National Labor Relations Board: Observations on the NLRB's July 8, 1997, Draft Strategic Plan

Published by the Government Accountability Office on 1997-07-24.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                          United States General Accounting Office

GAO                       Testimony
                          Before the Subcommittee on Human Resources,
                          Committee on Government Reform and Oversight
                          House of Representatives

For Release on Delivery
Expected at 11:00 a.m.
Thursday, July 24, 1997
                          NATIONAL LABOR
                          RELATIONS BOARD

                          Observations on the NLRB’s
                          July 8, 1997, Draft Strategic
                          Statement of Carlotta C. Joyner, Director
                          Education and Employment Issues
                          Health, Education, and Human Services Division

National Labor Relations Board:
Observations on the NLRB’s July 8, 1977,
Draft Strategic Plan
               Mr. Chairman and Members of the Subcommittee:

               We are pleased to be here today to discuss the National Labor Relations
               Board’s (NLRB) strategic plan required by the Government Performance
               and Results Act of 1993 (the Results Act).

               NLRB is an independent agency created by the National Labor Relations Act
               of 1935. As amended, the act provides the basic framework for relations
               between labor and businesses engaged in interstate commerce. It defines
               and protects rights of employees and employers, encourages collective
               bargaining, and seeks to eliminate certain unfair labor practices that could
               interrupt commerce. The act covers both profit and nonprofit firms. Major
               exemptions include agricultural laborers, supervisors, and public

               My comments today will focus primarily on NLRB’s July 8, 1997, draft
               strategic plan. As you requested, we determined whether the draft plan
               complied with the requirements of the Results Act and the Office of
               Management and Budget’s (OMB) guidance on developing strategic plans
               (Circular A-11, Part 2). To judge the overall quality of the plan and its
               components, we used our May 1997 guidance for congressional review of
               the plans (GAO/GGD-10.1.16, May 1997).1 We also relied on previous reviews
               we have conducted on the Results Act and at NLRB. A list of related GAO
               products appears at the end of this testimony.

               Agency strategic plans are to provide the framework for implementing all
               other parts of the Results Act, and they are a key part of improving
               performance. The act anticipated that it might take several planning cycles
               to perfect the process, however, and that the final plan would be
               continually refined as future planning cycles occur. Agencies are not
               required by the Results Act to have final strategic plans until
               September 30, 1997. We recognize that developing a strategic plan is a
               dynamic process and that the draft plan we reviewed will be further
               revised before NLRB submits its final plan to the Congress in
               September 1997.

               In summary, although NLRB’s plan is a work in progress, the July 8 version
               has deficiencies in several critical areas and often omits important
               information required by the act. For example, the plan’s mission statement
               clearly articulates neither the purpose of NLRB’s various functions nor how

                Agencies’ Strategic Plans Under GPRA: Key Questions to Facilitate Congressional Review
               (GAO/GGD-10.1.16, May 1997).

               Page 1                                                                       GAO/T-HEHS-97-183
             National Labor Relations Board:
             Observations on the NLRB’s July 8, 1977,
             Draft Strategic Plan

             it performs its work. Moreover, although the plan’s long-term goals are
             linked to its mission statement, its goals and objectives are neither results
             oriented nor measurable as stated. The agency has consulted with key
             stakeholder groups, such as unions, employers, and the agency’s
             employees; however, it has not yet consulted with the Congress. Finally,
             NLRB’s draft plan includes no description of the strategies or initiatives that
             will be used to achieve the plan’s strategic goals, has no information on
             the time schedule or resources required by key actions associated with the
             plan’s progress, and omits three of the six basic elements required by the
             Results Act. NLRB officials have acknowledged these deficiencies and are
             further revising the plan.

             The purpose of the National Labor Relations Act is to encourage collective
Background   bargaining and to protect workers exercising their freedom of association
             to negotiate the terms and conditions of their employment. To carry out
             this responsibility, NLRB performs electoral, investigative, prosecutorial,
             and judicial functions. These functions are divided between its Office of
             General Counsel and a five-member Board appointed by the President
             with Senate approval.

