National Labor Relations Board v. Allied Medical Transport, Inc. ( 2015 )


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  •              Case: 14-15033    Date Filed: 10/13/2015   Page: 1 of 17
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-15033
    ________________________
    Agency No. 12-CA-072141
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner,
    versus
    ALLIED MEDICAL TRANSPORT, INC.,
    Respondent.
    ________________________
    Petition for Enforcement of an Order of the
    National Labor Relations Board
    _______________________
    (October 13, 2015)
    Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
    WILLIAM PRYOR, Circuit Judge:
    This petition for enforcement presents two issues: whether substantial
    evidence supports an order of the National Labor Relations Board and whether that
    order is moot. After employees at Allied Medical Transport, Inc., elected a union
    to represent them, Allied suspended and later discharged Renan Fertil and Yvel
    Case: 14-15033     Date Filed: 10/13/2015    Page: 2 of 17
    Nicolas, two of the employees who supported the campaign to elect a union. The
    General Counsel for the Board then filed a complaint against Allied. The Board
    found that Allied illegally interfered with its employees’ union activities, 29 U.S.C.
    § 158(a)(1), and unlawfully retaliated against Fertil and Nicolas, 
    id. § 158(a)(3).
    The Board ordered Allied to refrain from future violations of the National Labor
    Relations Act, 
    id. § 151
    et seq., and to reinstate Fertil and Nicolas with backpay.
    Because substantial evidence supports the findings of the Board and the petition
    for enforcement is not moot, we grant the petition for enforcement.
    I. BACKGROUND
    Allied contracted with Broward County to provide paratransit services to
    individuals in the county. The county provided Allied with daily manifests of
    passenger transportation routes that specified which passengers were required to
    pay a $3.50 fare. When the drivers finished their daily routes, they deposited the
    fares into collection machines, which printed receipts. The drivers then stapled the
    receipts to their manifests and returned them to the company.
    In August 2011, Allied conducted a limited audit comparing the daily
    manifests and the receipts of several drivers. The initial audit revealed that several
    drivers had not remitted all of their fares. Wayne Rowe, Allied’s chief executive
    officer, reported the discrepancies to the drivers and required them to pay the
    amounts owed.
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    Two of the drivers, Jude Desir and Andrys Etienne, initially refused to pay
    Allied on the ground that they had remitted all of their collected fares to a
    supervisor. On October 21, 2011, Rowe told Desir and Etienne that he would
    investigate and that, if their explanation could not be verified, they would be
    responsible for paying any fares they owed. He did not discipline or suspend either
    employee during the investigation. Although Etienne insisted that he had deposited
    all of his fares, he later paid the missing amounts to keep his job. Rowe referred
    the investigation of Desir to the police, but Desir continued working for Allied.
    In October 2011, the Transport Workers Union of America, American
    Federation of Labor and Congress of Industrial Organizations, filed a petition to
    represent the employees at Allied. Rowe interrogated employees about their union
    activities, instructed employees not to elect the union, told employees that the
    union could not help them, and encouraged employees to come to him with any
    grievance. When the union held a meeting at a hotel near one of Allied’s locations,
    employees observed Rowe parked near the entrance.
    Renan Fertil and Yvel Nicolas supported electing the union. Fertil and
    Nicolas solicited union cards, distributed union flyers, wore union T-shirts under
    their uniforms, and spoke at union meetings. Nicolas also served as an election
    observer. On December 2, 2011, the employees voted to have the union represent
    them.
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    Soon after the first audit, Allied started an audit of all of its employees’ fare
    records from March to December 2011. Allied concluded that second audit several
    days after the union election. The second audit revealed that 77 of the
    approximately 120 drivers at Allied had fare delinquencies.
    On December 13, 2011, Rowe called Nicolas to inform him that he had a
    fare delinquency. Nicolas explained that the fare collection machine often would
    not work and, in that event, he would place the fares in an envelope and deposit the
    envelope through a separate slot in the machine, described as similar to a mail slot.
    This alternative process did not produce a receipt. Nicolas told Rowe that he could
    verify the deposits by comparing the manifests to the amounts written on the front
    of the envelopes. Rowe responded that he could not verify the deposits that way
    and that he would further investigate the matter. Two weeks later, company
    officials met with Nicolas. They informed him that his delinquency totaled $226.50
    plus interest and instructed him to pay Allied that amount. Nicolas again insisted
    that he had deposited all of the fares and requested copies of his manifests, but he
    nevertheless offered to pay the amounts to avoid suspension. Allied suspended
    Nicolas pending the outcome of the investigation.
    On December 21, 2011, Rowe and other company officials spoke with Fertil
    and informed him that he owed $433 in delinquent fares, plus interest. Fertil
    asserted the same explanation as Nicolas, and he agreed to pay any amounts that
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    Rowe could substantiate with documentation. The company officials provided
    Fertil with the manifest from December 14, 2011, which disclosed a $7 shortage,
    and he agreed to pay that amount. Rowe told Fertil he would investigate the matter
    further. Allied suspended Fertil pending the outcome of the investigation.
    Allied never investigated the validity of Nicolas and Fertil’s explanation.
    Allied instead referred the matter to the local police department, which filed no
    charges against either employee. Allied fired Nicolas and Fertil. Allied later agreed
    to stop pursuing fare delinquencies against other employees pending negotiations
    with the union.
    The General Counsel of the National Labor Relations Board filed a
    complaint against Allied for three violations of the National Labor Relations Act.
    First, the General Counsel alleged that Allied violated section 8(a)(1), which
    prohibits illegal interference with protected union activities. 29 U.S.C. § 158(a)(1).
    Second, the General Counsel alleged that Allied illegally retaliated against Nicolas
