IMPORTANT FMLA DECISIONS

By Steve Albanese, NBA
New England Region

As the FMLA representative in New England for the APWU I get a lot of 
decisions relating to the application of of this statute.  I have 
prepared a 
short summary of some of the more significant rulings to come over my 
desk in 
recent times.  They are as follows:


DECISION SUMMARIES



1.  Arbitrator Cannavo, A90C-1A-D 95053133

    This case involved the termination of a transitional employee who, 
at the 
time of termination, did not have a right to file a grievance.  The 
Postal 
Service took the position that the case was not arbitrable based on the 
terms 
of the contract.  The arbitrator ruled that the prohibition in the 
contract 
had to be set aside because the absences in question were FMLA 
protected.  He 
ruled that the external law overruled the contract and the grievant was 
restored to duty with back pay because to do otherwise would be against 
public policy.  He could not condone an unlawful at.

2.  Arbitrator Lurie, H90N-4H-D 94068273

    This was one of the first cases decided after FMLA came into 
consideration on attendance cases.  The basic dispute here was whether 
the 
grievant had to request FMLA in order to invoke the protections of the 
law.  
The arbitrator ruled the grievant did not have to request FMLA.

3.  Arbitrator Cannavo, A94T-1A-C 98015781

    This case dealt with the Postal Service's claim that employees must 
re-certify all FMLA conditions every 30 days.  The arbitrator ruled 
such a 
policy to be a violation and stated each case must be considered on its 
own 
merits and in this case a certification covering a longer period was 
permitted.

4.  Arbitrator Kelly, A94C-1A-C 98067485

    This case involved the delay of an employee returning from an FMLA 
condition because the Postal Service required a fitness for duty.  The 
arbitrator ruled that the delay was a violation of the act.  The 
employee has 
a right to return to duty first.  The arbitrator ruled that he had to 
be paid 
for the three week delay caused by the fitness for duty.

5.  Civil Action 98-100-A, District Court Decision, 
    District of Virginia

    This case involved a situation where an employee met the 1250 work 
hour 
requirement at the initial onset and certification of a condition.  
Then 
later had a subsequent intermittent absence for the same condition but 
at 
that point had fallen below the 1250 work hour requirement.  The Postal 
Service refused to designate the subsequent absence as FMLA and 
terminated 
the employee based on the absence.  The court ruled that since the 
employee 
met the 1250 work hour requirement at the time of the initial 
certification 
the subsequent intermittent absences were also protected.

6.  Arbitrator Anderson, H98C-4H-D 99290624

    This case is similar to the court case cited above.  Management 
refused 
to designate an absence as FMLA because at the time of the absence the 
employee had fallen below 1250 work hours.  The employee was then 
disciplined. The Union argued that the employee had met the 1250 work 
hour 
requirement at the time the condition was first diagnosed and, 
therefore, did 
not have to re-qualify for the subsequent intermittent absence for the 
same 
condition.  The Union argued that the subsequent intermittent absence 
was 
protected and could not be used for discipline.  The arbitrator agreed 
and 
rescinded the discipline that was imposed for the intermittent absence.


I am certain there are dozens of others out there but these particular 
cases 
are used over and over again in an effort to resolve the more common 
disputes 
I see in my area and may be of use to others.