is no longer in business. The workers have moved on. But from the beginning, the access rule was the tool they, and others like them, used to help even the balance of power with the growers.

When Pacific Legal Foundation argued its case in 2017before the U.S. Court of Appeals for the Ninth Circuit, where it ultimately lost, its attorney Wen Fa declared, “The growers have no problem in the union talking with workers. It’s where they talk with the workers. … [There are] plenty of alternative means for the union to talk with workers … All the workers [at Cedar Point Nursery and Fowler Packing Company] live in houses or hotels. Many have cellphones.”

The ALRA had recognized, however, that it’s harder for farmworkers to organize than for other workers, and set up a much quicker process for gaining union recognition than the National Labor Relations Act did for other workers in 1936. Because farmworkers work only for a season, which can last just weeks, union representation elections take place a week after workers petition for them, and within just 48 hours if there’s a strike.

Growers are required to furnish a list of workers with addresses. “Those lists are notoriously bad, though,” Medina laughs. Most Cedar Point workers actually live hundreds of miles from their seasonal jobs. Addresses in Mexico are very hard to find, and workers on this side of the border often live in isolated colonias scattered over a huge geographical area. “By winning access it was easier to get their addresses so we could visit them, especially those who were afraid to talk in front of the foreman,” Ross explains.

The difficulty of reaching workers outside of work is even greater for a growing segment of the farm labor workforce— those workers brought to the U.S. under temporary H-2A visas. In 2019 the U.S. Department of Labor allowed California growers to fill 23,321 jobs with these contract laborers. “H-2A workers would be even more impacted by losing the access rule,” Medina charges. “They don’t have the legal right to organize — even undocumented workers have more rights than H-2A workers. They’re living in barracks under the growers’ 24-hour control. In Delano growers are taking over whole motels and making them into labor camps.”

The union, however, has used the access rule less frequently over the years. In her defense of it, ALRB chairwoman Victoria Hassid noted that it filed for access at only 62 of the 16,000 agricultural employers in California in 2015. “There is no indication,” she wrote, “that the access regulation poses a significant problem for California farms … petitioners have not actually alleged any negative economic impact on them (or anyone else) resulting from the regulation.”

HISTORY OF RACISM

Pacific Legal Foundation’s Fa made the growers’ root argument in response: “The Constitution forbids government from forcing property owners to allow unwanted strangers onto their property, and there is no exception for union activists.”

In an interview with this author, Fa claimed that growers’ economic losses growing out of the access rule could be “significant,” but couldn’t say specifically what they are. “This case is about property rights,” he said. In his winning defense of the access rule before the U.S. Court of Appeals, Matthew Weiss, deputy attorney general for the ALRB, noted that the effort to knock out the rule simply “privileges private property interests over all others.”

UFW general counsel Mario Martinez says the effort to knock out the access rule is further evidence of a history of racism toward farmworkers.

“The federal government has excluded farmworkers from all labor law protections under the National Labor Relations Act for 85 years,” he charges. “In light of this racially discriminatory exclusion, California granted to agricultural workers important labor protections to balance the historical imbalance of power between farmworkers and growers. A court review of California’s legislation appears to be another attempt to unfairly discriminate.”

The U.S. Supreme Court plans to hear arguments in the case early next year and will probably rule by July.

This blog originally appeared at Labor Notes on December 2, 2020. Reprinted with permission.

About the Author: David Bacon is a journalist and photographer covering labor, immigration and the impact of the global economy on workers.


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People of the State of California v. Uber & Lyft

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NELP and other workers’ rights advocates urge court to stop Uber and Lyft’s independent contractor misclassification.

On July 17, 2020, NELP, in collaboration with Legal Aid at Work and other California-based workers’ rights organizations, urged the San Francisco Superior Court of California to stop Uber and Lyft’s illegal misclassification of their drivers as independent contractors.

Though they proudly wear the label of innovative “technology” companies, Uber and Lyft are no different than any other company that routinely violates labor and employment laws to boost its profits at the expense of its workers.

By misclassifying their hundreds of thousands of drivers as independent contractors, Uber and Lyft dispossess their workers of basic labor protections, such as minimum wage, overtime pay, workers’ compensation, unemployment and state disability insurance, and other critical rights intended to cover most workers in our society.

