Brotherhood of Maintenance of Way Employees , Rufilio G. Herrera , Joseph M. Franco v. Csx Transportation , Incorporated , Burlington Northern

1 Appellee unions are: American Train Dispatchers Association
(ATDA); Brotherhood of Locomotive Engineers and Trainmen
(BLET); Brotherhood of Maintenance of Way Employees
(BMWE); Brotherhood of Railway Signalmen (BRS); Interna-
tional Association of Machinists and Aerospace Workers (IAM);
International Brotherhood of Electrical Workers (IBEW);
(continued...)
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2744
B ROTHERHOOD OF M AINTENANCE OF W AY E MPLOYEES ,
R UFILIO G. H ERRERA , J OSEPH M. F RANCO , et al.,
Plaintiffs-Appellees,
v.
CSX T RANSPORTATION , I NCORPORATED , B URLINGTON
N ORTHERN AND S ANTA F E R AILWAY C OMPANY ,
U NION P ACIFIC R AILROAD C OMPANY , et al.,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 9419—Wayne R. Andersen, Judge.
____________
A RGUED J ANUARY 3, 2007—D ECIDED M ARCH 2, 2007
____________
Before K ANNE , R OVNER , and E VANS , Circuit Judges.
E VANS , Circuit Judge. A dozen unions 1 contend that five

-- 1 of 11 --

2 No. 06-2744
1 (...continued)
National Conference of Firemen and Oilers (NCFO); Sheet
Metal Workers International Association (SMWIA); Transport
Workers Union (TWU); Transportation Communications Interna-
tional Union (TCU); United Supervisors Council of America
(USCA); and United Transportation Union (UTU). Also in-
cluded are the individual appellees who are union members.
2 Appellant carriers are: The Burlington Northern and Santa Fe
Railway Company (BNSF); CSX Transportation, Inc. (CSXT);
Indiana Harbor Belt Railroad Company (IHB); Norfolk South-
ern Railway Company (NSR); and Union Pacific Railroad Com-
pany (UP).
3 In response to the contention of the unions that the policy of
the carriers should not be permitted, CSXT filed a civil action in
the Middle District of Florida and UP filed an action in the
Northern District of Texas. At about the same time, several
unions filed related actions in the Northern District of Illi-
nois against BNSF, CSXT, UP, and IHB (NSR was added as
a defendant later). The parties agreed to the consolidation of
all the cases in the Northern District of Illinois for purposes
of summary judgment. As did the district court and the par-
ties, we will focus our discussion on the important principle
at stake, rather than the intricate differences between various
collective bargaining agreements.
railroad carriers 2 have violated collective bargaining
rights in their interpretation of the Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Cases involv-
ing this controversy, filed in various federal courts, 3 were
consolidated in the Northern District of Illinois, where
a declaratory judgment was entered that if a collective
bargaining agreement (CBA) grants employees the right
to determine when or how they use paid vacation or
personal leave, those provisions prevent the railroads from
substituting contractual leave for leave under the FMLA.
The railroads have appealed, contending that the FMLA
gives them explicit authority to require substitution. Our

-- 2 of 11 --

No. 06-2744 3
4 The district court decision did not specifically cover sick leave,
and here, the parties’ arguments are not germane to sick leave,
the timing of which is not governed by seniority—though the
number of days may be. Also, the arguments in this case are
(continued...)
review is de novo. Lang v. Ill. Dep’t of Children & Family
Servs., 361 F.3d 416 (7th Cir. 2004).
There is no question that the carriers are subject to the
FMLA as well as the Railway Labor Act, 45 U.S.C. §§ 151
et seq. Also, the carriers and the various unions are par-
ties to a number of CBAs, including both national and
local agreements. As relevant here, the CBAs were
adopted before 1993 when the FMLA was enacted. The
CBAs provide four basic types of leave: paid vacation
leave, paid sick leave, paid personal leave, and unpaid
leaves of absence. Paid vacation leave is governed by a
National Vacation Agreement (NVA), dating back to the
1940s. The NVA provides that employees can schedule
vacations in advance, based on seniority rights and
preferences when consistent with the needs of the
carrier’s service. Some employees are also entitled to
paid personal days under some of the CBAs, which pre-
scribe the amount of leave, the procedures for requesting
leave, and how the leave is allotted. Personal days may be
used for any purpose. Generally, however, an employee
seeking to take personal leave must submit a request to
do so at least 48 hours in advance. Although there is no
national agreement regarding sick leave, some carriers
provide paid sick leave through local CBAs. In the usual
case, employees are provided with a certain number of
sick leave days based on position and seniority; sick leave
may be used only for the employee’s own illness or injury,
and obviously there is no requirement for an advance
request for sick leave. 4

-- 3 of 11 --

4 No. 06-2744
4 (...continued)
based primarily on national, not local agreements. For these
reasons, our opinion is not intended to apply to sick leave.
The FMLA guarantees eligible employees up to 12 weeks
of unpaid leave during a 1-year period (1) for the birth of
a child, (2) for the placement of a child with the employee
for adoption or foster care, (3) to care for a spouse, son,
daughter, or parent with a serious health condition, and
(4) for a serious health condition of the employee. In
addition to a block of leave time, leave must be granted
on either an intermittent or part-time basis when neces-
sary. During the 12-week period, the employer must
maintain the employee’s group health coverage. Upon the
timely return to work, the employee must be reinstated to
his or her former position or an equivalent. Pursuant to
congressional directive, the Department of Labor has
issued regulations implementing the FMLA. 29 U.S.C.
§ 2654; 29 C.F.R. §§ 825.100 et seq. The regulations re-
quire that employers have written policies regarding the
use of FMLA leave, including how the right to take leave
can be exercised.
In recent years, the carrier-appellants in this case
have revised their policies to require in some circum-
stances that employees use paid leave concurrently with
unpaid FMLA leave. The policies are attempts to avoid
“stacking”—that is, exercising the right to contractual
paid leave on top of FMLA leave.
Certain characteristics are common to all the carriers’
policies. First, all require employees to use accrued paid
leave when the employee exercises the right to intermit-
tent leave for his or her own serious health condition, or
either intermittent or block leave to care for a family
member, or for the birth or placement of a child. But no
carrier requires an employee to use paid vacation leave
when taking a block FMLA leave for his or her own serious

-- 4 of 11 --

No. 06-2744 5
health condition. The policies also allow an employee
to elect which form of paid leave to use in connection
with FMLA leave. If the employee does not choose, the
carrier will assign paid leave in the following order: sick
leave (if available), personal days, and vacation.
The substitution policies apply only if an employee is
taking leave that can be designated as FMLA leave. If
the employee specifically requests FMLA leave, the sub-
stitution policy applies. Some carriers will require substi-
tution of paid leave regardless of whether the employee
has requested FMLA leave, assuming that the leave quali-
fies under the FMLA. The unions contend that these
policies are invalid; the carriers disagree.
As a general principle, the FMLA authorizes substitu-
tion of paid leave for FMLA leave. Paid vacation, personal
leave, or family leave can be substituted for FMLA leave
for the birth of a child, placement of a child in the
family, or to care for a spouse. In addition, medical or sick
leave as well as vacation and personal leave can be
substituted for FMLA leave based on a health condition of
the employee. Substitution can be done at the employee’s
election, or the employer may require it. 29 U.S.C.
§ 2612(d)(2)(A) and (B).
But there are restrictions on the general principle that
the employer may require substitution. Title 29 U.S.C.
§ 2652(a) sets out such a restriction. That section pro-
vides that nothing in the FMLA
shall be construed to diminish the obligation of an
employer to comply with any collective bargaining
agreement or any employment benefit program or plan
that provides greater family or medical leave rights
to employees than the rights established under this
Act . . . .
Before moving deeper into this dispute, we note one
point: we cannot find that this section controls the pres-

