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Collective bargaining agreement permitted employer to require employees to charge FMLA absences to vacation accruals

Collective bargaining agreement permitted employer to require employees to charge FMLA absences to vacation accruals
Matter of Bridge & Tunnel Officers Benevolent Association v Triborough Bridge & Tunnel Auth., 2008 NY Slip Op 10060, decided on December 23, 2008, Appellate Division, First Department

The collective bargaining permitted the Triborough Bridge and Tunnel Authority to require employees to substitute paid annual leave for FMLA leave (see 29 USC §2612[d]). It elected to do so effective January 2005. Until then, Authority employees had the option of taking FMLA leave paid or unpaid.

The Bridge and Tunnel Officers Benevolent Association [PBA] filed a grievance charging that the new requirement violated its members' rights under the parties' collective bargaining agreement (CBA) by "forc[ing] [them] to use annual leave outside of their contractually bidded seniority based vacation periods." Ultimately the grievance was submitted to arbitration.

The arbitrator sustained the grievance, finding that the Authority?s "inflexible and across-the-board requirement that employees must always use annual leave for medical leave purposes . . . can lead to a complete abrogation of an employee's vacation rights [under the CBA]."

However, the arbitrator also found that because employees could be required to use annual leave for purposes other than vacation under the terms of the collective bargaining agreement, they could not expect to be able to use all their annual leave for vacation purposes. The arbitrator, while retaining jurisdiction, remanded the grievance to the parties to determine the amount of leave employees were to charge to FMLA leave.

When the Authority and the PBA were unable to agree on a remedy, the arbitrator issued a modified award providing that the Authority could require up to 25% percent of accrued annual leave to be charged to FMLA leave, thereby leaving intact employees' "reasonable expectation that they will be able to utilize the bulk of their annual leave for vacation purposes."

The Appellate Division ruled that the result reached by the arbitrator based on his interpretation of the CBA in light of what he found to be the intent of the parties cannot be said to be completely irrational and affirmed the arbitrator?s award as modified.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_10060.htm

Full post as published by New York Public Personnel Law on January 07, 2009 (boomark / email).