require the use of paid leave to the extent permitted under existing contractual agreements. This is
consistent with our finding in Section I of this opinion.

Moreover, it appears Congress intended for the FMLA and RLA to coexist. The FMLA
clearly contemplated the effect of CBAs, including those formed under the RLA. In fact, Congress
encouraged parties to amend CBAs in light of the FMLA by delaying the Act’s effective date for
employers bound by CBAs until the earlier of: (i) the date of the termination of a CBA; or (ii) the
date that occurs 12 months after the date of the enactment of the FMLA. Pub. L. No. 103-3, § 405.

The carriers also contend that the FMLA must trump inconsistent RLA terms because the
FMLA is a more specific statute. Since we find no conflict between the FMLA and RLA, this
argument is moot. Moreover, even if we were to find a conflict between the FMLA and RLA, we
would preserve the RLA’s prohibition against the unilateral alteration of CBAs. It is true that a
general cannon of statutory construction is that “a later-enacted, more specific, comprehensive
statute that targets the specific subject matter at issue in the case controls the construction of a more
general statute when there is a potential conflict or discrepancy between the burdens imposed upon
the affected entities.” Nutritional Health Alliance v. FDA, 318 F.3d 92, 102 (2TM Cir. 2003).
However, the RLA is a “more specific” statute that targets “specific subject matter” not directly
addressed by the FMLA. The RLA was meant to “encourage collective bargaining by railroads and
their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate
commerce,” Detroit & T. S. L.R. Co. vy. United Transp. Union, 396 U.S. 142, 148 (1969). A central
element of the RLA was the preservation of the status quo while carriers and unions negotiated
changes in working conditions. Jd. The FMLA was meant to apply to workers across nearly all

industries, making it a law of more general apptication.

14



is taking family or medical leave that is designated as FMLA leave by the employee or the carrier.

If an employee specifically requests FMLA leave, the policies requiring substitution of paid Icave
will apply. For some carrier policies, if an employce does not request that leave be treated as FMLA
leave, policies requiring substitution of paid leave do not apply. For other carrier policies, if it is
determined that leave qualifies as FMLA leave, regardless of whether the employee so requests,
policies requiring substitution of paid leave will apply. (Stip. Facts ff] 160, 172, 189, 201, 214.)

When a carrier requires a union employee to use a paid leave day for what would otherwise
be unpaid FMLA Icave, the carrier counts it as a day of paid leave and as a day of FMLA leave, but
not as a day of contractual unpaid leave. To the extent an employec has the right to any additional
unpaid leave, whether under the FMLA or by contract, he or she retains the right to use such leave
if and when paid leave is exhausted. (See Dourisseau Dec. | 9; Wisman Dec. § 9; Emerick Dec.
8.) Thus, the carriers’ revised policies require union employees to use their paid leave before they
use their unpaid leave if they take leave for family or medical reasons. (/d.)

In 2001, BNSF announced its intention to revise its FMLA policies. Shortly thereafter, TCU
objected and began the first adversarial proceeding to address FMLA policies requiring the
substitution of paid leave, an arbitration before the National Railroad Adjustment Board. Later, in
2003, CSXT filed a civil action in the U.S. District Court for the Middle District of Florida (Case
No. 03 C 1069) and BNSF and UP filed an action in the Northem District of Texas (Case No. 03 C
2872) for declaratory judgment. Some unions then filed related actions in this Court against BNSF,
CSXT, UP, IIIB, and NSR (Case Nos. 03 C 9419 and 04 C 163). On the unopposed motion of
CSXT, the case pending in the Middle District of Florida was transferred to this court and given

Case No. 04 C 1873. BNSF and UP also filed an unopposed motion to transfer the case pending in


greater leave rights to be affected by the legislation, They cite, for example, the House Report on
the bill, which states “that employers must continue to comply with collective bargaining agreements
or employment benefit plans providing greater benefits than the FMLA.” H.R. Rep. No. 103-8, pt.
1, at50(1993)(emphasis added). Regarding the same provision, the Senate Report states, “[nJothing
in this Act shall diminish an employer’s obligation under a collective bargaining agreement or
employment benefit plan to provide greater leave rights.” Sen. Rep. No. 103-3, at 47
(1993)(emphasis added).

