Brotherhood of Locomotive Engineers and Trainmen A Division of the Rail Conference-International Brotherhood of Teamsters
DON M. HAHS National President	NATIONAL DIVISION 1370 Ontario Street, Mezzanine· Cleveland, Ohio 44113-1702 Phone: (216) 241-2630· Fox: (216) 241-6516 • www.ble-t.org

February21,2008

All General Chairmen

            Re:                                                         Uniform Language for FMLA Contract Claims
   
Dear Sirs and Brothers:

The National Division has received numerous calls requesting language to be used in presenting claims for improper use of vacation and personal leave as FMLA Leave. Counsel for us in the litigation, Michael Wolly, has provided us samples of claims based upon the BLET contracts submitted in the District Court Proceedings; they are Carrier specific. Attorney Wolly requested you review them very carefully and make revisions if the provisions cited do not apply on the part of a property where the Claimant works.

The suggested uniform language is attached. Also, you should note that a general format for a claim is set out at page 3, along with language that may be used in a submission for Arbitration.

Fraternally yours,

/s/ Don M. Hahs,
National President
Enclosure.

cc:     E. Rodzwicz, FVP w/enc.
        W. C. Walpert, NST w/enc.
        Advisory Board w/enc.
        R. Ross, ILC
        M. Wolly, Counsel
 

....
ZWERDLING, PAUL, KAHN & WOLLY, P.C.
1025 CONNECTICUT AVENUE, N.W.
SUITE 712
WASHINGTON, D.C. 20036-5420                 ABRAHAM L. ZWERDLING (1914-1987)
(202) 857-5000
FAX: (202) 223-8417
 

ROBERT E. PAUL
WENDY L. KAHN
MICHAEL S. WOLLY

MARGO PAVE
JEFFREY W. BURRITT

TO: GREG ROSS

FROM: MIKE WOLLY

February 13, 2008

RE: UNIFORM LANGUAGE FORMULA CONTRACT CLAIMS

You have asked us to prepare uniform language that the General Chairmen can give to BLET-represented employees to use in presenting claims for improper forced use of vacation and personal leave as FMLA leave. Using the agreement provisions that were provided to us during the District Court proceedings, I have created the attached samples. Because the agreements differed somewhat from carrier to carrier, I tried to create some that are carrier-specific. The General Chairmen should review these very carefully and should not hesitate to make revisions if I have cited to provisions that do not apply on the part of a property where the claimant works.

CLAIMS FOR IMPROPER FORCED USE OF VACATION DAYS

On CSXT, IHB, BNSF:

Claim of (EMPLOYEE'S NAME) for restoration of vacation day(s) that carrier forced claimant to.use as FMLA leave on (INSERT DATE(s)) in violation of the Vacation Agreement of 1949, as amended, Article V of the 1996 National Agreement, and established practices. .

On NS (other than Southern):
Claim of (EMPLOYEE'S NAME) for restoration of vacation day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of the Vacation Agreement of 1949, as amended, Article V of the 1996 National Agreement, Article 36 of the July 1,1999 Agreement, as amended, and established practices.

On NS (Southrn):

Claim of (EMPLOYEE'S NAME) for restoration of vacation day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of the National Vacation Agreement of 1949, as amended, Article V of the 1996 National Agreement, Article 42 of the 1982 Agreement, as amended, the July 1, 1987 letter of understanding, and established practices.

On UP:

Claim of (EMPLOYEE'S NAME) for restoration of vacation day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of [ELIMINATE THOSE THAT DON'T APPLY] -the National Vacation Agreement of 1949, as amended, Article V of the 1996 National Agreement, the October 23, 1992 Split Vacation Agreement, the April 25, 1963 Combined Vacation Agreement (Granger-Huntington .and Salt Lake City-Butte), and established practices,

A more generic format would be:

Claim of (EMPLOYEE'S NAME) for restoration of vacation· day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of applicable agreements and established practices.

CLAIMS FOR IMPROPER FORCED USE OF PERSONAL LEAVE
 

ON CSXT, BNSF, IHB, UP (Southern Region):

Claim of (EMPLOYEE'S NAME) for restoration of personal leave day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of Article XI of the December 11, 1981 National Agreement, Article VI of the 1996 National Agreement, and established practices.

On UP (Eastern District and Northern Region) (should include WRGLA)

Claim of (EMPLOYEE'S NAME) for restoration of personal leave day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of Article XI of the December 11,1981 National Agreement, Article VI of the 1996 National Agreement, the February 4, 1987 Agreement, the May20, 1991 Agreement, and established practices.

