FMLA update: Unions wait for Supreme Court action
Several BLET members have contacted the National Division recently regarding the status of the Family and Medical Leave Act (FMLA) court ruling last reported on in May.
In that May 4 update, it was reported that all 11 active judges of the United States Court of Appeals for the Seventh Circuit unanimously rejected the request of the rail carriers to rehear the dispute over whether the FMLA allows management to override agreement provisions to require the employees to substitute their paid vacation and personal leave for unpaid FMLA leave.
That May 4 ruling upheld a March 2 ruling, which blocked carrier efforts to force employees to use their vacation and personal leave days for FMLA purposes, rather than at the times the employees choose as provided in the collective bargaining agreements.
Following that favorable ruling for Rail Labor, the carriers petitioned the Supreme Court for review of the ruling. Presently, the unions have until December 15, 2007 to file their oppositions to the petition. It then takes several months for the Court to decide whether it wants to hear the case. The Supreme Court usually grants petitions in less than a hundred cases from amongst thousands filed in any given year.
If the current schedule is adhered to, it is likely that the Court will not decide whether to take the case until later in the winter or early spring 2008. If the Court does grant the Carriers' petition, the case then has to be fully briefed on the merits and set for oral argument. Under this scenario, oral argument would not occur until the Supreme Court's next term, which begins next October. While the BLET and others in Rail Labor are fighting to end the FMLA injustice as quickly as possible, realistically, a final decision is well into the future.
Everyone involved should be reminded that the decision, as it stands, is a victory under the FMLA statute only.
The Carriers still maintain that even without the statute, the applicable collective bargaining agreements themselves allow management to require the employees to use the paid leave they have chosen for other purposes, e.g., vacation, for FMLA purposes. That dispute has to be resolved in Section 3 arbitration. So, in the meantime, members are advised to continue filing claims to document their FMLA disputes with management as the organization waits for the Supreme Court to act.
Eleven Rail Labor unions are involved in the case. Mike Wolly and Margo
Pave of Zwerdling, Paul, Kahn, & Wolly, P.C., are representing the interests
of six of the 11 unions - BLET, International Brotherhood of Electrical
Workers, American Train Dispatchers, Brotherhood of Railroad Signalmen,
National Conference of Firemen and Oilers, and the Sheet Metal Workers International
© 2007 Brotherhood of Locomotive Engineers and Trainmen