Mohawk Carpet Mills, Inc.

In the Matter Of MOHAWK CARPET MILLS, INC. and TEXTILE WORKERS' ORGANIZING COMMITTEE Case No. C-781.Decided May 26, 1939 Rug and Carpet Manufacturing Industry-Interference, Restraint, or Coer- cion: charges of, dismissed-Company-Dornanated Union: charges of, dis- missed-Discrimination : charges of, dismissed-Complaint : dismissed Mr. Richard J. Hickey, for the Board. Mr. Coleman Taylor and Mr. J. W. Ferguson, of Amsterdam, N. Y., for the respondent. Mr. Alfred Udoff and Mr. Jerome J. Jacobson, of New York City, for the T. W. O. C. Mr. Floyd J. Reinhart and Cllr. William J. Steward, Jr., of Am- sterdam, N. Y., for the Amsterdam Union. Mr. Ivar Peterson, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee, herein called the T. W. O. C., the National Labor Relations Board, herein called the Board, by the Acting Re- gional Director for the Second Region (New York City), issued its complaint dated March 14, 1938, against Mohawk Carpet Mills, Inc., Amsterdam, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent, the T. W. O. C., and the Amsterdam Textile Workers' Union No. 1, herein called the Amsterdam Union. In respect to the unfair labor practices, the complaint alleged in substance that on or about June 20, 1937, the respondent initiated, formed, and sponsored the Amsterdam Union for the purpose of dealing with its employees concerning grievances, labor disputes, and conditions of- employment, and, dominated and interfered with 12 N. L. R. B., No. 122. 1265 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its administration and contributed support to it; that on or about September 15, 1937, the respondent discharged, and thereafter re- fused to reinstate, Frank Parlapiano for the reason that he had joined and assisted the T. W. O. C.; that from on or about June 1937 to and including the date of the issuance of the complaint, the respondent urged, persuaded, and warned its employees to refrain from becoming or remaining members of the T. W. O. C., threat- ened its employees with discharge and other reprisals if they became or remained members of the T. W. O. C., and kept under surveillance the meetings and meeting places of the T. W. O. C.; and that by the afore-mentioned acts and by other acts the respondent has interfered with, restrained, and coerced its employees, and now is interfering with, restraining, and coercing them, in the exercise of the rights guaranteed in Section 7 of the Act. On March 19, 1938, the respondent filed an answer denying in substance that it had engaged in or was engaging in the alleged unfair labor practices, and requesting that the complaint be dis- missed. Thereafter the respondent filed a motion for a bill of par- ticulars, dated March 28, 1938, requesting that certain allegations in the complaint be set forth with greater particularity. On April 2, 1938, the respondent filed its motion to dismiss the allegations in the complaint, separately and collectively. On April 8, 1938, the Amsterdam Union filed its motion to inter- vene and answer, denying in substance all allegations that it had been or was being dominated or interfered with by the respondent. Pursuant to an amended notice of hearing duly served upon the parties, a hearing was held in Amsterdam, New York, commencing on April 21, 1938, and closing on May 20, 1938, before Lawrence J. Kosters, the Trial Examiner duly designated by the Board. At the commencement of the hearing the Trial Examiner granted the motion to intervene theretofore filed by the Amsterdam Union, but limited its participation in the hearing to the issues raised by the allegations that it had been initiated, dominated, and supported by the respond- ent. The Board, the respondent, the T. W. O. C., and the Amster- dam Union were represented by counsel and participated in the hearing. With the foregoing limitation, full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing the Trial Examiner denied the motions to dismiss and also denied the motion for a bill of particulars, with the understanding that if at the conclusion of the Board's case the respondent required more time to prepare its defense, a motion for continuance would be entertained and a reason- ,able,time=granted: -During the course of the hearing the complaint was amended to include an allegation that on or about November 27, MOHAWK CARPET MILLS, INC. 1267 1937, the respondent discharged Allen Gallup for the reason that he had joined and assisted the T. W. O. C. At the conclusion of the Board's case and at the close of the hearing, counsel for the respond- ent moved that the complaint be dismissed. These motions were denied. At close of the hearing, counsel for the Board, counsel for the respondent, and counsel for the Amsterdam Union moved that the pleadings be conformed to the proof. The motions were granted. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 15, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in unfair labor practices :effecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found, withdraw recognition from and disestablish the Amsterdam Union, and offer full reinstatement with back pay to Allen Gallup and Frank Parlapiano, who, the complaint as amended alleged, had been discriminatorily discharged. Exceptions to the Intermediate Report were filed by the Amster- dam Union on July 29, 1938, and by the respondent on August 15, 1938. On March 21, 1939, the respondent filed a brief in support of its exceptions which has been considered by the Board. Pursuant to notice duly served upon all parties, a hearing was held before the Board on March 23, 1939, in Washington, D. C., for the purpose of oral argument. The respondent, the Amsterdam Union, and the T. W. O. C. were represented by counsel ; all partici- pated in the argument. The Board has reviewed the exceptions to the Intermediate Report and, save as they are inconsistent with the findings, conclusions, and order set forth below, finds them to have merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a New York corporation, with its principal office and plant in Amsterdam, New York, is engaged in the manufacture, 1 Although the Board is of the opinion that the rulings of the Trial Examiner limiting the respondent in the introduction of evidence concerning activity and solicitation on company property in behalf of the T. W. O. C. and rejecting certain exhibits offered by the respondent were erroneous, in view of the decision herein , the respondent has not been prejudiced by such rulings. 169134-39-vol. 12-81 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sale, and distribution of rugs and carpets. During 1937, purchases of raw materials, consisting principally of wool, jute, and cotton, amounted to approximately $10,000,000. About 90 per cent of the raw materials were obtained from outside the State of New York. In 1937 over $15,000,000 worth of finished products were shipped outside the State of New York. The respondent maintains sales offices in cities in 17 States other than the State of New York. Normally, it employs about 5,000 workers. H. THE ORGANIZATIONS INVOLVED Textile Workers Organizing Committee is a labor organization affiliated with the Committee for Industrial Organization, herein called the C. I. 0., admitting to its membership production and maintenance employees of the respondent, excluding supervisory employees. Amsterdam Textile Workers' Union No. 1 is a labor organization, unaffiliated' with any other labor organization, admitting to mem- bership employees of the respondent employed on an hourly or a piece-work, basis, excluding salaried employees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged domination and support of a labor organization From May 1934 to June 1937 there existed in the respondent's plant an organization known as the Employees' Representation Plan, herein called the Plan. The Plan was formulated by William J. Campbell, the respondent's personnel manager, pursuant to a petition presented to him signed by about 300 employees requesting a form of representation plan and as so drafted, it was adopted by a vote of the majority of the employees. It provided for the election of 1 employee representative for each group of approximately 100 employees. The governing body of the Plan was the Joint Council, which consisted of six employees elected by the employee repre- sentatives from their number and six representatives appointed by the management. In addition, the management had the power to designate the chairman of the Joint Council, who, however, had no voting privileges. Meetings of the Joint Council required a majority of both employee and management representatives; voting power was equal, but no question before the Joint Council could be decided without a two-thirds vote. The Joint Council was empow- ered to "consider and make recommendations" relative to wages, hours, safety, and other similar matters. The respondent admittedly paid all expenses and furnished all facilities incident to the Plan. No dues were assessed against the MOHAWK CARPET MILLS, INC. 1269 membership, which included, automatically upon employment, all employees of the respondent. The Plan could be terminated by the employees only by a majority vote following 90 days' notice, but it could be dissolved at any time, without notice, by the management. In April 1937 charges were filed with the Director for the Second Region alleging that the Plan was dominated and supported by the respondent. Following conferences with representatives of the Di- rector, the respondent in June agreed