American Smelting and Refining Co.

National Labor Relations Board - Board Decisions

Feb 25, 1969

174 N.L.R.B. 764 (N.L.R.B. 1969)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Smelting and Refining Company and Local
Union 13886 , International Union of District 50,
United Mine Workers of America ( Ind.). Case
28-CA- 1723
February 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 26, 1968, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.-
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has considered the Trial Examiner's
Decision, the exceptions, brief, and the entire record
in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, American Smelting and
Refining Company, Silver Bell, Arizona, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINhR'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This matter is
before me upon a stipulated record.' Upon a charge filed
on June 21, 1968,2 a complaint was issued on July 18,
1968, alleging that the Respondent had violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by unilaterally increasing, and by refusing to
bargain upon request with the Union about, the rents
payable by its employees for certain company housing
accommodations rented by Respondent to such employees.
In its answer, Respondent admits that the Union is the
majority bargaining representative of its production and
maintenance employees, that the Union requested it to
bargain with respect to wages and other terms and
conditions of employment, and that on or about April 1,
1968, it increased the amounts payable by employees for
the use and occupancy of its housing accommodations.
However, it denies any obligation to bargain with the
Union concerning such increases, and hence denies the
commission of any unfair labor practices.
On the basis of the stipulated record and the briefs filed
by the General Counsel and the Respondent, I make the
following:
FINDINGS AND CONCLUSIONS;
1. THE UNFAIR LABOR PRACTICES
A. Events
This is a sequal to the decision in American Smelting
and Refining Company, 167 NLRB No. 26 (decided
August 24, 1967), in which the Board found that
Respondent had violated Section 8(a)(5) and (1) of the
Act by unilaterally increasing the rents payable by its
employees for certain company houses effective September
1, 1966, and by rejecting the Union's request to bargain
about such rent increases. Subsequent to that decision,
i.e., on March 22, 1968, Respondent notified its
employee-tenants of further increases which are the
subject of this proceeding, made the increases effective
April 1, 1968, and refused to bargain about them.
In its brief, Respondent states that the basic facts in the
instant proceeding are "almost identical" to those in the
prior case, but that there are "some" differences which, it
is claimed, differentiate the two situations. The General
Counsel's position is that "there is a slight difference with
no cognizable distinction." These are the main stipulated
facts which differ from those presented in the prior case.
In 1967, the Arizona legislature enacted legislation
imposing certain taxes, to become effective March 22,
1968, equal to three percent of the gross proceeds received
from the rental of real property. That tax was applicable
to Respondent's rental income from its company housing.
On that date, without consulting the Union, Respondent
informed its employee-tenants of the legislation and
notified them that effective April 1, 1968, they would be
required to pay additional amounts on account of the tax
levied As of the latter date, the rental rates for
Respondent's two-bedroom and three-bedroom units were
$50 and $65 a month, respectively. The monthly increases
which took effect on that date were $1.50 for
two-bedroom houses and $1.95 for three-bedroom houses.
Thereafter, Respondent rejected the Union's request to
bargain about such increases. As of June 22, 1968, the
number of Respondent's bargaining unit employees had
increased from 264 to 324, the number of such employees
who rented company housing had decreased from 175 to
173, and the number of nonunit employees who rented
company housing had decreased from 33 to 32.' The
number of unit employees who lived elsewhere had
increased from 89 to 161. Until recently, there was usually
a waiting list for company housing; but as of June 21,
'I find the facts to be those which appear in the stipulated Statement of
Facts and the attachment thereto Such Statement of Facts is set forth in
Appendix A, infra
'Filed by Local Union 13886, International Union of District 50, United
Mine Workers of America, hereafter called the Union.
'No issue of commerce is presented. The complaint alleges, the answer
admits, and the parties have stipulated to facts which, I find, establish that
Respondent is engaged in commerce within the meaning of the Act. I
further find that the Union is a labor organization within the meaning of
the Act
'The number of housing units has remained unchanged 68
three-bedroom houses, 107 two-bedroom houses, and 24 apartments,
making a total of 199 housing units
174 NLRB No. 117
AMERICAN SMELTING & REFINING 765
1968, there were a total of nine vacant units.'
B. Analysis
The General Counsel contends that the decision in the
prior American Smelting case is dispositive of this
proceeding. Respondent makes a two-pronged defense. In
essence , it attacks the rationale of the American Smelting
decision. In addition, it seeks to distinguish the instant
case on several grounds. Respondent contends that the
existence of vacancies in its company housing precludes a
finding, such as that made in the prior American Smelting
case, that rents for such housing "have been below the
prevailing rate." 167 NLRB No. 26, fn. 1.6 Second, it
asserts that the increases here were for the purpose of
offsetting the tax imposed by the Arizona legislature upon
the rentals received by landlords and did not result in an
increase in Respondent's net income from the rental of its
company housing. Third, Respondent argues that the
obligation to bargain does not encompass a matter as
insubstantial as the small increases here involved. I agree
with the General Counsel.
1. The principles ennunciated in American Smelting
are, of course, binding upon the Trial Examiner.
Accordingly, the only issue presented in this proceeding is
whether the facts require a conclusion different from the
one reached in that case.
2. In American Smelting , the Board stated: "That no
increase in rent was made [by Respondent] between 1954
and 1966 indicates that the rents have been below the
prevailing rate." That statement constituted a finding that
the absence of rent increases for 14 years constituted
prima facie proof that Respondent's rents have been below
prevailing rates, and that such proof had not been
rebutted. I take official notice of the record in the
American Smelting case' and of the Board's findings in
that case,5 and adopt the above-quoted finding of the
Board. Accordingly, the question is whether it has been
rebutted.'
The only rebuttal evidence presented by Respondent
consists of the nine vacancies as of June 21, 1968.10 In my
opinion, the mere existence of those vacancies constitutes
insufficient rebuttal evidence and hence does not require a
finding that Respondent's rents on April 1, 1968, were no
longer below the prevailing rate." Respondent's reliance
on the vacancies assumes that they would not have existed
if its rentals had been below the prevailing rate. But other
assumptions are equally valid. It may be that the
vacancies occurred shortly before June 21, 1968, and did
not exist for long. It may be that rental applications from
employees were being processed by Respondent on that
date. It is possible that Respondent had temporarily
refrained from renting the nine units because of needed
repairs. Perhaps employees living in other housing had
refrained from moving into the vacant units because they
were bound by leases, because they lacked sufficient funds
for a move, or because of uncertainty concerning their
jobs.12 Or it may be that since Respondent had sought
court review of the American Smelting decision and had
announced a second rent increase in March 1968, its
employees were reluctant to make a change and move into
vacant units while Respondent was still insisting that it
could unilaterally raise the rents.
Absent an explanation for the vacancies, I am unable to
conclude that their existence on June 21, 1968, is
incompatible with a finding that Respondent's rentals have
continued to be below prevailing rates. Since Respondent
has failed to present more persuasive evidence to the
contrary, I so find.
3. It is irrelevant that the rent increases were made by
Respondent merely in order to pass on the Arizona tax to
its employee-tenants and produced no additional profit to
Respondent. The increases were no different from those
found to be unlawful in American Smelting, and, indeed,
no different from any rent increase instituted because of
higher costs resulting from higher taxes or any other
operating expense.
4. Respondent de minim is argument is without merit.
Although the amount of the rent increases may be
relatively small, it cannot be said that the
employee-tenants consider them insignificant. Moreover,
in the aggregate, the increases did not have a "minute
effect" on the employee-tenants, as Respondent asserts in
its brief."
Finally, to permit Respondent to institute unilateral
rent increases in small amounts would enable it, over a
period of time, to raise the rents by a substantial amount
without bargaining about them. This would permit
Respondent to do by indirection what it cannot do
directly. I find that the size of the rent increases is not a
basis for regarding Respondent's conduct as lawful or for
declining to adopt a remedy necessary to effectuate the
purposes of the Act.
