Letter to the Commissioner of the NYS Dept. of Labor (14 pages)


NYS Department of Labor
Building 12
W.A. Harriman Campus
Albany, NY 12240

April 22, 2019
Dear Commissioner Reardon,

Hi, I am Benjamin Valdes and I am a train operator with New York City Transit. The MTA puts train crews’ health and safety on the back burner and attempt to justify their actions with the excuse that they are just trying to keep the trains moving. Nothing is more evident of this than the way Governor Cuomo halted the planned L train shutdown, originally scheduled to begin this week, to keep trains running despite the safety risk associated with silica dust, amongst other things; and I may have to file a complaint about this soon. However, I am writing because I am very unhappy with the way your department has handled my past complaints over the last few years. Namely, your Division of Labor Standards and PESH. I also have an issue with the way I was spoken down to when I went to the Division of Labor Standards in 2016. They told me that because I work for the public sector that I am not considered an “employee” under NYS Labor Law. I believed that until very recently when I read that the definition of “employee” only excludes public workers in Labor Law 190 of Article VI. When you look at Labor Law 2 in Article I, it clearly states that whenever used in this chapter (the entire labor law is considered the “chapter”), the term “employee” means “a mechanic, workingman or laborer working for another for hire.” So, while your department admitted that labor law 162 does apply to us, they have been handling my case with the undertone that the law doesn’t have to be strictly applied with us, either because we’re public employees or because we happen to have a union, both of which are completely incorrect. In Syracuse Teachers Ass’n v. Board of Education, 35 N.Y.2d 743 (N.Y. 1974) it was ruled, “collective bargaining under the Taylor Law (Civil Service Law, § 204, subd. 1) has broad scope with respect to the terms and conditions of employment, limited by plain and clear, rather than express, prohibitions in the statute or decisional law.” You will see from my thorough research of case law that the lack of a guaranteed lunch break in our contract does not supersede the plain and clear prohibition from decisional law (ABC Broadcasting v Roberts) to deny lunch breaks. So unless we are specifically excluded from the statute, as in Article VI of the labor law, I expect us to be treated like everyone else. I also implore you to retrain your staff on how to treat those of us from the public sector, as I came to you for much needed help and felt disregarded and disrespected.
In 2016 I filed a complaint to the division of labor standards that the MTA denies us lunch breaks on a daily basis, now assigned ticket number 1132491. I was told by your department that this is a collective bargaining issue, and they directed me to the legal case ABC v Roberts (61 N.Y.2d 244 (1984)). Apparently your department has decided to interpret this case differently than the courts because your department is reading it to mean that a union can waive the right to the entirety of Labor Law 162, and not merely the provisions. I have researched case law that proves that the ABC case only allows for the waiver of specific provisions of Labor Law 162 (time of meal period, duration of meal period, number of meal periods), but does not allow the waiver of the legislative purpose of Labor Law 162 which is to have at least 30 consecutive minutes to eat and rest for our own health and welfare.
In Ministers and Missionaries v Snow (2015, NY Slip Op 09186) the NYS Court of Appeals ruled that “In some instances it is impossible to avoid the application of a statute even where the contracting parties expressly agree to do so” and cited Con Rail v Hudacs (223 A.D.2d 289 (1996), 645 N.Y.S.2d 933). Con Rail v Hudacs was a case in which yardmasters worked 8 hours straight at their desks and while they were allowed to eat, weren’t allowed to leave their posts. The CBA in this case stated  “[e]ight (8) consecutive hours service, exclusive of the time required to make transfers, shall constitute a day, except where requirements of the service necessitate, an unpaid meal period or intermittent service will be established by agreement between the Senior Director-Labor Relations and the General Chairman [of the UTU].” Even though the two parties agreed to forgo the meal period if the requirements of the service necessitated it, the Appellate Division of the NYS Supreme Court ruled, “Here, the legislative purpose of Labor Law § 162 — ensuring that workers are given adequate opportunity to eat and rest for the protection of their own health and welfare as well as that of their co-workers and the public at large (see, Matter of American Broadcasting Cos. v Roberts, supra, at 248-249) — is compromised by the CBA for, unlike the agreement at issue in Roberts, it simply provides for no such periods at all. Accordingly, any waiver effected here would be impermissible.” This case clearly interprets ABC v Roberts as saying that under no circumstance can the right to a guaranteed meal period be waived by a collective bargaining agreement. In the footnotes of Village of Lynbrook v PERB (48 N.Y.2d 398, 1979) the NY State Court of Appeals states, “In public employment law, ‘prohibited’ subjects are those forbidden, by statute or otherwise, from being embodied in a collective bargaining agreement.” These cases prove that the right to a guaranteed lunch period is a prohibited subject of bargaining. PERB need not make a declaratory ruling of its prohibition because “the question is one of pure statutory construction ‘dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence’ of PERB” (NYCTA v PERB, 8 N.Y.3d 226 (2007) 864 N.E.2d 56, 832 N.Y.S.2d 132) I will be the first one to admit that our contract waives the right to a second meal period for certain jobs and a 45 minute lunch period for others, but in no way does it say we waive our right to have a lunch period in a clear and unmistakable manner (as required by Tamburino v Madison Square Garden, 115 A.D.3d 217 (2014) 980 N.Y.S.2d 83) and even if it did, it would be an impermissible waiver.
After finding this case law which clearly proves our case, I re-submitted my complaint in October 2018. 5 months later I received a one sentence response from your department stating “The Division of Labor Standards does not have the authority to interpret the terms of a collective bargaining agreement (union contract).” They then tried to waste my time by having me submit a complaint with the US National Labor Relations Board. I don’t expect your labor investigators to know everything, but if they don’t even know that public employees aren’t covered by the NLRB but PERB, I’m willing to bet they’re not up on their case law either. Furthermore, to prove that this is clearly a state law issue and not a collective bargaining issue, in Gordon v Kaleida Health (No. 08-CV-378S, 2008) where nurses and other healthcare workers were being denied lunch breaks in conflict with NYLL 162 it was ruled that “Moreover, although the CBA does contain provisions on meal breaks, these provisions cannot preempt independent statutory rights for the reasons mentioned above, they do not purport to waive any statutory right, and even if Plaintiffs’ NYLL claims require the same analysis as may be required if there was a violation of the CBA, such ‘parallelism’ does not mandate preemption. Lingle, 486 U.S. at 408.” Basically, your department still has the ability and the obligation to enforce this law without reading our contract at all! This isn’t something that just happens occasionally. In 2017 Governor Cuomo declared a state of emergency on the subways because the delays got so bad. A favorite strategy for dispatchers to “fix the railroad” is to use our lunch breaks to get everyone back “in place.” Meaning, the time that we were supposed to be on lunch but were instead on the train, is now gone, and they send us right back out as scheduled. Our schedules are very tight, even during weekend and overnight hours when construction necessitates us to operate at slower speeds, hence making us late. The MTA likes to say that our trains are running on time at a higher percentage than this time last year. What they don’t tell you is that a lot of that is because of a technique called “padding,” where they add time to the run so trains can make it to the other end on time. I can tell you from personal experience that this is very evident on the E line on weekends. A run that should normally take 55 minutes is sometimes given 67 minutes to get from the World Trade Center to Jamaica, Queens. The trains aren’t getting there any faster, but are now “on time.” We’re still on the train longer, except now it’s just scheduled. This is great if they give the crews less trips; but a lot of times they make the crews do the same amount of trips, so all this does is make our breaks shorter. Even if denying lunch breaks was just an occasional issue, it’s still illegal and should be prosecuted. All I’m asking for right now is injunctive relief, to end their illegal practice of denying lunch breaks. However, if we have to take this to court, we will be asking for civil penalties also and I will have no problem letting the judge know that this case didn’t have to proceed if it wasn’t for the Department of Labor’s inaction on the issue.
In March of 2018 I sent PESH a plethora of complaints regarding how the MTA ignores the safety and health of its employees. First, I made a complaint that the MTA forces us into subway cars with potentially hazardous waste (vomit, blood, urine, feces, etc.) to “isolate” the car for the health and safety of our passengers. However, they don’t give us the appropriate PPE to avoid contact with this waste, and that includes the mucous membranes through inhalation. We should be given HAZMAT suits and sanitary wipes at the expense of the MTA before we go into a hazardous subway car. In order to “isolate” a car, one must go to each and every door panel and turn a key to “cut out” (lock) the motor of every door panel. It’s impossible to not get near the waste since you have to go around the entire car. I went to speak with manager Raynard Caines about the matter a few weeks ago. He said a ruling had been made recently, not in our favor, based on employee interviews, and that he would be personally reviewing the case but only because we had gone to the media with it. Is that how the Department of Labor is run? You can only have safety issues resolved over a year later and only if you take it to the media? Mr. Caines also informed me that the next step would be an informal meeting with the union and management. We don’t need an informal meeting. We already have the right to collectively bargain with our employer. What we need is for the Safety and Health Bureau to enforce OSHA standards which need not be bargained for and which PESH is obligated by New York State Law to enforce. If you don’t want to enforce them, I have no problem asking the courts to enforce them; but again, I am merely asking you to fix the problem, there is no need for penalties unless we have to take this to court. I haven’t yet seen the final report, but why were employee interviews necessary in the first place? The MTA admits they do this practice and claim it’s safe. Your job is no longer fact-finding at this point. Your job is now to determine the safety of the practice, based on OSHA standards. Your own website says “Where employee exposure is not observed, witnessed, or monitored by the CSHO, employee exposure is established if it is determined through witness statements OR other evidence that exposure to a hazardous condition has occurred or continues to occur.” The key word here is “or.” Employee statements aren’t required if the employer admits to the practice! It’s sad but a lot of our employees are afraid to speak out, even with the protection of anonymity because of the extremely harsh disciplinary culture down here. There is a history of retaliation and people not knowing their rights or their self-worth down here. So, I’m willing to bet many people who were interviewed either never had to isolate a car or played down the hazard, either because they were afraid or because of their personal opinion. There is no place for personal opinion in these employee interviews, when attempting to find violations of OSHA standards that very few people know exist. Ask yourself this: If it were safe to be in a subway car with hazardous waste, why would we have to isolate passengers from it in the first place? That’s how we know the MTA is untruthful when they say it is safe; otherwise we could merely continue moving the train without any delay at all!
While I was at Mr. Caines’ office, I also asked him about my other complaints which had been ignored for a year. He had never seen them and had me sign the complaints again with the new date of this year, as if my original complaints had disappeared into thin air! The next one has to do with the workplace violence hazard, codified in 12 NYCRR Part 800.6. Assaults on transit employees are a major problem right now, even when they don’t specifically put us in harm’s way; however, they exacerbate this problem by ordering us out of our relatively safe operating cabs in order to “keep the trains moving.” We are routinely told to investigate passenger reports of unruly customers (to find out if the customer is armed!!!!!) and unattended bags (to find out if the bag is “suspicious”!!!!!). I was recently asked by your department to provide my work location for the purpose of employee interviews, but again, the MTA admits to these protocols and claims them to be safe. I see no point in conducting employee interviews which will likely result in finding out employee opinions, rather than facts which the MTA have already admitted to. If a government office worker was told to go down into the lobby of the office building to check out an unattended bag because employees were too scared to come into the building and work was being impeded, would you allow that? Or if a motor vehicle representative at the DMV was told to investigate a fight in the customer area and leave the safety of his or her work area behind the counter, would you allow that? I have found nothing in the law which states that just because the work we perform is considered a “public service,” that we have less of a right to enforce safety standards than those in the private sector. The fact that these things happen often in the subway system cannot be a reason not to enforce the law. In fact, it should be more of a reason to! According to 12 NYCRR Part 800.6 (8) Serious Violation: “A serious violation of the public employer workplace violence prevention program (WVPP) is the failure to: (b) Address situations which COULD result in serious physical harm.” The operative word here being “could.” The violation here is not only the harm, but the risk of the harm. Serious physical harm is defined as “Physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ or a sexual offense as defined in Article 130 of the Penal Law.” A few weeks ago, there was a fatal shooting on the platform of a station on the 7 line which was caught on video. In the video you could see the conductor standing very close to the shooting. Why was the conductor on the platform instead of safely in his cab? Likely because he was instructed by the rail control center to investigate. We are already the targets of violence by the public, as evidenced by the insane amount of reported assaults on our crew members. All it had to take was for the gunman to look up and see an MTA uniform and the conductor could have been killed too. Just yesterday a conductor was stabbed on the platform of a Bronx subway station! Foreign terrorists have also been known to target government employees in their attacks, so luring in an employee to check an unattended bag wouldn’t be out of the question, especially with the MTA’s misguided “See Something, Say Something” campaign which seems to imply that Transit crews are there to investigate possible unsafe situations, in the same manner as the police. The MTA likes to claim that we’re trained to differentiate unattended bags from suspicious bags, but that has nothing to do with the fact that the act of going towards a bag which could possibly contain an explosive device is downright unsafe. For what the MTA deems to be a minor situation, such as a complaint of a customer smoking on the train, they instruct us to signal (sound the horn) for police en route. Ask yourself this: If it were safe to be in a subway car with an unruly customer or an unattended bag, wouldn’t they just tell us to signal en route to keep service moving like they usually do? This is how we know the MTA is untruthful when they say it is safe; otherwise we could merely continue moving the train without any delay at all!
The most dangerous part of our jobs is walking on the tracks. The OSHA standard regarding holes on a walking-working surface states that a gap of 2 inches or larger constitutes a “hole,” thus must be covered! The MTA has not only us, but track workers, contractors, and so on, walking over tens, if not hundreds of thousands of unprotected holes on the elevated structures! Not only do train crews walk on the structure when we store or pick up a train at a specific location, but we are also required to do a walk-around investigation whenever the train’s emergency brakes are activated and the cause of it is unknown, and this can happen at any location in the system. The reason for this is it could be a person who fell walking between the cars, etc., so you don’t want to move the train again until you know it is safe to move it. At a vigil for a cleaner who fell through weak railing at 125th St and Lexington Ave. last year, a worker spoke about how workers always fall between the ties and it’s only a matter of time before someone falls to the street and dies. There is absolutely no way to avoid walking over large gaps, or holes, when storing a train on the middle track and trying to get to safety on the platform. Yes, there are guard rails at the outer edges of the track bed, but that only helps you when walking along the sides. We have absolutely no fall protection when having to cross tracks or walk between tracks, and the dangers are compounded by weather conditions, electrified rails, and oncoming train traffic! It is impossible to get from one point to another using solely the yellow fiberglass. At some point you will be forced to step over large gaps in the ties. A lot of us are terrified of walking on the elevated structures. I even met a conductor once who told me she declined an opportunity to promote to train operator because as a conductor she almost never has to walk the structure unless it’s an emergency.
The OSHA standard regarding dangerous equipment, which includes electrified third rails, states that the employer must ensure that each employee is protected from falling into or onto dangerous equipment 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 2016 we had a signal helper electrocuted by the third rail while on the tracks performing her duties. She suffered major burns but luckily did survive. None of our (train crew) tools are insulated as required by OSHA standard so if anything falls onto the third rail it would become instant shrapnel. A few years ago, we had someone drop a large coupler adapter onto the third rail and the employee was severely injured when it flew back into his body. In addition, requiring us to walk on tracks in inclement weather, for example to push down frozen stop arms (the device that automatically stops trains when the signal is red; they tend to remain in the tripping position even when the signal is supposed to be green when it snows), is a clear violation of the OSHA standard regarding inclement weather which states the employer must ensure walking-working surfaces are maintained free of hazards such as snow and ice. They don’t even give everyone snow cleats which is a violation of the OSHA standard regarding PPE. Also, in 2016, we had an employee killed and another severely injured after being hit by a train while setting up the “flagging” protection meant to prevent such tragedies. I know OSHA has no specific standards for this but it does have a General Duty Clause for known hazards. After the accident, the MTA acknowledged their protocols were insufficient in protecting employees during the process of setting up flagging. Since then they have been slowly implementing greater protections, including stopping trains at stations until the workers on the tracks indicate that the flagging is set up correctly, always walking on tracks in pairs so one person can act as the “lookout,” as well as other measures. However, the MTA has not included train operators in this pilot program, nor do they intend to. We are on the tracks with no flagging protection and all we have is a vest and a single flashlight to protect us. In an environment that includes many curves and dark tunnels, and a new effort coined as the Fast Forward plan, to “speed up” the trains for better service to the passengers, this is a disaster waiting to happen and cannot be allowed to continue in this way.
I understand that service is important, but the MTA has put frugality ahead of employee safety when it comes to these issues. The MTA will tell you how we have scheduled breaks but in reality, they VERY EASILY get eaten up by delays and duties performed that aren’t in the schedules. We have no contractual guarantees to any kind of breaks, thus the enforcement of the one break that is guaranteed by law is crucial. Their past practice for unforeseen circumstances was to have “gap crews,” or extra crews, to take the place of an exhausted crew to allow sufficient breaks. Somehow over time it became the norm to have absolutely no backup in place and have train crews run around like a chicken with its head cut off all day. Years ago, they would also place “gap trains” in strategic places around the system to fill in the service gaps if a train had to be taken out of service for any reason, say, to allow police to investigate a report of an unattended bag, for example. Due to management rights we cannot force them to have extra crews or extra trains; that is merely a suggestion for them to keep service moving. I, however, couldn’t care less if they keep service moving. We CANNOT allow the MTA to violate OSHA standards or labor laws! We do not receive hazard pay for our work; every penny we earn is a direct result of concessions extracted from us in contract negotiations. There was no excuse before, but now that congestion pricing has passed there should be absolutely no justification to treat us this way. Labor Relations has decided to run the railroad on the cheap, as is their right; but you cannot help them accomplish that goal by taking away our sense of safety, security and well-being.

Train Operator,

Benjamin Valdes


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