that the Plan should be dis- solved. Pursuant thereto, the respondent prepared a resolution of dissolution for adoption by the employee representatives, who were called by the respondent into special meeting on June 18, 1937, at which meeting the resolution was unanimously adopted. The reso- lution and a notice from the respondent to its employees, announc- ing dissolution of the Plan, were posted the same day. Prior to the official dissolution of the Plan, certain employee rep- resentatives thereof took steps to establish an "independent" union in the respondent's plant. Late in May or early in June, five em- ployees, Marvin Whalen, Floyd Maines, Joseph Andrews, James Kehoe, and Joseph Konetchy, all of whom were Plan representatives, decided that "it would be nice if we had some kind of Independent Union for the Mohawk workers." This group called a meeting of the employees which was held in the Y. M. C. A. on June 10, 1937. At the invitation of Whalen, Floyd J. Reinhart, the present attorney for the Amsterdam Union, attended the meeting as legal adviser. About 200 employees were present. Andrews, one of the sponsors of the meeting, acted as temporary chairman. After discussion, it was decided to circulate cards among the employees and attempt to build up sentiment for an independent union. It was also arranged to hold a second meeting on June 19, at the American Lithuanian Club Hall, to perfect the organization. Reinhart had 6,000 cards printed, at his own expense, which read as follows : "I hereby favor the formation of an INDEPENDENT LOCAL, UNION of the Mohawk Carpet Mills Employees and agree to join the same." Beginning June 11, these cards were freely circulated in the plant by Plan representatives and other employees, and several hundred employees signed the cards. On June 19, the day following the dissolution of the Plan, a meet- ing was held in the American Lithuanian Club Hall, which had been rented by Maines for the purpose. Half the rent, $5, was paid by Reinhart; the balance was still due at the time of the hearing. Andrews presided, and it appears from the record that he and the originators of the movement were prepared to establish the proposed independent union as a going concern. However, events at the meet- ing took a different turn from the course intended by the group of Plan representatives who were more or less in charge. 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas Van Kleeck and Merle Galusha, as well as a number of other employees, none of whom had been active in the Plan or had taken part in the independent movement up to that point, objected to the leadership of the movement. Galusha was outspoken in his criticism, and argued that because former Plan representatives were taking a leading part, the movement "smelled terribly of company domination." As a result of the determined opposition of Galusha and others, the plans of Andrews and his group to launch an organ- ization were blocked and Galusha and his followers assumed they leadership of the meeting. A committee of 10 was selected, with Galusha as chairman, for the purpose of canvassing the employees and arranging for a meeting the following week at which a vote was to be taken on the question of whether the employees desired to form their own organization or to affiliate with the C. I. O. It was made a condition that no Plan representative could serve on the committee. On June 26 a meeting was held at the Junior High School, with about 100 employees present. At Galusha's request, Reinhart at- tended and gave a general explanation of the Act and outlined the form of an independent union. Louis Stark, a representative of the T. W. O. C., also was present at Galusha's request and spoke to the employees concerning the advantages of affiliation with the ,organization he represented. However, no vote on the question of affiliation was taken at this meeting nor was the organization further perfected for the reason, so Galusha testified, that too few employees were present. On July 12, Galusha ordered cards printed reading as follows : "I hereby agree to join the Independent Union of the Mohawk Car- pet Mills, Inc., Employees." These were delivered to Galusha at the respondent's plant, as requested by him, and charged to Reinhart, who paid the bill on July 23. On July 14, the Amsterdam Union was formally launched at a meeting held in the Y. M. C. A. The name of the organization was selected and temporary officers were chosen. Galusha was elected president, and Van Kleeck, secretary. Reinhart was retained as attorney. James Kennedy, a brother-in-law of Campbell, the re- spondent's personnel manager, was elected vice president. There is no evidence, however, that Kennedy was chosen to this office because of his relationship to Campbell