Navigating negotiations


Nate Hawthorne takes a look at how labor-capital structures of negotiation have changed in response to worker militancy and the state changing how it deals with what capitalists do. Along the way he gets into Joe Burns' new book, the ILWU-EGT conflict, the Occupy movement and 'direct unionism'.

Recently Occupy activists helped the ILWU win a new contract. A union officer described this as “a victory for Occupy in their involvement in forcing negotiations.” He added that “the solidarity and organization between the Occupy Movement and the Longshoremen won this contract." These events could point toward what Joe Burns has been calling for in his book Reviving the Strike. Burns argues that ultimately if unions want to reverse their decline then they need to return to tactics of powerful production-stopping strikes. (I recommend the book, it's definitely worth reading.) Given recent events in Occupy and in 2011 in Madison, Wisconsin, it gets easier to plausibly imagine unions taking this step.

Part of why Burns thinks these strikes are needed for the labor movement has to do with the current costs and benefits of unionization. At one point, Burns suggests that most people join unions if and when it's in their economic interest to do so. That is, people will not generally join unions unless the costs of joining are lower than the benefits. He also says that unions in the U.S. are not going to have the power to win much unless there's a threat of really serious economic harm to employers. That means unions are unlikely to act in ways that make the benefits of forming a union outweigh the costs for most people. He goes on to detail how the current arrangements of labor law create this situation, by helping reduce the likelihood that unions will engage in production-stopping strikes. Any union that follows the law will not be a credible threat to employers and so employers will not have any need to really negotiate.

Burns says that the only thing that will revitalize the U.S. labor movement is militancy that breaks out of the current system of labor law. He has some suggestions on ways that unions could try to reduce the costs for breaking out of the legal system, but such militancy will still involve serious risks. The thing is, if people join unions based on cost-benefit analysis then there's little reason why anyone would ever take such actions. There’s a sort of “which came first, the chicken or the egg?” quality to all this: most people won’t join unions unless there’s some benefit to doing so, the law is set up so that unions in behave in ways that limit the benefits of unionization, breaking the law will have huge costs, so why would people break the law…?

The solution to the puzzle is that some people take militant action despite the risks and not primarily out of a narrow cost/benefit calculus. I think this is part of the role that radicals and militants can play in helping set off movements that re-enliven existing institutions or creating a willingness for reform on the part of the official powers that be. Some people might run the risks of initial militancy despite the consequences. In doing so, these militants will push against the current prevailing forms of governing capitalism. If these initial militants succeed, larger numbers can join in and the forms of capitalist rule are forced to reconfigure – either through incorporation or repression or both. That reconfiguring can change the costs and benefits of unionization, encouraging larger numbers of workers to form unions. That is to say, it is often not in workers short-term interests, narrowly understood, to form unions. People who act bravely against short-term interests might change this condition, to make it so that unionization is more in keeping with people’s short-term narrow interests.

Parallels from the 1930s
These sorts of dynamics occurred in the 1930s in the U.S. The changes that happened in the U.S. in the 1930s in response to the economic crisis had two basic sources, which related to each other in mutually reinforcing ways: a changed view on the part of the state regarding working class organization, and working class militancy. (As I’ve written in another blog post, in my view what happened in this era was in part that the state began to make use of the working class as a way to discipline capitalists into acting in line with the long term interests of the capitalist system.) Nelson Lichtenstein has written that the labor law reforms of the 1930s involved the extension into workplaces of rights that were “thoroughly bourgeois” and yet “their achievement required something close to revolutionary action, or so it seemed during the summer and fall of 1934.” (Page 32 in Nelson Lichtenstein, State of the Union: A Century of American Labor.) While there were important policy changes, as Lichtenstein writes, “a law is not a social movement.” For the new policies to have “real social and political meaning, the United States required a working-class mobilization of explosive power.” (Page 39.)

