PART= ) TRANSPORTATION
COMMUNICATIONS INTERNATIONAL UNION
TO )
DISPUTE ) THE
BURLINGTON NORTHERN
AND SANTA
FE RAILWAY
COMPANY
CONTENTS
QUESTIONS AT ISSUE . 1
OPINION OF BOARD . 1
A. Facts 1
B. Relevant Language . 2
C. The Burden 4
D. The Showings 5
1. Does Clear Contract Language Resolve The Dispute? 5
2. The Rules Of Contract Constriction 6
3. The Organization's Other Arguments 12
E. Conclusion 14
AWARD 14
tent FMLA leave, violate the
QUESTIONS AT ISSTX
National Vacation Agreement?
From the parties' arguments 2, If so, does the FMLA permit the
(Carrier Submission at 5; Carrier to abrogate the terms of
Organization Submission at 1): collectively bargaining vacation
and leave agreements?
Carrier's Question:
3. If the answer to Question #1 is
Given that the Family And Medical -yes", and the answer to
Leave Act (-FMIA") expressly grants Question #2 is "no". should
employers the right to require sub- Carrier be required to reinstate
stitution of accrued vacation for the vacations of any employees
unpaid FMLA leave. did BNSF vio- forced to advance
scheduled va
late the National Vacation cation to cover FMLA
absences:
Agreement (-NVA") when it amended or, if the Award is rendered be
lts FMLA policy to require that em- yond the scheduled dates of the
ployees who have exhausted avail- advanced vacation, shall Carrier
able paid sick leave substitute paid be required to pay the affected
vacation leave for intermittent employees at the overtime rate
FMLA leaves?
for the missed vacation?
Organization's
Questions:
OPINION Off' BOARp
1. Does 13NSF's proposed policy, re-
Facts
quiring employees eligible for sick By letter dated October 5, 2001.
leave to exhaust scheduled vaca
tion leave while taking intermit
General Chairmen that, effective
BNSF/TCU
Intermittent FMLA
leave
page 2
January 1, 2002, the Carrier was By letter dated November 8, 2001,
going to modify its FMLA policy to the Organization objected stating
provide that it would require substi- that the Carrier's announced modi
tution of paid vacation for intermit- fication violated the NVA as well as
tent FMLA medical leaves
for
those the FMLA.z
employees who are entitled to paid The parties were unable to re
sick leave. Carrier
Exh. 3.
The solve the dispute. This proceeding
Carrier further advised the General followed.
Chairmen that sick leave and other H. available paid leave days would be . Relevant
Langmge
exhausted before any vacation days.
Id.l
1
FAM=
AND MEDICAL
IZ= OF 1999, 29 U&C A 2§Q I. etc,
in ertment part, the Carrier specifically $ 2612. Leave requirement
advised the General Chairmen (Carver Fxh.
3): In general
... [Flor now BNSF has only modified (a)
its policy with respect to the use of
paid vacation in cases of (1) Entitlement to leave
intermittent medical leaves and only Subject to section 2613 of
for employees who are entitled to this title. an eligible employee
paid sick leave. The company is not shall be entitled to a total of 12
now requiring substitution of work-weeks of leave during any
vacation with other FMLA leaves. 12-month period for one or more
of the following:
Further. BNSFhas structured the (A) Because of the birth of
new policy so that sick leave and a son or daughter of the em
other available paid leave days ployee and in order to care
would be exhausted before any
vacations days. Finally. if a for such son or daughter.
particular employee elects (B) Because of the place-
intermittent FMLA leave so
ment of a son or daughter
frequently that vacation days are
affected, the policy gives the
employee some choice iii determining lcontintwwn offoomocel
which vacation days to substitute The scope of this dispute is therefore
for the intermittent FMLA leave . limited to whether the Carrier can require
According to the Carrier, this employees who have paid sick leave benefits
modification applied only to employees who and who have exhausted - sick leave and
are entitled to paid sick leave such as other available paid leave days to
management employees. dispatchers and substitute accrued vacation for unpaid
clcrical employees represented by the
intermurenr FMLA lcaves. Carver Exh.
