The Chase National Bank of the City of New York

National Labor Relations Board - Board Decisions

Feb 6, 1946

65 N.L.R.B. 827 (N.L.R.B. 1946)

In the Matter of THE CHASE NATIONAL BANK OF' THE CITY OF NEW
YORK, SAN JUAN, PUERTO Rico, BRANCH and UNION DE EMI'LEADOS
DE BANCOS DE PUERTO Rico (C. G. T.)
Case No. 24-C-64
SUPPLEMENTAL FINDINGS OF FACT
AND
DECISION
February 6, 1946
On August 30, 1945, the Board issued its Decision and Order in the
above-entitled proceeding 1 finding, inter alia, that the respondent,
The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, by discharging Luis Manuel Vazquez from the position
of teller had discriminated in regard to his hire and tenure of em-
ployment, within the meaning of Section 8 (3) of the Act. Accord-
ingly, to remedy this unfair labor practice, paragraph 2 (a) of the
Board's Order provides that the respondent "Offer to Luis Manuel
Vazquez immediate and full reinstatement to his former or a substan-
tially equivalent position, without prejudice to his seniority and other
rights and privileges." 2 By a written Stipulation dated November 8,
1945, the respondent and the Board, through its Assistant General
Counsel, A. Norman Somers, agreed to submit to the Board for its
formal determination the question of whether the respondent, by
virtue of certain action taken by it on December 12,,1944, has complied
with paragraph 2 (a) of the Board's Order. The Stipulation provided
that such determination might be made solely upon the basis of the
facts revealed by certain written documents attached to the Stipula-
tion and marked Respondent's Supplemental Exhibits 1, 2, and 3.
These documents constitute the respondent's full statement of the
facts on which it relies in support of the claim that it complied with
the reinstatement provision by virtue of the action taken by it on
December 12, 1944. They consist, respectively, of the memorandum
of George S. Schaeffer, vice president of the respondent, reciting his
version of a conference held on December 12, 1944, in which, acting
on behalf of the respondent, he offered Vazquez a position with the
3 63 N. L R B. 656.
2 This remedial provision of the Board's Order is identical with paragraph 2 (b) of the
Recommendations set forth in the Trial Examiner 's Intermediate Report dated November
29, 1944.
65 N. L R . B., No. 145 827
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent; a questionnaire submitted to the respondent by Board
counsel calling for additional information; and the respondent's an-
swer to the questionnaire. The Stipulation, including the documents
attached thereto, is hereby made a part of the record herein.
Upon the basis of the afore-mentioned Stipulation and the entire
record in the case, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
At the time of Vazquez 's unlawful discharge , August 15 , 1944, he
was employed as a teller in the respondent 's San Juan bank at a salary
of $100 a month . The respondent then also employed three other
persons as tellers at the same salary. The teller position vacated by.
Vazquez was immediately given to one Wilfredo Siaca, who had not
theretofore been employed as a teller . Siaca and the three other
above -mentioned employees -%yere still acting as tellers on December
12, 1944. On that date , the respondent , purportedly in compliance
with paragraph 2 (b) of the Recommendations in the Trial Exam-
iner's Intermediate Report of November 29, 1944,3 offered Vazquez
employment ag assistant to the supervisor of the Collection Depart-
ment, at a salary of at least $100 a month , but refused to restore him
to his former position of teller. Vazquez declined this offer. At no
time thereafter has the respondent offered to reinstate Vazquez to his
former position of teller . On October 15. 1945, the respondent em-
ployed five persons, including Wilfredo Siaca, as tellers . Four of
these persons were appointed tellers after Vazquez had been dis-
charged. The remaining teller was appointed to that position ap-
proximately 7 months after Vazquez had received his appointment as
teller.
The position offered Vazquez was newly created and involved spe-
cial work which had theretofore been delegated to an "Assistant Mana-
ger" and an "Accountant ." Such work included supervising the work
of junior employees in the collection department , handling negotiable
documents covering importation of various products into Puerto
Rico, and promoting new business for the collection department by
contacting local business concerns . Because of the nature of this
work and Vazquez's lack of experience in it, he would have had to
"learn the new job." On the other hand, the work of a teller, for
which Vazquez was already qualified , consisted mainly of receiving
deposits, cashing checks , making change , and preparing pay rolls.
Conclusion
The respondent contends that the position offered to Vazquez on
December 12, 1944, constituted an offer of reinstatement to a "substan-
8 See footnote 2, supra.
THE CHAS E NATIONAL BANK OF THE CITY OF NEW YORK 829
tially equivalent position," within the meaning of paragraph 2 (a)
of the Board's Order of August 30, 1945, and that it has therefore
fully complied with that paragraph of the Order. This contention
is predicated on the view that our Order, as well as the Trial Exam-
iner's recommendation, gave the respondent an "option" to reinstate
Vazquez either to his former position or to a substantially equivalent
one. However, such- an interpretation misconceives the intent and
purpose of our reinstatement orders.
The Act is remedial in nature and our affirmative orders, made
pursuant to Section 10 (c) thereof, are designed to effectuate the poli-
cies of the Act. To that end, our reinstatement order in the instant
case, as in all cases, envisages "a restoration of the situation, as nearly
as possible, to that which would have obtained but for the employer's
illegal discrimination." 4 Thus, where a discriminatee's former posi-
tion is in existence as of the date of our Order, the restoration of the
status quo requires that the employer reinstate him to that position,
and paragraph 2 (a) of the Order herein so provides. However,-
in order to meet a contingency where reinstatement to the former
position may not be possible, paragraph 2 (a) makes the alternative
provision for reinstatement to a substantially equivalent position.
This contingent method of complying with our reinstatement order
was not designed to give the employer a choice as to positions to be
offered; on the contrary it was specifically intended thereby to impose
a continuing obligation on the employer to restore the status quo as
nearly as possible when it is not possible to restore the absolute status
quo. Thus, consistent with the remedial purposes of the Act, reinstate-
ment orders, like paragraph 2 (a) of the Order herein, are, and always
have been, interpreted by us to require restoration of the discriminatee
to his former position wherever possible, but if such position is no
longer in existence then to a substantially equivalent position.
On the basis of the record in this case, we find that Vazquez's former
position of teller was in existence on December 12, 1944, and at all
times thereafter, and that by not reinstating him to his former posi-
tion, without prejudice to his seniority and other rights and privi-
leges,5 the respondent has failed to comply with paragraph 2 (a) of
the instant Order.6
i Phe'ps Dodge Corp v N L R. B, 313 U S 177, 194, N. L. R. B. v Remington Rand,
Inc., 94 F. (2d) 862, 872, cert denied 304 U. S 576.
' It is noted that as of October 15, 1945, the monthly salaries of the two most senior
tellers then employed by the respondent, both of whom were junior to Vazquez in point
of service as tellers, were $135 and $140, respectively.
8 Nothing herein stated is to be construed as concurrence in the respondent's contention
that the position offered Vazquez was even "substantially equivalent" to Vazquez 's former
position. However, in view of our ruling, we do not reach that question.