American Smelting and Refining Company v. NLRB
| Decision Date | 02 June 1969 |
| Docket Number | No. 22216.,22216. |
| Parties | AMERICAN SMELTING AND REFINING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen W. Pogson (argued), of Evans, Kitchel & Jenckes, Phoenix, Ariz., for appellant.
Corinna L. Metcalf, Washington, D. C. (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Michael N. Sohn, Washington, D. C., Charles M. Henderson, Director, Albuquerque, N. M., for appellee.
Before BARNES and HAMLEY, Circuit Judges, and McNICHOLS, District Judge.*
Certiorari Denied June 2, 1969. See 89 S.Ct. 1998.
This matter is before us on the petition of American Smelting and Refining Company (company) to review and set aside an order of the National Labor Relations Board, and upon the cross petition of the Board to enforce the order. The Board's decision and order are reported at 167 NLRB No. 26.
The Board determined that the rental of company housing accommodations adjacent to the company's Silver Bell, Arizona, mine is included among the conditions of employment of the Silver Bell employees represented by Local Union 13886, United Mine Workers of America (union). This being the case, the Board held that the company, by raising rental charges for this company housing without prior negotiations with the union, violated sections 8(a) (5) and (1) of the National Labor Relations Act, as amended (Act), 61 Stat. 136 (1947), 29 U.S.C. § 158(a) (5) and (1) (1964).
Accordingly, the Board ordered the company to cease and desist from unilaterally increasing rental charges without prior notification to, and bargaining with, the union. Affirmatively, the Board ordered the company to reinstate the lower rental charges in effect prior to the unilateral increases; to make whole, with interest at six percent per annum, all employees in the affected unit who had paid the increased rental charges; and to post appropriate notices.
It is not disputed that the company increased the rental on its two- and three-bedroom houses adjacent to the Silver Bell mine without prior negotiation with the union. Thus the critical Board determination, which the company challenges, is that the rental rate for these company houses is a "condition of employment" of the affected employees within the meaning of the quoted statute.
In the decision and order under review, the Board adopted the findings and conclusions of the Trial Examiner with minor modifications of the Trial Examiner's recommended order. The Trial Examiner found, apparently as a matter of law, that:
"* * * the rental of company housing accommodations in a company town is by its very nature an integral part of the employment relation and a valuable incident of the employer-employee relationship and thus, necessarily included among the conditions of the employees\' employment and bargainable as a condition of employment whether or not it is treated as included within the term `wages\' as used in Section 9(a) of the Act."
In so deciding, the Trial Examiner relied on the decisions of the Board in Bemis Bro. Bag Co., 96 NLRB 728; Lehigh Portland Cement Co., 101 NLRB 529; and Florida Citrus Canners Cooperative, 124 NLRB 1182.
We think that the determination whether the rental of company housing constitutes a "condition of employment" within the meaning of section 9(a) of the Act depends upon an evaluation of the relevant facts of the particular case. N. L. R. B. v. Bemis Bro. Bag Co., 5 Cir., 206 F.2d 33; N. L. R. B. v. Lehigh Portland Cement Co., 4 Cir., 205 F.2d 821. Thus, we cannot accept the Trial Examiner's determination of this case as a matter of law. The Board, however, in its decision based on the Trial Examiner's findings, appears to have analyzed the facts and applied the test set forth in N. L. R. B. v. Lehigh Portland Cement Co., supra, at 823:
"It is sufficient to bring them company-owned housing within the field of collective bargaining if their ownership and management materially affects the conditions of employment."
The Board found, in this case as in Lehigh, that the low rents1 and the advantages of living near to the place of work in an area where housing was in demand materially affected the conditions of employment.
The essential facts are not in dispute. The company owns and maintains 175 two- and three-bedroom houses, twenty-four two- and three-bedroom apartments, and fifty trailer spaces in Silver Bell, Arizona, a town consisting solely of this company housing plus a few stores, a church and post office. There is a waiting list for...
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