We agree with the unions’ contention that the FMLA was not meant to diminish greater
contractual rights. Congress accomplished this end by omitting from the act any language that would
override contractual agreements, unless such agreements prohibited an employce from exercising
the very rights granted by the FMLA, However, the unions want us to find that their paid vacation
and personal leave rights are “greater family or medical \eave rights,” as that term is used in
§2652(a).

As we noted earlier, the FMLA provides for only four defined circumstances under which
taking leave is appropriate, none of which include vacation or personal time. The four include: (1)
the birth of a son or daughter of the employee and in order to care for such son or daughter; (2) the
placement of a son or daughter with the employee for adoption or foster care; (3) the care of a
spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has
a serious health condition; or (4) a serious health condition that makes the employee unable to
perform the functions of the position of such employee. 29 U.S.C. § 2612(a).

Congress clearly defined what it meant by family and medical leave. Vacation and personal

leave are not covered in this definition. Accordingly, the Court cannot find that vacation and

10



relations of any intcrested party” who presents “a case of actual controversy.” This case presents an
actual controversy because the rail carriers have implemented revised FMLA policies that affect the
union employees’ legal rights. See GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d 615, 620 (7th Cir.
1995). The issues presented in this case are all questions regarding the parties’ statutory and
contractual rights and, therefore, can be addressed in a declaratory judgment. See, e.g. Hyatt Int'l
Corp. vy, Coco, 302 F.3d 707, 711 (7th Cir. 2002)(courts may use declaratory judgments to “establish
the legal rights and obligations that will govern the parties’ relationship in the future.”), In addition,
summary judgment is appropriate when, as in this case, there are no disputed issues of material fact
and judgment may be entered as a matter of law. See Fed. R. Civ. P. 56.

L The FMLA Does Not Allow an Employer to Supercede an Employee’s Existing

Contractual Rights.

The primary issue in these consolidated cases is whether the FMLA, 29 U.S.C. § 2601, et
seq., authorizes the carriers’ revised FMLA practice of substituting union employecs’ paid vacations,
personal days, and sick leave when employees utilize the FMLA to take unpaid leave. The carriers
contend the FMLA explicitly allows them to substitute vacation and/or personal leave for FMLA
leave regardless of contrary CBA provisions. The unions, conversely, assert that an FMLA provision
preserving “greater family or medical leave rights” bars the carriers’ policies. We disagree with the
views put forth by the parties. Vacation and/or personal leave are not greater family and medical
leave rights as those terms are used in the FMLA. However, the FMLA does not allow employers
to alter otherwise enforceable CBAs. While Section Il, infra, deals directly with the relationship
between the RLA and FMLA, our analysis of the FMLA in this Section does not occur in a vacuum.

We are mindful that any reading of the FMLA that would allow the carriers to unilaterally alter the



the Northern District of Texas, which is now pending in this Court under Case No. 04 C 2138.
Pursuant to a Memorandum of Understanding between the parties, all of the FMLA cases ~ which
all agree present the same legal issucs - were consolidated before this Court for purposes of
summary judgment.

The unions in this action represent the various crafts or classes of the rail carrier employees.
In Case No. 03 C 9419, the plaintiffs are the Brotherhood of Maintenance of Way Employees
(“BMWE”) and individual members of the BMWE. (BMWE Compl. 94.) In Case No. 04 C 163,
the plaintiffs are the Brotherhood of Locomotive Engineers & Trainmen (“BLE”), International
Association of Machinists and Aerospace Workers (“IAM”), Transport Workers Union (“TWU”),
Transportation Communications International Union (“TCU”), United Supervisors Council of
America (“USCA”), and United Transportation Union (“UTU”), along with individual rail employee
plaintiffs who are represented by these various unions. In Case Nos. 04 C 1873 and 04 C 2138, the
defendants are the American Train Dispatchers Association (“ATDA”), Brotherhood of Railroad
Signalmen (“BRS”), Brotherhood of Railway Carmen (“BRC”), International Brotherhood of
Electrical Workers (“IBEW”), National Conference of Fireman & Oilers (“NCFO”), Sheet Mctal
Workers International Association (“SMWIA”), BLE, BMWE, IAM, TCU, UTU, and the
Yardmasters Department of the UTU.

