1 Appellee unions are: American Train Dispatchers Association

(ATDA); Brotherhood of Locomotive Engineers and Trainmen

(BLET); Brotherhood of Maintenance of Way Employees

(BMWE); Brotherhood of Railway Signalmen (BRS); International Association of Machinists and Aerospace Workers (IAM);

International Brotherhood of Electrical Workers (IBEW);

(continued...)

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2744

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,

RUFILIO G. HERRERA, JOSEPH M. FRANCO, et al.,

Plaintiffs-Appellees,

v.

CSX TRANSPORTATION, INCORPORATED, BURLINGTON

NORTHERN AND SANTA FE RAILWAY COMPANY,

UNION PACIFIC RAILROAD COMPANY, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 9419—Wayne R. Andersen, Judge.

____________

ARGUED JANUARY 3, 2007—DECIDED MARCH 2, 2007

____________

Before KANNE, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge. A dozen unions1

 contend that five
2 No. 06-2744

1 (...continued)

National Conference of Firemen and Oilers (NCFO); Sheet

Metal Workers International Association (SMWIA); Transport

Workers Union (TWU); Transportation Communications International Union (TCU); United Supervisors Council of America

(USCA); and United Transportation Union (UTU). Also included are the individual appellees who are union members.

2 Appellant carriers are: The Burlington Northern and Santa Fe

Railway Company (BNSF); CSX Transportation, Inc. (CSXT);

Indiana Harbor Belt Railroad Company (IHB); Norfolk Southern Railway Company (NSR); and Union Pacific Railroad Company (UP).

3 In response to the contention of the unions that the policy of

the carriers should not be permitted, CSXT filed a civil action in

the Middle District of Florida and UP filed an action in the

Northern District of Texas. At about the same time, several

unions filed related actions in the Northern District of Illinois against BNSF, CSXT, UP, and IHB (NSR was added as

a defendant later). The parties agreed to the consolidation of

all the cases in the Northern District of Illinois for purposes

of summary judgment. As did the district court and the parties, we will focus our discussion on the important principle

at stake, rather than the intricate differences between various

collective bargaining agreements.

railroad carriers2 have violated collective bargaining

rights in their interpretation of the Family and Medical

Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Cases involving this controversy, filed in various federal courts,3

 were

consolidated in the Northern District of Illinois, where

a declaratory judgment was entered that if a collective

bargaining agreement (CBA) grants employees the right

to determine when or how they use paid vacation or

personal leave, those provisions prevent the railroads from

substituting contractual leave for leave under the FMLA.

The railroads have appealed, contending that the FMLA

gives them explicit authority to require substitution. Our
No. 06-2744 3

4 The district court decision did not specifically cover sick leave,

and here, the parties’ arguments are not germane to sick leave,

the timing of which is not governed by seniority—though the

number of days may be. Also, the arguments in this case are

(continued...)

review is de novo. Lang v. Ill. Dep’t of Children & Family

Servs., 361 F.3d 416 (7th Cir. 2004).

There is no question that the carriers are subject to the

FMLA as well as the Railway Labor Act, 45 U.S.C. §§ 151

et seq. Also, the carriers and the various unions are parties to a number of CBAs, including both national and

local agreements. As relevant here, the CBAs were

adopted before 1993 when the FMLA was enacted. The

CBAs provide four basic types of leave: paid vacation

leave, paid sick leave, paid personal leave, and unpaid

leaves of absence. Paid vacation leave is governed by a

National Vacation Agreement (NVA), dating back to the

1940s. The NVA provides that employees can schedule

vacations in advance, based on seniority rights and

preferences when consistent with the needs of the

carrier’s service. Some employees are also entitled to

paid personal days under some of the CBAs, which prescribe the amount of leave, the procedures for requesting

leave, and how the leave is allotted. Personal days may be

used for any purpose. Generally, however, an employee

seeking to take personal leave must submit a request to

do so at least 48 hours in advance. Although there is no

national agreement regarding sick leave, some carriers

provide paid sick leave through local CBAs. In the usual

case, employees are provided with a certain number of

sick leave days based on position and seniority; sick leave

may be used only for the employee’s own illness or injury,

and obviously there is no requirement for an advance

request for sick leave.4
4 No. 06-2744

4 (...continued)

based primarily on national, not local agreements. For these

reasons, our opinion is not intended to apply to sick leave.

The FMLA guarantees eligible employees up to 12 weeks

of unpaid leave during a 1-year period (1) for the birth of

a child, (2) for the placement of a child with the employee

for adoption or foster care, (3) to care for a spouse, son,

daughter, or parent with a serious health condition, and

(4) for a serious health condition of the employee. In

addition to a block of leave time, leave must be granted

on either an intermittent or part-time basis when necessary. During the 12-week period, the employer must

maintain the employee’s group health coverage. Upon the

timely return to work, the employee must be reinstated to

his or her former position or an equivalent. Pursuant to

congressional directive, the Department of Labor has

issued regulations implementing the FMLA. 29 U.S.C.

