Local Union No. 181, IUOE

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) 'Notify the "Regional-Directdr'fof" Region 1`,' in writing; within 20 days from the date of the receipt of this Decision , what steps the Union •has taken ',to comply herewith .9 It is further recommended that unless the Union , shall, within 20 days, from the receipt of this Decision, notify said Regional Director,' in writing, that it will comply with the foregoing recommendations „ the , National , Labor Relations , Board„ issue an Order requiring it to take the aforesaid action. , U In the event th it this Recommended Order be adopted by the Board , this provision shall be modified to iead "Notify the Regional Director for Region al„in writing, within 10 days from the dale of receipt of this Order, what steps the Union has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF BREWERYI WORKERS UNION,- -No 8, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & ,DISTILLERY WORKERS OF AMERICA, AFL-CIO - Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: - WE WILL• NOT engage in, or induce, or encourage the employees of Bert P. Williams, Inc., to engage in a strike , or a,refusal in the course of employment for said employer to transport, handle goods, or to perform any services where an object thereof is to force or require Bert P . Williams, Inc., to cease handling, transporting, or otherwise dealing in the products of, or to cease doing business with, O'Brien Distributing Co., Inc. WE WILL NOT threaten, coerce, or restrain any retail store, or place of business, by picketing where an object ,thereof is to force, or require, said stores, or places of business, to cease using, selling, handling, or otherwise dealing in the products sold to them by O'Brien Distributing Co., Inc., or to cease doing busi- ness with this Company. BREWERY WORKERS UNION No . 8, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Local Union No. 181 , International Union of Operating Engi- neers, AFL-CIO, and its Agents Montie Bashion, Harold Roach and Joe Caliper [Nicholson Construction Company and Bab- cock & Wilcox Company] and Thomas Meeks, Jr. Case No. 9-CB-1141. August 31, 1964, DECISION AND ORDER On May 11, 1964, Trial Examiner Fannie M. Boyls issued her De- cision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed,-as set forth in the 148 NLRB No. 77. LOCAL UNION NO 181, IUOE 751 attached Trial Examiner's Decision Thereafter, the General Coun- sel filed exceptions to the Trial Examiner s Decision with a support- ing brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bei s Bi own and Jenkins] The Board has rei iewed the rulings of the Trial Examiner made at the heating, and finds that no prejudicial error was committed The rulings ate hereby affirmed The Board has considered the Trial Ex- aminer's Decision, exceptions and briefs, and the entire record in this case, and, hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner [The Board dismissed the complaint ] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on September 3, 1963, and an amended charge filed on Octo- ber 22, 1963, a complaint was issued on October 31, 1963, against Respondents, Local Union No 181, International Union of Operating Engineers, AFL-CIO, and its Agents Montle Bashion, Harold Roach, and Joe Caliper The complaint, as amended, alleged that Respondent Union and its agents, operating under an exclu- sive hiring hall arrangement with employers, had violated Section 8(b)(2) and (1) (A) of the National Labor Relations Act, as amended, by discriminatorily re- fusing to refer the Charging Party, Thomas Meeks, Jr, and Carl D Speckhardt, to jobs in accordance with their proper places on Respondent Union's out-of-work list, because of the sympathies and activities of said Meeks and Speckhardt on behalf of candidates for union office in opposition to the incumbent union officers Re- spondents filed an answer denying that they had engaged in the unfair labor prac- tices alleged A hearing was held before Trial Examiner Fannie M Boyls on De- cember 9, 10, and 13, 1963, at Louisville, Kentucky At the conclusion of the hear- ing, the paities waived oral argument but each subsequently filed a brief which I have carefully considered Upon the entire record in this case, and from my observation of the witnesses as they testified, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANIES INVOLVED HEREIN Nicholson Construction Company, herein called Nicholson, is a New York cor- poration engaged in the building and construction industry as a general contractor throughout the United States At all times between April 1963 and the date of the issuance of the complaint, Nicholson has been engaged at Kosmosdale, Kentucky, in the building of silos for the Kosmos Portland Cement Company Babcock & Wilcox Company is a New Jersey corporation having plants at several locations throughout the United States and is engaged in the manufacture and sale of steam boilers and auxiliary products, and in the erection and servicing of said products At all times between April 1962 and the date of the issuance of the complaint, Babcock & Wilcox has been engaged in Lawrenceburg, Indiana, in the erection of a steam boiler and related equipment for the Indiana and Michigan Power Company During the 12-month period preceding the issuance of the complaint, which is a representative period, Nicholson and Babcock & Wilcox each had a direct inflow of goods and materials in interstate commerce valued in excess of $50,000 which each received directly from points outside the State in which each operated Respondents concede, and I find, that Nicholson and Babcock & Wilcox are employers engaged 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in commerce, or in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction herein. If. THE LABOR ORGANIZATION INVOLVED Respondents concede , and I find, that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act, and that Respondents Montie Bashion, Harold Roach, and Joe Caliper are business representatives of Respondent Union and agents acting in its behalf. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The referral and hiring understandings and practices here involved In considering whether Respondents' failure to refer the Charging Party, Thomas Meeks, Jr., and also Carl D. Speckhardt, to specific jobs with Nicholson and Bab- cock & Wilcox was in violation of the statute, it must be determined preliminarily whether Respondent Union was operating under agreements or understandings with the Employers involved whereby Respondent Union had the first, or exclusive, opportunity to refer job applicants to jobs, and was therefore in a position to cause the Employers to discriminate against such applicants in circumstances proscribed under the statute. Respondent Union's territorial jurisdiction covers parts of Kentucky and Indiana, including Kosmosdale, Kentucky, where Nicholson was en- gaged in the erection of silos for the Kosmos Portland Cement Company, and Lawrenceburg, Indiana, where Babcock & Wilcox was working on what was known as the Tanners Creek project. Nicholson was a member of the General Contractors Association of Louisville, Kentucky, which had negotiated a contract with Respondent Union in behalf of its members (Respondent's Exhibit No. 1). This contract provided that the Asso- ciation members "may notify the Union of their needs in employment of workmen" but did not require them to do so. According to the undenied and credited testi- mony of Nicholson's job superintendent, Michael Malagieri, however, he found a copy of another contract (General Counsel's Exhibit No. 4) containing an exclusive hiring hall provision-with Union Business Representative Bashion's card attached- in his office when he arrived at the jobsite, and to the best of his knowledge has followed the hiring hall provisions of that contract. He told Bashion, prior to hiring any workmen, that it was his Company's policy to hire its workmen through the Union and that he would do so. Bashion thereafter sought promptly to supply needed workmen when Nicholson requested them. I find that Respondent Union and Nicholson operated pursuant to an understanding that Nicholson would hire exclusively through Respondent Union so long as the Union was able to supply Nicholson's needs, as provided in the hiring hall contract form to which Bashion's card was attached. It is also undisputed, and I find, that Babcock-& Wilcox obtained its workmen for the Lawrenceburg, Indiana, project from Respondent Union, pur- suant to the exclusive hiring hall provisions of a contract (Respondent's Exhibit No. 2) under which Respondent Union and Babcock & Wilcox operated. Respond- ent Union and its agents were therefore obliged under the statute to refer ap- plicants on a nondiscriminatory basis without regard to their union membership, sympathies, or support or lack thereof. They could not lawfully refuse referrals to those who opposed the incumbent officers or supported a different candidate for union office, as the General Counsel contends they did. B. The alleged discriminaibry refusal to refer 1. The rival factions within the Union Respondent Union is headed by a business manager, Arthur Watkins, who was elected to the office in 1961 . He has seven assistants known as business representa- tives. Each has primary responsibility for a designated portion of the territorial jurisdiction of Respondent Union but may also at times assist other business repre- sentatives. The business representatives are hired by the business manager with the approval of the Union's executive board. The three business representatives alleged to have participated in the discrimination against Meeks or Speckhardt are Montie Bashion, who had served the Union as. business representative for 16 years; Harold Roach, who was appointed to the job in 1961; and