or that he influenced other employees by virtue of that fact.2 Two members of the bylaws committee, Joseph Cronin and Charles Brennan, were former Plan representa- tives. All other officers elected on July 14 had held no offices in the Plan. 2 Kennedy has worked for the respondent about 1S years as an ordinary employee. Several employees testified that they did not know that Kennedy and Campbell were related by marriage. MOHAWK CARPET MILLS, INC. 1271 After its organization, the Amsterdam Union took over the signed pledge cards which had been circulated by the Andrews group and regarded the signatories as pledgees who, upon payment of the ini- tiation fee or dues, which were not assessed until February 1938, became members of the Amsterdam Union. At the hearing, the Am- sterdam Union produced 1,515 pledge cards, and it was agreed that about half of this number were of the type originated by the Andrews group. The great majority of these cards had been signed between June 11 and 19. The balance of the signed pledge cards were of the type ordered by Galusha on July 12, 2 days before the Amsterdam Union was organized.s The evidence shows that a number of employees actively solicited members for the Amsterdam Union in the plant during working hours. There is further evidence, however, that other employees, in- cluding Louis Sadkowski and Frank Della Posta, who were outstand- ing proponents of the T. W. 0. C., solicited members for the T. W. 0. C. in the plant during working hours. Additional evi- dence of solicitation for the T. W. 0. C. and the posting of notices on bulletin boards by the T. W. 0. C. was, upon objection, excluded by the Trial Examiner. We are of the opinion that such evidence as to the treatment accorded the T. W. 0. C. was relevant upon the question as to whether the respondent fostered and supported the Amsterdam Union,4 and, accordingly, that rulings of the Trial Exam- iner in this regard were incorrect. Several witnesses testified that two alleged strawbosses, Dudley Brooker and Harry De Groff, solicited members for the Amsterdam Union and that De Groff spoke to other employees in opposition to the T. W. 0. C. Upon all the evidence, we are not satisfied that either Brooker or De Groff occupy supervisory positions, and accord- ingly we find that any activities by them in behalf of the Amsterdam Union are not attributable to the respondent. Brooker operates a drier in the picker house. Two men work with him, but there is no evidence that he exercises any supervision over these or other em- ployees. De Groff is a time clerk in the chenille beaming department, and it does not appear that he has any authority to hire, discharge, or in any manner supervise the employees in that department. There is no evidence that any of the foremen solicited or authorized em- ployees to solicit for the Amsterdam Union. Shortly after organization of the Amsterdam Union, a negotiating committee composed of the officers and Attorney Reinhart conferred 8 Galusha testified that when an employee who had signed either type of pledge card described above paid the initiation fee or dues, his pledge card was destroyed. At the time of the hearing, the Amsterdam Union had 1,630 dues -paying members ; however, no record had been kept of the number of these who had signed pledge cards 4 See Matter of Aeolian-American Corporation and Amalgamated Piano Workers of America, 8 N L. R. B. 1043. 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with representatives of the respondent concerning wages, hours, and working conditions. The requests presented by the Amsterdam Union, in written form, included establishment of a 5-day, 40 hour week, a minimum wage of 40 cents per hour, time and a half for over- time on working days and double time for Sundays and holidays, recognition of the Amsterdam Union as the exclusive representative of piece-rate and day-rate employees, and consideration of an insur- ance plan and a seniority plan. After several conferences, the re- spondent agreed to certain requests, scaled down others, and denied still others. The respondent agreed to establish the 5-day, 40-hour week, to pay time and a half for all overtime and holiday work, to establish a minimum wage rate of 40 cents an hour, to consider a seniority plan and to investigate the possibility of adopting some form of insurance plan. Recognition of the Amsterdam Union was refused. On September 9, 1937, the respondent posted a notice an- nouncing the results of the negotiations. No contract was entered into by the parties. On September 30, 1937, a T. W. O. C. committee, composed of 3 organizers and 12 employees, met with Campbell, presented a contract and asked that the T. W. O. C. be recognized as the sole collective bargaining agency. Campbell discussed