             NLRB’s Office of General Counsel, organized into 52 field offices in 33
             regions, conducts representation elections,2 investigates and resolves
             cases involving disagreements about elections, and investigates and
             prosecutes cases involving unfair labor practices. All cases originate in
             one of the regional offices, either with a party filing a charge alleging an
             unfair labor practice or with a party filing a petition for an election. At the
             regional level, parties to the case either settle informally—the case is
             withdrawn, dismissed, or settled—or pursue litigation. Cases that the
             Office of General Counsel’s regional staff determine have merit as an
             unfair labor practice usually involve a hearing before an administrative
             law judge (ALJ) in the region, who decides the case. Litigation in
             representation cases usually involves a hearing before a hearing officer,
             followed by a regional director’s decision. If the parties to a case concur
             with the ALJ or regional director decision, this decision becomes the NLRB

             If parties contest the regional decision, the five-member Board at NLRB
             headquarters reviews the case and decides to affirm, modify, or reverse
             the regional decision. For decision-making purposes, the Board organizes

              Representation elections are elections conducted among workers to determine whether they wish to
             be represented by a union.

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                               National Labor Relations Board:
                               Observations on the NLRB’s July 8, 1977,
                               Draft Strategic Plan

                               itself into five three-member panels. One Board member serves as the
                               head of each panel, is assigned the case, and drafts the Board’s decision.
                               Most Board decisions are made by the three-member panels rather than by
                               the entire five-member Board. Parties (except for the General Counsel)
                               who disagree with the Board’s decision may appeal unfair labor practice
                               cases, but generally not representation cases, to a U.S. circuit court of
                               appeals and, in turn, to the Supreme Court.

                               In fiscal year 1997, NLRB’s budget of about $175 million authorized 1,950
                               full-time-equivalent positions in its Washington headquarters and field
                               offices. In addition to 200,000 inquiries a year from the public, NLRB
                               receives for investigation about 40,000 cases a year filed by individuals,
                               employers, or unions. The vast majority of all cases filed with NLRB are
                               resolved informally at the regional level, and most of these are resolved
                               without going to an ALJ or the regional director for a decision. The
                               remaining cases are forwarded for review to the five-member Board at
                               NLRB headquarters.

Results Act Requirements       The Results Act requires that agencies clearly define their missions and
for Preparing Agency           articulate a comprehensive mission statement that covers the agency’s
Strategic Plans                major functions and operations. It also requires that they establish
                               long-term strategic goals, as well as annual goals linked to them. Agencies
                               must then measure their performance in meeting the goals they have set
                               and report publicly on their progress. In addition to monitoring ongoing
                               performance, agencies are expected to perform discrete evaluations of
                               their programs and to use information from these evaluations to improve
                               the programs.

                               The Results Act requires agency strategic plans to include the following
                               six elements:

                           •   Mission statement: A comprehensive mission statement covering the
                               major functions and operations of the agency.
                           •   Strategic goals: A description of general goals and objectives for the major
                               functions and operations of the agency.
                           •   Strategies to meet goals: A discussion of the approaches (or strategies) to
                               achieve the goals and objectives and the resources needed.
                           •   Relationship of strategic goals to performance goals: A description of the
                               relationship between the general goals and objectives in the strategic plan
                               and the performance goals in the annual performance plan.

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                        National Labor Relations Board:
                        Observations on the NLRB’s July 8, 1977,
                        Draft Strategic Plan

                    •   External constraints: A discussion of key factors external to the agency
                        that could significantly affect achieving the strategic goals.
                    •   Program evaluations: A description of program evaluations used to
                        establish or revise strategic goals and objectives and a schedule for future

                        The plan is to cover a period of not less than 5 years and is to be updated
                        every 3 years. The act requires agencies, as they develop their strategic
                        plans, to consult with the Congress and solicit the views of other key

                        OMB Circular A-11 provides guidance to agencies on preparing strategic
                        plans, including a description of individual components to be included in
                        such plans. In addition, the circular provides information on developing
                        annual performance plans and a schedule by which all plans must be
                        completed and sent to OMB and the Congress.