3.
organization. Carrier Submission at 3. We express no opinion on whether the
Employees who do not have paid sick leave Carrier can do so for non-intermittent FMLA
- Ce employees represented by the BLE. leaves or for other groups of employees.
LJTU. BMWE. IBEW. SMWIA and BRS -- are
Those questions are not before us.
not required by the Carrier to substitute The Organization's objection was made
paid vacation for intermittent FMLA leave, on behalf of the TCU and BRC General
Carrier Submission at 3, note 8. Chairmen. Corner Exh. 5.
(foorwre cormnuedl
5NSF/TC
u
Intermittent FMLA Leave
Page 3
with the employee for adop- employer would not normally
tion or foster care. provide any such paid leave.
(C) In order to care for the
spouse, or a son, daughter.
or parent, of the employee, if
such spouse, son, daughter. $ 2652. Effect on existing esu
or parent has a serious ployment benefits
health condition.
(D) Because of a serious (al More protective
health condition that makes Nothing in this Act or any
the employee unable to per- amendment made by this Act shall
form the functions of the be construed to diminish the obliga
position of such employee. tion of an employer to comply with
any collective bargaining agreement
' or any employment benefit program leave or plan that provides greater family
(d) Relationship to paid or medical leave rights to employees
than the rights established under
· this Act or any amendment made by
this Act.
(2) Substitution of paid leave
Win genera4
An eligible employee may
NATIONAL VACATION AGREEMFNI'
elect. or an employer may re-
OF DECEMBER 17. 1941
quire the employee, to substi
tute any of the accrued paid
vacation leave, personal
leave. or family leave of the g, (a) Vacations may be
employee for leave provided taken from January 1st to December
under subparagraph (A). (B). 31st and due regard consistent with
or lC) of subsection (a)(1) of requirements of service shall be given
this section for any part of to the desires and preferences of the
the 12-week period of such employees in seniority order when
leave under such subsection. fixing the dates for their vacations.
(b) Serious health condi- The local committee of each or
tion ganization signatory hereto and the
An eligible employee may representatives of the Carrier will co
elect, or an employer may re- operate in assigning vacation dates.
quire the employee. to substi
tute any of the accrued paid
vacation leave. personal
leave, or medical or sick leave S. Each employee who is
of the employee for leave entitled to vacation shall take same
provided under subparagraph at the time assigned, and, while it is
(C) or (D) of subsection (a)(1) intended that the vacation date
of this section for any part of designated will be adhered to so far
the 12-week period of such as practicable. the management
leave under such subsection. shall have the right to defer same
except that nothing in this provided the employee so affected is
subchapter shall require an given as much advance notice as
employer to provide paid sick possible: not less than ten (10) days'
leave or paid medical leave in notice shall be given except when
any situation m which such emergency conditions prevent. If it
becomes necessary to
advance the
c-Pap
BNSF/TCU
Intermittent FMLA Leave
Page 4
designated date. at least thirty (30)
days notice
will
be given affected fitter of statute it can designate
employee. earned vacation for intermittent
If
a carrier finds that it cannot FMLA leaves.
release an employee for a vacation That kind of analysis which ren
during the calendar year because of
the requirements of the service, then ders opposite conclusions obviously
such employee shall be paid in lieu
of
the vacation the allowance here- does not get us very far. Because of
inafter
provided.
the long existing provisions of the
NVA and the almost cataclysmic im
C. The Burden
pact the FMLA has had on employer
There are two competing provi- - employee - union relationships,
sions at work in this case. The con- that Irind of analysis really helps no
tractual provisions
of
the NVA and one. The real question here is how
the statutory provisions of the the FMLA blends into collectively
FMLA. The parties agreed that the barged contractual relationships?
Organization would bear the burden In the end. whether the parties
on the contractual question under designate their arguments as con
the NVA and the Carrier would bear tract or statutory and assign
the burden on the statutory ques- burdens to those arguments, this
tion under the FMLA. case must really be analyzed as a
In simple terms, both parties contract interpretation dispute.
easily carry their respective burdens. Stripped to its essence, the
Because the NVA entitles employees Organization is protesting a viola
to vacations, the Organization has tion of the NVA and is arguing that
shown as a matter of contract that m this case the FMI.A does not pre
the Carrier cannot take away those vail over the provisions of the NVA.