the proposals with the com- mittee and on October 8, in a letter to Stark, the Regional Director of the T. W. O. C., refused the demands, although he pointed out that a number of matters therein requested were already a part of the respondent's policy. In answering the demand for recognition, Campbell stated that a similar request had been made by the. Amster- dam Union and that "neither union has submitted to us any evidence that it represents a majority of the employees. Before we, or any other employer, would be authorized to recognize any union as the sole bargaining agency for all of the employees of the plant, there must be submitted to us conclusive evidence that such agency does in fact represent a majority of all of the employees." We are of the opinion that the evidence does not sustain the alle- gations of the complaint that the respondent supported, dominated, and interfered with the formation and administration of the Amster- dam Union and contributed support thereto. It is true that the movement for an independent union, which culminated in the or- ganization of the Amsterdam Union, began at a time when the Employees' Representation Plan was under attack as being company dominated and was participated in by employee representatives of the Plan. However, this circumstance is not alone sufficient to war- rant the conclusion that the resulting organization is the creature of the respondent. The fact that the respondent permitted solicitation of membership by the Amsterdam Union on company time would, MOHAWK CARPET MILLS, INC. 1273 ordinarily, be a strong circumstance indicating domination and in- terference with that organization. However, since the record shows that the T. W. O. C. was permitted like freedom in this regard, we cannot say that sponsorship and support of the Amsterdam Union are shown, within the meaning of the Act. The fact that the re- spondent did not accede to the request of the Amsterdam Union for recognition as the exclusive bargaining agency likewise indicates an absence of a design to grant that organization a favored position over the T. W. O. C. We find that the respondent has not dominated or interfered with the formation or administration of, or contributed support to, the Amsterdam Union. We, accordingly, will dismiss the allegations of the complaint in this respect. B. The alleged discriminatory discharges Frank Parlapiano had worked for the respondent about 71/2 years between 1919 and 1931; he was again employed in January 1935 as a tapestry weaver. Parlapiano joined the United Textile Workers Union, the pred- ecessor of the T. W. O. C., in February 1937. He was an active union worker and signed up about 50 or 60 members in the T. W. O. C. among the employees in the plant. In April he had been laid off for about a week admittedly for having woven some "bad work." Parlapiano testified that in February or March his foreman, Bert Griffiths, told him to stop distributing union literature and, upon his return to work following the disciplinary lay-off in April, warned him not to cause any more trouble. Griffiths denied that he had had these conversations with Parlapiano. About the middle of September 1937 the respondent began laying off weavers because of a shortage of work. Five weavers, in addition to Parlapiano were laid off on September 15, and 11 during the same week. The number of weavers in Parlapiano's department decreased from 113 on September 10 to 51 on October 1. Later in October employment in that department increased to about 85, but toward the end of that month dropped perceptibly and reached a low of 29 weavers for the week ending November 12. On September 14, the day preceding Parlapiano's lay-off, Griffiths received an order for a job which required the weaver to follow an instruction card in weaving the pattern. Parlapiano claimed that Griffiths had promised him 1 or 2 days prior to September 14 that he, Parlapiano, could work on the job. Griffiths denied having made such a promise. Parlapiano further testified that Griffiths refused to carry out his promise because Richard Mann, a weaver on the first shift, had objected to working on the job with Parlapiano because Parla- 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD piano belonged to the C. I. O.6 Mann denied that he had complained to Griffiths about Parlapiano's union affiliation, and Griffiths testified that Mann had made no such complaint. Parlapiano testified that Scafidi, a weaver on the first shift, warned him, as the shifts were changing on September 15, that Griffiths and Mann were plotting to "frame" him. Scafidi, a member of the T. W. O. C., was called as a witness by the respondent and denied that he had thus warned Par- lapiano. The respondent contends that Parlapiano was not assigned the