This is a companion case to that decided in Third Division Award 35929, which was adopted on January 22, 2002, and all of the reasoning therein is applicable hereto. In this instant claim, the Organization argued through testimony at the May 18, 1999 Hearing that the absenteeism for the period of July 1 through December 31, 1998 was covered under the Family Medical Leave Act. The Carrier acknowledges that the FMLA is applicable to the determination of excused or unexcused absences. As we noted in our prior denial Award, the Carrier adjusted discipline after consideration of FMLA applicability.
In this case the Carrier asserts that the FMLA is not applicable to these dates. The Assistant Manager Human Resources maintains that the 13 dates from July 12 to August 2, 1998 are prior to the applied for benefits officially given by the Carrier on August 4, 1998. The record documents that the Claimant became aware of FMLA benefits on March 31, 1998 at a Carrier meeting and acted thereafter to obtain the proper paperwork from the Department of Labor; the proper information from physicians; and submit the documentation for his request. As stated in the transcript by the Local Chairwoman, the Claimant "should have . . . retroactively been granted these days as considered under FMLA . . . from the date be notified the company that he requested it."
We reviewed the full testimony and record and considered when the Carrier knew of the Claimant's condition. The Board reviewed the Claimant's knowledge of notification and understanding of benefits. Additionally, the Organization argued on the property that FMLA benefits are retroactive from the date of notification. Whether they are, or are not, the notification to the Claimant by letter of April 8,1998 states that the application for FMLA will be reviewed by the Carrier's Medial Review Officer and the Claimant will be notified "if the leave has been approved." The Assistant Manager Human Resources testified that the Claimant "requested an intermittent leave and worked intermittently prior to the dates in question."
It is important to note that there is dispute in this record over the proper application of FMLA. The Organization argued on the property that it is retroactive from notification and maintained a date of March 31, 1998. The Carrier Officer testified as to the beginning of FMLA leave that: "there's four different ways as outlined in the FMLA in which you can calculate how leave is taken and we use it from a 365 period." She stated: Form 1 Award No. 35951
The Board lacks jurisdiction to determine proper application of FMLA or even the criteria of selecting among "the four different ways . . . ." The Organization's assertions that proper application is retroactive comes from the language of Federal Regulations, which states in part that "the entire period of the serious health condition may be counted as FMLA leave" (Code of Federal Regulations, Section 825.208, Paragraph (2)(d) with emphasis added) and discusses retroactive application as argued by the Organization. Clearly, it does not mandate what must be, but what "may be counted."
The Board cannot find sufficient evidence to conclude that the application of FMLA benefits was clearly in error. Nor can we find that the Carrier lacked support for its action under the terms and conditions of the Clerical Absenteeism Policy. In short, the Board is constrained by this record to deny the claim.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.