Despite the March 2, 2007 decision of the 7th Circuit U.S. Court of Appeals affirming the FMLA victory for rail labor (including the UTU) rendered by U.S. District Court Judge Wayne R. Andersen on December 28, 2005 in the case of BMWE - vs. – CSXT, CSXT continues to charge our brothers and sisters with paid personal leave and vacation (both daily and weekly) for time taken off under the Family and Medical Leave Act (FMLA).
District Court Judge Andersen’s “Declaration” on December 28, 2005 stated:
“The FMLA does not allow employers to violate pre-existing contractual obligations. If CBA provisions grant employees the right to determine when, or in what manner, they utilize certain types of paid vacation and personal leave, those CBA provisions prevent employers from substituting such leave for FMLA leave.”
As you can see, the decision does not indicate it was improper for a Carrier to require their employees to use paid leave for FMLA purposes in all cases... just in those where pre-existing contractual obligations grant employees the right to determine when, or in what manner, they utilize their paid vacation and personal leave. Judge Andersen's decision effectively reverts the ultimate decision back to each individual property for interpretation of the applicable Collective Bargaining Agreement (CBA) as to whether the contract grants the employees these rights. As such, the dispute is a minor dispute (concerning interpretation of an existing agreement) under the RLA, even after the victorious decision of Judge Andersen, as affirmed by the 7th Circuit U.S. Court of Appeals.
As expected, the Carriers have taken a misguided position wherein they contend our Collective Bargaining Agreement does not grant us “the right to determine when, or in what manner,” we utilize our paid vacation and personal leave. Obviously, this General Committee disagrees with that assessment, but our fervent opposition doesn't stop the Carrier from taking an opposing position regarding interpretation of our PL and Vacation Agreement, and forcing a minor dispute under the Railway Labor Act. Clearly the Carrier is challenging the FMLA issue every step of the way in an effort to delay implementation of the Court’s decision because the longer they can delay, the longer they can dissuade employees from taking FMLA Leave in addition to their contractually entitled paid leave.
While the General Committee likes our chances in this arbitration, we cannot prevent the Carrier from challenging us on this issue and forcing us to arbitrate. We were fully prepared to arbitrate the issue on this property, and under our (the B&O) Schedule Agreement alone, but General Chairperson Lesniewski was instructed by the International to “stand down” because they were contemplating arbitrating the issue on a national basis along with all other crafts. They have done just that. In the link
here you will find an arbitration agreement signed by the UTU and other participating labor unions with the nation’s major Carriers wherein the parties have agreed to arbitrate the following question:
“Do the carriers’ policies requiring employees to substitute paid vacation and/or paid personal leave for unpaid FMLA leave violate the requirements of the national vacation and/or national personal leave agreements.”
The parties have also agreed that, if the above question is answered in the affirmative by the arbitration panel, those same arbitrators will be empowered to consider the following question:
“What is the appropriate remedy for employees who were required to use paid leave for FMLA leave in violation of the national vacation and/or national personal leave agreements?”
Details regarding the arbitration procedures can be found within the attached
arbitration agreement and by reviewing the article from the International’s website found
here.
In the mean time, General Chairperson Lesniewski continues to recommend that employees forced to utilize paid personal leave days, daily vacations and/or weekly vacations for FMLA purposes file an 8 hour penalty claim for each day charged against them for violation of the appropriate Agreement rule (Rule 100, Section 19 for PL days; and the 1949 Operating Vacation Agreement, as amended, for daily/weekly vacations). As General Chairperson Lesniewski has said before, we can't stop them from challenging us, but we can surely try to make them pay for their indiscretions in the only way the Carrier understands.... through their pocketbook! Hopefully the arbitration panel will feel the same way.