The government reforms and working class militancy of the 1930s changed the institutions that create the costs and benefits of unionization. And radicals played a crucial role in that. To quote from Lichtenstein again, “Because of their exceptional ability as mass organizers, [CIO leader John L.] Lewis hired scores of communists and socialists (…) When reporter probed his decision to hire so many Communists, Lewis replied, “Who gets the bird, the hunter or the dog?”” That is to say, Lewis expected to make use of radicals to build the CIO, and expected to stay in control of the process and the results. Licthenstein continues, “Such radicals were and are essential to the organization of a trade union movement, in the United States even ore so than in other countries with an established socialist tradition. Indeed, if it were left to those whose aspirations were shaped merely by the trade union idea, most labor drives would have died at birth. This is because the founding of a trade union is a personally risky business whose costs and dangers are disproportionately born by those who take the early initiative.” Workers who took on early militant action “gambled with their jobs, and sometimes their lives. Most workers therefore remained passive, not because they endorsed the industrial status quo, but because defeat might well threaten what little security they had managed to achieve. (…) Only those individuals with an intense political or religious vision, only those radicals who saw the organizing project as part of a collective enterprise, and only those who understood the unions as a lever with which to build a new society could hope to calculate that the hardships they endured might reap such a magnificent political and social reward.”

That is to say, commitment to a vision beyond a short term cost/benefit calculation helped create the militant minority of the working class that was one key ingredient to the restructuring that happened in the 1930s. The other big ingredient was the new disposition toward reform on the part of state planners. Working class militancy played a key role in creating that new disposition as well. Rhonda Levine writes that the militant “extraparliamentary struggles of the industrial working class forced Democratic congressman and senators to take a more liberal position within congressional debates, thereby moving the Democratic party to the left on the political spectrum.” (Page 149 in her book Class Struggle and the New Deal.) Levine also argues that the Democrats only backed the new labor relations legislation at first in the attempt to offer a legislative alternative to American Federation of Labor supported legislation calling for limits on work hours. The Roosevelt administration and Congress initially did not support the proposals that Senator Robert Wagner put out for dealing with industrial relations; the strike wave of 1934 brought politicians around on this.

The combination of working class militancy and reform-minded politicians helped create the conditions where U.S. unions gained five million members between 1933 and 1937. Lichtenstein makes the point that the U.S. labor movement has tended to grow in bursts like this. Big upheavals happen - initially involving militant minorities of the working class then larger numbers – and union membership grows. Between upheavals, membership tends to level out and begin to decline. Burns’s book is in part an argument that those concerned about growth of unions generally or specific unions should orient less toward incremental growth and more toward creating the massive upheavals that have kicked off union expansion in the past. As I’ve said, the initial sparks of such militancy will not come from people who are making a narrow short-term calculation of their interests. I think the actions of Occupy in relation the ILWU’s victory are an example of people acting out of other interests.

Institutions of negotiation and rule
The ILWU victory goes against the larger over-all trend in the United States. Since Ronald Reagan’s attack on the air traffic controllers’ union over thirty years ago, employers have been on the offensive against unions and the U.S government has done very little about this, and in some cases has aided it. This is different from an earlier era. In the 1930s the U.S. capitalist state made collective bargaining a key part of economic policy and of the governance of the working people. That is, collective bargaining formed a key part of the capitalist system in the United States for a while, where collective bargaining was a system of governance that channeled and shaped workers’ activities and struggles, as well has helping promote economic activity by putting more money in workers’ hands. The attack on unions in more recent times represents in part a move away from the use of unions as a tool for capitalists and the capitalist state to try to govern the working class, and a move away from the use of unions as a tool for the capitalist state to try to govern capitalists. Victories like that of the ILWU with the aid of Occupy cuts against the general outlook of the capitalist state and capitalists today.

In my opinion, one of the things that this victory suggests is that militancy can re-enliven existing institutions of dispute resolution. That is, militancy can help re-invigorate older forms of institutionalizing truces in the class struggle. I think the foreseeable future might proceed in terms of tactical breaks from existing institutions. The response from the official powers will be repression, or a combination of repression and the re-enlivening those institutions. In an earlier blog post I detailed some ways that past militant conflict has made institutions of dispute resolution work again. In some respects, the ILWU’s Occupy-aided victory is an example of the re-enlivening of old forms of dispute resolution. If militancy continues and these kinds of institutions can’t contain and channel conflict effectively and if tactical breaks from institutions continue, then we will see more repression and probably attempts at creating new institutions of negotiation. In two earlier piece I detailed some of the origins of U.S. labor law, in a combination of militant struggle and innovative, flexible planning by parts of the capitalist state. This quote from an early IWW writer, Justus Ebert, lists some other examples of this from the past. Ebert wrote that the IWW's "industrial activities have affected the political institutions of the country in a manner favorable to labor. George West, the well-known journalist and publicist, is authority for the statement that the I. W. W. Lawrence strike of 1912 precipitated the formulation of the labor measures of the Progressive party. (Teddy Roosevelt adjunct Republican party.) Following the Wheatland strike, the housing commission of California used its authority to clean up labor conditions on all the ranches in the state. In the early war period, thanks to the I. W. W. lumber workers' strike, the governor of Washington, and Carlton Parker of the Federal Board recommended the eight-hour day for the lumber industry. In the 1912 Lawrence strike the I. W. W. destroyed the Democratic presidential aspirations of Governor Foss, by pillorying his misuse of the militia. The political results of the I. W. W. are undoubtedly many."

