In Brotherhood of Maintenance of Way Employees, et. al. v. CSX Transportation, et. al., No. 06-2744, 2007 U.S. App. LEXIS 4782 (7th Cir. March 2, 2007), the Court held that the FMLA does not allow employers to violate collectively bargained contractual obligations protected by the Railway Labor Act (RLA) permitting employees, not employers, to control the right to substitute paid vacation and personal leave for unpaid FMLA leave.
Suit was brought by a dozen unions contending that the interpretation of the FMLA by five railroad carriers violated employee collective bargaining rights to paid leave. The collective bargaining agreements (CBAs) provided paid sick, personal, and vacation leave at the election of the employee. An employee's use of each type of paid leave was governed by procedures for requesting leave, including seniority. Under the CBA's, employer's could approve or disapprove of the leave, but could not force an employee to take paid leave over their objection. In recent years the carrier's revised their policies to require in some circumstances that employee use paid leave concurrently with unpaid FMLA leave. the policies were attempts to avoid "stacking"--that is, exercising the right to contractual paid leave on top of FMLA leave and, thereby , giving the employee the right to more than 12 weeks of leave (paid and unpaid) each year.
The unions argued that the change in policy violated the RLA. The RLA governs labor-management relations in the railroad and airline industries. If, the union's argued, a collective bargaining agreement grants employees the right to determine when or how they use paid vacation or personal leave, those provisions prevent the railroads from substituting such paid leave for leave under the FMLA.
The carriers argued that the FMLA gives them the explicit authority to require substitution. The FMLA authorizes substitution of paid leave for FMLA leave at the employee's election, or the employer may require it. 29 USC 2612(d)(2)(A)-(B). The carrier's argued that the FMLA trumps the RLA because it is newer and more specific, thus giving the carriers authority to unilaterally institute its anti-stacking policies. The Court disagreed.
The Court agreed with the unions' contention that the employer's action constituted an impermissible unilateral change in the terms and conditions of work prohibited by the RLA. The Court rejected the employer's argument that the newer and more specific FMLA provisions trump the existing RLA prohibitions, characterizing the argument as "the esoteric realm of implied repeal or implied amendment of statutes." The Court observed:
In looking at two statutes which might be said to deal with the same subject matter, we must apply certain principles. A specific statute takes presence over a more general statute, and a later enacted statute may limit the scope of an earlier statute. In re Johnson, 787 F.2d 1179 (7th Cir. 1986). As to the two statutes involved in the present case, the FMLA is the more recent statute, but whether it ism ore specific depends on how you look at it. It covers a more specific subject matter--family leave--but its application is far wider than the RLA. Additionally, the RLA grows out of specific needs of the railway industry (and later the airline industry), and from the perspective is more specific. Asking which is more specific is like asking whether an avocado is more specific than a kiwi.
The RLA, the Court observed, "tells railroad what they must not do--change working conditions except in the manner dictated by the agreements or in [section] 156, which requires notice, a conference, and, in some cases, mediation. Section 2612 of the FMLA simply tells employers what they may do-- require substitution--not what they must do. A reasonable conclusion is that, while substitution is allowed, carriers cannot require substitution without complying with the procedures set out in the RLA. Using those procedures the carriers can, and should have, bargained for substitution provisions.
Comment: The FMLA provision that permits employers to substitute paid leave for unpaid FMLA leave does not empower employers to ignore their collective bargaining responsibilities and unilaterally impose paid leave substitution where existing collective bargaining agreements allow employees alone to substitute paid leave for unpaid FMLA leave. To change such a policy employers must bargain with the union.
Interestingly, the Court concluded that Title 29 USC 2652(a) did not apply. That section provides that nothing in the FMLA
[S]hall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act...
According to the Court, "[t]here is nothing in the CBAs which provides "greater family or medical leave rights" to the employees." One could argue that allowing employees alone to decide whether they want to substitute paid leave for unpaid FMLA leave is itself a "greater leave right" for employees than the rights established by the FMLA. Absent such a restriction, the FMLA would permit the employer to impose paid leave substitution even over the objection of the employee.