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Vol.
III, No. 12, Labor Day 2002
The
$100 Transit Subsidy and the Rule of Law at DOL
The Bush Administration talks often about the “rule
of law.” Let’s see how they are applying the
rule of law at the Department of Labor (DOL) on the
issue of the transit subsidy and Executive Order 13150.
Executive
Order 13150
Entitled Federal Workforce Transportation, Executive
Order (EO) 13150 was issued on April 21, 2000 by President
Bill Clinton to celebrate Earth Day. The growing problem
of traffic congestion and air pollution in the nation’s
capital was reaching crisis proportions and crying out
for a solution. A local Congressman, Representative
Frank Wolf (R-VA), played a key role in getting the
Executive Order issued. He wrote to Clinton several
times urging him to sign the EO, which had been on Clinton’s
desk since July, 1999. Frustrated with Clinton’s
delay in signing it, Wolf introduced legislation on
February 8, 2000 to require him to do so. Two months
later Clinton signed the EO.
When
Clinton finally issued EO 13150, Federal agencies throughout
the Washington DC metropolitan area which did not have
transit subsidy programs established them and set the
maximum at $65 a month. At the Department of Labor,
where a program had been in place since April 1997,
Secretary Alexis Herman announced on May 10, 2000 that
she was raising the transit subsidy from $50 to $65
a month effective June 1, 2000, three months earlier
than required. She raised the transit subsidy without
negotiating it with AFGE 12. Later, in January 2001,
she signed a Memorandum of Understanding with then-AFGE
12 President Russ Binion making the $65 transit subsidy
part of the AFGE 12–DOL contract.
Bush
Rescinds Some Executive Orders
Early
in his term, President George W. Bush rescinded several
Executive Orders issued by President Clinton. EO 12871
on labor-management partnerships, for example, was rescinded.
But Bush did not rescind EO 13150, and therefore it
is still in force.
Maximum
Transit Subsidy goes to $100 on January 1, 2002
As a result of a law passed in 1998, the Transportation
Equity Act for the 21st Century, the maximum tax-free
transit subsidy rose from $65 a month to $100 on January
1, 2002. Consequently, many Federal agencies soon raised
their maximum transit subsidy to $100 a month (see the
June 2002 12Alert! for a list of some of them). But
not DOL. Since late 2001, AFGE 12 has been calling on
Secretary of Labor Elaine Chao to abide by EO 13150
and raise the maximum transit subsidy to $100.
Does
EO 13150 Require $100 Transit Subsidy?
Some readers of 12Alert! have asked: Why does the Union
maintain that EO 13150 requires the transit subsidy
to be raised to $100 a month? The answer is the following
passage from the order: “Sec. 2. Federal Agencies
in the National Capital Region. Federal agencies in
the National Capital Region shall implement a ‘transit
pass’ transportation fringe benefit program for
their qualified Federal employees by no later than October
1, 2000. Under this program, agencies shall provide
their qualified Federal employees, in addition to current
compensation, transit passes as defined in section 132(f)(5)
of title 26, United States Code, in amounts approximately
equal to employee commuting costs, not to exceed the
maximum level allowed by law (26 U.S.C. 132(f)(2)).”
(The
entire EO can be viewed at http://ceq.eh.doe.gov/nepa/regs/eos/eo13150.html)
While
legalistic, the language is clear: agencies shall provide
their qualified Federal employees transit subsidies
in amounts approximately equal to employee commuting
costs, not to exceed the legal maximum. In legalese,
the term “shall” is strong and means that
something is mandatory, that there is no discretion.
“Shall” is stronger than “will,”
“should,” or “may.”
Currently
quite a few DOL employees commute long distances from
places like West Virginia and northern Maryland, spending
well over $100 a month. To give them a transit subsidy
“approximately equal to” their commuting costs
would require a transit subsidy exceeding $100. DOL’s
maximum transit subsidy thus must be set at $100 a month.
Rep.