Contractually earned vacation enti- Therefore, no matter how the bur
ilements by substituting earned va- dens are characterized in terms of
cation for intermittent FIALA leaves. contractual or statutory and which
On the other hand, because § ply is assigned to which burden,
2612(d)(2) of the FMLA permits the ultimately, -(t1he burden in this
Carrier " to substitute any of the case is on the Organization to
accrued paid vacation leave for demonstrate a violation of the
leave provided under " the FMLA, Agreement.-
Third Division Award
the Carrier has shown that as a 34207. In the end, the Organization
BNSF/TCU
Intermittent FML.A Leave
Page 5
will have to demonstrate that its in- the FMLA. Given that the
terpretation must prevail. Organization relies upon a contract
Another observation
is in order. and the Carrier upon a statute,
Typically. arbitration proceedings fo- there is no other realistic way to ap
eus upon contractual concerns proach and analyze this disputes
arising under various agreements Again, because the Organization
between carriers and organizations. claims that the Carrier's actions
Arbitrations do not usually address violated the NVA, the Organization
statutory matters, but leave those must bear the ultimate burden to
statutory questions to governing show that its interpretation trust
administrative agencies or the prevail.
eourts.3 Thus, our traditional D. The showings
function as an arbitration board is
to only apply the terms of the par-
1- D~ ~F~ks Contract
4
'tee
Resolve The
ties' negotiated language. However,
Dispute?
because of the nature of this dis-
-rhe
initial question in any com
pute, the parties agree that this tract interpretation dispute is
Board must consider the statutory whether clear contract language ex
provisions of the FMLA along with
the contractual provisions of the
Compare Third Dwtsion Award 35979
NVA. Given that the parties have where, with the neutral member of this
incorporated the FMLA issue into ~ hel ~ teas the neutral in that case, it
this case, our task is to read the ... close review of the organization's
arguments shows that the real bans
NVA and FML,A together. Stated, for its position concerning
differently, in deciding this
case we claimant's entitlements
1s
the
assertion that the carrier's actions
shall view the NVA as incorporating violated the provisions of the FMLA.
Therefore. this is not a dispute
- ITIhe specialized competence of limited
3
uner the eement. Under the
arbitrators pertains primarily to the law of is not this Board's function to
the shop. not the law of the land [while] determine the nuances of the FMLA.
the resolution of statutory or constitutional That job falls to the Department of
issues is a
primary responsibility of courts Labor and the courts. we therefore
." Alexander u. Gardner-Denver, Co., 415
lack jurisdiction to consider this
U.5_ 36, 57 (19741
dispute. The claim shall be
4
"Where the collective-bargaining dismissed.
agreement conflicts with [statutory Because the nature of the dispute and
provisions), the arbitrator must follow the the agreement of the parties that the FMLA
agreement "
Garaner-Denwer, supra 415
must be considered along with the NVA.
U.S. at
57.
Award
35979
does not
govern
this matter.
nlvar / m u
Intermittent FMLA Leave
page 6
ists to resolve the matter. Because Organization cannot meet that ini
the burden is on the Organization, tial burden.
the Organization is therefore obli-
2. The Rules
Of
Contract
gated to demonstrate clear language
Construction
to support
its claim " Award because the language is ambigu-
34207, supra. ous, we can tum to the rules of con
Clear language does not support tract construction to attempt to as
the Organization's position. For the certain the
meaning of
that lan
sake of discussion, in this part of guage.s
the analysis we will assume that the The relevant rules of contract
Organization's interpretation of the construction show the following:
NVA supports its position - i.e., First, a fundamental rule of con
that under §§ 4 and 5 of the NVA, tract construction is that interpre
employees are entitled to take as- tations which render language
signed vacations which are estab- meaningless should be avoided.
fished based
upon seniority and the Language should be interpreted to
expressed preferences of employees. give meaning to all clauses.
7
Our
However, § 2612(d)(2) of the FMLA goal here, then, is to read the NVA
states that "... an employer may re-
quire the employee. to substitute
6
Elkoun and Elkouri. How Arbiuation
any of
the accrued
paid vacation Works
(SNA.