C. Concluding Findings
'The vacancies were in two of the three-bedroom houses, in three of
two-bedroom houses, and in four of the apartments
'The Board concluded that since the rents were below prevailing rates,
since the employee - tenants had the convenience of living nearer to their
place of work than Respondent ' s other employees , and since Respondent
had itself viewed the company housing as an employee benefit,
Respondent ' s ownership and operation of such housing materially affect
the employees ' "conditions of employment", and hence the rentals are a
mandatory subject of collective bargaining.
'The parties in the instant proceeding stipulated that "[t]he trial
examiner herein may take official notice of the official record and
documents" in the American Smelting case
'In National Electric Products Corp. 87 NLRB 1536, the Board stated
"we reject [the Trial Examiner 's] implication that a Board finding in one
proceeding may not be used as the basis for a finding in a later proceeding
involving the same employer"
'The Administrative Procedure Act (5 USC, Sec. 556 (e)) provides
"When an agency decision rests on official notice of a material fact not
appearing in the evidence in the record , a party is entitled, on timely
request, to an opportunity to show the contrary."
I find that Respondent's employee-tenants have
substantial advantages not enjoyed by its other employees,
i.e., the rents which they pay for company housing have
"Respondent does not even intimate that its 1966 rent increases made its
rentals higher or even equal to prevailing rates.
"The record shows a decrease of only three in the number of housing
accommodations rented to unit and salaried employees , and contains no
explanation for the existence of the six other vacancies A possible
explanation is that some tenants "doubled up" because of marriage or
other personal reasons
"Although Respondent's complement of employees had increased, the
employees may not have felt that the mine operations would continue at
the expanded rate.
"The rents in the 66 occupied three-bedroom houses were increased by
$1.95 a month , and the rents in the 107 occupied twc-bedroom houses were
increased $ 150 a month These increases amounted to $3,416 40 a year
Cf. N L R B v Inglewood Park Cemetery Assn, 355 F.2d 448 (C A. 9),
cert. denied 584 U S. 951
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to be below the prevailing rates, and they have
the convenience of living adjacent to their place of work.
Based on official notice of the record and the Board's
findings in the American Smelting case, I adopt the
finding therein that "the Respondent, by relying on the
availability of company housing as a basis for rejecting
the Union's bargaining demands, in prior contract
negotiations, for travel allowance pay for employees
commuting to and from work, regarded its rental facilities
as one of the employees' conditions of employment.' 114
Accordingly, I find that Respondent's ownership and
management of the company housing materially affect the
employees' conditions of employment, that the rent for
such housing was a mandatory subject of collective
bargaining; and that Respondent's unilateral increase in
rents announced on March 22, 1968 and made effective on
April 1, 1968, and its rejection of the Union's request to
bargain about the increases, constituted violations of
Section 8(a)(5) and (1) of the Act.
IL THE REMEDY
Having found that Respondent engaged in unfair labor
practices , I shall recommend that it cease and desist
therefrom and that it take certain affirmative action which
I find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act.
Affirmatively , I shall recommend that Respondent
restore the rentals for its company housing at Silver Bell,
Arizona, to the levels required by the Board in American
Smelting and Refining Company, 167 NLRB No. 26, and
make whole with interest the employees who have paid the
increased rental charges involved in the instant
proceeding.
CONCLUSIONS OF LAW
1. By unilaterally increasing the rents payable by its
employee-tenants beginning about April 1, 1968, and by
rejecting the Union's request to bargain about the
increases, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
It is recommended that American Smelting and
Refining Company, its officers, agents, successors, and
assigns, shall
1. Cease and desist from:
(a) Refusing, upon request, to bargain collectively with
Local Union 13886, International Union of District 50,
United Mine Workers of America (IND.) as the exclusive
representative of all the employees in the unit set forth
and described in American Smelting and Refining
Company, 167 NLRB No. 26, with respect to proposed
changes in rentals at the Respondent's Silver Bell,
Arizona, operation.
(b) Unilaterally increasing rental charges of company
housing at Silver Bell, Arizona, without prior notification
to, and bargaining with, the Union.