    and Fertil for their union activities, in violation of sections 8(a)(1) and (3). 
    Id. § 158(a)(1),
    (3). Third, the General Counsel alleged that Allied violated sections
    8(a)(1) and (5) by unlawfully changing its disciplinary policies regarding fare
    shortages without notifying the union. 
    Id. § 158(a)(1),
    (5).
    An administrative law judge ruled that Allied violated section 8(a)(1) by
    engaging in surveillance of the union and creating the impression of surveillance;
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    telling employees that it would be futile to select a union; interrogating employees
    about their union and other protected concerted activities; soliciting grievances to
    discourage the union campaign; soliciting employees to campaign against the
    union; promising employees benefits to discourage the union campaign; and
    threatening to replace employees with part-time drivers if they elected a union to
    represent them. The administrative law judge ruled that Allied did not illegally
    retaliate against Nicolas and Fertil. He stated that, “even if an invidious motivation
    might have played some role in Fertil’s and Nicolas’[s] personnel actions, [Allied]
    would have nevertheless taken the same actions against them for permissible
    reasons,” theft of passengers’ fares. The administrative law judge ruled that Allied
    unlawfully changed its disciplinary policies without notifying the union, in
    violation of section 8(a)(5).
    The Board affirmed the findings that the Company had committed several
    violations of section 8(a)(1) and ruled that Allied had committed an additional
    violation of section 8(a)(1) by instructing employees to vote against the union, but
    the Board reversed the other findings. It ruled that Allied retaliated against Nicolas
    and Fertil in violation of sections 8(a)(3) and (1). The Board explained that Allied
    failed to prove that it would have discharged Fertil and Nicolas in the absence of
    their union activities because Allied failed to conduct its promised investigation of
    Fertil’s and Nicolas’s explanations for the missing fares and treated two otherwise
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    similarly situated individuals, Desir and Etienne, differently. One member of the
    Board dissented as to the ruling on the retaliation charge on the ground that Allied
    would have suspended and discharged Fertil and Nicolas regardless of their union
    activities. The Board ruled that there was insufficient evidence to support the
    ruling that Allied violated sections 8(a)(5) and (1) by unilaterally changing its
    disciplinary policies about fare shortages.
    The Board ordered Allied to remedy its violations of the Act. The order
    required Allied to, among other things, cease “[c]reating the impression that it is
    engaged in surveillance of its employees’ union . . . activities”; “[s]uspending,
    discharging, or otherwise discriminating against employees because of their
    support for and activities on behalf of [unions]”; and “interfering with, restraining,
    or coercing employees in the exercise of the rights guaranteed them by . . . the
    Act.” Allied Med. Transp., 360 N.L.R.B. No. 142, at 6 (July 2, 2014). The order
    required Allied to post copies of a notice stating the requirements of the order in
    areas where its employees would see them. It also required Allied to offer Fertil
    and Nicolas “full reinstatement to their former jobs or, if those jobs no longer exist,
    to substantially equivalent positions” and to make Fertil and Nicolas “whole for
    any loss of earnings and other benefits suffered as a result of the discrimination
    against them.” 
    Id. The Board
    applied for enforcement of its order.
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    II. STANDARD OF REVIEW
    We will enforce an order of the Board if its factual findings “are supported
    by substantial evidence on the record considered as a whole.” NLRB v. Gimrock
    Constr., Inc., 
    247 F.3d 1307
    , 1309 (11th Cir. 2001) (citing 29 U.S.C. § 160(e)).
    “Substantial evidence is more than a mere scintilla of evidence. ‘It means such
    relevant evidence as a reasonable mind might accept as adequate to support a
    conclusion.’” NLRB v. Contemporary Cars, Inc., 
    667 F.3d 1364
    , 1370 (11th Cir.
    2012) (quoting Bickerstaff Clay Prods. Co. v. NLRB, 
    871 F.2d 980
    , 984 (11th Cir.
    1989)). “We are even more deferential when reviewing the Board’s conclusions
    regarding discriminatory motive, because most evidence of motive is
    circumstantial.” NLRB v. Goya Foods of Fla., 
    525 F.3d 1117
    , 1126 (11th Cir.
    2008) (quoting Vincent Indus. Plastics, Inc. v. NLRB, 
    209 F.3d 727
    , 734 (D.C. Cir.
    2000)) (internal quotation marks omitted). Our standard of review does not change
    when the Board reaches a conclusion different from that of the administrative law
    judge, see Universal Camera Corp. v. NLRB, 
    340 U.S. 474
    , 496, 
    71 S. Ct. 456
    , 469
    (1951), but the administrative law judge’s conclusions are “one factor to be
    considered in determining whether this standard has been satisfied,” Parker v.
    Bowen, 
    788 F.2d 1512
    , 1517 (11th Cir. 1986). “[C]ourts are bound by the
    credibility choices of the [administrative law judge]” unless they are “inherently
    unreasonable,” “self-contradictory,” or “based on an inadequate reason.” Goya
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    Foods of 
    Fla., 525 F.3d at 1126
    (quoting Ona Corp. v. NLRB, 
    729 F.2d 713
    , 719
    (11th Cir. 1984)) (internal quotation marks omitted).
    III. DISCUSSION
    Our discussion is divided in two parts. First, we explain that the enforcement
    order is not moot. Second, we explain that substantial evidence supports the
    finding of the Board that Allied discharged Fertil and Nicolas because of their
    union activities.
    A. The Petition for Enforcement Is Not Moot.
    Allied argues that the petition for enforcement is moot in two ways. First,
    Allied contends that it is impossible to offer Fertil and Nicolas full reinstatement
    and backpay. Second, Allied argues that it has substantially complied with the
    remaining portions of the order to the extent possible. These arguments fail.
    Allied contends that it is impossible to offer reinstatement and provide
    backpay because Allied has a much smaller workforce now, Fertil and Nicolas
    have not proved they are still certified to work as medical transport drivers, and the
    Board did not provide documentation of Fertil and Nicolas’s interim income
    necessary to calculate backpay. “[A]n enforcement proceeding will become moot
    [if] a party can establish that ‘there is no reasonable expectation that the wrong
    [remedied by an order] will be repeated.’” NLRB v. Raytheon Co., 
    398 U.S. 25
    , 27,
    
