Hi, I’m Ben Valdes and I am running for train operator chair on the Progressive Action slate with Tramell Thompson who is running for president of TWU Local 100. In Andy Byford’s plan to rescue the subway he stated that something bold must be done; little tweaks here and there aren’t going to cut it. The same goes for my plan to rescue the train crews. Bringing our gripes to management only to be shot down time and again will no longer cut it.

These extremely important issues must be brought to people who not only have compassion, but who have the legal obligation and authority to make changes for the better despite the MTA’s objections.

According to the Taylor Law, all terms and conditions of employment are to be bargained for (mandatory subjects of bargaining). Exceptions of course are those that are required by law such as retirement benefits (prohibited subjects of bargaining) and those where management has the option of bargaining if it chooses (non mandatory subjects of bargaining, usually found in the management rights clause). I believe the right to perform periodic medical examinations, which do not have anything to do with the ability to perform the job, (sleep apnea, blood pressure, EKGs, glucose) must be negotiated by management with the union. Don’t let the current union leadership fool you. The negotiations to stop testing those with mild sleep apnea were merely “impact bargaining”. That is, management (incorrectly) asserted management rights and bargaining was done merely on how the exams were going to be administered. In District of New Rochelle, 4 PERB 3060, it was ruled that a union’s demand to bargain the impact of an employer’s unilateral decision is a mandatory subject of bargaining. So that’s all the union did here. No “give and take” was done to decide whether or not the exams would be done in the first place. For something this serious, I personally would ask for the stars. Huge pay raise, elimination of sick leave restrictions, you name it. Tramell Thompson feels the same way and when elected we will do just that and demand negotiations on this issue. We filed a PERB charge last month to try and stop the exams, however since we are not yet union representatives they ruled that we have no standing to bring the issue to court. Also realize that management probably didn’t put up much of a fight because they’re dealing with a major shortage of train operators right now, mainly because of the sleep apnea issue. At the very least, if the union were only going to negotiate the impact of the exams, they should have at least demanded a waiver program as is done with the FRA (Federal Railroad Administration) and FMCSA (Federal Motor Carrier Safety Administration) where an employee who can’t pass a particular medical exam would have the right to waive the results of said exam if he or she hasn’t had an accident on the road in say, 2 years or more. For example, “FMCSA may grant an exemption for a 2-year period if it finds such exemption ‘would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.’ The FMCSA grants exemptions to its requirements for vision, diabetes, and epilepsy.”(Application of Physical Ability Testing to Current Workforce of Transit Employees, Nov. 2010)

In County of Tompkins, 10 PERB 3117, the New York State Public Employment Relations Board (PERB) ruled “The failure of an employee organization to make a demand relating to a term and condition of employment at one point in time does not constitute a waiver of its right to negotiate over that subject in the future. Neither does it constitute a waiver of its right to object to unilateral action by the public employer regarding such term and condition of employment.” In addition, PERB ruled in the matter of the County of Putnam, 18 PERB 4565, “Management rights and zipper clauses are frequently cited as the dual bases for a defense of waiver by agreement and are most often rejected. Without supporting evidence in other substantive provisions of the contract, the parties’ negotiating history, or past practice, catch-all contract clauses are not sufficient to evidence a clear and unmistakable waiver.” While the management rights clause in our contract mentions their right to operate the system safely, it in no way specifically mentions periodic medical examinations on TA employees and to the best of my knowledge the MTA has put forth no studies connecting specific medical conditions to subway accidents. That being said, this is all moot anyway! Due to what is known as the Cohoes theory of Negotiability, the MTA must negotiate periodic medical examinations with TA employees for the mere fact that they have already negotiated the issue with OA employees. Section 2.2(D) of our contract states “The Operating Authority shall have the right to require employees to submit to a medical examination at reasonable intervals.” Notice it says “Operating Authority”, not “Transit Authority”. This only applies to OA employees (MaBSTOA), not Transit employees. Management cannot assert management rights with one set of employees on a subject in which it has bargained with another set of employees! Because past practice must be considered as a factor, this is a once in a lifetime opportunity to stop sleep apnea testing in its tracks, and it will not come from the current union administration. We MUST remove them from office this fall if we want to move forward on this issue!