(c) In any like or related manner interfering with the
efforts of the above-named Union to bargain collectively
"See fn 9 , supra Respondent has made no attempt to show the
contrary
on behalf of the employees in the above-described unit.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Upon request, bargain collectively with Local Union
13886, International Union of District 50, United Mine
Workers of America (IND.), as the exclusive
representative of all its employees in the aforesaid unit
with respect to any changes, now in effect or hereafter
proposed, in rentals charged employees at company-owned
housing and trailer parking areas at its Silver Bell,
Arizona, facility.
(b) Immediately restore the rental charges for its
company housing at Silver Bell, Arizona, to the levels
required by the Board in American Smelting and Refining
Company, 167 NLRB No. 26, and make whole, with
interest at 6 percent per annum, all the employees in the
above-described unit who have paid the increased rental
charges found to be unlawful herein.
(c) Post at its operation in Silver Bell, Arizona, copies
of the attached notice marked "Appendix B."15 Copies of
said notice on forms provided by the Regional Director
for Region 28, shall, after being duly signed by a
representative of the Respondent, be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director for Region 28,-in
writing, within 20 days from the date of the receipt of this
Decision and Recommended Order, what steps the
Respondent has taken to comply herewith."
"If this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice. If the Board's
Order is enforced by a decree of the United States Court of Appeals, the
notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words
"a Decision and Order."
If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 28, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX A
STATEMENT OF FACTS
[Stipulated by the Parties]
1 A copy of the original charge herein filed June 21,
1968, was served on Respondent on or about June 22,
1968.
2. Respondent is now, and has been at all times
material herein, a corporation organized and existing
under and by virtue of the laws of the State of New
Jersey
3. Respondent maintains a place of business at Silver
Bell, Arizona, and at that location is engaged in the
business of the operation of copper mines, a crusher, a
concentrator, and the necessary accessory facilities. This
place of business is approximately 40 miles from Tucson,
Arizona.
4. During the 1-year period immediately preceding June
21, 1968, Respondent, in the course and conduct of the
business of operating said facilities at Silver Bell, Arizona,
mined, sold and distributed in and from said place of
AMERICAN SMELTING & REFINING 767
business products of a value in excess of $50,000. Products
valued in excess of $50,000 were shipped from said place
of business in Silver Bell, Arizona , directly to states of the
United States other than the State of Arizona.
5. During the 12-months period immediately preceding
June 21, 1968, Respondent purchased and received
equipment and supplies and other goods and materials
direct from outside the State of Arizona in excess of
$50;000.
6. Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
7. Local Union 13886 , International Union of District
50, United Mine Workers of America (Ind.) (hereafter
referred to as "District 50"), is a labor organization
within the meaning of Section 2(5) of the Act.
8. Stripping the overburden from the mine commenced
at Silver Bell in December of 1951.
9. At approximately the same time as the stripping
operation commenced , Respondent started construction of
a townsite at Silver Bell, Arizona, and the first houses
were occupied in the fall of 1952.
10. The townsite , as it presently exists, consists of 175
detached , single-family dwellings, of which 68 are
three-bedroom houses, and 107 are two-bedroom houses;
24 two- and three-bedroom apartments ; and 50 trailer
spaces
11. Stripping of the overburden and mining operations
was contracted out by Respondent to Isbell Construction
Co. until April 1, 1957. Construction of Respondent's
crusher and concentrator was completed in 1954, and the
first production was shipped from the mine in that year.
12 From the inception of the property until April 1,
1957, the houses, apartments and trailer spaces were
occupied by employees of both Isbell Construction Co.
and Respondent . Since on or about April 1, 1957, none of
the tenants has been an employee of Isbell Construction
Co.
13. The townsite , as it presently exists, consists of 175
detached single-family dwellings, of which 68 are
three-bedroom houses and 107 are two -bedroom houses.
There are also 24 two - and three- bedroonn apartments and
50 trailer spaces. Additionally , the site contains a grocery
store, church , barbershop , post office and service station.
With the exception of the foregoing businesses which
service the community of Silver Bell, Respondent's
operation is the only business or industry in that town.
14. Respondent maintains the townsite at its expense
and pays the utilities on the residences and apartments.