5th ed.). 470 (If the words are
plain and clear, conveying a distinct idea,
leave for leave provided under " there
is
no
occasion to
resort to technical
the FMLA. That language supports rules
ue
ald ed be a
g Y be bitra
the Carrier's position. tons.").
7 How Arbitration Works, supra at 493 (-If
"Where language yields conflict- an arbitrator finds that alternative interpre
ing but plausible interpretations, rations of a clause are possible, one of" Award
which would
give meaning and effect to an
the language is ambiguous. other provision
of
the contract, while the
34207. supra. The point here is that other would render the other provision
meaningless
or
ineffective, he
will
be in
the Organizations burden in this clined to use the interpretation which
art of the analysis is to show that would give effect to ail provisions " -.it is
p axiomatic in contract construction that an
clear language supports its position. interpretation which tends to nullify or ren
der meaningless any part
of
the contract
Given the language found in § should be avoided because of the general
2612(d)(2) of the FMLA which sup- presumption that the parties do not care
fully
write into a solemnly negotiated
ports the Carrier's position, the agreement words intended
to have
no ef
fect.').
BNSF/TCU
Intermittent FMLA Leave
Page 7
arid the FMLA in a way that does for leave provided under " the
not render provisions of either FMLA. This rule of contract con
meaningless. struction therefore does not favor
If the Organization's interpreta- the Organizations position. The
tion that the Carrier cannot require point here is to find an interpreta
that employees who have exhausted tion which does the least damage to
available paid sick leave and other the two provisions. That interpre
leave substitute paid vacation leave tation is the Carrier's view of how
for intermittent FMLA leaves, then § the language should be read.8
2612(d)(2)
of
the FMLA
which
states
that °... an employer may require
the employee, to substitute
any of a
Tries
secretary of LaGoYs implementing
the accrued paid vacation leave regulations cited by the Organization
for leave provided under " the (Organization Exh. 121 yield the result
advanced
by
the Carrier.
FMLA becomes meaningless.
However, if the Carrier's interpreta- An employee may elect, or an
employer may require the employee,
tion that it can require that employ- to substitute any
of
the employee's
accrued paid vacation leave... These
ees who have exhausted available substitution provisions are intended
paid sick leave arid other leave sub- to but have not
yet
stitute paid vacation leave for in- been taken
by
an employee to be
substituted for the unpaid leave
termittent FMLA leaves is accepted, required under FMLA (Ilf an
then employees can have their va- appropriate employee s n elect to substitute
Paid
cations as provided in the NVA, but requesting FMLA leave, the employer
has the right to require that the
only up to the point that there have employee do so . If the employee
been no intermittent FMLA leave does not initially request
substitution of appropriate paid
offsets. The Carrier's interpretation, leave. the employer retains the right lislimiting to require it . At the same time, m
while perhaps g employee the absence of other limiting factors
rights under the NVA, still gives the (such as a State law or an applicable
collective bargaining agreement).
NVA language meaning- The where an employee does not elect
Organization's interpretation es- substitution
of
appropriate paid
leave. the employee must
sentially ignores the provisions of § nevertheless accept the employer's
decision to require it, even where the
2612(d)(2) of the FMLA which states employee would desire a different
that " an employer
may
require result
The Organization's interpretation would
the employee, to substitute
any of
similarly render these provisions
the
accrued paid vacation
leave
meaningless.
BNSF/TCU
Intermittent FMLA Leave
Page 8
Second, another fundamental be construed to diminish the obli
rule of construction is that specific gation of an employer to comply
language governs general
language.9 with any collective bargaining
Here, the provisions of § 2612(d)(2) agreement that provides greater
of the FMLA that ° an employer family or medical leave rights to
may require the employee, to substi- employees than the rights estab-
tute any of the accrued paid vaca- lished under this Act " Simply
tion leave for leave provided un- put, there is
nothing in the cited
der " the FMLA is very specific on sections of
the NVA relied upon by
the issue in this case concerning the the Organization " that provides
Carrier's assertion that it can re- greater
family or medical leave rights
quire that employees who have ex- to employees " [emphasis added].
hausted available paid sick leave The NVA deals with employees'
ua
and other leave substitute paid va- canon entitlements - not
FMLA-type
cation leave for intermittent FMLA entitlements.
leaves. The provisions of the NVA The relevant regulations for §
governing the rights of employees to 2652 yield the same result.
