To the Civil Service and Pension Standing Committee,

Hello, my name is Benjamin Valdes. I am a train operator for NYC Transit and a member of TWU Local 100. My union’s president, Richard Davis, recently appeared before your committee to advocate for changes to the Tier 6 pension plan. While I commend Mr. Davis for advocating for what he believes is in our best interest, I also respectfully disagree with his assessment of what needs to be changed the most in Tier 6 for both the workers’ best interests and the best interests of the public to fill the many open positions in NYC Transit.

He made the case that the number one issue regarding Tier 6 is the overtime cap on earnings that would be applied to the final calculation of our pensions. While that is a major issue, the issue of the contribution rate is a much more immediate, pressing issue for the majority of the workforce. The Tier 6 contribution rate compared to Tier 4 is a massive PAY CUT. That is the reason why new hires are leaving the job shortly after starting the job; It’s not because of some overtime cap that they don’t have to worry about for at least 25 years.

As a train operator, my salary is approximately $80,000 per year. This puts me in the 5.75% contribution rate, as I was hired in March, 2013, shortly after Tier 6 became law. As you know, workers in the Transit Operating Force 25-Year/Age 55 Retirement Plan for Tier 4 Members only pay 2% of their salary towards their pensions. Over the course of a year I pay $4,600 while a Tier 4 train operator pays only $1,600 for their superior pension plan. Over a 25 year career, assuming the same rate of pay for the sake of simplifying the calculation, I would pay about $75,000 more ($115k in Tier 6 vs. $40k in Tier 4) than a Tier 4 train operator for my inferior pension. If you assume any increases in pay over the next 15 years the gap between what we pay becomes even larger. 

In the committee meeting, Mr. Davis was asked twice about what the biggest challenge is, other than the overtime cap, to recruiting people to the workforce. When he was asked by Senator Gounardes he responded by saying “the hiring rate [of pay]…is subpar… that entry rate, that level that they’re hired at needs to be increased somehow so that you get people to come in to work to stay longer. It has to be more attractive to want to work here.” That was the moment where he should have asked for the contribution rate to be lowered. If he had brought someone from Tier 6 with him rather than that person from Tier 4, they could have interjected with our main plight, which is pay. Most new employees do not know the intricacies of the differences in contribution rates between Tier 4 and Tier 6. To be honest, most new employees don’t even know there is a difference between contribution rates. However what they do know is that the amount of money in their paychecks is not enough to cover their basic expenses, and it’s not even close. Since inflation has been rising the past few years, I have much less disposable income than I used to. I live in a studio apartment, have no kids, no car, no student debt, low-cost health insurance, and a transportation pass from the MTA and I still have trouble making ends meet on just 40 hours a week; it shouldn’t be this way. Thousands of people are taking these civil service tests and as Mr. Davis said, about 300 people a week are being hired. The problem isn’t getting them in the door, or getting the young people interested in working here, as Mr. Davis asserted while responding to Senator Chu when she asked the same question about recruitment; It’s getting them to stay once they weigh the costs of the sacrifices they have to make to work for Transit and the benefits of the total compensation package. Many people try out this job and go back to jobs where they don’t even have a pension! That proves that the overtime cap on Tier 6 employees is not the main reason why they can’t fill these jobs. Unemployment is very low right now so people have options. We have to make this job as attractive as possible if you want more service on say, the R line, which was promised an increase in service only to be put on hold because of crew shortages and construction. People are coming to this job, being asked to sacrifice a lot, seeing this paycheck after Tier 6 deductions and saying this just isn’t worth it. Our jobs are very demanding. With the legalization of marijuana, many people are hesitant to give up their habits to work in our safety-sensitive positions. We also operate 24 hours a day, 7 days a week with a seniority system which basically guarantees new hires will work nights, weekends and holidays, which has a big impact on people’s personal lives. The night and weekend differential rate, which in most agencies amounts to 10% of their salary, has been frozen at a specific dollar amount for years and is currently much less than 10% so there isn’t even an incentive to work nights and weekends. 

Our job is a major lifestyle change for someone coming from a standard 9-5 job. We have medical standards stricter than those for airline pilots (yes, I checked). We are denied lunch breaks despite court rulings that say a union contract cannot waive the right to have a meal period because it’s a health and welfare issue. We have the most disgusting crew facilities that you will find at a workplace in 2023. We are forced to walk over live, electrified, third rails, walk on elevated tracks with huge gaps between the wooden rail ties in all types of dangerous weather, breathe in the worst air quality in the city being in tunnels all day, show up during floods, snowstorms, and a deadly pandemic and not be paid a premium for any of it. In fact, while LIRR employees were caught stealing overtime we were, and still are, robbed of overtime that we worked if you accidentally put incomplete information on an overtime slip, and because many of us report to different terminals throughout the week, they make VERY little effort to find us so we can fix the slip. All trips made are logged in the computer system with your name and job number and they deny your slip as if you never worked those hours.  At my terminal I see “returned” slips sitting there from months ago, that obviously never got back to the employee to fix, still unpaid!!! For the safety-sensitive positions they won’t even allow us to work a part-time job outside of Transit to make ends meet so we can get our rest, however they have no problem allowing us to work 16 hours a day to help them make service. The lack of respect for the workforce is unbelievable. We weren’t allowed to wear masks to protect ourselves from Covid until a week after it spread all around NYC because it was “against the uniform policy,” even though we should be wearing masks for the steel dust anyway. Our rulebook even has a rule that says we can’t sit on the train or bus if paying customers are standing. The rule is called “Authorized Free Riders.” We are NOT free riders. We bargained for that transportation pass in our contract. Nothing we have in the contract is free. We gave up something of monetary value for that pass. We are employees of the agency. We should be the first ones to get a seat! In fact we should be allowed to sit in the unoccupied operating cabs for maximum comfort. That rule makes no exceptions for elderly, pregnant, or disabled employees. We are also subject to assaults, harassment from passengers and supervision, very heavy, unnecessary discipline, crazy work rules because of the Taylor Law, and have physically taxing jobs. 

