Union Files National Grievance over SEC’s Refusal to Implement Retroactive Transit Benefits, and Its Refusal to Bargain


4/15/13:  On Friday, NTEU Chapter 293 filed a national grievance against the SEC over its refusal to implement retroactive transit benefits, as well as the agency’s refusal to bargain over the issue -- despite the fact that other agencies, such as the FDIC, have already provided the benefits to their employees.

A few 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 said that it needed to study further the retroactive benefit.

After a number of inquiries and communications between the parties on this subject, on March 21 the SEC finally notified NTEU that it would not provide the retroactive benefits. The SEC claims that the retroactive benefit provided by ATRA only allows tax relief related to transit benefits that were already provided back in 2012, but that it does not allow employees to receive retroactive transit benefits today. Other federal agencies, however, including the SEC's sister FIRREA agency, the FDIC, have already provided the retroactive benefit to their employees.

Due to the SEC’s failure to provide the retroactive benefit, NTEU immediately requested that the parties commence negotiations over the benefit pursuant to CBA Article 23. On April 12, 2013, the SEC notified NTEU that, despite Article 23, it would not bargain over the issue.

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. 

The Union will keep you posted on the progress of this matter.