special job because of inexperience, and that since there was a short- age of work he was laid off along with a number of other weavers. Considerable evidence was introduced to show that the pattern called for by the instruction card was too difficult for a weaver with no^ greater experience than Parlapiano.6 The evidence establishes, and we find, that he had less experience than the weavers assigned to the job. We are of the opinion that the allegations of the complaint that the respondent discharged Parlapiano because of his membership in the T. W. O. C., are not sustained. We find that the respondent did not discriminate against Frank Parlapiano in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization. Allen Gallup worked as a watchman in the respondent's #16 mill from August 1933 to November 27, 1937. He joined the United Tex- tile Workers Union in January 1936. However, he was not active in the T. W. O. C. and testified that he "never said nothing about the C. I. 0." and that his foreman, Charles Cope, "never mentioned the union" to him. The respondent has in its employ a number of watchmen assigned specially to certain of its mills and a number of other watchmen assigned to the so-called "long route" watch. The duties of the watch- men on the "long route" watch involve making 2 or 3 trips each night over a route approximately 5 miles long and through 13 buildings, some of which are 6 stories high and which have no elevators. Gallup was one of two watchmen assigned specially to #16 mill, a one-story building. However, during the latter part of November 1937, the respondent erected a fence around #16 mill and it became unnecessary to maintain special watchmen for that mill, which was then included in the "long route" watch. Accordingly, the respondent on Novem- ber 27, 1937, discharged Gallup and assigned Steven Nienaitowski, d Mann worked on the first shift and Parlapiano worked on the second , but both operated the same loom. Mann had begun weaving the special order. 6 Parlapiano 's contention that in August he had woven a similar pattern on a particular loom was refuted by the respondent 's record of his work and the work woven on the loony he mentioned for August. MOHAWK CARPET MILLS, INC. 1275 the other special watchman in #16 mill, to the "long route" watch. Nienaitowski had worked as a watchman for the respondent since 1924. The respondent contends that Gallup was laid off because he was physically unable to perform any other duties then available. In 1933 he had been examined by the respondent's doctor and rated as an in- dustrial hazard because of a serious heart ailment and a hernia. In January 1937, when Gallup returned from a leave of absence, he was examined by Dr. Simpson, the respondent's doctor, who testified that in his opinion Gallup's cardiac condition was of a permanent nature which unfitted him for the work required of a watchman on the "long route." Cope, Gallup's foreman, testified that he had been instructed by the doctor in 1933 not to assign Gallup to any jobs involving climbing or lifting. All watchmen assigned specially to mills at which the respondent continued to maintain special watchmen per- forming duties similar to those performed by Gallup in #16 mill had been in the employ of the respondent a much longer period of time than had Gallup. Upon all the evidence, we conclude that it has not been estab- lished that Gallup was discharged because of his union membership or activities. We find that the respondent did not discriminate against Allen Gallup in regard to his hire and tenure of employ- ment, thereby discouraging membership in a labor organization. Since none of the allegations of unfair labor practices has been found to be supported by the record, the complaint will be dismissed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. The operations of the respondent, Mohawk Carpet Mills, Inc., occur in commerce, within the meaning of Section 2 (6) of the Act. 2. Textile Workers Organizing Committee and Amsterdam Tex- tile Workers' Union No. 1 are labor organizations, within the meaning of Section 2 (5) of the Act. 3. The respondent has not dominated or interfered with the forma- tion or administration of, or contributed financial or other support to, Amsterdam Textile Workers' Union No. 1, within the meaning of Section 8 (2) of the Act. 4. The respondent has not discriminated in regard to the hire or tenure of employment or any condition of employment of Frank Parlapiano and Allen Gallup thereby encouraging or discouraging 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization, within the meaning of Sectiom 8 (3) of the Act. 5. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Mohawk Carpet Mills, Inc.,. Amsterdam, New York, be, and the same hereby is, dismissed.