Calling a driver an “independent contractor” does not make it so, and managing employees through an online application does not transform them into self-employed entrepreneurs. Drivers for Uber and Lyft are not running their own separate businesses; they are integral to the companies’ businesses. They are Uber and Lyft’s employees.

Misclassification is not unique to app-based employers—it occurs in every industry where a company might feel the itch to cut corners and boost profits. But in Silicon Valley, the practice has its peculiarities. Companies like Uber and Lyft have flourished in a venture capital fever dream in which regulations are disrupted and the dignity of human labor processed via algorithm and code. Through their gospel of “flexible work,” Uber and Lyft have taken an illegal practice familiar to bad employers everywhere and turned it into the “future of work.”

As described in the amici brief, by subverting labor laws and disabling industry regulations, the two companies have been able to steal wages, duck accountability, offload risk, sabotage worker power, and worsen income and wealth inequality.

Driving for Uber and Lyft must be seen for what it really is: Employment for a company that unilaterally dictates the material terms of work for people who are not running their own business.

NELP urges the San Francisco Superior Court of California to correctly enforce state law, so that drivers for Uber and Lyft, already providing the core transportation service for the companies, may access their employee rights under California law.

This blog originally appeared at NELP on July 20, 2020. Reprinted with permission.

About the Author: Brian Chen is a Staff Attorney at the National Employment Law Project. He primarily focuses on building power for workers who are exploited in “nontraditional” work structures, such as independent contractors, temp, and gig workers. Through litigation and policy campaigns, he aims to support workers’ efforts to democratically self-determine their material conditions.


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Friedrichs Is Dead; Labor’s Crisis Is Not. The ‘Scalia Dividend’ Is a Rare Opportunity for Unions.

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The Friedrichs vs. CTA Supreme Court case, a nakedly partisan assassination attempt on the labor movement, has died with Justice Antonin Scalia. What cannot die with it is the sense of existential crisis within the labor movement. We need a far-reaching conversation about the pathway back to increased activism, membership and power.

Like few moments before it, the Friedrichs case sparked a broad consensus within labor that our movement faced an existential crisis and that business as usual was a prescription for assisted suicide. Unfortunately, too many union leaders and staff based out of Washington, D.C. are now at risk of being dismissed as a bunch of Chicken Littles who overhyped a sky that never fell by the people who have the greatest ability to determine labor’s future: the local leaders and disengaged members.

It was a mistake to use the Friedrichs case to forge this somewhat rare agreement that labor faces an acute crisis. It seemed like a long shot that the Supremes would even take up the case just a few months after rejecting Justice Alito’s wet dream of a public sector “Right to Work” standard by a 5-4 margin in last session’s Harris vs. Quinn case (I lost a lot of bar bets when they did). Even with the case proceeding to oral arguments, there was always the possibility that the Court would punt on the issue or even rule in favor of the unions for political reasons or that one of these old farts would die and the case would deadlock.

But labor’s crisis predated Friedrichs and will live on after it. The “Right to Work” agenda, and the gutting of public sector collective bargaining laws, will continue to be pressed at the state level. And if the general financial commitment and philosophical approach to new union organizing remains the same, union density will surely continue to decline.

Fortunately, until the Friedrichs case gets re-argued or stalemates in a 4-4 decision, labor remains a bit like Schrödinger’s cat: simultaneously getting murdered by the judiciary and in the midst of a possible resurrection. So there’s still time to harness the sense of crisis into a renewed commitment to radical workplace democracy and activism. And the “rainy day” savings that many unions made in anticipation of an adverse decision can now be used as a “Scalia Dividend” to be invested in new campaigns.

A pragmatic approach to Armageddon

Faced with a potential revenue loss of millions of dollars, international unions focused pragmatically (and conservatively) on cajoling their locals to sign up agency fee payers to full union membership. But that was merely a matter of mechanics—a pragmatic approach to the coming Armageddon. Where workers are exclusively represented by a union and already compelled to pay fees for the benefit of that representation, those that haven’t joined typically haven’t been asked. It is a problem that too many unions don’t make a face-to-face contact to new employees and ask them to join, but it’s hardly labor’s biggest one.