Frank Wolf agrees with the Union’s position. In
a letter dated June 26, 2002 to AFGE 12 President Larry
Drake, he wrote “Thank you for your letter sharing
with me your concerns about employees at the Department
of Labor not receiving a $100 transit subsidy as required
under E.O. 13150.” (The August 2002 12Alert! contains
a letter Rep. Wolf sent to Secretary Chao urging her
to raise the transit subsidy to $100.)
One
final point. It is called, after all, an Executive Order,
not an Executive Request or an Executive Suggestion.
DOL
Management Ignores and Flouts EO 13150
In his various memos on the subject of the $100 transit
subsidy, Assistant Secretary for Administration and
Management Patrick Pizzella studiously avoids any reference
to the Executive Order. His attitude seems to be: “Executive
Order? What Executive Order?” His silence on the
matter is
deafening.
The
seeming inability of DOL’s top political appointees
to understand the clear language of EO 13150 is puzzling,
given how many of them are lawyers. They act like the
Executive Order doesn’t even exist or that somehow
it doesn’t apply to DOL. Is this upholding the
“rule of law”?
When
Elaine Chao became Secretary of Labor, she took the
same oath of office that all Federal employees take
upon entering the Federal service. The oath says: “…will
support and defend the Constitution of the United States
against all enemies, foreign and domestic: That I will
bear true faith and allegiance to the same; That I take
this obligation freely, without any mental reservation
or purpose of evasion; And that I will well and faithfully
discharge the duties of the office on which I am about
to enter. So help me God.” Is Secretary Chao being
faithful to her oath of office when she defies EO 13150?
What’s
really going on?
“DOL management wants to use this issue as a bargaining
chip in contract negotiations,” declared AFGE 12
President Larry Drake. “They want the Union to
give up some benefit that we’ve won for employees,
like flexitime or flexiplace, in exchange for the transit
subsidy being raised,” said Drake. “We’ll
never agree to that. We’re entitled to the increase
and will continue to insist on it for as long as necessary,”
he stressed.
Is
DOL a Rogue Department?
In its continuing refusal to raise the transit subsidy
to $100 for employees represented by AFGE 12, DOL is
increasingly isolated among Federal agencies, the vast
majority of which have already raised the transit subsidy
to $100 for their employees. “It’s a sad commentary
on the state of labor relations at this Department –
which truly should be a model for our nation –
that the transit subsidy for dedicated, hard working
employees is still only $65 a month,” noted President
Drake. “The Labor Department should be leading
the way in matters like the transit subsidy, not bringing
up the rear,” stated Drake. “Secretary Chao
seems oblivious to the detrimental effect on employee
morale that her stance is having. We once again call
on her to do the right thing and raise the transit subsidy
to $100,” concluded Drake.
Metro
Fares to go up?
Metro has begun to discuss the possibility of raising
fares. The Washington Post (July 12, 2002, p. B1) reports:
“Faced with slowing revenue and soaring insurance
costs in the wake of Sept. 11, Metro officials yesterday
gingerly began to broach a subject as jarring as the
third rail: raising fares. ‘Eight years is far
too long to have gone without a fare increase,’
said T. Dana Kaufmann, who represents Fairfax County
on the Metro board. ‘We have to look at a reasonable
increase. Nothing should be off the table.’…Metro
last raised subway and bus fares in 1995 – an unusually
long run made possible by healthy revenue from record-breaking
ridership and lucrative deals with fiber-optics companies,
which pay for the right to run conduits through subway
tunnels…At the same time, Metro’s insurance
costs are expected to balloon in the next fiscal year,
which will begin in July 2003…Meanwhile, operating
costs are going up…Budget analysts told the board
of directors that Metro could face an operating shortfall
as large as $73 million in the fiscal year that will
begin a year from now.”
If
and when Metro does raise its fares, a $65 monthly transit
subsidy will be worth less than it is now. Another common
sense argument for raising the transit subsidy to $100.
$315
That’s how much a DOL employee who would use the
full $100 transit subsidy has lost so far, as a result
of management’s refusal to raise the transit subsidy
to $100 in January. It’s $35 a month that many
DOL employees should be receiving but aren’t.
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