CLEVELAND, June 10 — Certain BLET members working for the nation’s four largest railroads will receive one day’s pay for each vacation and/or personal leave day they were forced to use instead of Family and Medical Leave Act (FMLA) leave.
“We find that qualified grievants are entitled to receive a day’s pay at their then-obtaining straight-time rates for each day that the carriers improperly required substitution of FMLA leave for scheduled vacation time or accrued but not-yet-scheduled personal leave days,” a three member arbitration panel ruled on June 1. By qualified grievant the panel means an “employee that filed a timely and otherwise procedurally valid claim.”
The remedy brings to a conclusion a case that began more than five years ago when four Class I rail carriers instituted a practice that forced workers to use paid vacation and personal leave when taking FMLA leave in certain circumstances.
The BLET and 10 other unions argued the case against BNSF, CSXT, NS and UP.
The panel ruled previously that the carriers’ policies regarding substitution of paid vacation and/or paid personal leave for FMLA leave violates the requirements of the national vacation and/or national personal leave agreements. The carriers were ordered to immediately discontinue the invalidated provisions of such policies.
At a hearing in Washington, D.C., on April 21, the arbitration panel considered the 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?”
At the hearing, the union position was that each employee who was forced to use paid leave for FMLA leave should receive a day’s pay for each day the vacation or personal leave agreement was violated.
“Affected employees were denied their contractual right to determine when and how to use their vacation time and personal leave, and employees lost the ability to take time off for family and social events as they had planned,” the panel wrote in their June 1 decision. “This lost time cannot be recreated.”
In general terms, a basic day’s pay is considered traditional remedy in the railroad industry for violations of collective bargaining agreements where no remedy is specified. At the April 21 hearing, the unions successfully argued for application of this remedy to the carriers’ violation of the national agreements.
“The payment of a day’s pay is proper for the violation of the rule not as a penalty, but compensatory damages which will deter the Carrier from complete disregard to its obligation,” the panel determined.
“In the present matter, the contractual violation involves a largely intangible infringement upon employee’s rights wherein employees were denied the opportunity to take vacations and personal leave at the times of their own choosing because of the carriers’ violations. Those leave dates cannot be recovered,” the panel determined. “Employees were unable to take time off with their families as they had planned for occasions like recreation, family gatherings, social events and children’s school and athletic programs. Those events and opportunities have been lost and cannot be recreated. A day’s pay is at best an unsatisfactory substitute, but, in light of considerable railroad industry practice and in a genuine attempt to put this dispute behind the parties, the remedy sought by the unions is reasonable and appropriate for the violation.”
The unions claimed that a monetary remedy was necessary in order to enforce the agreements.
“No useful purpose would be served if we were to find that the Agreement was violated and no remedy was offered,” they argued.
The unions contended that, without the application of the traditional day’s pay remedy, the agreements at issue could not be effectively enforced. Without some monetary compensation for those employees deprived of their chosen leave times, there simply would be no reason for the carriers not to commit further violations similar to those found by the Board.
“Employees experienced an FMLA-qualifying events — serious illness of their own or a close relative, or birth or adoption of a child — and the carriers forced these employees to use up their later-scheduled vacation time in conjunction with the FMLA leave to which they were statutorily entitled. Employees could not choose a different time for vacation.”
The carriers offered a number of out-of-industry awards in support of their contention that employees were not entitled to damages. But the unions responded that those awards offered little, if any, guidance in deciding the question before the Board.
“Labor relations in the railroad industry are unique in many respects,” the panel determined. “The out-of-industry awards cited by the carriers involved FMLA substitution policies and are not on point.”
The carriers also argued that unpaid leave should be a remedy, but the panel shot down that line of reasoning.
Noting that the dispute began in 2004 when the industry was riding high and having difficulty handling the workload with its existing workforce, the panel wrote: “Now there are layoffs; work is less available, and grievants need pay, not time off without pay.
“Employees were fully employed and often worked substantial amounts of overtime, making even unpaid periods of leave meaningful. But today, times are harder; and business has declined. Now many claimants are just barely employed, and a significant percentage of the workforce is furloughed. Unpaid leave now is a remedy with little value, even for working and furloughed claimants. For claimants who have retired, are on disability, or have been laid-off, unpaid leave is no remedy at all. The carriers should not be permitted to rely on a changed economic climate to avoid bearing the cost of their contract violations.”
The panel wrote that the remedy is compensatory — not punitive.
“What grievants lost was a contract right of significant value. Grievants suffered more than ‘mere inconvenience’ when they lost their contract right to chose when to take paid time off. Our purpose is to provide compensation for those losses, not to punish the carriers for having caused them.”
This remedy, however, does not apply to everyone.
“Grievants who asked for and later did receive unpaid vacation and personal leave for paid leave days that the carriers who employed them had substituted FMLA leave are not entitled to the remedy … only for those lost vacation and personal leave days for which they elected to and did receive unpaid leave.”
Eleven Rail Labor unions were involved in the case. Mike Wolly and Margo Pave of Zwerdling, Paul, Kahn, & Wolly, P.C., represented the interests of six of the 11 unions — Brotherhood of Locomotive Engineers and Trainmen, International Brotherhood of Electrical Workers, American Train Dispatchers Association, Brotherhood of Railroad Signalmen, National Conference of Firemen and Oilers, and the Sheet Metal Workers International Association.
BLET National President Ed Rodzwicz thanked Mike Wolly and Margo Pave for their efforts to bring about the victory, and noted the time claims filed by BLET members helped provide valuable evidence during the hearing that the carriers’ illegal tactics negatively impacted hundreds of families.
“Once again Mike and Margo did a fantastic job vindicating the rights of BLET members,” Rodzwicz said. “But the real heroes are the men and women of the BLET who never gave up the fight over all these years: the members who filed the claims, the Local Chairmen who appealed the denials, and the General Chairmen who progressed the cases; their devotion to the cause personalized this struggle for the panel and secured our victory.”