The actual crisis in labor is rooted in a framework that has turned unions into agencies for workers, instead of organizations ofworkers.

The legal obligation of the duty of fair representation forces unions to focus on grievances and contract bargaining while the Taft-Hartley law and contractual no-strike agreements strongly discourage rank-and-file worker protest. Too many members then develop a “what have you done for me lately?” relationship with their union that is vulnerable to a “give yourself a raise” campaign that deep-pocketed right-wing outfits can launch following the loss of agency fee, encouraging union members to stop paying dues or agency fees and gain a bump in their paycheck.

That is the crisis that has been largely unaddressed, or at least unsolved, even while unions have spent two decades genuinely trying to meet the charge from the AFL-CIO to “organize at an unprecedented pace and scale.”

Not to mention, while union supporters were dancing on Justice Scalia’s grave, the West Virginia legislature just voted to become the 26th so-called “Right-to-Work” state. How long can agency fee survive in the other half of the states?

So the crisis still exists in that declining union density leads to declining union power. The billionaire class still wants to kill us, and we don’t make a compelling case about why workers should risk their jobs and relationships to fight with unions that look like ineffective special interests.

One of the under-told stories of the last two decades is how badly, and often how subtly, the organizing model conflicts with unions’ business as usual. In order to win, organizers introduce a radical and inclusive democracy into workplaces. We recruit often large and unwieldy organizing committees of workplace leaders through whom all major decisions about tactics, timing and demands must go for deliberation and approval.

And then we throw these newly radicalized workers into local unions where leadership all too often feel a political need to control bargaining and messaging themselves, going off into backrooms to meet with management and come back with a “win.” This is an unspoken conflict between international unions—who feel the need to “organize or die” more acutely—and locals who too often receive new bargaining units as an unwelcome disruption.

Many organizers wanted to use Friedrichs as an opportunity to work through this conflict. Instead, panicked about potential revenue loss, the leadership of the international unions talked too much about “agency fee conversion” (shop talk for convincing union-represented non-members to join and pay full dues) and a single Court case that is now moot. The organizers caught in the middle could find themselves locked out of further conversations about labor renewal and change with locals that now feel the crisis has passed. They need to broaden the sense of crisis and bring newfound resources to the table.

The “Scalia Dividend”: Labor’s second chance to get it right

Many unions that had Friedrichs’ sword of Damocles over their heads have quietly been squirreling money away, by under-funding or delaying funding new campaigns and not filling vacant staffing positions. Which means those unions now wake up to a “Scalia Dividend”—an unexpected windfall of newly available financial resources for new campaigns and initiatives.

Unions can and should commit resources to comprehensive campaigns for new bargaining units—the kind of campaigns that have quietly ceased in recent years. These organizing campaigns should have an eye towards enhancing density in union strongholds like auto manufacturing, education and retail, but also for big public campaigns that could potentially inspire more non-union workers to take action.

What could go further in inspiring non-union workers to contemplate their power is to build on the internal organizing that’s been going on in anticipation of Friedrichs with contract campaigns. Meaningful member engagement—the kind that can withstand the loss of agency fee—comes from stoking workers’ desires for better pay and working conditions (even their less “reasonable” demands) and extracting sweat equity from them in the form of escalating actions. These campaigns should culminate in a plan to demonstrate, as Chicago Teachers Union President Karen Lewis has said that, “Our ability to withhold our labor is our power.”

We also need a new attempt at labor law reform. The fact that a workers rights bill has less of a chance passing Congress than Obama’s Supreme Court nominee shouldn’t make us say “Why bother?” Instead, it should inspire us to propose big, bold and meaningful reforms. Restoring solidarity rights, rooting unions’ collective actions in the First Amendment, outlawing “Right to Work,” banning permanent replacement of strikers—put it all on the table.

God forbid we do manage to spark the kind of mass strike wave that panics the billionaire class into throwing workers a few bones. What would we win for our effort? Card check? The AFL-CIO should convene an open call for legal reform proposals and put a new “Right To Your Job” bill on the record and on the lips of our members and allies.