Again, since past practice is considered, we may have to take the MTA to court to have all other examinations (except vision and hearing) stopped. Why not? What are our union lawyers even doing for RTO? With the Janus ruling now in full force, it’s more important than ever to use our dues money where it counts so members can clearly see the benefits of a dues-paying membership. Even if these exams were agreed to in the contract, if the exams are indeed found to be discriminatory, they would still have to be eliminated. 29 CFR Part 1630.6 states in part, “It is unlawful for a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity‘s own qualified applicant or employee with a disability to the discrimination prohibited by this part.” I believe these examinations are in violation of the Americans with Disabilities Act, Title I. The Equal Employment Opportunity Commission believes so also. In an unofficial opinion letter written by the EEOC in 2008 about periodically testing bus drivers, it was stated that they do not believe the position of bus driver to be that of a “position affecting public safety.” EEOC Informal Opinion Letter Can you believe that? Bus drivers! They have no deadman switch, no stop arms to stop the bus if it runs a red light, pedestrians all over the place. Why are they testing us??? Look at how the rest of the country views the legal ramifications of medical examinations on transit employees:

“Often employees live in fear because of a medical condition that if known by the railroad could result in removal from service…Today, those fears are somewhat misplaced due to the passage of the American’s with Disability Act of 1991. This Federal Law and other similar state laws now prevent the railroad from bad ordering an employee from work so long as their condition does not prevent them from performing the essential functions of their job. Further, the railroad is required to set forth the essential functions of each job in a job description, so that one knows exactly what he/she must be able to do. For example, an essential job function for a main line engineer is to be able to operate a train from the home to away from home terminal and return. One with high blood pressure probably has a disability and thus covered by the act. As long as he is able to operate the train, albeit with high blood pressure, it would be unlawful for the railroad to restrict him/her from the main line”, writes former president of the Academy of Rail Labor Attorneys, Steve Young, in an article written on the Brotherhood of Locomotive Engineers and Trainmen, Local 622 website. In fact, “[a]ccording to the current Federal Railroad Administration (FRA) regulations, a locomotive engineer with epilepsy—or any other medical condition that causes intermittent episodes of unresponsiveness—may operate a train on any railroad in the United States. In fact, the only occupational medical evaluation required by the FRA for engineers is to have a vision and hearing test every 3 years. Also, although locomotive engineers may not possess controlled substances while at work, they may take any type of prescription medications as long as the prescribing physician knows that the engineer operates trains. The trains these engineers could operate include those carrying crude oil and hazardous materials through highly populated areas and those carrying passengers.” (“Improving Medical Standards for Railroaders”, Dr. Mary Pat McKay, 2015)

“Transit agencies may require physical ability tests that are not mandated by federal or state law… However, absent legislative authority, extending the more rigorous school bus requirements to bus and rail operators as a matter of agency policy could raise issues under disability discrimination law, as it appears the rationale for the more rigorous requirements—extra care required for those who transport children—would not apply to transit operators not in a similar position of trust… USDOT/FTA statutory and regulatory provisions mandate compliance with the Civil Rights Act of 1964, as amended; the ADA; and the Age Discrimination in Employment Act (ADEA). The nondiscrimination requirements of these statutes affect the permissible scope of physical ability testing. The Family and Medical Leave Act of 1993 (FMLA) also may affect the permissible scope of a transit agency’s actions concerning physical ability testing…Supreme Court has also held that an employment practice that has a disparate impact on a protected class—that is, adversely affects members of that class far more than it affects other employees—may be unlawful even without a discriminatory intent on the part of the employer. For such an employment practice to be lawful, the employers must show the business necessity of the practice…” (Application of Physical Ability Testing to Current Workforce of Transit Employees, Nov. 2010)

On this issue especially, I could not find any case law of a transit agency’s union challenging the medical exams imposed by their employer. While this sounds bad it is also a good thing because no other transit agency is testing their employees to an extent other than physical fitness tests to see if you can perform the actual duties of the job; none of these agencies in the US are testing their employees for the POSSIBILITY that incapacitation will occur. In the above referenced article, 17 transit agencies in the US were sent a questionnaire regarding their testing procedures and none of them were testing for the possibility of incapacitation, only physical fitness abilities. Most if not all included bus systems which obviously have less built-in safety features than our subway system, but a few had rail systems too. Only one, Metro Transit in Minneapolis, MN, was testing for sleep apnea, although it has yet to meet any legal challenges regarding these exams. They test us more like airline pilots than transit workers!!!