FMLA
have vacations is more general. Regulation 29 CFR § 825.700 pro
Under this rule of contract con- vides, in pertinent part ]emphasis
struction, the specific provisions of added]:
§ 2612(d)(2) of the FMLA govern and
Subpart G - How Do
other Laws.
the Organization's position is not
Employer Practices.
and
Collective Bargaining
favored.
Agreements Affect
Employee
Third, from an interpretation
Riots
Under FMA?
standpoint, g 2652 of the FMLA re- 9
825.700 What if an employer
lied upon by the
Organization g
~ inqukcd
by FMIay c
(Organization Submission at 13-14)
does not require a different result.
lal ~ employer must observe
any employment benefit program or
That section provides that
plan that provides greater
family or
medical leave rights to employees
-[n]othing in this Act or any
than the rights established by the
amendment made by this Act shall
But again. the NVA does not ad
s
How Arbitration works, supra at 498
dress -family or medical leave
[-where two contract clauses bear on the
rifts°. And, if Congress intended §
same subject, the more
specific
should be
gives[ precedence.-1. 2652
to apply to 'vacation rights"
' BNSF/TCU
Intermittent FMLA Leave
Page 9
instead of "family or medical leave "vacation leave" in § 2652. The only
rights". it could have easily and reference in § 2652 is to "greater
specifically said so just as it referred family or medical leave rights".
to -vacation leave" in § 2612(d)l2). Consistent with this rule of con
Congress certainly knew the differ- struction, because of the specific
ence between -vacation leave" and reference in § 2612(d)(2) to -vacation
"family leave". In § 2612(d)(2). there leave" and "family leave" and the
is specific reference to -vacation specific reference in § 2652 to
leave" and "family leave". The ab- "family or medical leave rights" and
sence of a reference to "vacation the absence of a reference to
leave" entitlements in § 2652 is elo- "vacation" leave, it is fair to inter
quent silence heavily weighing pret § 2652 as excluding "vacation
against the Organization's position. leave" from that section. Therefore,
Fourth, another rule of contract § 2652
must
be read as it literally
construction comes into play here. states - the prohibition is against
One of the fundamental rules of diminishing existing "family or
contract construction is that to ex- medical leave rights" only - not
press one thing is to exclude an- "vacation leave". The construction
other.lo In permitting employers to sought by the Organization that §
substitute paid leaves for FMLA 2652 prohibits the Carrier from sub
leave, § 2612(d)(2) specifically makes stituting accrued vacation leave for
reference to - vacation leave intermittent FMLA leaves also runs
However, again, in prohibiting the afoul of this rule of contract con
diminishing of existing leave rights struction.
under collective bargaining agree- Fifth, past practice is also an ef
ments, there is no mention of fective tool for ascertaining the
meaning of ambiguous language.
l t
10 How Arbetranon Works, supra
at497: The Carrier asserts (Carrier
Frequently arbitrators apply the Submission at 4) that other rail
pnnciple
that to expressly include roads that are covered b the NVA,
one or more
of a
class
in
a written y
instrument must be taken as an including the Carrier's predecessor,
exclusion of all others. To expressly
state certain exceptions indicates -
that there are no other exceptions. l l -One of the strongest tools for
To
expressly include some interpreting ambiguous contract language is
guarantees in an agreement is to past practice."
Third Division Award 34207,
exclude outer guarantees. supra
BNSF/TCU
Intermittent FMLA Leave
Page 10
the Santa Fe, required similar, if So, on the question of whether
not more expansive, substitution of the Carrier can require that employ
vacation for FMLA leaves. However, ees who have exhausted available
while the Santa Fe may have re- paid sick leave and other leave sub
quired such substitution, according stitute paid vacation leave for in
to the Carrier, the Burlington termittent FMLA leaves, we are left
Northern did not and, upon the with the following: (1) reading the
merger of the two in December, NVA and the FMIA together yields
1996, the BNSF - the Carrier ambiguous language; (2) because of
herein - , did not require substi- the ambiguity, we can turn to the
tution of paid vacation leaves". Id. rules of construction for ascertain
at 7-8. Therefore.