While I have your ear, I would like to touch on the last 2 issues that I mentioned (the Taylor Law and physically taxing jobs) because fixing Tier 6 alone isn’t going to increase the retention rate of employees. When Mr. Davis claimed that we need a higher starting pay, one could claim that it’s his fault as the union president for not negotiating for more pay. However this is the one area where I sympathize with Mr. Davis. I believe his hands are tied by the Taylor Law. I’ve been studying the Taylor Law over the past few years and one thing is very clear; with very few exceptions, everything must be bargained for. We can’t even get a raise just to keep up with inflation without essentially paying for it in other ways, such as work rules concessions. Things regarding sick leave usage, discipline, and getting time off, among other things, are very unfriendly to the workers in our contract. These concessions were likely made only in an effort to keep our wages on par with inflation. Something has to be done with the Taylor Law. Either we should have automatic Cost of Living Adjustments and the Location Pay Downstate Adjustment, or we should have the right to strike (“The purpose of geographic pay differentials is to assist State agencies with the recruitment and retention of employees in particular occupations and areas of the State.” -Public Employees Federation website). Even for train operators, which is one of the higher paying titles in Local 100, this salary is average at best to live in NYC. Many of us have resorted to moving to Long Island, upstate, New Jersey, Connecticut, even Pennsylvania and Delaware! The Triborough Amendment, which keeps the current contract in effect until a new one is agreed to, is highly insufficient to negate the effects of taking away our right to strike. This creates an environment where even if we merely wanted to keep the status quo (no concessions, no raises), we would still end up losing spending power because of inflation. Merely having “cost of living” be one of the criteria which an arbitrator uses to make their decision is also highly insufficient. The MTA knows the only way to enforce a cost of living adjustment is through an arbitrator so they always make crazy demands which would be unacceptable to us, thus making arbitration too risky for the union administration to attempt because even if the arbitrator gave the MTA just one of their insane demands, it would create a lot of hardship for the members. Another reason why cost of living adjustments are so important is because it accounts for the previous year’s inflation rather than trying to predict the next few years. Our 2023-2026 contract is the perfect example of this. Our previous contract from 2019-2023 gave minimal raises ranging from 2% to 2.75% because they tried to project what inflation would be. During the pandemic, inflation in 2021 was 7% year over year and in 2022 was 6.5% year over year. The contract we just negotiated completely leaves out 2021 and 2022 since we were already given (insufficient) raises in those years and once again, attempts to predict the inflation rates for 2023-2026, with small ratification bonuses complimenting the wage points for 2023 and 2024 to help with the current elevated levels of inflation. However this means that  the bonus will not compound in future raises even though the prices of goods and services will remain elevated indefinitely. As it stands now, a cost of living adjustment must be agreed upon by both the union and management and Transit has absolutely no incentive to ever agree to such a deal without massive concessions by the union. We couldn’t even get hazard pay in our contract after 110 Local 100 members died from Covid. What we got instead was a con-job “essential worker bonus,” which was just the aforementioned ratification bonus that all the other unions got to supplement their wage increases. We basically got the same thing as the unions that got to work from home during the pandemic but called an “essential worker bonus” to make us feel good. If it was true hazard pay, those who retired after the pandemic would have received it and those who were hired after the pandemic would not have received it. However, only those currently on the payroll at the date of ratification received the bonus, therefore it was simply a ratification bonus. Another issue I have with the Taylor Law is how one-sided the penalties are. If a union goes on strike it gets hit with massive fines and loses its ability to automatically collect union dues from its own members, while putting the union’s president in jail. If management commits an improper practice nothing of that magnitude would happen, and it could have drastic consequences as it did this year during the contract negotiations. Less than 2 weeks before our contract expired, MTA CEO Janno Lieber went on NY1 News and admitted that he asked the NYS Legislature to include a provision that would require $400 million in cost savings as a condition for receiving a bailout from the State. “We actually proposed that ourselves because we do think there are ways that the MTA has got to become more efficient without impacting our service or cutting personnel,” Lieber said, referring to the mandatory savings. Rather than trying to extract savings though good-faith negotiations as the Taylor Law envisioned, he asked for legislation that ultimately created a “chilling effect” on the negotiations by putting undue pressure on the union to accept massive concessions, one of which was losing the right for retirees to use the federal government’s Medicare plan and instead puts them all on for-profit Medicare Advantage plans which are known for denying care that is considered “too costly” by Aetna. “The [Taylor] law does recognize that improper practices frequently may be committed by individuals acting as agents for either the employer or the employee organization…Although the executive branch is the ‘employer’ for purposes of collective negotiations, it has been recognized that legislative bodies often act in an executive capacity. When so acting, they are subject to the prohibition against bad faith negotiations. Bona fide legislative action taken during the course of collective negotiations can violate the Taylor Law if it has a chilling effect on the negotiations. Whether legislative action taken at other times also violates the Taylor Law has not been answered definitively..” (Lefkowitz on Public Sector Labor and Employment Law, Fourth Edition (2 Vols), Editors: William A. Herbert, esq.; Phillip L. Maier, esq.; Richard K. Zuckerman, esq.). This excerpt taken from a treatise I purchased a few years ago explains that even though the state legislature isn’t our employer, they can act as an agent to our employer, the MTA, to commit unfair labor practices and the MTA should be held accountable if the legislation passed is found to have a “chilling effect” on the negotiations. Unfortunately the accountability would probably just be a slap on the wrist compared to what would happen if we went on strike. Another issue with the Taylor Law is the non-payment of the prevailing wage for titles involved in construction-related work. Transit appears to be running afoul of this law by simply pretending like it doesn’t apply to its workers. I’m not sure if this has to be negotiated or if Transit would automatically have to pay it, but do you mean to tell me that of all the construction we do on the subway there is no title entitled to the prevailing wage in NYC Transit? During contract negotiations in 2012 Local 100 asked management to pay the prevailing wage to workers involved in construction for the titles Transit Electrical Mechanical Maintainer, Car Maintainer B, Bus Operator, Structure Maintainer C, Work Train Operator, and Signal Maintainer. Management of course said no because they have absolutely no incentive to do so without massive concessions from the union, and over a decade later I believe none of these titles receive the prevailing wage, which is much higher than their current wages.