I have to clarify some common misconceptions. First of all we are regulated by the FTA (Federal Transit Administration) not the FRA (Federal Railroad Administration). Second, neither the FTA nor the FRA have medical standards relating to sleep apnea, diabetes, blood pressure, or heart disease. All these medical standards are unilaterally imposed by the MTA. In fact, the only standards the FTA imposes, are through drug and alcohol testing. Third, neither periodic nor after-incident medical testing is mandated in our contract (though FTA mandated drug and alcohol testing are). However the most important misconception is that the term “safety sensitive” gives the MTA the right to test for whatever they want in the name of “safety.” This is not true. The FTA defines safety sensitive positions very broadly. Safety sensitive positions are positions which have the following tasks:

• Operating a revenue service vehicle, including when not in revenue service
• Operating a non revenue service vehicle that requires drivers to hold CDLs
• Controlling dispatch or movement of a revenue service vehicle.  Note: whether or not dispatchers could impact public safety should be determined by each transit system based on the tasks they perform
• Maintaining revenue service vehicles or equipment used in revenue service including repairs, component overhaul, and rebuilding
• Providing security or carrying a firearm on transit vehicles, at transfer points, and in transfer facilities open to the public

If it were true that they could test all safety sensitive employees, then all these employees would have to be tested, and they are not.

So if all of these positions are “safety sensitive”, then why do they only test train operators, conductors, and tower operators for medical conditions? You can’t say it’s because we’re on the train because tower operators aren’t on the train. You can’t even say it’s safety because if a conductor loses consciousness, nobody will get harmed. What is the one thing that links these 3 titles together? Delays! If a train operator, conductor, or tower operator loses consciousness, it will merely result in a delay of service!

Title I of the Americans with Disabilities Act states in part, “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment…As used in subsection (a) of this section, the term “discriminate against a qualified individual on the basis of disability” includes..using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity…” and “A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” While I would prefer that we eliminate the discriminatory standards altogether, I would consider merely ending the medical examinations that illegally reveal a disability a major win. The ADA as amended in 2008 (known as the ADAAA) allows people who are not only disabled, but those who are REGARDED as disabled to be protected by the ADA.

In order to win this case, we’re going to have to show the jury that there is a very small risk of harm if an incapacitation of a train operator were to occur. In Fuentes v Perskie the federal circuit court of appeals ruled that to defeat an employer’s summary judgement motion, a plaintiff must point to some evidence from which the “fact-finder could reasonably…disbelieve the employer’s articulated legitimate reasons…” The MTA claims they test us for safety reasons, but I beg to differ. They only care about safety when it doesn’t hinder service. If they’re so concerned about someone being incapacitated on the train, why don’t they have a problem denying us lunch breaks on a routine basis? Why don’t they have a problem letting us operate trains with stifling hot operating cabs? The FRA has Hours of Service rules which mandate that an employee have at least 10 hours off between tours of duty to allow sufficient rest. The MTA only guarantees us 8 hours between tours and then has the audacity to test us for sleep apnea! They don’t care that it may take an hour or two to get home and back to work the next day, but if you have a sleep condition you’re out of service. Why do they force us to operate trains without properly working speedometers? They know little to no harm can come from the incapacitation of a train operator, that’s why they don’t care. In 2017 I wrote a letter to the NTSB and FTA about how we are forced to operate without speedometers. I got a response letter from the vice president of the office of system safety claiming that the system is completely safe. She writes, “The signal system ensures positive train separation and enforces speed control throughout the system…if a train does not have the appropriate signal aspect or if the train is traveling too fast the system will activate the train’s emergency braking system, resulting in the train being stopped.” Their hypocrisy on distractions also shows there is no harm risk in our jobs. In a bulletin they write how using a cell phone on the train is “an extremely dangerous act,” then they go ahead and issue conductors cell phones to use on the train because it suits their needs. We can’t listen to music on our personal radio while operating even though millions of people do it on the road every day, yet we are expected not only to listen, but SPEAK into our portable radios as we are moving our trains! If we all stopped our trains every time we needed to talk, the system would come to a crawl. We are required to keep our cab lights off while operating because the glare could distract our operation. However we’re not allowed to cover up the window that separates us from the passengers on the cab door, which allows huge beams of light to glare off our vision glass, because it “looks bad.” They won’t allow anyone, including our own union representatives, in our cabs while operating, yet they allow supervisors to go in there and quiz us about rules and regulations while operating which is even more distracting than regular banter with a colleague. They don’t care about keeping the signal system up to date with many miscellaneous signs too dirty to see or no light to illuminate them, many signal aspects are very difficult to see outdoors with the sun glare, some have shrubbery blocking them. The list goes on and on. As for conductors, the only real possibility of harm would be if they became incapacitated at exact moment where they closed the doors, and someone just happened to get caught in the doors and dragged when the train takes off. They are quick to take a conductor out of service if they don’t do a “sweep” for 75 feet in the name of safety, but then because it saves them loads of money, they run trains OPTO where the train operator physically cannot do a platform sweep! They know that this is an extremely unlikely occurrence due to the fact that all trains are equipped with indication that will not allow the train to move unless the doors are closed and locked! They can’t even say they have OUR safety in mind when instituting these discriminatory practices. For starters, they would have 2 crew members on every train in case something happened to one of us. Second, they only provide full flagging protection when it’s necessary! In a Daily News article about employees refusing to work in Linden Yard without flagging protection, “MTA brass argued that all train movements in the yard are under management’s control, so full flagging is not needed.” So when it’s a hassle to you the safety issue has to be necessary, but in order to justify insanely intrusive medical testing you claim that you have to test for all these unlikely scenarios and any risk is too much? Well I have news for you. “Permitting employers to obtain summary judgment by identifying such unlikely scenarios would eliminate ADA protection for disabled individuals working in professions where they might be tasked with the health and safety of others,” ruled the federal court of appeals in Justice v Crown Cork & Seal Co. Also, 29 CFR Appendix to Part 1630 (Interpretive Guidance on Title I of the ADA) states “An employer, however, is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient.” Finally, in Osborne v Baxter Healthcare Corp (Biolife), the federal court of appeals ruled “To shift the burden of proof to BioLife, Ms. Osborne must show only that her proposed accommodation is reasonable on its face; that is, it would permit her to perform the essential function at issue—here, donor monitoring. She need not show that the accommodation would eliminate every de minimis health or safety risk that BioLife can hypothesize.” I certainly believe that although not 0 percent, the risk of harm from incapacitation on a vehicle with a reasonable accommodation such as a dead man switch, and then compounded with a signal system that “ensures positive train separation and enforces speed control throughout the system,” is de minimis. If you don’t care about what I think, just realize that almost all transit agencies in the US agree with me.