from
December, ing the
meaning of
the ambiguous
1996 until the Organization was language; (3) the Organization's in
notified in October, 2001, the prac- terpretation that the Carrier cannot
tice of the Carrier was not consis- so designate paid vacation for in
tent with its position in this case. termittent FMLA leave renders §
-To be a past practice, the condi
tions in dispute must be unequivo- lcontinuationoffoomowl
cal, clearly enunciated arid acted aid
in
the interpretation
of
ambiguous
Y provisions'). However, to this case. there is
upon and readily ascertainable over no evidence of the parties discussions
during any negotiations which would clarify
a reasonable period of time as a the relationship between the NVA and the
fixed and established practice ac- weed. citing the
statement of
S. ,l.
King (Carrier Submission at
8-9;
Carrier
cepted by both parties."
Third F-xh.
12).
the Carrier states that -(alt no 34207, su time did BNSF or its predecessors bargain
Division Award supra. Past with
TCU
over the adoption
of
any FMLA
practice does not support the policy or the changes or modifications
thereto.- Bargaining history is of no help in
Carrier's position. If anything, given this case.
the of time from the merger
Ragsdale v. Wolverine World Wide,
Inc.,
passnga ger 535 U.S. - (No
. 00-6029)
March 19, 2002)
of the SN and the Santa Fe, the cited by the Carrier is really not on point- In
Ragsdale.
the Supreme court determined
past practice has been consistent that a portion of a FMLA regulation (29
CFR
with the
organization's
position.12
e
5 ~00s hard or unstatedpaidthleave arid the
employer er does not designate the leave as
FMLA leave, the leave taken does not count
12 Similarly, bargaining history is an often against an employees FMLA entitlement"
used tool for determining the meaning
of
was invalid as -
incompatible with
the
ambiguous language.
How Arbitration
FMLA's comprehensive remedial
Works, supra
at 501 l-Precontract mechanism."
Ragsdale, slip op.
at 6. That
negotiations frequently provide
a
valuable is not the dispute in
this
case.
Uoomote conanuedl
' BNSF/TCU
Intermittent FMLA Leave
Page 11
2612(d)(2) of the FMLA which states what constitutes "the better re-
that - an employer may require sult".
1s
In this case, on balance,
the employee, to substitute any of the fact that the Organization's in-
the accrued paid vacation leave terpretation would effectively nullify
for leave provided under " the § 2612(d)(2) of the FMLA which
FMLA meaningless whereas the states that " an employer may re-
Carrier's interpretation gives both quire the employee, to substitute
the NVA and the FMLA meaning: (4) any of the accrued paid vacation
under the rule of contract construe- leave for leave provided under "
tion that specific language governs the FMLA and the fact that § 2652
general language. the specific provi- which prohibits the Carrier from
sions of § 2612(d)(2) which allows diminishing certain existing leave
the Carrier to snake the offsets
it
rights does not refer to "vacation
seeks governs: (5) under the rule of rights". but only refers to "family or
contract construction that to ex- medical leave rights", must receive
press one thing is to exclude an- the greatest weight. The Carrier's
other, because of the specific refer- interpretation which, at most, di
enee in § 2612(d)(2) to "vacation lutes employee vacation entitle
leave" and the specific reference in § ments under the NVA does less vio
2652 to -family or medical leave lence to the NVA than the
rights", it is fair to interpret § 2652 Organization's interpretation does
as excluding -vacation leave" from to the FMLA.
that section: and (6) past practice We therefore find. on balance,
since the merger of the BN and that the relevant rules for ascertain
Santa Fe is that no such offsets ing the meaning of ambiguous lan
were made by the Carrier.