Joe Caliper, who was appointed in May 1962. LOCAL UNION NO. 181, IUOE 753 In the 1961 union election there were three candidates for the position of business manager-Watkins, Kelly, and Williams. Watkins won. Caliper had nominated and supported Kelly, -Roach had supported Watkins, and the record is silent as to whom Bashion supported . The Charging Party, Meeks, was vociferous in his support of Williams and has continued to be so in connection with Williams' announced inten- tion to run again for the office of business manager in the election to be held in June 1964. Speckhardt also is one of Williams ' strong supporters . Respondents con- cede that they have known of Meeks' and Speckardt 's support of the candidacy of Williams but contend that this support had nothing whatever to do with The manner in which these workmen were referred to jobs. 2. Respondent Union's referral system Respondent Union has about 4,100 members and the Louisville office, out of which Meeks and Speckhardt worked, has between 300 and 450 members. A workcard is made up for each workman . It shows, . znter alia, his name, address , telephone number, the employers to whom he is referred and for what classification of work, the date he reports for work, and the date he reports back to the union office for an- other referral. On this workcard are listed almost 100 types of jobs within the work jurisdiction of the Operating Engineers . The employee places - a check on this card opposite the jobs listed which he believes he is qualified to perform . After each workman finishes his job and wishes referral to another, he notifies the union office and is placed on the out-of-work list (General Counsel's Exhibit No. 10 ) in the order in which he reports in , and his workcard is pulled and place in the out -of-work file. New out-of-work lists are usually made up every week or two. In order to expedite the location of avaialble men qualified to fill the jobs for which the business rep- resentatives receive requests , those on the out-of-work lists are placed on job classification lists, usually under one of four headings , "mechanics and welders," "crane," "oilers," or "dozer-grader-pulls," in the order in which they register out of work. These job classification lists (General Counsel's Exhibit No. 11 ) show the address and telephone number of the worker and although he is listed under only one of the four general job classifications , there is noted, in parentheses, after his name a list of other jobs for which his workcard shows he believes he is qualified. This job classification list is for the business representative's personal convenience and he does not limit referrals for particular job classifications to the workmen listed under the particular job classification on the list . If an employee is sent to a job which is to last not more than 5 days, his name is not removed from its place on the out-of-work list, and even if he is gone for more than 5 days but reports back that he did not receive more than 5 days' work, he is permitted to retain his place on the list. The business representatives exercise a substantial amount of discretion in deter- mining whether a workman is qualified for a job opening . In filling positions requir- ing special skill and reliability, they take into consideration not only what appears on the work record card of the workman but also their opinion of his qualifications based upon their personal knowledge of him or of what has been reported to them. This judgment factor plus the use of the job classification list in which a skilled operator of cranes or hoists may be listed under the less skilled oiler classification- as in the case of Speckhardt-affords ample opportunity for honest mistakes to be made by the business representatives in referring workmen to jobs in their proper order. This referral procedure also makes possible the exercise of favoritism or discrimination without easy detection. Moreover, it does not appear consistent with contract provisions under which Respondent Union and Nicholson and Babcock & Wilcox purported to operate. The hiring procedures of those contracts (General Counsel's Exhibit No. 4 and Respondent's Exhibit No. 2) provide that all applicants for employment shall be registered and referred on the basis of certain priority groups listed in the contracts. The priority groups are compiled on the basis of such qualifications as length of service as operating engineers , length of employment by an employer under contract with Respondent Union, and length of service in a geographi- cal area of the labor market covered by the contract. By these observations. I do not mean to criticize or condemn Respondent's referral system . It may well be. as Respondents argue in their brief, "that because of the very nature of the building and construction industry the Union Business Agents must make a determination when requests for operating engineers