15. Certain individuals other than employees rent
houses from Respondent at Silver Bell, to-wit , a barber, a
minister and a grocer . Three employees of Boyles Bros., a
drilling company , which company does drilling as in
independent contractor for Respondent , rent apartments.
16. All tenants who live in the Respondent ' s housing
facilities at Silver Bell pay the same rent for identical
facilities , whether employees or non-employees or
bargaining-unit employees or supervisory employees.
17. Each occupant of the housing unit enters into a
formal lease with Respondent . (A typical lease is attached
hereto as Exhibit A.)
18. Upon completion of the construction of the crusher
and concentrator in 1954, District 50 of the United Mine
Workers of America, Local Union No. 13886 (now known
as Local Union 13886, International Union of District 50,
United Mine Workers of America (Ind )), was recognized
as the bargaining representative of the production and
maintenance employees of Respondent at its Silver Bell
Unit. At that time , the representation rights included no
mining employees since the mining was carried on by
Isbell Construction Co.
19. The first labor agreement between Respondent and
District 50 at Silver Bell was concluded on December 15,
1954, and was for a 2-year duration.
20. Additional labor agreements were negotiated in
1956, 1959, 1961, 1962, 1964 and 1967. The current labor
agreement expires on September 30, 1971 [There is no
provision in the current labor agreement, nor were there
in any past agreements, covering or dealing with the
subject of company housing.]
21. Respondent took over the mining operations from
Isbell Construction Co. on or about April 1, 1957, and the
mining employees were included in the District 50
contract during the life of the 1956-1959 labor agreement.
22. At all times material herein, District 50 has been,
and is now, the exclusive bargaining representative for all
employees of-Respondent in the classifications set forth in
the current collective-bargaining agreement between
Respondent and District 50; which employees constitutes a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. This unit
comprises essentially production, maintenance and mining
employees.
23. No employee of Respondent is required to live at
Silver Bell, Arizona, as a condition of his employment.
24. As of June 22, 1968, Respondent had 387
employees at its Silver Bell Unit, of which' 53 were
salaried employees, and 334 were bargaining-unit
employees.
25. As of June 22, 1968, 161 of the bargaining-unit
employees lived at locations other than Silver Bell,
Arizona. These employees lived in Tucson and the
intermediate communities lying between Tucson and
Silver Bell, Arizona; 173 bargaining-unit employees lived
in company housing at Silver Bell, Arizona.
26. As of June 22, 1968, 21 of the salaried employees
lived at locations other than Silver Bell, Arizona. These
employees lived in Tucson and the intermediate
communities lying between Tucson and Silver Bell,
Arizona; 32 salaried employees lived in company housing
at Silver Bell, Arizona.
27. Employees who do not live at Silver Bell, Arizona,
whether salaried or bargaining-unit employees, are paid at
the same rate of pay as employees who live at Silver Bell,
Arizona, within their respective occupational
classifications. There is no travel allowance paid to
employees who do not live at Silver Bell.
28. Effective August 1, 1966, Respondent increased the
rent of the two-bedroom from $45 to $50 per month and
three-bedroom houses from $55 to $65 per month.
Thereafter, the effective date of the rental increases was
postponed to September 1, 1966. This increase resulted in
District 50 filing an unfair labor practice charge with the
National Labor Relations Board. Thereafter, a complant
issued and the matter was processed as Case No.
28-CA-1435 The matter is presently pending before the
United States Court of Appeals for the Ninth Circuit on
the Employer's petition to review and set aside an order of
the Board (167 NLRB No. 26) and the Board's
cross-petition for enforcement of its order. [The trial
examiner herein may take official notice of the official
record and documents in Case No. 28-CA-1435
(American Smelting and Refining Company, 167 NLRB
No. 26 )]
29. Section 42-1314, Arizona Revised Statutes, was
amended by the Legislature of the State of Arizona in
Chapter 3, Section 1, Laws of 1967, Third Special
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Session, to read as follows:
Sec 42-1314. Operating amusement places; exception;
leasing or renting of property; exemption
A. The tax imposed by subsection A of Sec. 42-1309
shall be levied and collected at an amount equal to two
per cent of the gross proceeds of sales or gross income
from the business upon every person engaging or
continuing within this state in the following businesses:
1. Operating or conducting theaters, movies, operas,
shows of any type or nature, exhibitions, concerts,
carnivals, circuses, amusement parks, menageries, fairs,
races, contests, games, billiard and pool parlors and
bowling alleys, public dances, dance halls, boxing and
wrestling matches and any business charging admission
fees for exhibition, amusement or instruction, other
than projects of bona fide religious or educational
institutions.
2. Leasing or renting tangible personal property for a
consideration. Sales of tangible personal property to be
leased or rented to a person engaged in the business of
leasing or renting such tangible personal property for a
consideration shall be deemed to be resale sales.
3. Leasing or renting for a consideration the use of
occupancy of real property, including any
improvements, rights or interest in such property.
B. Until December 1, 1972, the tax prescribed under the
terms of paragraph 3, subsection A of this section shall
not apply to any written lease or rental agreement
entered into Prior to December 1, 1967, provided that
such exception shall not apply to the businesses of
hotels, guest houses, dude ranches and resorts, rooming
houses, apartment houses, office buildings, automobile
storage garages, parking lots or tourist camps, or to the
extension or renewal of any such written lease or rental
agreement.
C. The tax prescribed under the terms of subsection A
of this section shall not apply to events sponsored by
the Arizona coliseum and exposition center board or
county fair commissions. As amended Laws 1959, Ch.
11, Sec. 1; Laws 1966, Ch. 23, Sec. 1; Laws 1967, 3rd
S.S., Ch. 3, Sec. 1.
30. Section 42-1361, Arizona Revised Statutes, was
amended by the Legislature of the State of Arizona in
Chapter 3, Section 2, Laws of 1967, Third Special
Session, to read as follows:
Sec. 42-1361. Levy of tax
A. There is levied and shall be collected by the
commission an annual tax:
1. On the privilege of doing business in this state,
measured by the amount or volume of business
transacted by persons on account of their business
activities, and in the amounts to be determined by the
application, against values, gross proceeds of sales, or
gross income, as the case may be, in accordance with
the provisions and schedules as set forth in title 42,
chapter 8, article 1, at rates equal to fifty per cent of
the rates imposed in said article.
2. On the storage, use or consumption in this state of
tangible personal property subject to the tax prescribed
by title 42, chapter 8, article 2, and purchased on and
after July 1, 1959, at a rate equal to fifty per cent of
the rate imposed in said article.
B. The tax levied and collected under the terms of this
article is designated as the "education excise tax".
Added Laws 1965, 3rd S.S., Ch. 7, Sec 2, as amended
Laws 1967, 3rd S.S., Ch. 3, Sec. 2.
31. Section 42-1309, Arizona Revised Statutes, reads as
follows
Sec 42-1309. Levy of tax; purposes, distribution
A. There is levied and there shall be collected by the
commission for the purpose of raising public money to
be used in liquidating the outstanding obligations of the
state and county governments, to aid in defraying the
necessary and ordinary expenses of the state and the
counties, to reduce or eliminate the annual tax levy on
property for state and county purposes, and to reduce
the levy on property for public school education, annual
privilege taxes measured by the amount or volume of
business transacted by persons on account of their
business activities, and in the amounts to be determined
by the application of rates against values, gross
proceeds of sales, or gross income, as the case may be,
in accordance with the schedule as set forth in Sees.
42-1310 through 42-1315.
B. If any funds remain after the payments are made for
state purposes, as provided for by subsection A of this
Section, the remainder of the funds, to the extent to
which they will apply, shall be in lieu of county or ad
valorem taxes for educational purposes on a per capita
basis as provided by Sees. 15-1233, 15-1235 and
15-1236.
32 Prior to the amendments of A. R. S. 42-1314 and
42-1361, in 1967, income received from the rental of
houses, apartments and other real property was not
subject to the Arizona Transaction Privilege Taxes. The
statutory amendments resulted in the imposition of the
transaction privilege tax in an amount equal to two per
cent of the gross proceeds received from the rental of real
property and in the imposition of the education excise tax
at a rate of one percent of the gross proceeds, or a total
tax on the gross' proceeds from rentals of three percent.
