A three-person arbitration panel ruled unanimously Dec. 2 (published Dec. 8) that the nation’s four largest railroads, which control some 90 percent of U.S. intercity rail freight traffic, no longer may require employees to substitute paid vacation and/or paid personal leave for unpaid leave under the Family Medical Leave Act (FMLA).

It was a stunning blow to BNSF, CSX, Norfolk Southern and Union Pacific -- carrier parties to the arbitration who had been ignoring collective bargaining agreements and the law in an attempt to maximize employee availability. Other carriers likely will abide by the arbitration ruling.

Under the FMLA, employees may elect to take up to 12 weeks of unpaid leave to deal with a family emergency, or a personal serious health condition. The law also provides that if employees have a more beneficial arrangement with the employer, the more beneficial arrangement shall take precedence.

Based on this provision, and the carriers' blatant violation of it, the UTU and 11 other rail labor organizations challenged the carriers, who agreed in July to arbitrate the issue.

The arbitration award becomes effective Dec. 22, at which time the carriers must "immediately discontinue" the invalidated provisions of their FMLA policies.

There is also a provision allowing follow-up proceedings to determine a monetary remedy for those who have taken FMLA leave and suffered by the carrier's forcing them to substitute paid vacation or paid personal leave for this time period.

The question submitted to the arbitration panel was: "Do the carriers' policies requiring employees to substitute paid vacation and/or paid personal leave for unpaid FMLA leave violate requirements of the national vacation and/or national personal leave agreements?"

In a 43-page award, arbitrators John E. Sands, William H. Holley Jr., and Jerome H. Ross said that collective bargaining agreements guarantee employees "a set number of paid vacation days" annually, with management restricted from administering the granting of guaranteed vacation days. The arbitrators also ruled that collective bargaining agreements similarly guarantee paid personal leave days.

The arbitrators cited a long history of other arbitration awards and court decisions backing their ruling that, "On the entire record before us, we must sustain the unions' position and find that the carriers' policies at issue to substitute paid vacation and/or paid personal leave for unpaid FMLA leave do violate the requirements of the national vacation and/or national personal leave agreements."