Tr., Crino, at 51, 52. The title is not found to be safety
Iron Workers (Structure Maintainers (C))
These workers work in teams and typically with supervisors,
although supervisors are not present at all times during the
day. T. Tr., Crino, at 2384-86, 2387; T. Tr., Cassano, at 553.
Nevertheless, the degree of supervision seems adequate, and the
Court finds these titles not to be safety sensitive.
Plumbers (Structure Maintainers E)
Plumbers work in teams and always have supervision when they
are working on the trackway or testing fire fighting lines, gas
tanks. H. Tr., Crino, at 51-52; T. Tr., Cassano, at 551-52. The
title is not found to be safety sensitive.
Sight Maintainers, Tinsmiths, Painters, Sign Painters,
Heating and Air Conditioning Maintainers, Ventilation and
These titles seldom work on the right of way although they
may travel on the tracks to reach equipment or install repaired
parts. See, e.g., T. Tr., Cassano at 553-54, 557-61, 618; T.
Tr., Crino, at 2386-87. When they do work on tracks, they are
subject to supervision, so that the titles are not found to be
Power Distribution Maintainers
Power Distribution Maintainers work in teams but may be
dispatched singly to a circuit breaker house to operate
switches. H. Tr., Crino, at 72. Their activities do not place
the public or fellow employees in danger since the Systems
Operator is responsible for on and off determinations as to
electric current. H. Tr., Cassano, at 83-85; H. Tr., Crino, at
77-78. The title is not found to be safety sensitive.
The Court's attention has been called to the Implementation
Guidelines for Anti-Drug Programs in Mass. Transit of the Urban
Mass. Transit Administration ("UMTA"), United States Department
of Transportation ("DOT"), 49 C.F.R. § 653 (March 1989), which
have been suspended until further notice by the UMTA's Final
Rule of January 25, 1990. The suspension came as a result of
the decision in Amalgamated Transit Union v. Skinner,
894 F.2d 1362 (D.C.Cir. 1990), which determined that the UMTA had
exceeded its statutory authority and that Congress intended
such guidelines to be locally developed. 894 F.2d at 1372.
Nevertheless, the Court notes that the proposed guidelines
would have defined as safety sensitive personnel providing
non-vehicle maintenance or repair support for roadway and
track, tunnels, subways and bridges, communications systems and
equipment, and that the UMTA guidelines were similar to the
DOT's drug testing program upheld as constitutional in American
Federation of Government Employees v. Skinner, 885 F.2d 884
(D.C. Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1960,
109 L.Ed.2d 321 (1990). See 894 F.2d at 1372. Determinations by
the UMTA should not be lightly disregarded by a Court.
Accordingly, if the New York City Transit Authority submits a
locally designed safety plan which is approved by the UMTA, the
Court would reconsider its findings herein. Nothing in the
Court's final judgment herein, however, should be deemed to
preclude a change in the future, based on new evidence such as
the UMTA approval of a new, carefully designed drug testing
program properly brought to the Court's attention.
IT IS SO ORDERED.