    90 S. Ct. 1547
    , 1549 (1970) (quoting United States v. W. T. Grant Co., 
    345 U.S. 9
                 Case: 14-15033    Date Filed: 10/13/2015    Page: 10 of 17
    629, 633, 
    73 S. Ct. 894
    , 897 (1953)). An enforcement application does not become
    moot when the employer has difficulty complying with the order or when
    “changing circumstances indicate that the need for it may be less than when
    made.” NLRB v. Crompton-Highland Mills, Inc., 
    337 U.S. 217
    , 225 n.7, 
    69 S. Ct. 960
    , 964 n.7 (1949) (quoting NLRB v. Pa. Greyhound Lines, 
    303 U.S. 261
    , 271, 
    58 S. Ct. 571
    , 576 (1938)) (internal quotation mark omitted).
    The provisions of the order that remedy the wrongful suspension and
    discharge of Fertil and Nicolas are not moot. An employer’s defense of
    impossibility based on changes to the business does “not prevent[] courts from
    enforcing Board orders.” NLRB v. Castaways Mgmt., Inc., 
    870 F.2d 1539
    , 1543
    (11th Cir. 1989) (quoting NLRB v. Great W. Coca-Cola Bottling Co., 
    740 F.2d 398
    , 406 (5th Cir. 1984)) (ruling that the demolition of a motel did not prevent the
    business owners from complying with an order to compensate former employees
    with backpay); see also Southport Petroleum Co. v. NLRB, 
    315 U.S. 100
    , 106–07,
    
    62 S. Ct. 452
    , 455–56 (1942) (ruling that dissolution of company and transfer of
    assets did not prevent enforcement of a Board order). Instead, the employer may
    “properly raise the impossibility defense in contempt proceedings.” Castaways
    
    Mgmt., 870 F.2d at 1543
    –44. If any modification to “the conventional remedy of
    reinstatement with backpay” is necessary, compliance proceedings offer the
    “appropriate forum.” Sure-Tan, Inc. v. NLRB, 
    467 U.S. 883
    , 902, 
    104 S. Ct. 2803
    ,
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    2814 (1984). Courts “have long recognized the Board’s normal policy of
    modifying its general reinstatement and backpay remedy in subsequent compliance
    proceedings as a means of tailoring the remedy to suit the individual circumstances
    of each discriminatory discharge.” 
    Id., 104 S. Ct.
    at 2814.
    Allied’s alleged substantial compliance with the remaining portions of the
    order also does not render these portions moot. An “employer’s compliance with
    an order of the Board does not render the cause moot.” NLRB v. Mexia Textile
    Mills, Inc., 
    339 U.S. 563
    , 567, 
    70 S. Ct. 826
    , 828 (1950). “A Board order imposes
    a continuing obligation; and the Board is entitled to have the resumption of the
    unfair practice barred by an enforcement decree.” 
    Id., 70 S. Ct.
    at 829. The order
    imposes continuing obligations on Allied to remedy the illegal interference with
    the employees’ union activities. Allied has not argued that there is “no reasonable
    expectation” that it will repeat its violations of the Act. Raytheon 
    Co., 398 U.S. at 27
    , 90 S. Ct. at 1549 (quoting W. T. Grant 
    Co., 345 U.S. at 633
    , 73 S. Ct. at 897).
    For these reasons, the petition for enforcement is not moot.
    B. Substantial Evidence Supports the Order of the Board.
    Section 8(a)(3) of the National Labor Relations Act prohibits employer
    “discrimination in regard to hire or tenure of employment or any term or condition
    of employment to encourage or discourage membership in any labor organization.”
    29 U.S.C. § 158(a)(3). “An employer violates [that section] by taking adverse
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    employment action or changing the terms or conditions of employment in
    retaliation for the union activities of its employees.” NLRB v. McClain of Ga., Inc.,
    
