Railroads’ Policy Regarding FMLA Leave Violates Railway Labor Act
 
January 17, 2008
 
Guy Farmer - Jacksonville

The Family and Medical Leave Act requires employers to allow eligible employees to take up to 12 weeks of unpaid leave during a one-year period for (1) the birth of a child, (2) the placement of a child with the employee for adoption or foster care, (3) to care for a spouse, son, daughter or parent with a serious health condition, and (4) a serious health condition of the employee. The FMLA permits an employer to require that employees use all accrued paid leave as a substitute for FMLA leave.

Railroads and airlines are covered by the FMLA and by the Railway Labor Act (RLA). The railroads have long-standing collective bargaining agreements with a number of unions that provide for paid vacation, personal leave and sick leave. A number of railroads adopted policies that required employees to use the paid leave provided for in collective bargaining agreements concurrently with FMLA leave. This was in an effort to avoid “stacking” which is exercising the right to contractual paid leave on top of unpaid FMLA leave.

The unions that represented the railroad employees contended that these leave policies constituted unilateral changes in the various collective bargaining agreements with the railroads which were prohibited by the RLA. The question before the courts was whether the FMLA modified the RLA or whether the two laws could be reconciled.

The lower court ruled in favor of the unions, finding that the railroads could not change leave policies without negotiating those changes with the unions. The Seventh Circuit, in affirming the decision of the lower court in favor of the unions, ruled that the FMLA simply tells employers what they may do – require substitution – not what they must do, and that the FMLA says nothing about the process for implementing a substitution requirement. Accordingly, the court ruled that the FMLA language allowing substitution of paid leave for FMLA leave does not override the obligations created by the RLA that the railroads bargain with the unions before changing any policy regarding leave that is created by a collective bargaining agreement. Bhd. of Maintenance of Way Employees v. CSX Transp., Inc. The railroads filed a petition asking that the United States Supreme Court overrule the decision of the Seventh Circuit Court of Appeals. On January 14, 2008, the Supreme Court denied review thus letting stand the Seventh Circuit decision in favor of the unions.

Although the CSX case only applies to railroads and airlines covered by the RLA, a similar result is likely to occur in a case involving employers covered by the National Labor Relations Act (NLRA). Accordingly, employers that are parties to collective bargaining agreements that are covered by either the RLA or the NLRA should consider whether they have an obligation to bargain with the union prior to implementing a non-”stacking” leave policy under
the FMLA.

For more information, email Guy Farmer at guy.farmer@hklaw.com or call toll free, 1.888.688.8500.