At the time this dispute arose, the Claimant was regularly assigned as a Signalman on the Los Angeles Division. On the date in question, October 27,1998, the Claimant was late reporting for duty. The Organization contends that the Claimant reported four minutes late. The Carrier insists that the Claimant was ten minutes late in reporting for his regular assignment. Regardless of whether it was four minutes or ten minutes, the facts of record indicate that after reporting for service, the Claimant was not permitted to work on that date. The claim as outlined in the Statement Of Claim supra was presented on the Claimant's behalf and has been handled in the usual manner on the property. Failing to reach a satisfactory settlement of the case, it is now properly before the Board for final and binding resolution.
The Organization insists that the Claimant called his Foreman some 20 minutes before the scheduled starting time of his assignment to advise that he was stuck in freeway traffic. It further insists that at that time the Foreman advised the Claimant "to come on in." After the Claimant reported - either four minutes or ten minutes late depending on whose version is accepted - the Claimant was informed by the Manager Signal Construction that he (the Claimant) was in violation of the existing ATTENDANCE POLICY. The Manger thereupon sent the Claimant home without pay for the day. The Claimant was also given a "letter of counsel" informing him that future occurrences of tardiness could result in discipline.
The Organization argues that this action was tantamount to discipline in violation of Rule 53; that the letter of counsel should be rescinded; and that the Claimant should be paid for the day's pay lost It insists that the Claimant was not a perpetually tardy employee; that he did, in fact, arrive at the job site in sufficient time to have performed his assigned duties; that be was denied a fair and impartial Investigation prior to the assessment of disci plane; that the Manager had not previously made the employees aware of his attendance policy; and finally that the Carrier recognized its deficiency in this case by offering during conference to settle this case for four hours pay to the Claimant.
The Carrier makes several salient point., namely, that many prior decisions of the Board have regularly upheld a Carrier's right to withhold from service an employee who does not report for service on time; that such withholding of tardy employees from service does not involve an application of the discipline process; and that in this case the Carrier's policy on tardiness was properly applied by the Manager. Form 1 Page 3
It is expected that all employees will fulfill their job responsibilities with a consistently dependable attendance record.
Employees are all services rendered (ASR) employees. ASR employees are required to be available for work duty at any time. Excused absences include holidays, vacation days, family medical leave, other approved leaves of absence and sick time. Form 1 Award No. 36315
There are three principal issues that the Board must address in this case. First is the issue of whether it is a matter of discipline when a tardy employee is sent home without pay. The Board has regularly ruled that a Carrier's action of not permitting a tardy employee to work on any day on which the employee did not report for duty at the assigned reporting time is proper and is not equivalent to discipline. For example, see Third Division Award 27226 and citations contained therein. The letter of counsel issued to the Claimant in this case was not a reprimand as argued by the Organization, but rather was advice to him that future tardiness could result in discipline.
The second issue in this case is in regard to the Organization's argument that "the carrier recognized, during conference, the circumstances that prevailed in this case, and offered to settle the case for four (4) hours pay to the Claimant." It is a wellestablished tenet of dispute resolution that an offer to compromise a particular case is NOT an admission against interest and cannot be cited by either party to a dispute. The Board has ruled on this issue on many occasions. The Board has uniformly held that offers of compromise and settlement are not evidence of anything and, in fact, are not admissible in evidence. In this case, the offer of settlement was rejected by the Organization. It cannot now present such offer of settlement as evidence against the Carrier's interest. An offer of compromise is not a reflection of the merits of a case. Form 1 Award No. 36315
The third issue involved in this dispute concerns the uncontested facts of this particular case. It is not disputed that the Claimant did not have a history of tardiness. It is uncontested that when the Claimant called the Carrier to notify his Foreman of his problem he was told by his Foreman "to come on in." This advice appears to be at odds with the Manager's alleged no nonsense approach to tardiness. Clearly the Manager had the right to set his standards for attendance in line with the promulgated Company Policy on this subject. However, there is no evidence in this record to support the contention that the Manager's standards had previously been made known to the employees under his jurisdiction. Clearly the Claimant's Foreman did not apply these standards when he informed the Claimant "to come on in." The Carrier's candid acknowledgment during the on-property handling of this case is enlightening. The Carrier stated:
While the Board is not in the business of dispensing equity, the Board is inclined in this particular case to apply the "perspective of fairness" as set forth by the Carrier and to rule for the Organization on the basis of the particular facts as found in this case. This action will not do any harm to the long line of prior decisions of the Board relative to tardiness and to the Carrier's right to send the tardy employee home without pay or involvement of the discipline Rules. The Board believes that in this case after the Claimant was told by his Foreman "to come on in," he was entitled to perform his assigned duties on that date. Therefore, the claim for one day's pay at the straight time rate of pay is sustained. However, the letter of counsel relative to future instances of tardiness will remain in the Claimant's record.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties: