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. I think it’s pretty clear to any train crew member that the MTA doesn’t care at all about our health and safety. While they have no moral obligation to care about our well being, they do have a legal one and I intend to make sure they fulfill that obligation. In addition, anyone who is currently on union release time to do safety walks is doing a terrible job of holding the MTA to the letter of the law to protect us!!!!!
First off, there’s a law specific to New York State public employers, 12 NYCRR Part 800.6, whose sole purpose is to minimize the risk of workplace violence to employees. “Purpose and Intent: It is the purpose of this part to ensure that the risk of workplace assaults and homicides is evaluated by affected public employers and their employees and that such public employers design and implement protection programs to minimize the hazard of workplace violence to employees.” It spells out common situations that put us at risk for assault and how it considers the employer to be in serious violation.
“Evaluation of Physical Environment
The employer, with the participation of the authorized employee representatives, shall evaluate the workplace to determine the presence of factors which may place employees at risk of workplace violence. The Department of Labor has tools to aid employers in performing this evaluation which will be posted on the Department’s web-site. Factors which might place an employee at risk include but are not limited to:
(i) Working in public settings (e.g. Social Service Workers, Police Officers, Firefighters, Teachers, Public Transportation Drivers, Health Care Workers, other Governmental Workers or Service Workers);
(ii) Working late night or early morning hours;
(iii) Exchanging money with the public;
(iv) Working alone or in small numbers;
(v) Working in a location with uncontrolled public access to the workplace; or
(vi) Areas of previous security problems.”
So 5 out of the 6 major risk factors apply to us, yet in the name of “keeping it moving” the rail control center continually orders us into dangerous situations. Why are we investigating reports of armed and unruly customers? Why are we investigating unattended bags??? Could you imagine being a supermarket cashier and a violent fight breaks out so your boss tells you to go investigate the situation so they don’t have to close the store? Or imagine working in an office and there’s an unattended backpack in the lobby of the building so your boss tells you to go look at the bag so they don’t have to disrupt the workplace by calling police. That would be absurd! Yet because we are a “public service” they have us thinking our jobs are different. Well, legally speaking they are not! The announcements tell the passengers to inform police first, but if they don’t see police to tell an MTA employee. This isn’t so we can keep the train moving, this is so we can CALL POLICE!!! I think anyone in RCC who gives such an order should be brought up on serious charges for putting our safety at risk. There are people who believe these types of situations should be dealt with on a case by case basis in accordance with Attachment G of our contract regarding the Safety Dispute Resolution Form. Let me tell you why I don’t like that. First of all, putting safety in a contract when it’s already guaranteed by law is a sucker move. Why are we negotiating away things to get something we’re already entitled to? But more importantly, asking for a Safety Dispute Resolution Form only works until the supervisor decides whether or not a task is safe. Transit supervisors work for Transit, thus they have every incentive to deem a task to be safe. All they care about is moving trains. We saw this a few months ago when employees were retaliated against in Linden Yard because they demanded flagging protection in an area that the MTA deemed needed no flagging protection. They were brought up on disciplinary charges and had their wages withheld. http://www.nydailynews.com/new-york/mta-crew-claims-faced-retaliation-raising-red-flags-article-1.3869398 I rather health and safety decisions be in the hands of the Public Employee Safety and Health (PESH) bureau of the NYS department of labor, a neutral agency designed specifically with our health and safety needs in mind, and not the MTA.
The law also includes a provision that requires the MTA to develop a written workplace violence prevention program that must be posted where notices to employees are normally posted. Have you seen this posted anywhere? Neither have I, because it probably doesn’t exist, and that is a major violation on the part of the MTA. “Serious Violation: A serious violation of the public employer workplace violence prevention program (WVPP) is the failure to:
(a) Develop and implement a program.
(b) Address situations which could result in serious physical harm.”
Another situation that could result in serious physical harm is layups and relays. They have us waking up passengers that many times wake up in a violent manner. They eliminated the requirement to clean out a relay as long as it’s “double ended” yet at Continental and 179 they will have you walk through the train as it’s going into the relay position, thus eliminating the protection of being able to lock yourself in the cab that the “double ending” was intended to provide!
The section of this law that has the most teeth though is the provision to work with the district attorney in prosecuting the assaults that have unfortunately already occurred. “Employers at sites where there is a developing pattern of workplace violence incidents which may involve criminal conduct or a serious injury shall attempt to develop a protocol with the District Attorney or Police to insure that violent crimes committed against employees in the workplace are promptly investigated and appropriately prosecuted.” These cases are not being appropriately prosecuted and even at the maximum 7 years, pales in comparison to the maximum of 25 years that one can be sentenced to for assaulting a cab driver in New York.
I have also found a myriad of OSHA standards being violated by the MTA. I have filed complaints regarding all of these to PESH, as OSHA has no authority over state and city public employers, however PESH MUST enforce all OSHA standards. Isolating cars with potentially infectious waste is a violation of OSHA standard 1910.1030(d)(3)(i) if they do not give you the appropriate PPE and a hand washing facility to wash up afterward. “When there is occupational exposure, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, gloves, gowns, laboratory coats, face shields or masks and eye protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices. Personal protective equipment will be considered ‘appropriate’ only if it does not permit blood or other potentially infectious materials to pass through to or reach the employee’s work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used.” Unless the waste is on a seat, you are likely to step in it or otherwise come in contact with it because the process of isolating a subway car involves going around the entire car to cut out each door panel plus the 2 end doors. Not to mention the fact that we are breathing in the waste, as particles are still airborne, and trapped in the subway car.
Structure walks are a MAJOR OSHA violation, violative of a few standards. A hole, as defined in OSHA Standard 1910.21(b) Subpart D, “Scope and definitions,” is any “gap or open space in a floor, roof, horizontal walking-working surface, or similar surface that is at least 2 inches (5 cm) in its least dimension.” OSHA standard 1910.28(b)(3), states:
“Holes. The employer must ensure:
Each employee is protected from falling through any hole (including skylights) that is 4 feet (1.2 m) or more above a lower level by one or more of the following:
Walking over electrified third rails is also an OSHA violation. “Dangerous Equipment, as also defined in “Scope and definitions”, is defined as “equipment, such as vats, tanks, electrical equipment, machinery, equipment or machinery with protruding parts, or other similar units, that, because of their function or form, may harm an employee who falls into or onto the equipment.” Standard 1910.28(b)(6)(i) states:
“Dangerous equipment. The employer must ensure:
Each employee less than 4 feet (1.2 m) above dangerous equipment is protected from falling into or onto the dangerous equipment by a guardrail system or a travel restraint system, unless the equipment is covered or guarded to eliminate the hazard.”
While they do have protection boards over the third rail, it only covers the top of the third rail and thus it is still very possible to come into contact with it, meaning the hazard has NOT been eliminated. In addition, none of our tools are insulated as required by standard 1910.335(a)(2)(i) for working near exposed electrical hazards.
Requiring us to walk on tracks in inclement weather, for example to push down frozen stop arms, is a clear violation of standard 1910.22(a)(3) which states that the employer must ensure “Walking-working surfaces are maintained free of hazards such as sharp or protruding objects, loose boards, corrosion, leaks, spills, snow, and ice.” They don’t even give everyone snow cleats which is a violation of standard 1910.132(h)(1), regarding PPE.
Except as provided by paragraphs (h)(2) through (h)(6) of this section, the protective equipment, including personal protective equipment (PPE), used to comply with this part, shall be provided by the employer at no cost to employees.”
The yards are no better. Walking in the yards violate all of the above standards except “Holes” where ballast covers the holes, but the yards have tons of debris such as train parts, slippery advertisement covers from the train, broomsticks, etc. which make it very unsafe to walk around trains for inspection. OSHA standard 1910.22(a)(1) which states “All places of employment, passageways, storerooms, service rooms, and walking-working surfaces are kept in a clean, orderly, and sanitary condition.”
Another major safety hazard is worker visibility underground in the tunnels and around curves on the elevated structure. While track workers have flagging protection in the forms of flashing yellow lights/flags and a “lookout” flagger to give both the person operating the train and the person on the tracks a warning that the other is there, we have nothing but a vest and a flashlight to warn oncoming trains. This would be sufficient if the tunnels were completely straight but most of the system is curved and by the time a train comes around the corner it’s too late to brake. In 2016 we had a track worker killed while they were setting up flagging protection. Because you can’t be protected while you are setting up, the MTA is currently doing pilot programs to protect workers while they set up flagging. These new procedures include stopping trains until positive communication is given that the workers are in the clear, and a “lookout” must be in place to warn train operators that people are on the tracks setting up. However I believe these new procedures need to include train operators storing and picking up their trains. Even though we don’t need full flagging protection to just walk from point to point, we are out there by ourselves and trains may not always see us in time to stop before we clear up. Train operators walking on the tracks without flagging protection are no different than the worker who was killed in 2016 because he hadn’t yet set up the flagging protection. Although there is no OSHA standard for flagging protection, the parallelism here should be strong enough that the General Duty Clause of the Occupational Safety and Health Act could be used to force the MTA to include train operators in this pilot program. I believe train operators should be working in pairs to put-in and layup trains on the mainline, and should also be allowed to stop trains while walking on the roadbed (including BIE investigations).
Back in March I filed these complaints with PESH. It took them about 4 months to respond, and since then we’ve been in a back and forth. They are still investigating and have asked for specific locations for the violations. This angers me because most of these conditions are present all over the system and/or could happen anywhere at any time. These are all things I believe true union leaders should be fighting for to protect the health and safety of its members. We should be fighting for enforcement of these laws, NOT for body cams.