It can be hard to imagine existing institutions working again. Many of us have grown up politically in a time when people have been disaffected from the institutions of capitalist society. We are cynical about the ballot box, the court system, and so on. We are used to these institutions being of little use in helping people resolve disputes and meet needs in the short term. This cynicism about institutions is partly because the capitalists and the capitalist state have move away from using these institutions as effective means of governing us and organizing capitalism. Existing institutions can change, though.

The unions in the U.S. are in serious decline. This is in part because the capitalists and the state have moved away from using the unions as a tool for governance, connected to a general turn away from any sort of redistribution of wealth among the working class. (As an aside, I want to just stress here that wealth redistributed in capitalist society is wealth extracted from the working class – rising wages means giving workers a bit more of the surplus value taken from workers.) It could be that the ILWU’s recent Occupy-aided victory is the type of activity which could re-invigorate the labor movement, in keeping with Burns’s arguments.

Let’s say we see more upheavals and more effective forms of negotiation. Then what? What will that mean? I’ve been arguing recently that we need to differentiate radicalism and militancy in part because of the role that militancy sometimes plays in the governance of capitalism. Capitalism is made of up conflicts between capitalists and working class people. There’s tremendous conflict among some working class people, including over how to best navigate the workers vs capitalist conflict. Another important dynamic within capitalism is conflict between capitalists. Capitalists get their wealth from exploiting workers, but the capitalists also conflict with each other over who will get how much of a share of that wealth. That conflict between capitalists has to be governed or it will cause larger problems. Some of the time the capitalist state tries to make use of the working class as a source of power to govern capitalists.

Some of the time class struggle helps create, in the words of Michel Aglietta, “major transformations in the social organization of labor which can provide the basis for the conditions of a new and lasting accumulation.” (Quoted on page 153 of Levine’s Class Struggle and the New Deal.) That is, sometimes class struggle helps re-enliven the institutions of capitalist society, or create new ones, and these institutions help prop up capital accumulation. This can happen even when struggles involve tactical violations of capitalist property rights – as in the case of the sit down strikes that helped build the CIO, and as in the types of militant action that Burns is calling for, actions that stop production and have real economic costs for capitalists.

Karl Marx discusses one example of this dynamic in this short excerpt of Capital, Volume One. Marx argues that struggles by English workers helped create new standards for health and safety in the workplace. Capitalists only came around to these new standards because of tremendous pressure by workers and to some extent by the actions of forward thinking state personnel (like factory inspectors). The victory of these struggles for a new and better capitalism helped push English capitalism to a new type of development.

Rising militancy and renewing negotiation
As I argued in an earlier blog post, I think working class militancy can be increased when institutions of negotiation don’t work. Currently institutions of capitalist society are not likely to negotiate or concede. That can lead to rising working class militancy and more room for radical ideas to spread. Radicals, as specialists in militancy (or at least advocates of militancy) might gain more legitimacy as a result. Then, militancy practiced in larger numbers might re-enliven capitalist institutions. It’s important to note that those institutions are tools for capitalist rule, even though they are different sorts of tools than the guns and clubs of the police. I gave some examples of this in my earlier post, and the same thing happened in 1934.

