Before LUMBARD, Chief Judge, FRIENDLY and SMITH, Circuit Judges.
SMITH, C. J.: This is a petition of the National Labor Relations Board, pursuant to Section 10(e) of the amended National Labor Relations Act, 29 U.S.C.A. 160(e), for enforcement of a Board order issued against respondent January 5, 1961 reported at 129 NLRB 1166, 1961 CCH NLRB 9550. Since the alleged unfair practices occurred in Massapequa, Long Island, New York, within this judicial circuit, this court has jurisdiction over the petition for enforcement under Section 10(e). Enforcement denied. Remanded for taking of further evidence and making of additional findings.
Respondent is engaged in the sale of fuel oil for heating purposes and in servicing oil burners and boilers. All of its customers are home owners located in the State of New York. During the calendar year 1959 the respondent purchased from Gulf Oil, which is concededly engaged "in commerce," fuel oil and related products valued at more than $650,000. The largest part of the product sold to respondent is refined outside the State of New York and delivered into Gulf's storage tanks in New York, from where it is shipped to Gulf's stationary storage tanks at Oceanside, Long Island without segregation according to customers. Respondent's trucks withdraw the oil from the Oceanside tanks and deliver it directly to customers.*fn1
The respondent employs two principal groups of workers: oil burner service employees numbering approximately 10, and fuel oil drivers numbering approximately 11.
On September 28, 1959, Local 553 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, filed a petition with the Board in Case No. 2-RC-10280, seeking to represent a unit of respondent's servicemen which was later changed to include drivers as well. Previously, in the summer of 1958, Local 355 of the Retail, Wholesale and Department Store Union, AFL-CIO, had unsuccessfully attempted to organize the employees of respondent. Pursuant to the representation petition an election was held; Local 553 received 10 votes, Local 355 received 6 votes, one vote was cast for neither union and four votes were challenged.
Immediately after the election a so-called "shape-up" system was instituted carrying out a threat to institute such a system if Local 553 won the election and the extra-gallonage bonus previously paid drivers was discontinued. On February 14, 1960, Union President Flatow sent a letter to Packman, an officer of the respondent, stating that Local 355 represented a majority of the employees and demanding contract negotiations. The following day a meeting was held and after a cursory examination of the signatures on membership cards held by Local 355 a contract was entered into, immediately following which the "shape-up" system was discontinued and the drivers reimbursed for wages lost. Thereafter the respondent withheld $140.00 in dues from employees' wages and remitted this sum to Local 355 during the period February 23 to April 5, 1960. The Board certified Local 553 on March 15, 1960, as the exclusive representative of respondent's employees pursuant to the findings of the Regional Director overruling the challenges to two of the challenged votes. Asserting that the employees had chosen another union, with whom a contract had been signed, respondent refused to bargain collectively with Local 553.
The Board concluded that by its threats, promises, and changes in working conditions for the purpose of influencing the choice of a collective bargaining agent respondent violated Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1); and that by recognizing and entering into a collective bargaining agreement with Local 355 respondent violated Section 8(a)(2) and (1) of the Act, 29 U.S.C. § 158(a)(2) and (1), by rendering unlawful assistance. Moreover respondent's agreement to, and enforcement of, a contract provision which required membership in the unlawfully assisted union as a condition of employment violated Section 8(a)(3), (2) and (1) of the Act, 29 U.S.C. § 158(a)(3), (2) and (1). Finally, the Board concluded that respondent was guilty of a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5) and (1).
The Board ordered respondent to cease and desist from the unfair labor practices found and from interfering, in any other manner, with the rights of employees guaranteed by Section 7 of the Act, 29 U.S.C. § 157. The Board also ordered respondent to withhold recognition from Local 355 and to cease giving effect to the bargaining agreement with it, unless and until that union is certified by the Board; to reimburse its employees for the dues checked off; and upon request to bargain collectively with Local 553.
Respondent resists enforcement on two grounds: (1) the Board failed to show any evidence of coercion; and (2) the Board was without jurisdiction of the subject matter since there was no showing of an effect upon commerce.
Granger, one of respondent's servicemen, testified that Packman, respondent's secretary and treasurer, pursued a course of conduct which was calculated to coerce the employees to reject Local 553 in favor of Local 355. Respondent attempts to meet this testimony by arguing that Granger was biased and inconsistencies in his testimony show he was unworthy of belief. But this is a question of credibility as to which the Board is normally the sole judge.*fn2 Moreover, Granger's testimony is corroborated by that of Benjamin Mendolia,*fn3 Kershow,*fn4 Graziano,*fn5 Sammis,*fn6 and Joseph Mendolia.*fn7
The findings on the merits are adequate and adequately supported by substantial evidence. Reimbursement is appropriate under these circumstances. The Board's order, including the provision for reimbursement, must therefore be enforced if the Board had jurisdiction over the dispute.*fn8
The Board appears to assume that any employer, whose business exceeds the Board's "jurisdictional" minimum of $500,000, who purchases materials from storage within the state the origin of which is without the state, if involved in a labor dispute necessarily affects commerce within the meaning of the Act.
The findings of the Board on effect on commerce here, perhaps because of reliance on NLRB v. Pease Oil Co., 279 F.2d 135 (2 Cir. 1960), are quite meager consisting of the following:
"The respondent is a New York corporation, with its principal office and place of business in Massapequa, Long Island, New York. It is engaged in the business of selling fuel oil for heating purposes, and servicing oil burners and boilers. All its customers are homeowners located in the State of New York. During the fiscal year ending June 30, 1959, the Respondent's gross sales exceeded $500,000. During the calendar year 1959 the Respondent purchased from Gulf Oil Corporation, herein called Gulf, fuel oil and related products valued at more than $500,000. Most of the product delivered to the Respondent is refined outside the State of New York and delivered into Gulf's storage tanks at New York, New York. It is then transferred to Gulf's stationary storage tanks at Oceanside, Long Island, New York, without segregation according to customers. The Respondent's trucks load oil from Gulf's Oceanside tanks, and from there deliver it either directly to the Respondent's customers, or to the Respondent's tanks at Massapequa, from which it is later withdrawn and delivered to customers. The Respondent also obtains some fuel oil by exchange with other fuel oil companies on Long Island. This operates as follows: The Respondent draws a certain amount of oil from the other firm's tanks; conversely the other firm draws the same amount of oil from the ...