    138 F.3d 1418
    , 1421 (11th Cir. 1998). The Board ruled that Fertil and Nicolas
    were discharged in retaliation for their union activities.
    Courts and the Board apply the Wright Line test to determine whether an
    employer violated section 8(a)(3). See NLRB v. Transp. Mgmt. Corp., 
    462 U.S. 393
    , 400–04, 
    103 S. Ct. 2469
    , 2474–75 (1983), abrogated in part on other grounds
    by Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 
    512 U.S. 267
    , 
    114 S. Ct. 2251
    (1994); Wright Line, 
    251 N.L.R.B. 1083
    (1980). Under
    Wright Line, the General Counsel of the Board establishes a section 8(a)(3)
    violation by proving, by a preponderance of the evidence, that the employer’s
    antiunion animus was a “motivating factor” in its decision to discharge an
    employee. McClain of 
    Ga., 138 F.3d at 1424
    . An employer has an affirmative
    defense to section 8(a)(3) if it proves, by a preponderance of the evidence, NLRB v.
    S. Fla. Hotel & Motel Ass’n, 
    751 F.2d 1571
    , 1579 (11th Cir. 1985), “that it would
    have discharged the employee for a legitimate reason regardless of the protected
    activity,” McClain of 
    Ga., 138 F.3d at 1424
    (quoting Northport Health Servs., Inc.
    v. NLRB, 
    961 F.2d 1547
    , 1550 (11th Cir. 1992)). If the employer satisfies that
    burden, “[t]he General Counsel may then offer evidence that the employer’s
    proffered ‘legitimate’ explanation is pretextual—that the reason either did not exist
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    or was not in fact relied upon—and thereby conclusively restore the inference of
    unlawful motivation.” 
    Id. (quoting Northport
    Health 
    Servs., 961 F.2d at 1550
    ).
    The Board concluded that the General Counsel proved that the employees’
    protected activity was a motivating factor for their discharge and that Allied failed
    to prove that it would have suspended and later discharged Fertil and Nicolas in the
    absence of their union activities. Allied challenges both findings. It contends that it
    fired Fertil and Nicolas for their theft and would have fired them regardless of their
    union activities.
    Substantial evidence supports the finding of the Board that Fertil and
    Nicolas’s support for the union was a motivating factor in the decision to fire them.
    Fertil and Nicolas both actively supported and participated in the campaign to elect
    a union. Allied knew that Fertil and Nicolas supported the union, and it suspended
    and discharged Fertil and Nicolas only weeks after the workers voted in favor of
    the union. See McClain of 
    Ga., 138 F.3d at 1424
    (explaining that “the timing of the
    adverse action in relation to union activity” may “support an inference of anti-
    union motivation”). Rowe expressed antiunion animus when he told Nicolas that
    electing a union would be futile, threatened and interrogated other employees, and
    took other actions that illegally interfered with the employees’ union activities in
    violation of section 8(a)(1). Violations of section 8(a)(1) may serve as
    circumstantial evidence of an employer’s antiunion motivation. See id.; Purolator
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    Armored, Inc. v. NLRB, 
    764 F.2d 1423
    , 1429 (11th Cir. 1985). The Board
    reasonably accepted this evidence as sufficient to satisfy the General Counsel’s
    initial burden.
    Substantial evidence also supports the finding that Allied would not have
    suspended and discharged Fertil and Nicolas in the absence of their union
    activities. Despite Fertil and Nicolas’s insistence that they had deposited fares in a
    separate slot in the machine, Allied did not attempt to verify their explanation or
    grant their requests to review the records. Allied argues that its audit was a
    sufficient investigation because Fertil and Nicolas’s explanation of machine
    malfunction was implausible, but the Board was entitled to find otherwise. The
    audit compared the fares that should have been collected to the fares validated by
    the fare collection machines, and Fertil and Nicolas’s explanation could have
    accounted for the discrepancy in their deposits. Although no other employee
    offered that excuse, the audit showed that 77 of the 120 drivers at Allied had fare
    discrepancies and Allied had spoken with only 10 of them about the discrepancies.
    Some of the other 67 drivers could have experienced problems with the fare
    collection machine but not reported them.
    Moreover, Rowe and the other managers failed to inform Fertil and Nicolas
    that they refused to conduct an investigation. Rowe instead informed them that he
    would continue to investigate the matter during their suspensions, but Allied did
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    not in fact investigate further. Allied turned the matter over to the police, who
    brought no charges. That Allied failed to conduct the promised investigation
    undermines its purported legitimate reason for discharging Fertil and Nicolas.
    The evidence that Allied treated Fertil and Nicolas dissimilarly from Desir
    and Etienne also weakens Allied’s position. See NLRB v. Dynatron/Bondo Corp.,
    