The parties all have multiple-count declaratory complaints. However, the threshold issue

(and only issue fully briefed by the parties) is whether the FMLA allows the carriers’ revised leave

policies to supercede CBA terms to the contrary.
LEGAL STANDARD

Under 28 U.S.C. § 2201, this Court has the authority to “declare the rights and other legal



leave. Accordingly, nothing in § 2612(d)(2) suggests employers are free to ignore or abrogate
existing contractual terms.

B. The Unions’ Position Relies on a Faulty Reading of the FMLA.

The unions point to a different section of the FMLA ~ § 2652, entitled “Effect on existing
employment benefits” — which specifically addresses a circumstance when, as here, a collective

bargaining agreement exists. Section 2652 states in relevant part:

(a) More protective

Nothing in this Act or any amendment made by this Act 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 or any amendment made by this

Act.

(b) Less protective

The rights established for employces under this Act or any amendment made by this
Act shall not be diminished by any collective bargaining agreement or any employment
benefit program or plan.
29 U.S.C. § 2652 (cmphasis added)
The unions maintain that Congress intended, by the plain language of the statute, to protect the
greater benefits enjoyed by employees under collective bargaining.

The unions also point to the legislative history of the FMLA to confirm the plain meaning
of § 2652(a). The Senate Report on the bill explained that the Act “establish[es] a minimum labor
standard for leave. The bill is based on the same principle as the child labor laws, the minimum
wage, Social Security, the safety and health laws, the pension and welfare benefits laws, and other

labor laws that establish minimum standards for employment.” S. Rep. No. 103-3 at 4.

If intended as a minimum standard, the unions argue the Congress never intended for any



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES, ef al., )
) Case No. 03. C 9419
Plaintiffs }
) 04 C 0163
) 04 C 1873
v. ) 04 C 2138
)
CSX TRANSPORTATION, INC.,, ef al. ) Wayne R. Andersen
) US. District Judge
Defendants. )
)

MEMORANDUM, OPINION A’ RDER

Before the Court are the parties’ cross motions for summary judgment. For the reasons sct

forth below, we grant in part and deny in part the parties’ motions for summary judgment.
SUMMARY

This case arises from a dispute over changes five rail carriers made to their Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §2601, et seg., policies. The FMLA ensures that covered
employees can take up to twelve weeks of family and medical leave in any given year. The rail
carriers claim that, when an employee takes leave covered by the FMLA, the employer has an
absolute right to substitute any unused paid vacation, personal, or sick leave. The rail carriers’
argument relies upon 29 U.S.C. § 2612(d)(2), a section of the FMLA, which sets forth that “[a]n
cligible employee may clect, or an employer may require the employce, to substitute any of the
accrued paid vacation leave, personal leave, or family leave of the employee [for FMLA leave].”

Various unions representing the rail carricrs’ employees challenge the rail carriers’ ability to



personal leave. If an employee has some right in addition to the mere accumulation of vacation
and/or personal leave that would prevent the employer from substituting vacation leave for FMLA
leave, the employer may not unilaterally override or ignore this contractual right. The FMLA
provisions that merely alow an employer to substitute leave are not provisions that supercede
contractually guaranteed rights.

Our reading of the FMLA does not rely upon the unions’ position that the substitution of
vacation and/or personal leave for FMLA leave, which is expressly provided for in the FMLA,
interferes with or restrains FMLA rights. Likewise, we do not adopt the unions’ suggestion that
vacation and/or personal leave constitute “greater family or medical leave rights.” Nevertheless, the
FMLA does not allow the carriers to take away rights the unions bargained for and won in CBA
negotiations. This reading is consistent with the text of the FMLA, the legislative history cited by
the unions, and the relationship between the RLA and FMLA, which is discussed more fully in
Section II.