On NS (other than Southern):

Claim of (EMPLOYEE'S NAME) for restoration of personal leave day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of Article XI of the December 11, 1981 National Agreement, Article VI of the 1996 National Agreement, Side Letter #5 to May 1, 1996 Agreement, the December 6, 1999 Agreement, and established practices.

On NS (Southern):

Claim of (EMPLOYEE'S NAME) for restoration of personal leave day(s) that carrier forced. claimant to use as FMLA leave on (INSERT DATE(s)) in violation of Article XI of the December 11,1981 National Agreement, Article VI of the 1996 National Agreement, the April 27, 1992 Agreement, and established practices.

A more generic format would be:

Claim of (EMPLOYEE'S NAME) for restoration of personal leave day(s) that carrier forced claimant to use as FMLA leave on (INSERT DATE(s)) in violation of applicable agreements and established practices.
 

These samples are intended for the filing of individual claims. If a General Chairman is looking for language to tee up already pending claims for arbitration on a class-type basis, I suggest they use something like this:

1. Did the Carrier violate the applicable agreements and established practices by requiring the employees on the attached list to use their vacation leave instead of
unpaid leave for FMLA purposes? If so, what is the appropriate remedy?
2 Did the Carrier violate the applicable agreements and established practices by requiring the employees on the attached list to use their personal leave instead of
unpaid leave for FMLA purposes? If so, what is the appropriate remedy?

The attached list would identify the claimants and the days they were forced to use their paid leave.

cc: Harold Ross, Interim Legal Coordinator
 

Brotherhood of Locomotive Engineers & Trainmen

 
Dear Sirs and Brothers:

This is in regard to continued questions we have received in this office regarding how to handle cases wherein the Carrier is forcing employees to use paid leave while exercising their rights under the Family Medical Leave Act.

As you are all aware by this time the U.S. District Court in Chicago ruled in favor of the Organizations on this issue. The Carriers will be appealing the District Court's ruling to the U.S. Court of Appeals for the Seventh Circuit. While this case is pending appeal the Carrier's have made it clear they intend to continue with their current policy until a decision is reached by the Appeals Court. In the interim, claims should be filed on the property and progressed through the appeals process to highest designated Carrier Officer.

Claims should be filed for a basic day for each day the Carrier requires the individual to use a Personal Leave or Vacation day against their wishes. Claims must include a complete statement of facts detailing the dates in question and which paid leave was involved. Also, please find attached a notice distributed by the National Division which contains a qualifying statement that should be added to each claim in addition to a complete statement of facts.

Claims appealed to this office should also include the Claimants work history showing the dates in question and the employees 816 form indicating the Vacation or PL day payment.

It will be necessary to handle these claims under our time limit agreement until such time as the Appeals Court decision is final.

Fraternally,
/s/ Dennis R. Pierce
General Chairman

DWM/SJB

INTERIM CLAIMS-HANDLING ARRANGEMENTS

Each contract claim filed while the national FMLA litigation is pending should include the following language:

Claim a basic day penalty acct. laid off FML for reasons specified in my filing with BNSF, and I was paid a compensated day without my requesting one. This claim is being processed without prejudice to the organization's position that the carrier's revised FMLA policy is unenforceable because it was implemented unilaterally in violation of the carrier's status quo and bargaining obligations under the Railway Labor Act and in violation of the Family and Medical Leave Act. The organization is litigating that issue in federal court. The carrier has refused to suspend the requirements of the contract claims process until that dispute is resolved. Therefore, the organization is processing this claim at this time to ensure that the contractual requirements are satisfied in the event the court holds that the dispute must be resolved via the Section 3 processes of the Act.

The Memorandum of Understanding with the carriers provides the following interim arrangements vis-a-vis the handling of on-property claims while the litigation is pending:

1. Such claims will be subject to applicable rules regarding filing and progression in the usual manner on the property;
2. Applicable rules regarding progression of such claims beyond the property level will be suspended until the date of a final decision by Judge Andersen, unless an appeal is taken by either party from that determination, in which case this provision will apply until the mandate issues from the Court of Appeals.
3. Any party may cancel its arrangement to suspend applicable time limits beyond the property by providing thirty (30) days' written notice to any other affected parties.
    

It is suggested that you copy the above wording onto a notepad document, and save it. When you fill out a claim for BNSF using one of your compensated days off for FML, you can copy and paste the above wording on your claim ticket. Remember, you can go back 60 days from this date for any past days.