                        According to OMB Circular A-11, the mission statement in a strategic plan
Strategic Plan’s        should be brief, defining the basic purpose of the agency, with particular
Mission Statement       focus on its core programs and activities. High-quality mission statements
Could Be                often explain why the agency exists, what it does, and how it performs its
                        NLRB’s stated mission in its draft strategic plan is to “(a) determine and
                        implement through secret ballot elections, the free democratic choice by
                        employees as to whether they wish to be represented by a union in dealing
                        with their employers and, if so, by which union; (b) prevent and remedy
                        unlawful acts, called unfair labor practices, by either employers or unions
                        or both; and (c) insure that the process of collective bargaining is available
                        and unimpeded.”

                        Although the statement accurately itemizes the functions required by the
                        statute, it does not clearly articulate what those functions are intended to
                        achieve. For example, the statement does not focus on the results
                        expected from activities, such as conducting elections, that is, how
                        workplaces would be different if such elections occurred freely. In
                        addition, a statement about ensuring that the process of collective
                        bargaining is available and unimpeded is vague without further
                        clarification of which NLRB activities would address this part of its mission
                        and what would result from achieving this. Similarly, the statement says

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                         National Labor Relations Board:
                         Observations on the NLRB’s July 8, 1977,
                         Draft Strategic Plan

                         that NLRB will prevent and remedy unlawful acts but does not convey
                         which agency activities would perform this function.

                         The plan’s long-term goals are generally linked logically to its mission
Strategic Plan’s Goals   statement. For example, the first three of the plan’s five goals concern the
Linked to Agency’s       expeditious and effective resolution of representation questions and unfair
Mission but Not          labor practices and vigorous pursuit of court orders and judgments to
                         obtain redress. All of these are logically linked to a mission statement
Results Oriented         aimed at facilitating employees’ free choice in determining union
                         representation, preventing and remedying unfair labor practices and
                         ensuring that the collective bargaining process is available and
                         unimpeded. The remaining goals concern the agency’s desire to implement
                         effective management practices—maintaining a well-trained workforce
                         and providing it the technological capabilities to ensure productivity—that
                         would help achieve its mission.

                         Unfortunately, the objectives associated with each of the goals are simply
                         extended restatements of the strategic goals, rather than more specific
                         explanations of what the goals are intended to accomplish. For example,
                         one of the plan’s goals is that “the NLRB will resolve questions concerning
                         representation expeditiously and effectively.” The associated objective
                         states that “the NLRB seeks to effectively protect the rights of employees to
                         select or reject a labor organization as their collective bargaining
                         representative. To this end, it is essential that the NLRB resolve all
                         questions concerning representation and conduct representation elections
                         fairly and as expeditiously as possible.” In addition, the goals and
                         objectives as stated are generally neither results oriented nor measurable.
                         For example, the goals tend to focus on the process, such as resolving
                         questions, and how it will be done, that is, expeditiously and effectively,
                         rather than on the result, such as workplaces where the free and
                         democratic choice of employees can be expressed. In addition, the goals
                         are not readily measurable without clarification of the meaning of terms
                         such as “effective.”

                         The Results Act specifies that agencies describe the means by which they
Strategies to Achieve    will achieve the general goals and objectives and the various resources
Goals Are Identified     needed. This can include operational processes, skills, technologies, and
but Not Described        other resources. The current version of the NLRB strategic plan mentions
                         proposed strategies to achieve each objective but does not describe them
                         nor articulate the linkage between the strategy and the particular goal and

                         Page 5                                                      GAO/T-HEHS-97-183
                      National Labor Relations Board:
                      Observations on the NLRB’s July 8, 1977,
                      Draft Strategic Plan

                      in one instance does not even identify a strategy. For example, it lists
                      strategies such as “super panels” to achieve the goal concerning
                      representation elections without describing them or their relevance.3
                      Earlier versions of the agency’s strategic plan had more detail on the
                      agency’s proposed strategies, and agency officials have told us that they
                      are continuing to develop this area internally.

                      In addition, OMB Circular A-11 requires that agencies include schedules and
                      the levels of resources necessary to complete key actions. The current
                      agency plan, however, has no information on the time schedule or
                      resources required by key actions associated with the plan’s progress, for
                      example, the development or use of “case management data research
                      tools” or the resources associated with the completion of its case activity
                      tracking system, which is discussed later in my statement.

