National Grievance Regarding 2015 Retroactive Transit Subsidy Increases

Dallas Area Rapid Transit Light Rail

NTEU has filed a national grievance against the Department of Health and Human Services (HHS) for its refusal to pay retroactive transit subsidy increases to eligible bargaining unit employees pursuant to the Consolidated Appropriations Act of 2016 and Article 53 of the parties’ CBA.

On December 18, 2015, Congress passed the Consolidated Appropriations Act of 2016, which amended the law governing qualified transportation fringe benefits for 2016, retroactive to January 1, 2015. Previously enacted provisions providing such parity expired on December 31, 2014, resulting in tax-free parking subsidies of up to $250 per month, but only $130 per month for the use of mass transit. The Consolidated Appropriations Act of 2016 increased the monthly transit benefit exclusion from $130 per participating employee to $255 for 2016 and made parity between transit and parking benefits permanent. In addition, the law increased the monthly transit benefit from $130 per participating employee to $250 for 2015, retroactive to January 1, 2015.

Article 53, Section 2 of the CBA states that, “The Employer will offer a monthly benefit to employees equal to their actual monthly commuting costs, but not to exceed the maximum amount authorized by applicable laws, Executive Orders and regulations governing public transportation benefits for federal employees.” Because the Consolidated Appropriations Act of 2016 increased the non-taxable amount to $250 per month for each month in calendar year 2015, pursuant to Article 53 of the CBA, NTEU believes that HHS is obligated to pay the increased transit subsidy to employees who paid more than $130 per month, up to $250 per month, for transit costs they incurred for the period from January 1 through December 31, 2015.

NTEU has also alleged that the agency’s refusal to pay these retroactive transit subsidies constitutes a “clear and patent breach” of Article 53 of the CBA, and a separate unfair labor practice pursuant to 5 U.S.C. §§7116(a)(1), (5), and (8), because it amounts to a repudiation of the contractual obligation to pay employees’ actual monthly commuting costs up to the maximum amount allowed by law.

As a remedy, NTEU asks for make whole relief for impacted employees, including, but not limited to, retroactive payment of transportation costs incurred up to $250 per month from January 1 through December 31, 2015, less any monthly benefit amount already provided; interest on such amounts; attorney’s fees; an order to cease and desist from violating the CBA; a posting signed by the Secretary of HHS acknowledging the statutory violation alleged herein; and any other remedies that may be deemed appropriate under law, rule, and/or regulation.

As always, I welcome and encourage your questions and comments about this subject.