As for the fact that our jobs are physically taxing, we should actually be able to retire at age 50. Under the physically taxing titles pension plan, jobs which take a physical toll on the body over the years such as ours are able to retire at age 50 with 25 years of service. Unfortunately that plan was eliminated for Tier 6 members so that would need to be reinstated. Also, most if not all, NYC Transit titles need to be added to the list of physically taxing titles. I understand that the NYC Office of Labor Relations is in charge of establishing and maintaining the list and that as employees of a state Authority we are not under their jurisdiction, so we would need legislative action to make this much needed change happen.

For years our union has promised to “Fix Tier 6” and I always assumed that meant lowering the contribution rate and getting a refund for our past years of overpayment. I was highly disappointed watching that committee meeting with Mr. Davis. Not only did he not ask to reduce the contribution rate back to 2%, but instead he stated “I don’t think we’re saying that each person shouldn’t pay their fair share because we didn’t even ask about the contribution amount… we realize that’s a reality that needs to happen to balance the budget.” What president of a public sector labor union goes on the record saying that the budget needs to be balanced off the backs of the members??? Every time I see a public sector union president, they are DEMANDING that the budget be paid for by taxes on the wealthy. Do you know how many hours I would have to work in my last 3-5 years (if reduced from the current 9) just to make up that $75,000 that I’m losing in my contribution rate? It’s insane! Why would a union president who in the same meeting admits how physically taxing the job is, be advocating to further a system which forces people over the age of 50 to work longer hours just to get a decent pension? That isn’t progressive fiscal policy! I don’t like working overtime now, and I sure won’t want to do it then! Unfortunately, many of us don’t even live to the age of 55 because of the steel dust and other hazardous conditions of working in Transit, and those that do, tend to pass away shortly after retirement so we never get to enjoy the fruits of our labor anyway.

If we don’t fix (the real problem with) Tier 6 now, when will it happen? You guys in the NYS legislature have properly funded the MTA to the point where its budget is balanced for the next 5 years through 2027. Even after doing that, NYS still has a surplus of $3.5 billion. I understand that Tier 6 was enacted by the Cuomo-Hochul administration but the Democrats have a veto-proof majority in both the senate and the assembly. I see that even the Republicans on this committee seem willing to fix this issue! Not only is it the perfect time to lower the contribution rate to incentivize people to work here, but this is the time to do the politically harder part of fixing Tier 6. The overtime cap issue won’t even affect Tier 6 workers doing the full 25 years until AT LEAST 2037. Of course that’s a very critical part of fixing Tier 6 and if both can be done, please do it. However if one has to be delayed, it should be the overtime cap issue because time is on our side with that one. Our members need money NOW. We shouldn’t have to work overtime just to make ends meet. Generation Z is not interested in a job like that anymore. The pandemic shifted a lot of people’s way of thinking towards a more even work-life balance. 

Train Operator, 

Benjamin Valdes