                      NLRB’sdraft strategic plan omits three of the six components required by
Plan Omits Three      the Results Act and OMB Circular A-11. More specifically, the plan does not
Required Components   discuss (1) the relationship between its long-term goals and annual
                      performance goals, (2) outside factors or external constraints that could
                      hinder or affect the agency’s efforts to achieve its goals, and (3) role of
                      program evaluation in developing the plan or establishing goals.

                      The Results Act requires agencies to establish annual performance goals
                      linked to the plan’s long-term strategic goals. These annual goals are to
                      appear in an annual performance plan that the agencies must prepare
                      beginning in February 1998 and submit to the Congress. OMB Circular A-11
                      notes that the agency strategic plan should include the type and nature of
                      the goals to be included in the annual plan, the relationship between the
                      annual plan goals and the general goals and objectives of the strategic
                      plan, and the relevance of the annual goals in reaching the overall goals
                      and objectives. Agencies must then measure their performance toward the
                      goals they have set and report publicly, in subsequent years, on their
                      progress. Results-oriented annual performance goals can enable the
                      agency to track its progress closely and adjust the strategic plan when
                      necessary. NLRB officials are currently revising the performance measures
                      proposed in an earlier draft, they said, and anticipate addressing this issue
                      in future versions of the agency’s strategic plan.

                       Under a super panel procedure, a panel of three Board members meets each week to hear cases that
                      involve issues that lend themselves to quick resolution without written analyses by each Board
                      member’s staff.

                      Page 6                                                                      GAO/T-HEHS-97-183
                        National Labor Relations Board:
                        Observations on the NLRB’s July 8, 1977,
                        Draft Strategic Plan

                        In addition, NLRB’s strategic plan does not discuss external factors that
                        affect the agency’s ability to achieve its objectives. OMB Circular A-11 notes
                        that strategic plans should briefly describe key external factors, indicate
                        their link with particular goals, and describe the factors’ effect on meeting
                        that goal. Identifying and assessing such key factors would have particular
                        relevance for NLRB, an agency whose workload is influenced by general
                        economic conditions; changes in the nature of work and workforce
                        demographics; and the needs of stakeholders such as workers, unions, and

                        Finally, one of the purposes of the Results Act is to improve decision-
                        making by providing reliable information on the extent to which programs
                        are fulfilling their statutory responsibilities. Program evaluations can be an
                        important source of information for ensuring the validity and
                        reasonableness of goals. Evaluation information can also be useful in
                        explaining results in the agency’s annual performance reports, including,
                        when applicable, the reasons annual goals were not met and identifying
                        appropriate strategies to meet unmet goals. According to the Results Act,
                        an agency’s strategic plan should describe the program evaluations used in
                        establishing or revising goals and objectives and include a schedule for
                        future program evaluations. NLRB’s strategic plan neither describes the
                        program evaluations used in preparing the strategic plan nor includes a
                        schedule for future program evaluations.

                        In developing a strategic plan, the Results Act requires that agencies
Consultation With Key   consult with the Congress and solicit and consider the views and input
Stakeholders Has Not    from other key stakeholders. NLRB’s strategic plan does describe the
Included the Congress   agency’s efforts to obtain information from its stakeholders (unions and
                        employers) to determine their satisfaction with its services. The agency
                        has also obtained input from regular meetings with labor-management
                        advisory panels, which are composed of labor and management
                        practitioners who appear before the agency and use the agency’s services,
                        on changes in agency procedures that could expedite case processing and
                        improve agency services. Finally, the agency plan acknowledges valuable
                        input from regular consultations with the labor organizations that
                        represent their own employees as well as with their managers and
                        supervisors on improvements in work process, including issues of quality.
                        The plan, however, provides no indication that NLRB has consulted with the
                        Congress in its development, and agency officials said that they have not
                        yet done so.

                        Page 7                                                      GAO/T-HEHS-97-183
                        National Labor Relations Board:
                        Observations on the NLRB’s July 8, 1977,
                        Draft Strategic Plan

                        NLRB’s  strategic plan does identify several key challenges facing the
Strategic Plan          agency, including difficulties in managing a large caseload and weaknesses
Recognizes              in its management information systems. However, regarding its
Management              management information system, the plan does not link the development
                        of performance measures with the development of a new management
Challenges Facing the   information system. The result is that potential incompatibilities between
Agency                  the two could impede accurately measuring progress toward the strategic
                        goals. The plan could also be improved by acknowledging several
                        additional issues: the year 2000 computer problem, computer security, and
                        financial management.