Once we defeat summary judgement it’s basically up to our union lawyers to make the case. I am a train operator, not a lawyer, but here is some case law I happened to find while researching the subject; all federal courts of appeals cases:

-Bates v UPS: “To show that the disputed qualification standard is “consistent with business necessity,” the employer must show that it “substantially promote[s]” the business’s needs. Cripe, 261 F.3d at 890 (quoting Bentivegna v. U.S. Dep’t of Labor, 694 F.2d 619, 621-22 (9th Cir.1982) (interpreting the term “business necessity” for purposes of the Rehabilitation Act of 1973)). As we observed in Cripe: “The `business necessity’ standard is quite high, and is not to be confused with mere expediency.” Cripe, 261 F.3d at 890 (citation, quotation marks and alteration omitted). For a safety-based qualification standard, ‘[i]n evaluating whether the risks addressed by . . . [the] qualification standard constitute a business necessity, the court should take into account the magnitude of possible harm as well as the probability of occurrence.’ EEOC v. Exxon Corp.,203 F.3d 871, 875 (5th Cir.2000) (noting that ‘[t]he acceptable probability of an incident will vary with the potential hazard posed by the particular position: a probability that might be tolerable in an ordinary job might be intolerable for a position involving atomic reactors, for example’)….When every person excluded by the qualification standard is a member of a protected class–that is, disabled persons–an employer must demonstrate a predictive or significant correlation between the qualification and performance of the job’s essential functions.”

-Thomas v Corwin: “To demonstrate compliance with § 12112(d)(4)(A), the employer bears the burden to show the asserted ‘business necessity’ is vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary.”

-Justice v Crown Cork & Seal, Co.:”…to hold that one cannot second-guess an employer’s conclusion regarding the safety risks posed by an employee would eviscerate the ADA’s protections by permitting the employer to assert in nearly every case that it believed the employee’s medical limitations posed a credible threat to his safety or the safety of others.”

-Branham v Snow- “The appropriate question is not whether any risk exists, but whether that risk is significant.”

Bates v UPS is particularly significant because they ruled that an employer cannot apply federal medical standards for commercial drivers to UPS drivers without proof that the UPS vehicles posed the same risk as commercial vehicles. If indeed the MTA is using federal DOT standard on us, we have to force them to prove that operating subway trains with all the safety features we know them to have, pose the same risk as commercial vehicles.

I am not going to lie, it’s going to be very difficult and will be appealed if we win but it’s better than doing nothing. At this rate there won’t be enough landing spots for T/Os removed from service and people will have to start using up their sick leave and be stuck with no work available as is unfortunately happening in buses. I believe we have a much better chance at eliminating the medical standards for conductors and tower operators (due to the common misconceptions about what our job as train operators actually entails), which not only free up more spots for us, but both positions have a much higher rate of pay than station agent and cleaner to support our families. There are also Fourth Amendment implications against reasonable search and seizure of government employees, however that too has seen very little case law so I cannot predict how that would go. Now that the MTA is planning on cutting cleaner positions, it is not only something we would like to challenge, but will soon become something we HAVE TO challenge.