In a strike at Electric Auto-Lite in 1934, the actions of radical organizers helped push the strike into militant conflict which eventually pushed the state to get involved and the employer to negotiate. There’s much about this struggle that’s inspiring and much that’s interesting. Among other things, the AFL leadership opposed the militant strike tactics used, which ultimately helped win the strike. And that win resulted in a contract and a return to some version of capitalist normalcy. Similar things happened in the Teamsters strike in Minneapolis. Both strikes involved serious physical confrontations and brave, militant action by radicals and other workers, and ended in negotiations, these events helped shape the terrain of U.S. industrial relations as I’ve already noted. These strikes helped call into question the ability of the capitalists and the capitalist state to govern, and the end result was an innovation in the form of capitalist and state governance.

When one form of governance stops working, those who govern seek to find new forms of governance that do work. In recent years, we’ve seen less willingness to respond to our grievances and less reforms. With growing militancy, especially if there more of the type that Burns has called for in which we break from the current system of labor governance, we may see more of this willingness. I think it’s important in this that we try to think about this and how we would respond. Burns is clearly a radical but his books mostly focuses on how militancy can help people get a better standard of living and a renewed labor movement. In my view this is part of the problem with the ‘direct unionism’ conversation in the IWW – it overemphasizes the importance of ‘getting the goods’ and underemphasizes the need to abolish the wage system and the idea that an injury to one is an injury to all. In my opinion, these militant calls – by Burns and by the direct unionism discussion paper (and, for the sake of transparency, I’m a co-author of the discussion paper) – are calls to break with the current system of capitalist governance, without a follow up conversation about what comes next. If we break from one particular aspect of capitalist rule, we don’t break from capitalism altogether.

In a recent article, the Black Orchid Collective wrote that “unions have a dual nature under capitalism. They at once ensure that union workers have the ability to negotiate with bosses about wages and benefits by way of collective might. However, they also adhere to laws which hinder the potential of this collective might and it’s ability to end a situation in which a majority has to negotiate for its survival. Our critique of the bureaucracy lies in the fact that regardless of how progressive individual labor leaders may be, their positions rests in some manner on their ability to adhere to the contract which they have negotiated with the capitalists. They end up helping management and the courts enforce this contract even when it goes against the interests of the workers. In other words, they play a role in maintaining labor power as a commodity and in ensuring some level of discipline at the workplace.” In helping the ILWU win their contract, Occupy activists helped workers improve their lives, and reinforced these same dynamics of governing and managing the class relation.

In reply to Black Orchid, I would say that I think all fighting collectivities “at once ensure that [the involved] workers have the ability to negotiate (…) by way of collective might.” Negotiation is a social relationship, it’s built in to the relationships between employers and employees on a small scale and between the capitalist class and the working class on a large scale. Burns's book is concerned with how labor law encourages unions to act in ways that make them unlikely to successfully negotiate. To put it another way, Burns’s book is about one form of institutionalizing the social relationship of negotiation between capitalists and workers. He argues that the current version of the institution of unions isn’t working. It can be made to work, his book suggests, by large, production-stropping strikes that break the law. A rise in militancy might re-enliven the practices of negotiation.

Victories like that of the ILWU are exciting and inspiring. And yet, it’s unclear how to think of them as contributing to break from negotiation – in which we move from a challenge to one kind of capitalist rule into a challenge to the ability for capitalists and their state to rule in any way at all. To put it another way, Burns’s book calls for a break from the current system of labor law in the United States. I agree with that call. But breaking from the current system of labor law is not the same as challenging capitalist rule. I realize that I sound here as if I’m suggesting that anything short of the end of capitalism is unacceptable. I do believe that to some extent. I think that all struggles that don’t end with the end of capitalism are partial defeats. At the same time, it is vitally important that we be able to distinguish and to rank different kinds of partial defeats.

Black Orchid also wrote that “At times rank and file workers use the union structure to fight back against the bosses and secure gains; at times they go beyond this structure and create new forms of struggle.” I think that in the future we’re likely to see more times when people “go beyond this structure and create new forms of struggle” but that doesn’t necessarily mean going beyond negotiation. It’s going to be a process either way and will be muddy, and some of the new forms of struggle will be innovative, militant, exciting ways to renegotiate and maintain the status of labor power as a commodity. It seems to me that we very much need institutional innovations (going beyond NLRB, having leadership from the shopfloor upward instead from the top down etc) and many in the labor movement recognize this and are experimenting with it. As that happens I think we’ll see temporary alliances based on agreement on institutional change (noncontractual unionism, for instance) and those alliances will soon then face internal disagreements on politics and about issues related to negotiation and trying (or not trying) to go beyond negotiation.