Caseload Management     NLRB’s strategic plan recognizes that combining timeliness in reducing
                        caseload backlogs with fairness and quality continues to be one of the
                        main challenges facing the agency. Our past work on NLRB’s case
                        management supports this.4 In 1991, we reported that NLRB’s regional
                        offices resolved the vast majority of cases within 1 year. During the mid-
                        and late-1980s, the five-member Board decided about 67 percent of the
                        5,000 cases forwarded to it within 1 year from the date a case was assigned
                        to a Board member. About 10 percent of the cases decided by the Board,
                        however, took from about 3 to 7 years to decide. We recommended in
                        January 1991 that to help improve the timeliness of its case processing,
                        NLRB should (1) establish standards for the total length of time a case
                        should be at the Board and a time for each decision stage at headquarters
                        that, when exceeded, requires corrective action5 and (2) specify the
                        corrective actions that Board members and staff should take when those
                        targets are exceeded.

                        In response to our recommendations, the Board set 2 years as a
                        benchmark as the outside limit for issuing a decision at the Board and 6
                        months as the maximum time for each decision stage. Also, the Board
                        revised its case management procedures to directly involve all Board
                        members in matters that may be emerging as problem cases at the Board
                        level requiring special attention. According to Board officials, these
                        actions, together with other factors, resulted in significantly reducing the
                        number and percent of Board-decided cases that were more than 2 years
                        old. At the end of fiscal year 1991, 7 cases—2 percent of all cases—were

                         National Labor Relations Board: Action Needed to Improve Case-Processing Time at Headquarters
                        (GAO/HRD-91-29, Jan. 7, 1991).
                         To decide cases, the five-member Board uses a three-step process. The Board refers to the steps as
                        stages I, II, and III. In stage I, a preliminary decision is reached on whether to accept, modify, or reject
                        the regional decision. In stage II, Board staff draft the proposed Board decision. In stage III, the draft
                        decision circulates to the Board members who approve, modify, or dissent to the proposed decision.

                        Page 8                                                                              GAO/T-HEHS-97-183
                      National Labor Relations Board:
                      Observations on the NLRB’s July 8, 1977,
                      Draft Strategic Plan

                      pending before the Board for more than 2 years compared with 60 cases—
                      16 percent of all cases—that were pending at the end of fiscal year 1989.
                      At the end of fiscal years 1992 and 1993, the percent of unfair labor
                      practice cases pending at the Board for more than 2 years was 3 and
                      4 percent, respectively, and the percent of representation cases was 1 and
                      3 percent, respectively.

                      Although processing times for representation cases at the Board level and
                      in the regions have remained stable, NLRB has not sustained its improved
                      case-processing times for unfair labor practice cases. At the Board, the
                      percent of unfair labor practice cases pending for more than 2 years at the
                      end of fiscal year 1994 rose to 8 percent and, at the end of fiscal year 1996,
                      to 15 percent—to a level almost as high as in fiscal year 1989. At the
                      regional level, the number of unfair labor practice cases awaiting
                      preliminary investigation to determine whether a case had merit increased
                      from 3,555 cases at the end of fiscal year 1991 to 5,219 cases at the end of
                      fiscal year 1995. Almost one-half of the 5,219 cases exceeded NLRB’s 45-day
                      benchmark for preliminary investigations to take place. The median
                      processing time in the regions for closing unfair labor practice cases
                      increased from 58 days from filing to closing in fiscal year 1990 to 72 days
                      in fiscal year 1995.

                      In 1996, we found that NLRB had initiated additional efforts to improve its
                      performance.6 For example, at the regional level, NLRB consulted with an
                      advisory panel of management and labor attorneys to discuss possible
                      actions for expediting cases, used impact analysis to allocate resources to
                      cases with the greatest scope and effect, and developed efforts, such as
                      alternative investigative techniques, to lighten the regional workload. At
                      the Board level, NLRB focused on lead cases7 to reduce the backlog of
                      related cases and implemented “speed teams” to expedite Board decisions
                      on easier cases.8

Information Systems   Regarding its management information systems, the plan acknowledges
                      the management challenge posed by NLRB’s weak systems, noting that its

                       We obtained this information for an informal briefing for the staff of a congressional committee.
                       When several undecided cases deal with the same issue, the Board selects one case to serve as the
                      principal or lead case and suspends further processing on all related cases until the lead case is
                       For cases involving straightforward issues, the three-member panel to which the case is assigned for
                      drafting the Board’s decision may agree to draft and circulate the proposed decision without preparing
                      the detailed documentation that typically is required.