-- 5 of 11 --

6 No. 06-2744
ent case. There is nothing in the CBAs which provides
“greater family or medical leave rights” to the employees.
However, the heart of this case is the unions’ conten-
tion that another restriction exists: they contend that
substitution constitutes a unilateral change in the CBAs
(and the NVAs) and is therefore prohibited by the Rail-
way Labor Act. The latter Act provides:
No carrier, its officers or agents shall change the
rates of pay, rules, or working conditions of its em-
ployees, as a class as embodied in agreements except
in the manner prescribed in such agreements . . . .
45 U.S.C. § 152 Seventh.
As we see it, the essence of this case involves the inter-
section of the FMLA, which in some cases allows sub-
stitution of paid leave for FMLA leave; the RLA, which
prohibits an employer from unilaterally changing work-
ing conditions except by following certain procedures;
and the CBAs and the NVAs that set out with some care
how vacation time is awarded. The issue is whether they
can be reconciled.
The carriers say that the FMLA and the RLA can be
reconciled. But they also say that to the extent that there
is conflict, the FMLA, being the newer and, in their view,
the more specific Act, trumps the RLA and controls
the situation, thus giving the carriers authority to unilat-
erally institute its anti-stacking policies.
The argument could bring us into the esoteric realm of
implied repeal or implied amendment of statutes. The
carriers see § 2612(d) as a limited exception to the require-
ments of the RLA; in other words, that it is an implied
amendment. We disagree. In looking at two statutes
which might be said to deal with the same subject matter,
we must apply certain principles. A specific statute takes
precedence over a more general statute, and a later
enacted statute may limit the scope of an earlier statute.

-- 6 of 11 --

No. 06-2744 7
5 There is a limitation in the FMLA, however, on what the
carriers can bargain for. Section 2652(b) prohibits bargaining
(continued...)
In re Johnson, 787 F.2d 1179 (7th Cir. 1986). As to the
two statutes involved in the present case, the FMLA is
the more recent statute, but whether it is more specific
depends on how you look at it. It covers a more specific
subject matter—family leave—but its application is far
wider than the RLA. Additionally, the RLA grows out
of specific needs of the railway industry (and later the
airline industry) and from that perspective is more spe-
cific. Asking which is more specific is a little like asking
whether an avocado is more specific than a kiwi.
And, more importantly, implied amendments to stat-
utes—like implied repeals—are not easily found. See
Branch v. Smith, 538 U.S. 254 (2003); United States ex
rel. State of Wis. v. Dean, 729 F.2d 1100 (7th Cir. 1984).
We are often reminded that “when two statutes are
capable of co-existence, it is the duty of the courts . . . to
regard each as effective.” Radzanower v. Touche Ross &
Co., 426 U.S. 148, 155 (1976). We reject the notion that
§ 2612 is an implied exception to the RLA. Furthermore,
we are not convinced that the Acts are incapable of
reconciliation.
Section 152 Seventh of the RLA tells railroads what they
must not do—change working conditions except in the
manner dictated by the agreements or in § 156, which
requires notice, a conference, and, in some cases, media-
tion. Section 2612 of the FMLA simply tells employers
what they may do—require substitution—not what they
must do. A reasonable conclusion is that, while substitu-
tion is allowed, the carriers cannot require substitution
without complying with procedures set out in the RLA.
Using those procedures, the carriers can bargain for
substitution provisions. 5

-- 7 of 11 --

8 No. 06-2744
5 (...continued)
for diminished rights. In other words, the FMLA is a minimum
requirement.
Bargaining seems appropriate, in part, simply because
§ 2612 is not a prohibition or a requirement. All it does is
make clear that substitution is not forbidden. It contrasts
with statutes which are prohibitions of, for instance,
discrimination as is Title VII (42 U.S.C. §§ 2000e et seq.)
or the ADA (42 U.S.C. §§ 12101 et seq.). In other words,
§ 2612 does not prohibit disapproved behavior. And even
if it did, it might not in all cases take precedence over
CBAs. For instance, sometimes a seniority system in a
CBA does not automatically give way even under anti-
discrimination statutes. In Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63 (1977), the Court determined
that the employer was not required to carve out an ex-
ception to its seniority system to allow an employee to
meet his religious obligations. In Eckles v. Consolidated
Rail Corp., 94 F.3d 1041 (7th Cir. 1996), we cited various
cases under the Rehabilitation Act and the ADA sup-
porting a conclusion that a measure that violates a senior-
ity system established in a collective bargaining agreement
is not a “reasonable accommodation,” and thus is not
required by the ADA. See also Benson v. Northwest Air-
lines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995) (“The ADA
does not require that Northwest take action inconsistent
with the contractual rights of other workers under a
collective bargaining agreement . . . .”) It is not unusual for
statutory provisions to be reconciled with seniority provi-
sions in CBAs.
One thing on which we believe the unions and the
carriers would agree is that railroads have special charac-
teristics. There are unique problems in running a railroad
and in working for one, especially on long-distance runs.

-- 8 of 11 --

No. 06-2744 9
Employees must start on time or they miss the train.
Managing a work force in such a circumstance has its
own difficulties, and the carriers contend that intermit-
tent family leave causes them particular problems. On
the other hand, working conditions pose problems for the
workers. For instance, some workers are “on call,” meaning
they have no regularly set days off and may be called to
duty at any time consistent with federal laws regarding
maximum hours and minimum rest time. These circum-
stances may explain both why workers cherish
their vacations and why carriers struggle with ensuring
an available work force. The circumstances may also
explain why, for almost 70 years, the two sides have
operated under elaborate National Vacation Agreements
with supplemental agreements specific to various carriers.
The National Vacation Agreement, dated December 17,
1941, provides that vacations are given “to the desires
and preferences of the employees in seniority order when
fixing the dates for their vacations.” Many carriers re-
main subject to this agreement. Others are subject to
a National Vacation Agreement, dated July 1, 1949, which
also provides for seniority in preferences for the timing
of vacations. These detailed agreements balance the
needs of the carriers and the needs of the workers. In
addition, groups of carriers have supplemental agree-
ments, making a hefty addition to the record in this
case. The vacation agreements are the subject of appar-
ently hard bargaining. The right to time one’s vacation
and, to perhaps a slightly lesser degree, personal leave
days, is a hard-won right of railroad workers.
The processes for obtaining vacations vary among the
agreements but are also designed to allow the carriers the
ability to run their railroads. In general, the agreements
require that employees set out their time preferences for
their vacations far in advance. Vacations are then awarded
based on seniority and the needs of the carrier. Personal

-- 9 of 11 --

10 No. 06-2744
leave days require somewhat lesser notice—48 hours in
some cases—but are also subject to the needs of the
carrier.
It would seem quite odd indeed to say that this elaborate
process, and the decades of bargaining, can be wiped out
by unilateral action on the part of the carriers, based on
a statute which says they may require substitution, but
which says nothing about the process for instituting
a substitution requirement. This is especially true in the
face of the RLA, which governs labor relations for the
railroad industry and specifically forbids the carriers
from making unilateral changes in working conditions.
We are aware that eliminating the policies against
substitution may result in stacking. The carriers con-
tend that if substitution is not allowed, employees will be
able to stack FMLA leave on top of other forms of leave
provided for in the contracts, greatly affecting the opera-
tion of the railroads. We understand the difficulty of
having an employee out for 12 weeks of unpaid leave
and then out for his or her regular vacation time. The
unions point out, however, that stacking can happen
even under the substitution policies the carriers have
instituted. If, for instance, an employee takes his or her
paid vacation early in the year, that employee will still
be entitled to FMLA unpaid leave if a qualified need
arises later in the year. The policy affects the employee
whose vacation is later in the year and whose need for
FMLA leave arises earlier in the year. That employee
loses the timing of his paid vacation or personal leave.
The unions also point out the carriers are not eliminat-
ing all stacking. The carriers’ policies apply only to
intermittent leave, not to block leave. So, some stacking
remains even under the policies. We also wonder how often
any employee will choose not to substitute his paid leave
for unpaid leave—for remember, under § 2612, the em-

-- 10 of 11 --

No. 06-2744 11
ployee can elect to substitute paid leave for FMLA leave,
thus voluntarily foregoing vacation rights.
Speculation aside, we see our role as reconciling im-
portant competing principles. That is done by seeing
§ 2612 for what we think it is—a statement that substitu-
tion is not forbidden—but also by recognizing the impor-
tant seniority rights at issue under the CBAs, rights
specifically long protected by the RLA. It is not at all
clear that such long-standing, statutorily protected, and
important rights are abrogated by § 2612. And we find
they are not. The carriers must comply with the RLA in
implementing their actions under the FMLA.
In short, the FMLA does not allow the carriers to vio-
late contractual obligations protected by the RLA regard-
ing paid vacation and personal leave time. Accordingly,
we A FFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-2-07

-- 11 of 11 --