Everyone knows the Taylor Law as the law which prohibits public employees from going on strike. However, the Taylor Law (officially known and the Public Employees Fair Employment Act) also demands that most aspects of employment, with few exceptions, be bargained with the union in order to fairly balance the state’s need to ensure the continuation of essential services with the employee’s right to an equitable relationship with the employer.
That being said, I am of the opinion that the right to use surveillance cameras in our operating cabs is a mandatory subject of collective bargaining and the impact of using surveillance cameras in the passenger area of the train is a mandatory subject of bargaining. Here is why: “PERB has held that blanket surveillance is typically a mandatory subject of bargaining. Moreover, even where the surveillance is sufficiently targeted and investigatory in nature as to be non-mandatory, PERB has held that the impact of such surveillance remains mandatorily negotiable.” This is from the analysis of an article written on https://www.mondaq.com/unitedstates/employee-rights-labour-relations/417758/smile-you-are-on-the-employer39s-camera describing how the Public Employment Relations Board (PERB) would likely rule on an employer wishing to do constant surveillance on its employees. Surveillance cameras in the cab is blanket surveillance on our entire work day, therefore would likely be ruled to be a mandatory subject of bargaining, while cameras in the passenger area which would only be used to investigate incidents which may or may not show an employee on the clock, would likely be ruled as a non-mandatory subject of bargaining, thus management would have the right to install only those cameras without negotiating for the right to do so with the union.
Cameras in the operating cabs:
Basically, the administrative law judge ruled that surveillance cameras in the workplace are so intrusive that it wouldn’t be just like having a supervisor with you all day, it would be like having several supervisors watching you from different angles all day, so if the employer wants to do this they must negotiate with the union for a balancing of interests. However, it is my opinion that it would take a MASSIVE amount of givebacks from the MTA in order to balance our privacy interests. If you thought discipline was high before, wait until there’s cameras in the cab. I’m more worried about the outward facing camera than the inward facing ones. Train operators’ word will mean nothing now when people wearing suits are at 2 Broadway watching a video of an object on the roadbed with a 4K video even though we didn’t see it because there’s massive glare coming in from the passengers’ area that we can’t cover with newspaper because “it would look bad,” our sealed beams aren’t pointed towards the roadbed and not powerful enough, and not even meant to allow us to see things on the roadbed. Management’s claims that we are supposed to call in a train with light glare distracting us is completely preposterous because every single new-tech train has this massive glare and if one were to call in every train they would be harassed. Not to mention as we come into stations we are laser focused on finding the station car marker and between stations we are focused on signals, which all cause us to look up rather than down to the roadbed. It will always be “you should have seen it” rather than how it is now where they have to trust that we didn’t see it or somehow prove that we should have.
It’s also against the law to install cameras in a restroom, which, due to the fact that we cannot take en-route comforts on a regular basis without losing our jobs, makes our cabs a restroom of last resort. The MTA would likely make an argument that because they didn’t have to negotiate to put cameras on buses, they won’t have to negotiate in RTO. However our privacy interests vary greatly from buses. In buses they can take a comfort and the bus behind it just goes around them. In subways they try to fire you because you’re messing up the road. This guy took 3 comforts in 10 years and got demoted. I would play this video in the negotiations if I could be there. https://youtu.be/gz4ergX13IQ. And yes, while it may be against Transit policy to use the cab as a restroom, the fact remains that people still will, and once cameras are used in the cabs, their privates will be recorded. Additionally, there are legal ramifications as well. The MTA intends on installing these cameras with audio capabilities enabled. This appears to fly in the face of the New York State eavesdropping law which forbids wiretapping.
Cameras in the passenger area:
The purpose of the cameras in the passenger area would be mainly to catch passengers committing crimes, so there is likely no good argument for the union to demand negotiations over the use of these cameras. However since we as train crews are required to perform a small portion of our duties in the passenger area (investigate and correct door problems, etc.) we would have the right to bargain the impact of the camera use on things such as disciplinary actions. Nevertheless, this point is very important; this should only apply when we’re on the clock. When we are off the clock, aside from conduct which would be considered unbecoming no matter where we are, we absolutely should NOT be exposed to discipline. The people who tell you “we are always on the clock” have obviously not read the contract because I see no such language to support that claim. The rule that says we must stand when passengers are standing makes me sick. It’s under a heading called “Free Riders” in the rule book. Whoever wrote that rule has absolutely no understanding of public employment collective bargaining law. It’s clear as day in our contract that we bargained for the pass to be in our contract. Therefore, something of value (whether it be a work rule, lower wages, etc.) was given in exchange for this pass. We are NOT “free riders” and we should all take offense to that. We are paying customers like everyone else when we are off the clock riding these trains. The notion that they “own” us because they give us a pass is disgusting. They give us a pass not only because we bargained for one, but you cannot charge us $2.75 to come to work every day. The only alternative would be to give us a key for the emergency doors, which we all know the MTA does not wish to do.
It is commonly said that if something happens on a train while we’re riding it, on or off the clock, that we must identify ourselves and assist. I also see no evidence of this in the rule book. Rule 4(f) does indeed state that either on or off the clock we must identify ourselves to “investigative personnel” upon request. Rule 8.02(a) also states that in the case of an accident involving injury or damage to property, anyone with knowledge of the accident, whether on or off duty, must file a written report as soon as possible. Neither of these rules says anything about assisting with anything while off the clock. These rules are written by people with legal knowledge who know that if they tell us to intervene with a dangerous situation, it would make them liable were something to happen to us. So maybe they purposely made this “must assist even if you’re off the clock” a word-of-mouth only rule, but unless I’m just not seeing it in the rule book, it simply doesn’t exist. There seems to be this misconception that every rule in the rule book applies when you’re off the clock as well. While serious conduct unbecoming of a civil servant definitely applies off the clock, it appears to me that the rules in the rule book must specifically state if it applies off the clock, even if you are on Transit property. In Lemon v NYC Transit Authority (72 NY 2d 324 (1988)), a Transit employee attempted to use the fact that Transit gives us a pass in order to prove that she was “on the clock” when she was injured and attempted to collect worker’s compensation benefits. “Claimant sought workers’ compensation benefits for lost time, but the Transit Authority contested the claim. After a hearing, however, claimant was awarded benefits, and the Workers’ Compensation Board affirmed the Hearing Officer’s findings, concluding that the accident occurred within the precincts of claimant’s employment. The Appellate Division affirmed on the ground that the Transit Authority, by issuing free passes to its employees, ‘implicitly assumed the responsibility of transporting claimant to and from work’ and was ‘in exclusive control of the conveyance on which the accident occurred’ (128 AD2d 943, 944, 945). We now reverse.” https://law.justia.com/cases/new-york/court-of-appeals/1988/72-n-y-2d-324-0.html It would be entirely hypocritical for the NYS Court of Appeals to rule that we are “on the clock” for purposes of discipline but not worker’s comp, barring something in our contract stating such, which I have yet to find. Even simple high school logic proves that while some rules apply off the clock, the rest do not. Do you remember the law of contrapositives? If a statement is true then it’s contrapositive is also logically true. Stated more simply, if the statement “if p then q” is true, then the statement “if not q then not p” is also true. This only makes sense with a real world example, so let p= “the rule states it must be followed when you’re off the clock” and q= “the rule must be followed when you’re off the clock.” I don’t think anyone disagrees with the statement “if the rule states it must be followed when you’re off the clock, then the rule must be followed when you’re off the clock.” So if you agree that this statement is true then you must also believe that its contrapositive statement “if the rule doesn’t have to be followed when you’re off the clock, then the rule doesn’t state it must be followed when you’re off the clock.” Or put more simply, since they specify that some rules must be followed off the clock, it logically implies that the rest of the rules do not apply when you’re off the clock. If past practice contradicts this logic then the union must demand negotiations to change it.
In November 2021 the MTA officially showed the union the R211 subway cars which contained cameras both in the operating cabs and in the passenger area. Then-RTO VP Eric Loegel was informed by the MTA that since they didn’t have the funds, they would not be going back to retrofit the rest of the rolling stock with cameras. In the short time since then the MTA has received billions of dollars in federal infrastructure money and the mass shooting in Brooklyn on the N train this spring has caused them to change their minds and last week they announced that they in fact will be retrofitting all subway cars with cameras. https://www.ny1.com/nyc/all-boroughs/transit/2022/06/23/mta-working-to-install-surveillance-cameras-onboard-all-subway-cars Loegel made the decision to only ask to bargain over the impact of the cameras rather than the right to use them based on the information the MTA gave him that they would not pursue retrofitting all subway cars. Now that the MTA’s position has massively changed, the union’s position should as well. Now, if one is extremely uncomfortable with being filmed all day, every day, they cannot merely pick a line that doesn’t run the R211 equipment; they must be uncomfortable or quit their job. The statute of limitations for filing an improper practice charge with PERB is 4 months, so Loegel stuck the current administration with a raw deal on the R211s since that is long gone. However this massive change in the MTA’s intentions should warrant an entire new 4-month period with which to file an improper practice charge. We must pressure our current union administration to demand negotiations over the right to use surveillance cameras in the operating cabs, and not simply the impact of the cameras’ use.