The foregoing statutory amendments became effective on
March 22, 1968.
33. The rental paid to Respondent by those employees
who rent houses, apartments or trailer spaces from it is
paid by means of a deduction from the gross pay received
by such employees. On March 22, 1968, notice was given
to all employees who rent houses, apartments, or trailer
space from the Respondent, which notice was placed in
the pay envelopes of all affected employees. The notice
read as follows:
Recent amendments to the Arizona transaction privilege
tax statutes impose a three per cent tax on income from
rentals as of March 22, 1968.
Effective April 1, 1968, the amount withheld from your
gross pay will be increased $.... per pay period on
account of the tax.
34. Employees pay their rent for company housing by
payroll deduction and all employees presently occupying
company housing units have authorized in writing such
payroll deductions.
35. As of June 21, 1968, there were three vacancies for
the two-bedroom houses and two vacancies for the
three-bedroom houses as well as four vacancies for
apartments; however, until recently, there has usually been
a, waiting list for the houses [The Respondent's official
policy is to ask that the houses be vacated within a
AMERICAN SMELTING & REFINING 769
reasonable period of time when the lessee ceases to be an
employee of Respondent.]
36. As of April 1, 1968, the rental rate for
two-bedroom and three-bedroom houses was $50 and $65
per month, respectively. These rates covered rent, gas,
electric and water utility charges. The monthly deductions
made from the gross pay of employees who rented houses
from Respondent on account of the transaction privilege
tax was, and is, $1.50 in the case of two-bedroom houses,
and $1.95 in the case of three-bedroom houses.
37. Subsequent to March 22, 1968, District 50
requested the opportunity to discuss and bargain about
Respondent's actions in withholding further sums from
employees' net pay on account of the transaction privilege
tax. Respondent told the representatives of District 50
that the Company would not bargain about its decision to
withhold said additional sums, it being its position that it
had no duty to bargain concerning the matter.
38. Respondent owns and operates a mine, crusher and
concentrator known as the Mission Unit, approximately
twenty (20) miles southwest of Tucson. There are no
housing units at the Mission Unit. Wages for comparable
occupational classifications at Respondent's Mission Unit
are approximately the same as those at Respondent's
Silver Bell operation. No travel allowance is paid to
employees of Respondent at the Mission Unit.
APPENDIX B
NOTICE TO ALL EMPLOYEES
rentals charged for our company housing at Silver Bell,
Arizona.
The appropriate bargaining unit is.
All employees in the classifications set forth in the
collective-bargaining agreement, effective during
the period from November 1, 1964, through
September 30, 1967; excluding all other employees,
office clerical employees, guards, watchmen, and
supervisors as defined in the Labor Management
Relations Act, as amended.
WE WILL, upon request, bargain with Local Union
13886, International Union of District 50, United Mine
Workers of America (IND.), as the exclusive
representative of all the employees in the bargaining
unit, with respect to any proposed changes in rentals
charged for our company housing at Silver Bell,
Arizona.
WE WILL, immediately reinstate the rental charges in
effect prior to all unlawful increases thereof at Silver
Bell, Arizona, and make whole with interest at 6
percent per annum all our employees in the
above-described unit who have paid increased rental
charges beginning about April 1, 1968.
WE WILL NOT in any like or related manner interfere
with the efforts of the above-named Union to bargain
collectively on behalf of the employees in the
above-described unit.
AMERICAN SMELTING &
REFINING CO.
(Employer)
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, as amended, we hereby notify our
employees that:
WE WILL NOT refuse, upon request, to consult and
bargain collectively with Local Union 13886,
International Union of District 50, United Mine
Workers of America (IND.), as the exclusive
representative of all the employees in the bargaining
unit described herein, with respect to any changes in
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Gold
Avenue, Room 7011, Albuquerque, New Mexico 87101,
Telephone 247-0311, Ext. 2538.