    176 F.3d 1310
    , 1321 (11th Cir. 1999). Before the union election, Allied confronted
    Desir and Etienne about fare delinquencies. Rowe permitted Desir and Etienne,
    unlike Fertil and Nicolas, to continue working while Rowe conducted an
    investigation. The dissenting Board member reasoned that Desir and Etienne were
    not similarly situated because Desir and Etienne asserted that they had submitted
    the fares to their supervisor, an allegation that Allied may have taken more
    seriously. Although the employees’ different explanations may have called for
    different investigations, that the employees offered different excuses does not
    explain why some were permitted to work during the investigation and others were
    suspended pending a promised but nonexistent investigation.
    Allied also argues—and the dissenting Board member and administrative
    law judge agreed—that it treated Fertil and Nicolas differently from Desir and
    Etienne because Desir and Etienne repaid what they owed, but substantial evidence
    supports the finding by the Board that Fertil and Nicolas were not given an
    adequate opportunity to pay the fare shortage. Desir and Etienne initially had
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    refused to pay. Rowe told them he would investigate the matter and they would be
    responsible for paying if, after the investigation, he determined they had not turned
    in fares. Fertil and Nicolas testified that they agreed to pay whatever amounts
    Allied could substantiate with documentation, but Allied did not follow up to
    provide the requested documents. Fertil agreed to pay the $7 for which Allied
    provided documentation. Nicolas testified that, although he continued to deny any
    fare shortage, he offered to pay the missing fares to keep his job. He testified that,
    in his meeting with Rowe and other managers, they did not arrange a date for him
    to pay for the missing fares because Rowe stated that he would continue
    investigating. Rowe and Diandre Hernandez, one of the managers who met with
    Nicolas to discuss the audit, testified that Nicolas agreed to pay the deficiency that
    Friday but did not return. Given these conflicting accounts, the Board could
    reasonably infer that Nicolas and Fertil were not given an opportunity to pay
    comparable to the opportunity afforded other employees. See Gimrock 
    Constr., 247 F.3d at 1310
    –11 (explaining that the Board can draw a different inference from the
    facts without disturbing the administrative law judge’s credibility determinations).
    Allied treated Fertil and Nicolas differently from Desir and Etienne by requiring
    them to pay the missing fares before it conducted an investigation and by
    suspending them when they refused. Substantial evidence supports the finding that
    Allied failed to rebut the prima facie case of antiunion motivation.
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    The Board also ruled that Allied committed other violations of section
    8(a)(1) by illegally interfering with its employees’ union activities. 29 U.S.C.
    § 158(a)(1). Allied did not challenge that ruling in its initial brief, but it argued in
    its reply brief that insufficient evidence supported the finding that Rowe engaged
    in surveillance of a union meeting. Arguments made for the first time in the reply
    brief, however, are forfeited. See Jones v. Sec’y, Dep’t of Corrs., 
    607 F.3d 1346
    ,
    1353–54 (11th Cir. 2010). Accordingly, we enforce the order of the Board in its
    entirety.
    IV. CONCLUSION
    We GRANT the petition for enforcement.
    17
    

Document Info

Docket Number: 14-15033

Judges: Marcus, Pryor

Filed Date: 10/13/2015

Precedential Status: Precedential

Modified Date: 10/19/2024

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