Brotherhood of Maint., Way Employ. v. Csx Transp.

• Decision Date: 02 March 2007
• Docket Number: No. 06-2744.,06-2744.
• Citation: 478 F.3d 814
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

478 F.3d 814

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.

No. 06-2744.

United States Court of Appeals, Seventh Circuit.

Argued January 3, 2007.

Decided March 2, 2007.

Dale D. Pierson, Countryside, IL, John A. Edmond, Carmen R. Parcelli (argued), Guerrieri, Edmond & Clayman, Washington, DC, Charles A. Collins, St. Paul, MN, for Plaintiffs-Appellees.

Donald J. Munro (argued), Goodwin Procter, Washington, DC, Daniel J. Mohan, Daley & Mohan, Chicago, IL, for Defendants-Appellants.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

A dozen unions¹ contend that five 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 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

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 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 present 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. 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, 123 S.Ct. 1429, 155 L.Ed.2d 407 (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, 96 S.Ct. 1989, 48 L.Ed.2d 540 (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...