are made to their office, as to the skills and ability of the operating engineers they refer" and "must exercise judgment as to a man's qualifications , ability and temperament before referring him." 760-577-65-vol 148-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The alleged discrimination against Meeks The complaint alleges that Respondent discriminated against Meeks by (1) failing to refer him on or about July 25, 1963, to a hoist operator's job on the Nicholson project in Kosmosdale, Kentucky; (2) referring him on July 29, 1963, to a pump operator's job on the project instead of to the more skilled and higher paying job of hoist operator, which was also available on that date ; and (3 ) failing on or about August 19, 1963, to refer him to a job as crane operator at the Babcock & Wilcox project in Lawrenceburg, Indiana. With respect to the Nicholson jobs the evidence shows as follows: Nicholson Job Superintendent Malagieri informed Union Business Representative Bashion shortly prior to July 25, that he would soon be needing "three really dependable men" for hoisting jobs, and three pumpmen , and explained to Bashion the type of project involved-the erection of silos. The first man needed was a hoist operator on July 25, and the other men were requested for July 29. The hoist operators on this job were required to hoist buckets of concrete to the working level about 170 feet high, and at the beginning of the job workmen rode in the bucket attached to the hoist in order to construct safety devices on top of the silo towers. It was very important, therefore,,as Malagieri told Bashion, that the hoist operators be depend- able and sober. The- safety and even the lives of the workmen depended upon the hoist operator. As the first hoist operator for Nicholson, Bashion sent Harry Breed who was No. 68 on the out-of-work list and had registered for work on June 19, passing up Meeks who was No. 35 on the list and had registered for work on May 9.1 .On July 29 Meeks was sent to the Nicholson ,project as a pump operator, a job paying substantially less than the hoist operator's job. At the same time Bashion sent two more hoist operators -to the project-Jess Ferris who was No. 24 on the out-of-work list and had been registered for work since April 23, and Edgar Miles who was No. 123 on the out-of-work list and had been registered for work only since July 15. Bashion testified that he did not consider Meeks a dependable and sober man and qualified to perform the type of hoist work required by Nicholson. Most of Meeks' experience in the post had been at oiler or pump jobs. Although his work record card goes back to May 1951, it does not show that he was referred to any crane or hoist job until 1962-subsequent to the 1961 union election in which he supported the candidacy of Williams for ,the office of business manager. He was referred to several crane or hoist jobs after that date. Bashion, as well as Business Representative Roach, testified however that they did not consider him qualified to operate equipment on a dangerous job such asthat involved on the Nicholson project where a dependable and sober man was required . Meeks' reputation for excessive drinking was well known to the Union's business representatives. Within less than a year prior to the alleged discrimination against Meeks, he had been fired from a job allegedly for drinking on the job.2 Later, the superintendent on another job called the Union's office and complained that Meeks was drinking on the job. Upon still another occasion, Business Representative Caliper had hesitated to send Meeks to a crane operator's job because Meeks was in a drunken condition while in the union office but Caliper did send him out upon the assurance of Meeks, and a friend who ac- companied him, that he would be sober by the following morning when he was to report for duty. Meeks was injured on his job twice between August 1962 and October 1963, and was also off work because of a hernia operation during this period. He had also quit a number of jobs to which he had been referred in 1962 and 1963. Even accepting Meeks' own testimony in regard to his work record, it is difficult to avoid the conclusion that Meeks was not a very dependable worker. I note, moreover, that Job Superintendent Malagieri, called as a witness by the General Counsel, conceded that he_ did -not believe, judging from Meeks' Personal appearance, that Meeks could have handled the hoist job for which Breed was hired on July 15. 