BNSF and other Carriers flat out lost the recent court case in which the Railroads argued that the Family and Medical Leave Act superceded any and all collective bargaining agreements and permitted Carriers to unilaterally substitute paid vacation time or Personal Leave Days for unpaid time off for family leave under FMLA. U. S. district Judge Wayne Andersen ruled that the Carriers' position was erroneous, and that FMLA does not allow employers to unilaterally alter a collective bargaining agreement in the administration of family leave under FMLA.

In typical arrogant defiance, BNSF management recently issued a release stating they would make no changes to their FMLA policies as a result of Judge Andersen's decision. Instead, BNSF simply takes a new position, arguing now that the collective bargaining agreement grants the Carrier the right to reschedule employees' compensated off days to coincide with days when employees lay off for any reason. In other words, having lost the argument that the FMLA granted the Carrier the right to arbitrarily reassign paid time off for medical reasons, BNSF now asserts they didn't need any authority from FMLA to do so in the first place.

BNSF management seems completely clueless as to the deep ill will its actions are causing among an already exhausted workforce by attempting to dictate when employees will take their paid vacation time or Personal Leave Days. It is just amazing to me that while BNSF does not provide sick pay to its employees, it nevertheless wants to force them to take their paid personal time when they are sick, rather than using it at their own chosen time for the rest and recreation that they need to recover from the rigors of the workplace.

The Carriers are expected to appeal Judge Andersen's decision. If that decision is upheld, then the Carriers want to have another shot at this issue through the arbitration process. We will continue to handle claims submitted by our members when the Carrier improperly and unilaterally forces them to take paid leave in lieu of the unpaid time provided for by FMLA. I am confident that any fair-minded arbitrator will recognize the Carrier's arrogant attack on our collective bargaining agreement for what it is.