Thus, not all of the factors favor
13 How Arbitration Works, supra at 474:
one patty. The rules of construction ... Mhe standards of construction
as
used
by
arbitrators are not inflexible.
are not rigid but are merely aids in 'they are but
-aids to
the finding of
ascertaining the meaning of am- intent,
To
not
f hard tines
to
be
biguous language. The result is not
Sometimes two or more of the rules
determined by a tally on a scorecard. of interpretation conflict in a given
but is determined on the basis of
case. ''ere this is so, the arbitrator
is
free to apply that rule
which he
believes
will
produce
the
better
result
BNSF/TCU
Intermittent FMLA Leave
Page 12 for
guage do not favor the
good
a
yd by sufficiegnt growing
Organization's position. But the out of essential service requirements
and demands.
burden is on the Organization. The Obviously, the 1942 Morse
Organization's position
therefore
cannot prevail. Interpretation arose long before the
passage of the FMLA. To allow that
3. The Orgmization's
interpretation to control this case
Other AUt e s
would again, in effect, make the
The Organization's other well- provisions of ,f3 2612(d)(2) of the
framed arguments do not change the FMLA which permits
the Carrier
to
result. , require the employee. to substi
First, the 1942 interpretations of tute any
of
the accrued paid vaca-
the NVA by Referee Wayne Morse non leave for leave provided un
(Organization Submission at 6-11) der " the FMLA meaningless. For
do not require a different conclu- reasons discussed supra at D(2).
sion. that kind of result runs afoul of the
The relevant Morse Interpretation basic rules of contract construction
regarding § 5 of the NVA states: and should be avoided. The NVA
... The language
of
the paragraph and the FMLA must be read to-
gives to the management the not to
defer vacations.
As
pointed out in getler. The Organization's reliance
the contentions of the employees. upon the Morse Interpretation forces
the language does not mean that
management can defer vacations on us to ignore the provisions
of §
the basis of trivial or inconsequen
tial reasons. What the language of
the paragraph does do is lay down a unwilling to do so.
14
statement
of policy
that when a va
cation schedule is agreed to and the Second. given the analysis dis
employees have received notice
of
the
same and have made their vacation cussed supra at D(2). Other arbitra
plans accordingly. the schedule shall Lion decisions relied upon by the
be adhered to unless the manage
ment. for good and sufficient reason. Organization (Organization
finds it necessary to defer some
of
the scheduled vacations- When
14
The Organization (Organization
such a situation arises, the man- Submission at 8-9) also relies upon Third
agement is obligated to give the em- Division Awards 19659, 17737 and 12312
ployee as much advance notice as (Supplemental). Similarly, those awards
possible The important point for arose long before the passage of the FMLA
the parties to keep in mind is that and dealt with questions of when vacations
the primary and controlling meaning could be deferred
(e.g.,
a claimed emergency
of the first paragraph
of
Article 5
is
and whether qualifled relief was available).
that employees shall take their va- Those awards did not address the issues
cauons as scheduled and that vaca- now injected by the
FNAA
into the
NVA.
tions shall not be deferred or ad-
BNSF/TCU
Intermittent FMLA Leave
Page 13
Submission at 16-22) are not de
terminative of this dispute.
Assuming for the sake of discussion
co°c'u'°oon
offoo°'°~l
conclusion ignores the language in §
that
Grand Haven Stamped
2612(d)(21 of the FMLA that - an employer
may require the employee, to substitute any
products, 107 LA 131 (Daniel, 1996)
of the accrued paid vacation leave for
and Union
Hospital, 108 LA 966
leave provided under " the FMLA; sunilariy
ignores the language in the accompanying
(Chattlnan, 1997) can be read as
regulations that' . if an employee does not
Organization's osi-
elect to substitute appropriate paid leave
support for the
p when requesting FMLA leave, the employer
tion, the basic contract analysis
has the right to require that the employee
do so": and is not on point here because the
discussed supra at D(2) amply
Nvw makes no reference to FMLA leave and
demonstrates that the Organization ~ l
nin
the cement not that "collective
cannot carry its burden.
15 greater family or
medical
leave provides to
employees than the rights established under
this Act.- To the extent the organization
15
However, close examination of the relies upon Grand Haven. we find that
awards cited by the Organization show award unpersuasive to change the result in
them to be not on point or not persuasive. this matter.
In
Grand Haven
Stamped Products, in Union Hospital. the arbitrator found
during contract negotiations after passage that there was language in the collective
of the FMLA. the employer made a contract bargaining agreement - on the issue of
proposal with the - apparent intention to applying paid time to unpaid leave [and]
require employees to exhaust vacation time employees have been given the exclusive
for FMLA leaves " which was rejected by right to elect paid time. 108 LA at 973.
the union. 107 la at 132. Grand Haven Specifically, the parties in that case had a
also dealt with a past practice and a provision in their contract which stated
-zipper" clause which was held to negate a -[slhould special circumstances arise (i.e.,
claimed practice of the employer which personal or family illness, personal or family
allowed it to require employees to use emergency. low census time, etc.) the nurse
accrued vacation and further addressed shall notify of the nurse's desire to use
whether there was an impasse during earned vacation and/or personal holiday
bargaining which could have allowed the time in place of uncompensated leave." Id.
employer to unilaterally implement its at 970. Clearly. as the arbitrator found.
proposal concerning requiring employees to because of that provision - ltihem is no
exhaust accrued vacation Time. ld. at 136- doubt that an employee has obtained
138. In any event, the holding in Grand greater FMLA rights in the event that s/he
Haven is that -[tlhe right of an employer retains the ability to determine whether to
under the FMLA to exercise an option substitute accrued paid time during an
requiring employees to use such accrued unpaid leave [t1he CAA in this case clearly
vacation time is limited by the collective contains provisions that have expanded the
bargaining agreement which. in this case. employees FMLA rights." Id. at 973. Iii
does not permit the employer to diminish that case. because of the "greater family or
the beneficial value of vacation choice.' Id medical leave rights" in the collective
at 138. But putting aside the nuances bargaining agreement. the employer
concerning the bargaining proposals and therefore could not diminish those rights by
past practice, the bottom line in Grand designating time taken as vacation and
Haven is the arbitrator's conclusion that personal leave tune where the employee did
the contract in that cast " does not permit not do so. There is no similar FMLA-type
the employer to diminish the beneficial language in the NVA. Union Hospital is
value of vacation choice-" That kind of therefore distinguishable.
(footnote continued!
a.
BNSF/TCu
Intermittent FMLA Leave
Page 14
Third, the Organization that vacation schedules shall be ad
(Organization Submission at 15-16) hered to "and that vacations shall
argues that the Carrier's interprets- not be deferred or advanced by man
tion allowing it to designate unused agement except for good and suffi
vacation leave for intermittent cient reason, growing out of essen
FMLA leave amounts to a superced- tial service requirements and Be
ing of the NVA by the FMLA. We do mands." It therefore makes sense
not see it that way. As we have that employees would object to the
analyzed this dispute, our decision Carrier's designating paid vacation
is based upon a reading of the perti- leave for intermittent FMLA leaves.
neat provisions of the NVA the But the NVA and FMLA must be
FMLA
together so as to give both read together and the FMLA speci&-
meaning.l6 cally
states that the Carrier " may
E. Conclusion
require the employee. to substitute
The Organizations position that any of the accrued paid vacation
under the NVA the Carrier cannot leave for leave provided under "
require that employees who have the FMLA. These cases are decided
exhausted available paid sick leave on burdens met and rebutted. Here,
and other leave substitute accrued the burden is on the Organization
but unused paid vacation leave for to demonstrate a violation of the
intermittent FMLA leaves is under- relevant language. Given that lan
standable, The NVA establishes an guage from the FMI.A which specifl-
employee's vacation entitlements
cry
permits the Carrier to ' re-
and the Morse Interpretation states quire the employee, to substitute
any of the accrued paid vacation
is leave for leave provided under "
The
Carrier's November
30.2001
letter
does
state its decision to
modify
its policy the FMLA, the Organization cannot
... will
be driven by a federal law that, in meet its burden.
our opinion.
supercedes
any inconsistency
in the bare terms of the
1940's
vintage
interpretation
of
the
NVA
.._" (emphasis
added]. Carrier Exh. 6. During argument. The Carrier did not violate the
the Carrier asserted that it may have
inartfully used the word -supersedes". We National Vacation Agreement when
cannot be governed by labels - else.
form
it amended its FMLA policy to re
would rule over substance. In coming to
our conclusion in this matter, we have read quire that employees who have ex
the
NVA
and the FMta together. That is ail
that matters. hausted available paid sick leave
BNSF/TCU
Intermittent FULA Leave
page 15
and other leave substitute paid vacation leave for intermittent FMLA
leaves.
Edwin H. Benn
Neutral Member
Carrier Member
Organization Member
Dated: