Feb 27, 2017 -
In a major victory for Teamster members at Zenith Logistics, last week an arbitrator ruled in favor of Local 89 in an FMLA dispute that had arisen last year with the Company.
The dispute originated last February when Zenith Logistics member Bill Miller put in for two scheduled vacation days for May when his son, Anthony, would be graduating grade school. Bill’s other child, Angelina, requires therapy and special attention, and so it is necessary for Bill to take intermittent FMLA leave to care for her.
The problem arose due to a change in company policy that occurred in 2011 that required all employees taking FMLA to use all his or her earned paid vacation, sick leave, or personal leave before unpaid days would be permitted. This change in policy was never submitted to Local 89, and, until this instance, no grievance had ever been filed to bring the policy to the Local’s attention.
Bill filed the first and only grievance over the company policy when May 2016 arrived. Earlier that year the FMLA time Bill needed to take to care for his daughter had exceeded the amount of vacation time he had available. As a result, the company would not allow him to take his pre-scheduled vacation to witness his son’s graduation, despite the fact he had scheduled these days early in the year. Although the company did ultimately allow him to take unpaid leave for one of these days, a grievance was filed on the grounds that those vacation days should have been honored, regardless of FMLA, because they had been scheduled properly in accordance with the contract.
In the arbitration, the company attempted to argue their case by pointing out that this policy had been in place for many years, however the Arbitrator correctly dismissed this claim in his ruling by stating “The Union did not know it was being applied because no bargaining-unit employee ever complained to the Union about it. The Union is under no obligation to shake the employment bushes to see if a contract violation falls out. Once the first grievance over the policy was filed, this one, the Union pursued it.”
The true debate, however, came down to the company’s insistence that they can use an employee’s vacation time towards FMLA in accordance with federal law. The arbitrator acknowledged this, but ultimately sided with Local 89 as federal law, in this instance, cannot trump contract language. Because the contract contained no language on FMLA, the arbitrator instead looked to the language on vacation time. Using this as his guideline, the arbitrator accurately applied the contract between Local 89 and Zenith Logistics to this case, stating “The Union points out, correctly, that implicit in the contractual right to schedule vacation and personal days is the right to take those days when scheduled. First comes the scheduling and then comes the taking. If you lose the taking, the scheduling right is indeed meaningless. The Company policy requiring vacation and personal days to run concurrently with FMLA leave, violates employees collectively bargained right to schedule vacation and personal leave days.”
As a result, the arbitrator in this case ruled that Zenith Logistics must cease and desist from their policy of forcing employees to use their vacation and personal days towards their FMLA time.
Had Zenith bargained with Local 89 for language relating to FMLA during contract negotiations, and had that contract language been voted in and accepted by our members, this would be a moot point. The Company, however, failed to do this, and instead chose to create a sweeping policy change without notifying or bargaining with Local 89.
When asked to comment on this impressive and well-earned victory, Brother Bill Miller expressed appreciation and pride in his successful grievance. “Business Agent Rick Curtis was an invaluable asset in getting this accomplished. I would also like to thank President Zuckerman and the entire E-Board for their support and perseverance leading to this victory. I’ve earned my vacation and personal time, and the arbitrator’s decision affirms my right to use them as I choose.”
This ruling was the correct one, and we applaud the arbitrator for his wisdom in recognizing it. Thank you to all those who were involved in this case, including Local 89 staff, member witnesses, and of course, special thanks to Bill Miller who had the courage to stand up and fight back!