The erstwhile House of Labor should also convene a wide-ranging strategic retreat for local leaders, rank-and-filers, staff, academics and activists that treats no idea as unwelcome or unthinkable. The recent petition filed by 106 leading labor scholarsin response to a question on union access to mandatory captive audience meetings left open by the NLRB (and promptly forgotten by union organizers) for 50 years highlights how badly labor needs more and different perspectives brought into the conversation. The poor souls who have spent the last few months poring over organizing databases, wall charts and lit pieces in anticipation of the Friedrichs decision need some fresh air and some new people to talk to.

Unions are no longer facing a multi-million dollar hit in June. We can give the bunker mentality a break, but we can’t pretend that we’re in the clear. There aren’t a lot of second chances in life. Labor must not squander this one.

This blog originally appeared at InTheseTimes.org on February 16, 2016. Reprinted with permission.

Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.


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The Right To Birth Control Just Won Its Most Significant Victory To Date In A Post-Hobby Lobby Case

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Ian Millhiser Judge Jerry Smith is a deeply conservative judge. He once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. He’s a reliable vote against abortion rights. And he once described feminists as a “gaggle of outcasts, misfits and rejects.”

So when Judge Smith writes an opinion protecting women’s access to birth control, even when their employer objects to contraception on religious grounds, that’s a very big deal.

East Texas Baptist University v. Burwell is a consolidated batch of cases, handed down on Monday, involving religious employers who object to some or all forms of birth control. These employers are entitled to an accommodation exempting them from federal rules requiring them to offer birth control coverage to their employees. Most of them may invoke this accommodation simply by filling out a form or otherwise informing the federal government of their objection and naming the company that administers their employer health plan. At this point, the government works separately with that company to ensure that the religious employer’s workers receive contraception coverage through a separate health plan.

Several lawsuits are working their way through the federal courts which raise the same legal argument at issue here. In essence, the employers claim that filling out the form that exempts them from having to provide birth control makes them complicit in their employee’s eventual decision to use contraception, and so the government cannot require them to fill out this form. So far, every single federal appeals court to consider this question has sided with the Obama administration and against religious employers who object to this accommodation.

Few judges on any court, however, are as conservative as Judge Jerry Smith, a Reagan appointee to the United States Court of Appeals for the Fifth Circuit whose law clerks frequently go on to clerk for the most conservative members of the Supreme Court. Nevertheless, Smith makes short work of the claim that the fill-out-a-form accommodation burdens religious liberty.

The federal Religious Freedom Restoration Act (RFRA) provides that the federal government “shall not substantially burden a person’s exercise of religion” except in limited circumstances. Applying this language, Smith writes in a unanimous opinion for a three-judge panel that “[t]he plaintiffs must show that the challenged regulations substantially burden their religious exercise, but they have not done so.”

The crux of Smith’s analysis is that the plaintiffs in these cases object to birth control, but nothing in the law requires these plaintiffs to do anything whatsoever involving birth control. Rather, their only obligation, if they do not wish to cover birth control, is to fill out a form or send a brief letter to the federal government — and neither of those things are contraception.

“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives,” Smith explains. “Instead, the acts that violate their faith are those of third parties.” Specifically, the plaintiffs object to the federal government working with an insurance administrator to provide contraception to certain workers. But the law does not “entitle them to block third parties from engaging in conduct with which they disagree.”

Indeed, Smith writes, if the plaintiffs in these cases were to prevail, it could lead to absurd challenges to basic government functions. “Perhaps an applicant for Social Security disability benefits disapproves of working on Sundays and is unwilling to assist others in doing so,” Smith explains. “He could challenge a requirement that he use a form to apply because the Social Security Administration might process it on a Sunday. Or maybe a pacifist refuses to complete a form to indicate his beliefs because that information would enable the Selective Service to locate eligible draftees more quickly. The possibilities are endless, but we doubt Congress, in enacting RFRA, intended for them to be.”

Smith’s opinion, in other words, should offer a fair amount of comfort to women whose employers seek to cut off their access to birth control coverage. Though there are signs that at least some of the justices would like for the plaintiffs in cases like East Texas Baptist to prevail, the fact that a judge as conservative as Jerry Smith rejected their legal arguments suggests that a majority of the Supreme Court will not embrace these lawsuits.

This blog was originally posted on Think Progress on June 22, 2015. Reprinted with permission.

About the Author: The author’s name is Ian Millhiser. Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.


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