                      Page 9                                                                           GAO/T-HEHS-97-183
National Labor Relations Board:
Observations on the NLRB’s July 8, 1977,
Draft Strategic Plan

multiple, independent systems do not adequately support the agency’s
need for prompt and accurate information to effectively manage its
caseload. NLRB has several systems that enable tracking cases at different
stages of processing. No single system, however, can track all cases from
the initial charge until their final resolution. A single unified system could
facilitate efficiencies in tracking cases and in resolving cases quickly. The
plan notes that the agency is continuing to develop the case activity
tracking system that is expected to be completed in 2 years, pending
resource availability. This system is expected to facilitate case-related
research and make it possible to conduct other important aspects of case
processing with greater efficiency, increasing productivity.

In recognition of the need for information management improvements,
NLRB’s plan includes a strategic goal to integrate information resource
management into the working environment to more efficiently and
effectively meet NLRB’s core missions. As discussed earlier, however, while
proposed strategies to reach this goal are mentioned in the plan, these
strategies are not described. An additional problem is that the plan does
not indicate any coordination between developing its case activity tracking
system and creating well-defined, results-oriented performance measures.
To the extent that the measures developed by the agency as part of its
strategic plan and annual performance plans are inconsistent with the data
collected by its new information system, that system would have to be
retrofitted to allow measuring progress toward the agency’s strategic
goals. Finally, the plan also omits strategies to address other important
information management challenges, such as changing computer systems
to accommodate dates beyond the year 1999—called the year 2000
problem—as well as any significant information security weaknesses—
two issues that we have identified as high risk governmentwide.9

Finally, although NLRB is not required by law to prepare financial
statements and have them audited, preliminary work from our
governmentwide audit effort has determined that the agency would profit
from a single, integrated financial management system instead of the five
systems the agency currently uses. Such a system would enable NLRB to
collect reliable and timely information on the full cost of its programs and
activities. Because NLRB’s strategic plan does not detail the range of data to
be collected in its case activity tracking system, we cannot say whether an
improved cost accounting system should be part of that initiative, but it
may be useful for the agency to consider such integration as it reviews its
management information systems generally.

 GAO High-Risk Series (GAO/HR-97-20, Feb. 1997).

Page 10                                                      GAO/T-HEHS-97-183
National Labor Relations Board:
Observations on the NLRB’s July 8, 1977,
Draft Strategic Plan

As I previously stated, NLRB’s strategic plan is a work in progress. We
discussed our observations with Board officials in preparing for this
hearing, and they agreed on the need for improvements in the draft plan
we reviewed. The officials said they are continuing to revise the draft plan
so that it will conform with the Results Act and OMB Circular A-11

Mr. Chairman, this concludes my prepared statement. I will be happy to
answer any questions that you or other members of the Subcommittee
may have.

Page 11                                                    GAO/T-HEHS-97-183
Related GAO Products

              The Government Performance and Results Act: 1997 Governmentwide
              Implementation Will Be Uneven (GAO/GGD-97-109, June 2, 1997).

              Agencies’ Strategic Plans Under GPRA: Key Questions to Facilitate
              Congressional Review (GAO/GGD-10.1.16, May 1997).

              Executive Guide: Effectively Implementing the Government Performance
              and Results Act (GAO/GGD-96-118, June 1996).

              Managing for Results: Achieving GPRA’s Objectives Requires Strong
              Congressional Role (GAO/T-GGD-96-79, Mar. 6, 1996).

              National Labor Relations Board: Action Needed to Improve
              Case-Processing Time at Headquarters (GAO/HRD-91-29, Jan. 7, 1991).

              Actions Needed to Improve Case Processing Time at National Labor
              Relations Board Headquarters (GAO/T-HRD-91-1, Oct. 3, 1990).

(205349)      Page 12                                                   GAO/T-HEHS-97-183
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