Published: May 19, 2006
Publication: The Chief
By Ginger Adams Otis
An arbitrator has ruled that New York City Transit can’t force sick employees to use vacation days when taking time off under the Federal Family and Medical Leave Act.
In a decision released May 4, Arbitrator Richard Adelman said NYC Transit’s attempt to change the “use of paid leave” section in its 1993 interim FMLA guidelines violated the collectively-bargained vacation rights for members of Transport Workers’ Union Local 100.
A Split Decision
Those guidelines said that all employees had to use their sick days concurrently with requested FMLA leave, but could keep their paid vacation days if they were taking FMLA leave due to personal illness. At the same time, however, arbitrator Adelman told Local 100 that it had to abide by a section of the agency’s guidelines that said employees using FMLA time to tend to a family member must use accrued paid days – including sick and vacation time – before being allowed to go on unpaid FMLA leave.
“We had argued that it was wrong to make people use up their vacation days for any reason while taking part or all of their 12 weeks’ unpaid FMLA leave,” said Arthur Schwartz, legal counsel for Local 100. “But the arbitrator said since we never complained about it for almost 10 years, he wasn’t going to reverse the policy.”
Local 100 first grieved NYC Transit’s implementation policy for FMLA in 2002, when it learned that employees in some departments were being told they had to exhaust their sick and vacation days before going out on FMLA leave, while others were allowed to go out after using up only their sick time. NYC Transit denied those grievances, and also denied a Step II appeals complaint.
Union Delayed Protest
Arbitrator Adelman held a hearing on the issue Sept. 26, 2002, and also later considered numerous briefs submitted by both parties. The union filed numerous grievances in 2002, but didn’t pursue them until NYC Transit in June 2005 sought to amend its written guidelines so that employees in all circumstances would have to exhaust their bank of paid time before taking FMLA leave.
The union argued that its collectively-bargained contractual right to pick vacations gives employees the right to take their vacations at the selected dates.
Arbitrator Adelman, in his final decision, noted that there had been numerous times since 1993 that employees were denied their pick rights and forced to use vacation days concurrent with an FMLA leave for personal illness, without objection from the union.
But he found that those irregularities among NYC Transit departments didn’t supercede the “clear and unambiguous” language in the 1993 guidelines.