'Meeks had , in fact, been unavailable for work for about 6 weeks after May 9 , because of an operation he underwent He had requested the Union not to call him for work until further notice and did not inform the Union of his availability until July 15. He did not, however, lose his place on the out-of-work list. 2 Meeks was at first denied unemployment compensation because of the report of the employer discharging him, but following a hearine, at which no employer representative appeared and in which Business Representative Roach represented Meeks, his unemploy- ment compensation was approved. ' LOCAL UNION NO. 181 , IUOE 755 In support of the contention that Meeks was discriminated against on August 19 by not being referred to a crane operator's job at the Babcock & Wilcox project at Lawrenceburg, Indiana, it was shown that Meeks, after hearing through a neighbor that there would be a job opening available at Lawrenceburg, went with a friend to the union office in Louisville on the morning of August 19. He talked to Business Representative Bashion about it and was assure by Bashion that the latter knew nothing of such job availability . Meeks and the friend then drove across the river from Louisville to the home of his ..candidate friend, Williams, only a 15- or 17-minute drive from the union office. After they had visited with Williams for about 5 minutes, Meeks' wife called to report that the union office had attempted to reach Meeks. Meeks thereupon telephoned the union office and the office girl informed him that she had tried to reach him for a crane operator 's job on the Babcock & Wilcox project but that when he could not be reached at home, someone else had been selected to fill the job. She informed him that an oiler's job at that project was available and that she could refer him to that. Meeks declined the offer. The Babcock & Wilcox job was in the area serviced by Business Representative Roach. He testified as follows about filling that job: About 7:30 a.m . on Monday, August 19, he received a telephone call at his home from the job steward on the Babcock & Wilcox job to the effect that the steward had tried unsuccessfully over the weekend to get in touch with Roach and informed him that Babcock & Wilcox needed a crane operator and an oiler that morning. Upon arriving at his office in Louisville, Kentucky, about 9 : 30 or 10 a.m., after having stopped en route at Clarksville, Indiana, to take care of other business , Roach immediately started calling men on the out-of-work list to fill the jobs. Among those he called for the crane operator's job was Meeks. When he was informed by Meeks' wife that Meeks was not at home, Roach kept calling other men. He made eight calls before finding a crane operator, M. W. Duvall, who was available and willing to accept the job. Duvall had just reported out of work on that date, according to Roach , but his name does not appear on the regular out-of-work list.3 Roach told Duvall to report for work for Babcock & Wilcox on August 20 although Babcock & Wilcox had requested the workers for August 19.4 After filling the crane operator's job, Roach started calling men for the oiler's job and called seven for that job before obtaining an oiler. Roach did not talk to Bashion about filling the job orders for Babcock & WiIcoR 5 Regardless of whether there is warrant for criticism of a referral system which can result, under the circumstances here recited, in the referral on the same day he re- ported out of work of a man for crane operator's work in preference to others who have been waiting for days or weeks, it does not follow that discrimination proscribed under Section 8(b) (2) and (1) (A) of the Act is involved.6 I am not convinced that Roach's failure to refer Meeks was motivated by the latter 's support of the candidacy 'The name of Duvall as well as the names of two other crane operators not listed on the regular out-of-work list do , however, appear on the job classification list apparently used by Roach ( General Counsel's Exhibit No . 11-f). 'A page from the Union's records headed "Louisville office August 19, 1963 " and list- ing, inter alia, men called for the Babcock & Wilcox crane job shows the names of seven men, including that of Meeks, opposite the date August 19, 1963, and the name of M. W. Duvall opposite the date August 20, 1963 Roach testified , however, that Duvall was, in fact, called on August 19, but that August 20 was placed opposite his name be- cause that is the date on which he was to report for work. 6 William D . Wick, the job superintendent on the Babcock & Wilcox job, testified that he called Roach on August 18 for the crane operator and oiler This testimony is in- consistent with Roach 's testimony that he was out of town at a camp over the weekend, that he could not.have been reached, at least until after his return home late Sunday night, and that he learned only from the job steward on Monday morning that the men were needed . I believe that Roach's recollection is the more accurate in this respect but a resolution of this conflict does not seem important since Roach , in any event, took no steps to supply Babcock & Wilcox 's work needs until he reached the union office on the morning of August 19. . 