Better and worse negotiation
It seems to me that for the foreseeable future we’re probably going to be navigating between different forms of the social relationship of negotiation between classes. That’s not to say that all versions of this relationship are equal. Far from it. How we institutionalize this relationship matters a great deal. There are two basic ways to think about what makes forms of negotiation better. One is about which form makes us more likely to get more of what we need. As someone who has a hard time making ends meet, I am all for this. On the other hand, another way to think about different types of negotiation is what they do to the participants.

I think this relates to some current conversation among some of us in the IWW about direct unionism or solidarity unionism. This vision of organization tends to involve rejection of some aspects of negotiation with employers but it isn't really anti-negotiation in practice. It rejects one institutional form of negotiation – contracts, collective bargaining – but still involves types of negotiation. Part of the importance of direct unionism in my opinion is at the level of what forms of negotiation we accept and what forms we don’t. In my view, struggles generally have a dynamic like a wave. They rise, they level out, they decline. (I tried to sketch these dynamics in more detail in relation to some of Scott Nappalos's ideas in this article.) Some forms of institutionalizing negotiation involve trying to take and hold some territory. Holding territory means having to govern that territory, and that governing takes place within the larger context of capitalist society. A collective bargaining agreement requires a union to govern the workers who fall under that agreement, or requires those workers to govern themselves, within a range of acceptable behaviors. If the workers go outside that range, there can be serious penalties. Effectively this makes the union into a lever for enforcing behaviors that are functional for capitalism. Unions are disciplined into helping discipline workers into doing their jobs. To quote Black Orchid again, unions “end up helping management and the courts enforce this contract (…) they play a role in maintaining labor power as a commodity and in ensuring some level of discipline at the workplace.” In my view, part of what’s important about direct unionism is that it tries to institutionalize forms of negotiation that don’t make our organizations play role in disciplining workers into capitalism.

Some comrades have argued that this aspect of direct unionism makes direct unionism a more effective means for workers to win gains in the short term. That makes direct unionism advisable for the reason I mentioned before, that it can help us get more stuff we need to meet our needs. I’m not convinced that this is the case. [IWW joke about firings and unemployment.]

Beyond negotiation
Even if it is the case that direct unionism means we will win more often, even if we can count on the idea that direct action gets the goods, as radicals, we don’t just want goods. We want more than that. And we want other people to want more than that. As I’ve tried to say a few times, I don’t think the particularly important aspect of direct unionism is its usefulness as a form of negotiation that delivers the goods. I say this as a fairly convinced direct unionist. The degree to which direct unionism is or become more effective as a means for people to meet their interests via militant struggle under capitalism is in part the degree to which direct unionism can become institutionalized as a form of governance under capitalism.

Direct action for the sake of goods is compatible with a ritualized form of struggle used to maintain the rule of the capitalist state. It is precisely the fact that people can get some of their needs met and their disputes resolved through existing institutions that makes (or rather made, and might again make) those institutions effective organs of capitalist rule sometimes. Often the prevailing institutions of negotiation haven’t worked well in recent years, and the costs of this institutional breakdown has been low for the capitalists. With rising militancy, the costs of ineffective negotiation and dispute resolution will get higher, and we may see those institutions start to work better again, or we may see new once created. Rather than efficacy in negotiation, in my direct unionism is important to the degree that it connects with and helps advance a longer term social vision, radicalizes more people, and prepares people to participate in the struggles of the working class against capitalism.

As I tried to argue in another blog post, in attempting to spread our social vision, it’s a mistake to rely on the experience of struggle to do most of the work of advancing our social vision. Clearly the types of social change we want to see happen will involve a challenge to capitalist rule, and challenging capitalist rule is a matter of balance of power. To get to that point, though, alongside building power, and building willingness to use that power, there has to be building the values that inform how and why to use that power. In the past I've had experiences where IWW organizing that's all about building power and taking action has radicalized people. I don't know how it works but it has worked a fair amount of the time. That's fine, doing what works is good, but I definitely think that we in the IWW could be doing more to increase our odds -- have a better percentage, so to speak. In a lot of ways I think we or at least I haven't really advanced much on this issue, but the context has changed: there's larger mobilizations now and they're happening without us making them happen. Before it was always a matter of us acting in the context of the heat we could create, at a smaller scale. The scale is larger now and the heat isn't generated by us. (I'm thinking mostly of Occupy but also the Madison stuff and of anti-austerity responses generally.) I also think that the pace of all this is different than workplace organizing because the organizing allows more opportunity for long-term relationship building. I'm not sure but I think those long term relationships plus the IWW's explicit (but occasionally a bit thin) anticapitalism have been key to the radicalization that's happened with people. As other stuff happens outside the workplace I think our percentages will be worse, especially without figuring out consciously how this stuff works and just relying on events to do the political work for us.

