Union Invokes Arbitration over SEC’s Refusal to Bargain over Retroactive Transit Subsidies


6/6/13: This week, NTEU invoked formal arbitration after the SEC denied the Union’s national grievance over the SEC’s refusal to implement retroactive transit benefits, as well as the agency’s refusal to bargain over the issue – despite the fact that agencies such as the FDIC have already provided the retroactive benefit to their employees. The Union has made attempts to compromise on this issue, but the SEC’s Office of Human Resources has continued to refuse to discuss it.

The Union filed its national grievance last April when the SEC refused even to come to the table and bargain with its employees’ representatives over implementation of the retroactive transit benefits. Several months ago, Congress passed the American Taxpayer Relief Act of 2012 (ATRA), which amended the law governing qualified transportation fringe benefits. Specifically, it amended the amount of the transportation subsidy that may be provided to an employee by an employer and which may be excluded from gross income. The amendment in section 203 of ATRA increased the maximum monthly transportation subsidy that may be provided from $125 per month to $240 per month by making the subsidy dependent on inflation adjustments under 26 U.S.C. 132(f)(6).  It also provided that the amendment resulting in an increased transportation subsidy shall apply to months after December 31, 2011.  The monthly amount has since been adjusted by inflation to a maximum of $245.

Under Article 23 of the Collective Bargaining Agreement between the Union and the SEC, when transit benefits are increased, the SEC is required to provide the new maximum amount, or else reopen the matter for further negotiations. After the passage of ATRA, Union leaders contacted the SEC and requested that it pay the new maximum, including the retroactive benefit afforded under the new law. The SEC agreed to increase the current subsidy, but ultimately refused to provide the retroactive benefit and also refused even to bargain over it. Other federal agencies, however, including the SEC's sister FIRREA agency, the FDIC, have already provided the retroactive benefit to their employees.

The SEC’s refusal to issue retroactive transportation subsidies up to the non-taxable amount of $240 per month to qualified bargaining unit employees for the period of January 1, 2012 through December 31, 2012, and its refusal to bargain over that retroactive increase, violates CBA Article 23, and also constitutes an unfair labor practice under 5 U.S.C. 7116(a)(1), (5), and (8). As a remedy, the Union has asked for make whole relief for impacted employees, including, but not limited to, retroactive payment of transportation subsidy benefits up to $240 per month for the months of January 2012 through December 2012, minus any monthly benefit amount already provided; interest on such amounts; attorney’s fees; an order to cease and desist from violating the parties’ collective bargaining agreements; a posting; and all other appropriate relief.