The opinion
Smith, J. (dissenting).
This case should be decided on the basis of the common-sense proposition that it is dangerous for people who do not get enough sleep to operate subway trains. The NYCTA should therefore be permitted to adopt unilaterally, without collective bargaining, the rule that is in issue here, requiring, in substance, that train operators and other employees in safety-sensitive jobs must, if they want to work at another job, have eight hours off excluding commuting time before they report to work for the NYCTA.
We have repeatedly recognized that certain subjects are so important to the public interest that they are exceptions to the general rule requiring public employers to bargain with employee representatives over the terms and conditions of employment (e.g. Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774 [1976] [decisions on teacher tenure]; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273 [2000] [criminal investigations of employee misconduct]; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006] [PBA v PERB] [police discipline]). Most recently, in Matter of City of New York v Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. ( 14 NY3d 46 [2009]), we held that the choice of a methodology for the drug screening of uniformed police officers was a management prerogative not subject to collective bargaining. The majority makes no attempt to distinguish any of these cases—to explain, for example, why somnolent subway drivers present a less serious threat to the public than *881 pot-smoking police officers. I would hold this case to be controlled by those I have cited.
The majority here faults the NYCTA for failing to put forward “particular safety studies” to support its new standards (majority mem at 880). But why are studies needed to demonstrate that an employee driving a train full of people should have eight fall hours of rest between jobs? Why cannot that matter be left to the NYCTA’s common-sense judgment? The majority finds “an insufficient basis to disturb PERB’s determination” (id.), but an agency responsible for public employment relations should not be determining a question like this at all. Here, as in PBA v PERB, the issue is “the relative weight to be given to competing policies” ( 6 NY3d at 575 )—in this case, the competing policies of protecting employees’ bargaining rights and protecting the public safety. We, not PERB, should be determining that question, and should decide that the interest in public safety is the weightier one.
Chief Judge Lippman and Judges Ciparick, Graffeo and Read concur; Judge Smith dissents in an opinion in which Judge Pigott concurs; Judge Jones taking no part.
Judgment affirmed, with costs, in a memorandum.