As I said, I think that for the foreseeable future we’re going to be dealing with forms of negotiation. If social conflict continues to escalate I think it’s likely we’ll see attempts to restore older forms of negotiation, and if that doesn’t work we’ll see new attempts at institutionalizing negotiation. I think it’s likely that we won’t be able to stop this, at least not initially, and we’ll need to be able to argue against these institutions. It may not be sufficient to argue “direct action gets the goods” – as in, it may not be enough to say “these institutions can’t pay out the same way that direct action will, if what you want is goods,” because that may not always be true. It may end up that some of the time following the routines of institutions of negotiation gets the goods (and it may end up that forms of direct action to get the goods become routinized). We’ll need to be able to articulate our social vision on its merits based on the inherent limitations of our lives under capitalism and based on our vision of human liberation. I can say for myself I’ve neglected this and I feel like I have a great deal to learn here.

That is to say, if we do see rising social conflict, it will be important to spread our social vision and deepen our ideas and analyses prior to real social ruptures that place capitalist rule into question in a real way. It will also be important to think through collectively what the next round may look like. As a metaphor, there’s a thing that happens in chess games where one player has the initiative and sets the terms of the game in a way and the other player has to react. It’s hard to articulate but it’s relatively easy to feel when it happens while playing. I think many of us have lived in a time when the capitalists and the state have had the initiative and set the terms and we’ve largely been reacting. In smaller scale campaigns this is sometimes true though there are more instances where we’ve had the initiative and set the terms and have had clearer ideas. There’s a chance that social movements may take the initiative and come to set the terms during the economic crisis, and a chance that radicals can take the initiative within movements.

If and when this happens, a lot of us will face unfamiliar problems and make many mistakes. It’ll be important not to respond to good faith mistakes polemically, because doing so is corrosive on the ability of movements and organizations to carry out organizing and needed reflection. It’ll also be important to pose problems openly that we don’t yet know how to answer. In this blog post and some others I’ve been trying to raise issues about how we might react in the face of a renewed capacity for reform, the re-invigorating of institutions of dispute resolution (which are also institutions of capitalist rule), or the creation of new institutions. I’ve also been trying to address issues about how our organizations might relate to negotiations and better and worse ways to carry out negotiations. The biggest question in all this for me, which I think is closely related, is what we imagine it looking like as struggle move from forms of negotiation to conflicts that actually move beyond negotiation, at least temporarily. And how we might spread these. I’d like to have a much clearer sense of this than I do. I don’t think it’s the kind of thing that any one person can just know, it’s something that requires a large-scale collective conversation. John O’Reilly and I tried to lay out some questions to inform this conversation as regards the IWW specifically. The IWW is just one tiny group among many small groups within the millions and millions of people in the global working class, so the conversation has to be larger than just the IWW.

As I’ve tried to say in this post, as we move forward, I think it’s important that we call for and experiment with breaks from the current institutions of capitalist rule, and that we be attentive to potential and emerging new institutions of negotiation and rule. We should keep in mind that the institutions of capitalist rule are often themselves the product of struggle among capitalists and struggles with real stakes in workers’ lives. (It is precisely the real human stakes that make some institutions effective as tools for capitalists to govern – the wage is a basic example of this; our socially-imposed need for wages is a key part of the power that capitalists have over us.) At the same time we shouldn’t shy away from struggles just because we worry that they may eventually re-energize of existing institutions of dispute resolution or aid the creation of new ones.

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Feb 22 2012 23:34


  • It’s important that we call for and experiment with breaks from the current institutions of capitalist rule, and that we be attentive to potential and emerging new institutions of negotiation and rule.

    Nate Hawthorne

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