§ 2654; 29 C.F.R. §§ 825.100 et seq. The regulations require that employers have written policies regarding the

use of FMLA leave, including how the right to take leave

can be exercised.

In recent years, the carrier-appellants in this case

have revised their policies to require in some circumstances that employees use paid leave concurrently with

unpaid FMLA leave. The policies are attempts to avoid

“stacking”—that is, exercising the right to contractual

paid leave on top of FMLA leave.

Certain characteristics are common to all the carriers’

policies. First, all require employees to use accrued paid

leave when the employee exercises the right to intermittent leave for his or her own serious health condition, or

either intermittent or block leave to care for a family

member, or for the birth or placement of a child. But no

carrier requires an employee to use paid vacation leave

when taking a block FMLA leave for his or her own serious
No. 06-2744 5

health condition. The policies also allow an employee

to elect which form of paid leave to use in connection

with FMLA leave. If the employee does not choose, the

carrier will assign paid leave in the following order: sick

leave (if available), personal days, and vacation.

The substitution policies apply only if an employee is

taking leave that can be designated as FMLA leave. If

the employee specifically requests FMLA leave, the substitution policy applies. Some carriers will require substitution of paid leave regardless of whether the employee

has requested FMLA leave, assuming that the leave qualifies under the FMLA. The unions contend that these

policies are invalid; the carriers disagree.

As a general principle, the FMLA authorizes substitution of paid leave for FMLA leave. Paid vacation, personal

leave, or family leave can be substituted for FMLA leave

for the birth of a child, placement of a child in the

family, or to care for a spouse. In addition, medical or sick

leave as well as vacation and personal leave can be

substituted for FMLA leave based on a health condition of

the employee. Substitution can be done at the employee’s

election, or the employer may require it. 29 U.S.C.

§ 2612(d)(2)(A) and (B).

But there are restrictions on the general principle that

the employer may require substitution. Title 29 U.S.C.

§ 2652(a) sets out such a restriction. That section provides that nothing in the FMLA

shall 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 . . . .

Before moving deeper into this dispute, we note one

point: we cannot find that this section controls the pres-
6 No. 06-2744

ent case. There is nothing in the CBAs which provides

“greater family or medical leave rights” to the employees.

However, the heart of this case is the unions’ contention that another restriction exists: they contend that

substitution constitutes a unilateral change in the CBAs

(and the NVAs) and is therefore prohibited by the Railway Labor Act. The latter Act provides:

No carrier, its officers or agents shall change the

rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except

in the manner prescribed in such agreements . . . .

45 U.S.C. § 152 Seventh.

As we see it, the essence of this case involves the intersection of the FMLA, which in some cases allows substitution of paid leave for FMLA leave; the RLA, which

prohibits an employer from unilaterally changing working conditions except by following certain procedures;

and the CBAs and the NVAs that set out with some care

how vacation time is awarded. The issue is whether they

can be reconciled.

The carriers say that the FMLA and the RLA can be

reconciled. But they also say that to the extent that there

is conflict, the FMLA, being the newer and, in their view,

the more specific Act, trumps the RLA and controls

the situation, thus giving the carriers authority to unilaterally institute its anti-stacking policies.

The argument could bring us into the esoteric realm of

implied repeal or implied amendment of statutes. The

carriers see § 2612(d) as a limited exception to the requirements of the RLA; in other words, that it is an implied

amendment. We disagree. 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

precedence over a more general statute, and a later

enacted statute may limit the scope of an earlier statute.
No. 06-2744 7

5 There is a limitation in the FMLA, however, on what the

carriers can bargain for. Section 2652(b) prohibits bargaining

(continued...)

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 is more 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 that perspective is more specific. Asking which is more specific is a little like asking

whether an avocado is more specific than a kiwi.

And, more importantly, implied amendments to statutes—like implied repeals—are not easily found. See

Branch v. Smith, 538 U.S. 254 (2003); United States ex

rel. State of Wis. v. Dean, 729 F.2d 1100 (7th Cir. 1984).

We are often reminded that “when two statutes are

capable of co-existence, it is the duty of the courts . . . to

regard each as effective.” Radzanower v. Touche Ross &

Co., 426 U.S. 148, 155 (1976). We reject the notion that

§ 2612 is an implied exception to the RLA. Furthermore,

we are not convinced that the Acts are incapable of

reconciliation.

Section 152 Seventh of the RLA tells railroads what they

must not do—change working conditions except in the

manner dictated by the agreements or in § 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, the carriers cannot require substitution

without complying with procedures set out in the RLA.

Using those procedures, the carriers can bargain for

substitution provisions.5
8 No. 06-2744

5 (...continued)

for diminished rights. In other words, the FMLA is a minimum

requirement.