U. ‘There is no Repugnancy Between the RLA and FMLA.

The carriers contend that the FMLA is a specific and limited exception to the RLA’s ban on
unilateral changes to CBAs. We disagree. Our finding that the FMLA does not allow an employer
to violate an existing CBA resolves much of this issue. However, the language of the two statutcs
and cannons of construction disfavoring repeals by implication provide further support for our
finding.

The RLA requires carriers and employees “to make and maintain” collective bargaining
agreements. 45 U.S.C. § 152, First. The RLA also requires that an employer abide by the terms of

acollective bargaining agreement until the parties have exhausted the Act’s lengthy procedures for

12



personal leave constitute “greater family or medical leave” as those terms are used in the FMLA.
Congress could have prohibited the substitution of vacation and personal leave for FMLA leave in
§ 2652 but, instead, explicitly stated employers could substitute vacation and/or personal leave as
FMLA Icave in § 2612(d)(2).

The unions raise another argument with respect to the FMLA. They contend that a carrier’s
usc of the statutory power of substitution violates § 2615(a)(1), which prohibits “interference” with
an employee’s exercise of his or her FMLA rights. (See BLE Second Amended Compl. { 39;
BMWE Second Amended Compl. 22.) We find this argument unpersuasive, Section 2612(d)(2)
specifically allows an employer to require substitution of paid leave, and so by definition such an
action cannot “interfere with, restrain, or deny” employees’ FMLA rights. It cannot be that an
employer’s exercise of a right granted by the FMLA constitutes a violation of the very same law.

Cc. The Court’s Reading of the FMLA Gives Effect to the Entire Statute.

The only way to give effect to the entirety of the FMLA is to find that an employer can
require employees to substitute vacation and/or personal leave for FMLA leave pursuant to
§2612(d)(2) unless contractually prohibited from doing so. A contract that merely provides
employees with the right to accrue vacation and/or personal time provides no barrier to the
employer’s ability to substitute such leave for FMLA leave. This is because the right to accrue
vacation and/or personal leave is not affected by the employer’s ability to substitute vacation and/or
personal leave for FMLA leave. In such a circumstance, an employee would accrue vacation and/or
personal leave, which would then be utilized for a purpose covered by the FMLA.

Many employment contracts grant employees rights in addition to the accrual of vacation

and/or personal leave, such as the right to determine when to use their accrued vacation and/or

il



working conditions of its employees would repeal or amend key provisions of the RLA. As such,
the maxim that “{oJnly in the rarest instance will a court find an exception to a statute when
Congress has not directly amended that statute” guides our interpretation of the FMLA. U.S. ex. rel.
Wisconsin v, Dean, 729 F.2d 1100, L107 (7" Cir. 1984).
A. The Carriers’ Position Relies on a Faulty Reading of the FMLA.
‘The carriers argue the FMLA allows their practice of substituting vacation and/or personal
leave for FMLA leave under 29 U.S.C. § 2612(d)(2), which provides the following:
“Substitution of paid leave”
(A) _ In general
An eligible employee may elect, or an employer may require the employee, to
substitute any of the accrued paid vacation leave, personal leave, or family leave of
the employee for leave provided under subparagraph (A), (B), ot (C) of subsection
(a)(1) of this section [which entitle employees to up to 12 weeks of family leave] for
any part of the 12-week period of such leave under such subsection.
(B) Serious health condition
An eligible employee may elect, or an employer may require the employee, to
substitute any of the accrued paid vacation leave, personal leave, or medical or sick
leave of the employee for leave provided under subparagraph (C) or (D) of subsection
(a)(1) of this section [which entitle employees to up to 12 weeks of family or medical
leave] for any part of the 12-week period of such leave under such subsection. . . .
The carriers argue that the plain language of § 2612(d)(2) — “the employer may require the
employee [] to substitute any [paid leave] for any part of the 12-week period’— unequivocally
authorizes the carriers to substitute leave. However, the carriers’ position fails to give effect to the
permissive nature of § 2612(d)(2). Section 2612(d)(2) does not say carriers shall substitute vacation

