Finds Contract Breach
Transit Drug Firing Reversed by Judge

By ARI PAUL

A Brooklyn Supreme Court Justice ruled Nov. 27 that a New York City Transit worker who was fired for failing to produce a urine sample for a drug test in 2006 must be reinstated.

The Chief-Leader/Alana Marcu 'TOTALLY UNFAIR': Attorney David McGruder represented a New York City Transit worker laid off for failing to provide a urine sample for a drug test, even though he had a medical condition preventing him for doing so. A Brooklyn Supreme Court Justice has ordered that the worker be reinstated.

Justice Arthur M. Schack overturned arbitrator Randi E. Lowitt's decision upholding the termination of Track Specialist Edward Miller, saying she "exceeded her authority by adding terms to the collective-bargaining agreement."

Prostate Problem

Mr. Miller was asked for a urine sample for a drug test in September 2006, but he was unable to produce enough urine due to an enlarged prostate, explained David McGruder, his attorney. At his own expense, he was examined by a urologist to determine that he had a medical ailment causing his inability to produce urine and went through a hair-sample drug test that showed he had no illegal narcotics in his system. After Mr. Miller was laid off for "refusing" to produce a urine sample, Ms. Lowitt upheld the termination in December 2006. Prior to that ruling, Hearing Officer Yvette Towe sided with NYC Transit, noting that Mr. Miller was found positive for drug use in 2003 "for providing an adulterated specimen."

According to Mr. McGruder, when Mr. Miller was ordered to produce a urine sample, NYC Transit did not provide him with enough drinking water to assist him.

"I thought that was totally unfair," he said in a Dec. 17 phone interview.

The arbitrator's decision was flawed, Mr. McGruder argued, because the collective-bargaining agreement between NYC Transit and Transport Workers Union Local 100 stipulated that medical determinations of employees must be done by specialists, and the Metropolitan Transportation Authority doctors who evaluated him were general practitioners.

'MTA Robot Doctors'

"The main issue was the two doctors were not specialists," Mr. McGruder said. "They're just robots for the MTA. They deny everything that the workers say. That's their job."

Mr. Miller had privately sought specialists to show he had a medical condition causing his failure to produce urine and that he was drug-free. Justice Schack ruled last month that the arbitrator's ruling went against the mandate of the collective-bargaining agreement and was therefore "irrational."

"We are contemplating appeal," said NYC Transit spokesman Charles Seaton.

Spokesmen for Local 100, which was a plaintiff in the case, did not comment on the ruling.

Mr. Miller has only been working part-time since he was laid off, causing him financial hardship, Mr. McGruder added.

"The bottom line is that Mr. Miller, I believe, is vindicated by this decision," he said. "My goal is that he can just work and support his family."