Bargaining seems appropriate, in part, simply because

§ 2612 is not a prohibition or a requirement. All it does is

make clear that substitution is not forbidden. It contrasts

with statutes which are prohibitions of, for instance,

discrimination as is Title VII (42 U.S.C. §§ 2000e et seq.)

or the ADA (42 U.S.C. §§ 12101 et seq.). In other words,

§ 2612 does not prohibit disapproved behavior. And even

if it did, it might not in all cases take precedence over

CBAs. For instance, sometimes a seniority system in a

CBA does not automatically give way even under antidiscrimination statutes. In Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977), the Court determined

that the employer was not required to carve out an exception to its seniority system to allow an employee to

meet his religious obligations. In Eckles v. Consolidated

Rail Corp., 94 F.3d 1041 (7th Cir. 1996), we cited various

cases under the Rehabilitation Act and the ADA supporting a conclusion that a measure that violates a seniority system established in a collective bargaining agreement

is not a “reasonable accommodation,” and thus is not

required by the ADA. See also Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995) (“The ADA

does not require that Northwest take action inconsistent

with the contractual rights of other workers under a

collective bargaining agreement . . . .”) It is not unusual for

statutory provisions to be reconciled with seniority provisions in CBAs.

One thing on which we believe the unions and the

carriers would agree is that railroads have special characteristics. There are unique problems in running a railroad

and in working for one, especially on long-distance runs.
No. 06-2744 9

Employees must start on time or they miss the train.

Managing a work force in such a circumstance has its

own difficulties, and the carriers contend that intermittent family leave causes them particular problems. On

the other hand, working conditions pose problems for the

workers. For instance, some workers are “on call,” meaning

they have no regularly set days off and may be called to

duty at any time consistent with federal laws regarding

maximum hours and minimum rest time. These circumstances may explain both why workers cherish

their vacations and why carriers struggle with ensuring

an available work force. The circumstances may also

explain why, for almost 70 years, the two sides have

operated under elaborate National Vacation Agreements

with supplemental agreements specific to various carriers.

The National Vacation Agreement, dated December 17,

1941, provides that vacations are given “to the desires

and preferences of the employees in seniority order when

fixing the dates for their vacations.” Many carriers remain subject to this agreement. Others are subject to

a National Vacation Agreement, dated July 1, 1949, which

also provides for seniority in preferences for the timing

of vacations. These detailed agreements balance the

needs of the carriers and the needs of the workers. In

addition, groups of carriers have supplemental agreements, making a hefty addition to the record in this

case. The vacation agreements are the subject of apparently hard bargaining. The right to time one’s vacation

and, to perhaps a slightly lesser degree, personal leave

days, is a hard-won right of railroad workers.

The processes for obtaining vacations vary among the

agreements but are also designed to allow the carriers the

ability to run their railroads. In general, the agreements

require that employees set out their time preferences for

their vacations far in advance. Vacations are then awarded

based on seniority and the needs of the carrier. Personal
10 No. 06-2744

leave days require somewhat lesser notice—48 hours in

some cases—but are also subject to the needs of the

carrier.

It would seem quite odd indeed to say that this elaborate

process, and the decades of bargaining, can be wiped out

by unilateral action on the part of the carriers, based on

a statute which says they may require substitution, but

which says nothing about the process for instituting

a substitution requirement. This is especially true in the

face of the RLA, which governs labor relations for the

railroad industry and specifically forbids the carriers

from making unilateral changes in working conditions.

We are aware that eliminating the policies against

substitution may result in stacking. The carriers contend that if substitution is not allowed, employees will be

able to stack FMLA leave on top of other forms of leave

provided for in the contracts, greatly affecting the operation of the railroads. We understand the difficulty of

having an employee out for 12 weeks of unpaid leave

and then out for his or her regular vacation time. The

unions point out, however, that stacking can happen

even under the substitution policies the carriers have

instituted. If, for instance, an employee takes his or her

paid vacation early in the year, that employee will still

be entitled to FMLA unpaid leave if a qualified need

arises later in the year. The policy affects the employee

whose vacation is later in the year and whose need for

FMLA leave arises earlier in the year. That employee

loses the timing of his paid vacation or personal leave.

The unions also point out the carriers are not eliminating all stacking. The carriers’ policies apply only to

intermittent leave, not to block leave. So, some stacking

remains even under the policies. We also wonder how often

any employee will choose not to substitute his paid leave

for unpaid leave—for remember, under § 2612, the em-
No. 06-2744 11

ployee can elect to substitute paid leave for FMLA leave,

thus voluntarily foregoing vacation rights.

Speculation aside, we see our role as reconciling important competing principles. That is done by seeing

§ 2612 for what we think it is—a statement that substitution is not forbidden—but also by recognizing the important seniority rights at issue under the CBAs, rights

specifically long protected by the RLA. It is not at all

clear that such long-standing, statutorily protected, and

important rights are abrogated by § 2612. And we find

they are not. The carriers must comply with the RLA in

implementing their actions under the FMLA.

In short, the FMLA does not allow the carriers to violate contractual obligations protected by the RLA regarding paid vacation and personal leave time. Accordingly,

we AFFIRM the judgment of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-2-07