leave and/or personal leave for FMLA leave. Morever, § 2612(d)(2) does not say employers are

barred from contracting away their ability to substitute vacation and/or personal leave for FMLA


an employce or an employee’s family member can be taken intermittently or on a reduced leave
schedule when medically necessary. 29 U.S.C. § 2612(b). Leave for birth, adoption, or foster
placement may not be taken intermittently, unless the employee and the employer agree otherwise.
(id)

Asa general matter, FMLA leave is unpaid, 29 C\F.R. §825.207(a). However, relying on
29 U.S.C. §2612(d)(2), the carriers issued policies to address the circumstances under which they
require employees to use paid leave. The specifics of the carricrs’ revised FMLA policies on
substitution of paid leave vary, but they do share certain common characteristics. In general, all of
the carriers except IHB require employees to use accrued paid leave (including sick leave, personal
days, or vacation time that would be available under the circumstances) when an employee exercises
his or her right under the FMLA to take (1) intermittent leave for the employee’s own serious health
condition; or (2) intermittent or block leave to care for a family member with a serious health
condition, the birth of a child, or the placement of a child with the employee for adoption or foster
care. None of the carriers requires an employee to use vacation time when taking FMLA leave on
a block or continuous basis for his or her own serious health condition, including pregnancy. (See
Stip. Facts 165, 180, 194, 208, 223.)

Allof the carricrs allow employees to elect which form of available paid leave (including sick
leave if applicable, personal days, or vacation) they would like to use when taking FMLA leave.
(Conley Dec. 4; Wisman Dec. {| 4; Emerick Dec. 3; Poirier Dec. { 11; Dourisseau Dec. 4.) If
an employee does not make such an election, then the carriers will assign paid Icave using, in the
following order: sick leave, personal days and vacation days.

In addition, the carriers’ FMLA policies requiring use of paid leave apply only ifan employee



TI. Declaration

The FMLA does not allow employers to violate pre-existing contractual obligations. IfCBA
provisions grant employees the right to determine when, or in what manner, they utilize certain types
of paid vacation and personal leave, those CBA provisions prevent employers from substituting such
leave for FMLA leave.

CONCLUSION

For all the foregoing reasons, the unions’ motions for summary judgment [## 56-1, 62-1,
75-1] are granted in part and denied in part, The carriers’ motion for summary judgment [# 50-1]
is granted in part and denied in part. This is a final and appealable order.

Tt is so ordered.

ny ne Conc Cet

Wayne R. Andersen
United States District Judge

pact: KLeonbpee 2, 20057



BACKGROUND

The rail carriers in this consolidated action are the Burlington Northern and Santa Fe Railway
Company (“BNSF”), CSX Transportation, Inc. (“CSXT”), Indiana Harbor Belt Railroad Company
(“THB”), Norfolk Southern Railway Company (“NSR”), Norfolk Southern Corporation (“NSC”), and
Union Pacific Railroad Company (“UP”) (collectively the “carriers”). All of the carriers other than
NSC are carriers by rail as defined in and covered by the Railway Labor Act (“RLA”), 45 U.S.C. §
151, etseg. (Stip. Facts 1.) NSC isa transportation holding company that owns all of the common
stock of NSR and is a carricr as defined by the RLA. (/d.) All of the carricrs are also employers as
defined in the FMLA, (/d.) CSXT, BNSF, NSR, and UP are the four largest freight railroads
headquartered in the United States, (/d. at 2.) IHB is a carrier that operates a regional rail network.
(d.) All of the rail carriers are required by the RLA to maintain CBAs with their workers. These
CBAs cover the use and accrual of vacation and personal leave.

The carriers have historically maintained written policies and procedures regarding employee
use of leave under the FMLA. (See Stip. Facts 145, 147, 148, 169, 170, 183, 186, 197, 198, 211,
212.) These FMLA policies cover a variety of aspects of when and how employees may apply for
and exercise their right to take FMLA leave. Under the FMLA, an eligible employee may take up
to 12 weeks of leave during any 12-month period for one or more of the following: (1) the birth of

ason or daughter of the employee and in order to care for such son or daughter; (2) the placement

of ason or daughter with the employee for adoption or foster care; (3) the care ofa spouse, or a son,

daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health
condition; or (4) a serious health condition that makes the employee unable to perform the functions

of the position of such employee. 29 U.S.C. § 2612(a). Leave for the serious health condition of



substitute paid leave for FMLA leave. The unions agree that § 2612(d)(2) allows for the substitution
of unused paid vacation, personal, or sick leave for FMLA leave, but they contend that § 2612(d)(2)
does not override existing contractual rights, According to the unions, applicable collective
bargaining agreements (“CBAs”) allow employees to determine when vacation and personal days
are utilized, The unions assert that these CBAs give employees leave rights greater than the FMLA
and argue that the FMLA does not supercede such contractual rights.

We find that the FMLA does not allow an employer to take away any contractual rights. The
rail carriers insist the FMLA allows them to supercede, or ignore, certain contract terms. We reject
that argument. Accordingly, the rail carriers must fulfill their contractual obligations,

Ifa CBA gives employees the right to determine when, or in what manner, they take accrued
vacation and/or personal leave, an employer cannot force employees covered by that CBA to use
such vacation and/or personal leave at a time of the employer’s choosing. Many CBAs do more than
merely allow an employee to accumulate vacation and personal leave. Instead, some CBAs give
employees the additional right to determine when, or in what manner, that leave is used. While the
employees’ accumulation of paid leave is not affected by the rail carriers’ revised FMLA policies,
the employees’ right to determine when, or in what manner, vacation and personal days are taken
is affected.

The FMLA unequivocally permits the substitution of paid vacation, personal, or sick leave
for FMLA leave. However, itneither requires such substitution, nor supercedes existing CBA terms
to the contrary. No employer can rely on the FMLA to supercede existing contractual terms. CBAs
that vest employees with the power to determine when to utilize vacation and personal leave prevent

employers from requiring the substitution of paid vacation and/or personal leave for FMLA leave.



amending an agreement. The RLA provides that “[n]o 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 agrccments or in section 156 of the Act.” 45 U.S.C. § 152,
Seventh, Section 156 of the RLA sets forth a procedure for the negotiation of changes to existing
collective bargaining agreements. 45 U.S.C. § 156. If a dispute arises between the parties
concerning the interpretation of a collective bargaining agreement, the RLA requires submission of
the dispute to binding arbitration. 45 U.S.C. § 153. Thus, the RLA “gives ‘legal and binding effect
to collective bargaining agreements.”” Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass'n, 499
US. 117, 132 (1991).

Congressional intent to have one statute repeal another “must be clear and manifest.” Morton
v. Mancari, 417 U.S. 535, 551 (1974). Itis a “cardinal rule . . . that repeals by implication are not
favored.” Jd. at 549. “When two statutes are capable of coexistence, it is the duty of the courts,
absent a clearly expressed congressional intention to the contrary, to regard cach as effective.” Id.
at 551. A “later statute will not be held to have implicitly repealed an earlier one untess there is a
clear repugnancy between the two.” United States v. Fausto, 484 U.S. 439, 453 (1988).

In this case, there is no “clear repugnancy” between the RLA and the FMLA requiring this
Court to conclude Congress impliedly repealed a provision of the RLA through § 2612(d)(2) of the
FMLA. Section 2612(d)(2) states that an employer “may require” use of paid leave when leave is
taken under the FMLA. The use of “may” in a statute is generally viewed as permissive, as opposed
tothe mandatory “shall.” See Lopez vy. Davis, 531 U.S. 230, 241 (2001). The FMLA’s permissive
language docs not imply that an employer is no longer bound by contractual obligations enforceable

under the RLA. To the contrary, the most logical reading of the FMLA is that an employer may

13