13 Meeks had been registered on the out-of-work list since August'6, and another man, Robert Drumm, who did not answer the telephone when called that morning, had been registered on the list since July 25, 1963. Other crane operators with out -of-work registration dates earlier - than Meeks, both on the crane operator list and on the oiler list, were not even called. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Williams or his opposition to Watkins for the office of business manager. Any un- fairness which may have resulted from the manner in which the referral system was operated was apparently felt not alone by the supporters of Williams, but also by others who were not shown to have supported Williams or opposed the candidacy of Watkins. Indeed, that system apparently operated in Meeks' favor at times and, indeed, perhaps even on August 19, in that he was called in preference to a few crane operators who were on the out-of-work list longer than he was. Although Meeks' ardent and vociferous support of Williams was well known to Respondents, there is no indication in the record of any hostility by them toward him on that account. Caliper, despite his opposition to Business Manager Watkins in the 1961 election, had been appointed by Watkins to the office of business rep- resentative in 1962. Caliper while a business representative, had once loaned Meeks money with which to pay his union dues in order to keep him from being suspended, and on another occasion when Meeks was 5 days late in paying his dues, had inter- ceded in his behalf and kept him from being suspended. Caliper had also taken Meeks' side and sought to protect him against his employer's complaints about Meeks' drinking. Roach also had befriended Meeks. Upon one occasion he had successfully defended Meeks before an unemployment compensation board upon employer charges that he had been discharged for being drunk on the job, and was responsible for having Meeks' unemployment compensation paid. Roach had also visited Meeks while he was in a hospital in connection with an operation for hernia. The business representatives knew that Meeks had a wife and six children, was in debt, was having family difficulties, and had a weakness for drinking. Their attitude toward him appears to have been one of sympathy and tolerance. As Meeks' employ- ment record shows and as Roach told him in October 1963, he was his "own worst enemy." I find no substantial support in the record for the allegations of the com- plaint that Respondents violated Section 8(b)(2) and (1)(A) of the Act by discriminatorily failing to refer him to certain jobs. 4. The alleged discrimination against Carl D. Speckhardt Although Speckhardt did not file any charge against Respondents and the alleged discrimination against him was added by an amendment to the complaint during the course of the hearing, he, like Meeks, believed that there was sometimes a lack of fairness in the referral of men to work for which they were qualified and he believed that Respondents had discriminated against him on one occasion when they failed to refer him to one of the hoist operator jobs at the Nicholson project on July 29 (where Meeks also contended he should have had a hoist job). It is undisputed that Edgar Miles, who had been registered on the out-of-work list only since July 15, was sent as a hoist operator on the Nicholson job on July 29 in preference to Speck- hardt who had been on the out-of-work list since July 9. Business Representative Bashion explained that he did not refer Speckhardt to the job because it was for the midnight shift and that because of Speckhardt's physical condition, he believed that nightwork would be too hard on him. Speckhardt is 61 years old. He lost the sight in one eye several years ago and the sight in his other eye is not perfect. In addition, he is somewhat hard of hearing. For these reasons, Bashion testified, he tried to assign Speckhardt to daywork. Speckhardt conceded that because of his eyes he prefers daywork but testified that he is qualified for and does on occasions perform nightwork. Despite Speckhardt's strong advocacy of Williams as a candidate for the office of business manager of the Union, he was appointed, on Roach's recommendation, as a member of the Union's election committee on December 7, 1963. Roach testified that he considered Speckhardt "a wonderful person." During the summer of 1963, he and Speckhardt were fishing companions and Speckhardt was an invited guest at a fishing camp owned by Roach. Regardless of whether Bashion's reasons for not referring Speckhardt to the mid- night shift hoist job were sound, I am convinced that Speckhardt's advocacy of Williams' candidacy played no Hart in the decision. I, accordingly, find that Respond- ents have not violated Section 8(b)(2) or (1)(A) of the Act in connection with their failure to refer Speckhardt to any job. Upon the basis of the foregoing findings and the entire record, I hereby issue the following: RECOMMENDED ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed.