HTTP/1.0 200 OK Content-Type: text/html Bladder Up 
Pubdate: Wed, 12 Jan 2000
Source: City Pages (Minneapolis/St. Paul)
Copyright: 2000 City Pages
Contact:  http://citypages.com
Author: Burl Gilyard

BLADDER UP

A pissed-off driver challenges Metro Transit's methods of drug testing
Metro Transit bus driver Joe Lester's number came up last October when he
was summoned for a random - and mandatory - drug test. It had been several
years since the 12-year company veteran's last invitation to submit a urine
sample; this time around, he recalls, things were much less relaxed than in
the past. Lester says the company now handling the procedure - St. Louis
Park-based Health System Minnesota, through its subsidiary Pathways - takes
a hard-line approach: "They hustle you into a little room, there's no
windows to see out of, they've got the windows papered over," he recalls.
"You can't read, you can't sleep, you can't make phone calls." During his
visit last fall, Lester ended up arguing with the tester on duty about
whether he was legally allowed to bring a book with him.

Afterward, the more Lester thought about the dispute the more pissed off he
got. By his own admission, it's not in his nature to turn the other cheek.
And so Lester--a stout man of 40, with cropped hair, a short beard, and a
penchant for quoting Karl Marx and Mahatma Gandhi - sat down and penned a
rant denouncing random drug testing, deeming it "a violation of our civil
and God given rights." (Lester says he has no objection to the testing that
occurs in the wake of an on-the-job accident or when there is a reasonable
suspicion of employee drug use.) He concluded, "If Metro Transit has the
will, let them fire us for reading our books. Then we can fill the courts
with civil suits, and in so doing we will train a floodlight on Metro
Transit's very dark behavior."

Lester then mailed off a copy to the bus company's general manager Arthur
Leahy, and passed another along to the union newsletter, 1005 Line, which
promptly printed it. "To be quite honest," he offers with a bit of pride,
"I have a wicked pen. I used words like 'totalitarian,' 'sensory
deprivation,''torture.'"

In the wake of that communique, a supervisor at Metro Transit - which runs
throughout the Twin Cities and suburbs and is managed by the Metropolitan
Council - sat Lester down in early November to review the drug-testing
policy, which stipulates that anyone failing to comply with its guidelines
will be promptly fired. Criteria for such a failure, it states, would
include "demonstrating behavior which is obstructive, uncooperative, or
verbally offensive." Metro Transit's rules direct testers to ask every test
subject to "check his/her belongings and to remove any unnecessary outer
garments, including purses, briefcases, bulky outerwear...."

According to Metro Transit figures, in 1999 the company saw 12 positive
results on the 1,120 tests given to its workers; that one percent rate is
on par with national statistics gathered by the Federal Transit
Administration (FTA), which in 1995 began requiring random drug tests for
transit workers. Under the lottery system in which the program is conducted
in the Twin Cities area, it's possible for a worker, who is first tested
when hired, to be called in several times in a single year. It's also the
case that years could go by without an employee being tapped. Much to his
chagrin, Lester was summoned last month for another test. "I don't believe
it was random - it was two months to the day after the first one," he
calculates.

At his second appointment, on December 8, Lester again argued with the
tester about whether he could bring a book into the testing area. (This
time around he was reading The Rise and Fall of the Third Reich, by William
L. Shirer; "How ironic can you get?" he quips.) Lester says the attendant
became angry when he would not leave his hardcover volume behind, and
didn't give him an opportunity to sign the standard consent form. Lester
contends that the tester unilaterally ended the test when he refused to
surrender the book. "He said, 'Alright, you failed to take the test,'"
Lester recalls.

The next day Metro Transit, citing a "rules violation," fired Lester. Now
Lester is contesting his dismissal, and fighting to get his job back via
the union grievance process, which could still take several more weeks to
sort out.

Attorney Gregg Corwin, who serves as counsel for the Amalgamated Transit
Union, acknowledges that Local 1005, of which Lester is a member, has had
disagreements with Metro Transit about the administration of random tests.
Part of the problem, he says, is that the language in the laws about what
you can and can't do during a test is vague, which leads to varied

interpretations and periodic disagreements. "The law isn't that specific,"
he says. "That's why we get into these grievances." Minneapolis-based
employment attorney Stephen W. Cooper, who isn't involved in the squabble,
agrees. Neither state nor federal law specifically deals with the likes of
Lester's situation, he says: "I doubt the statute speaks to or addresses
reading a book. Why you would have a rule that you can't read a book is
beyond me."

Metro Transit spokesman Bob Gibbons says he's bound by data practices law,
and can say nothing about the specifics of Lester's case: "We have a
complaint or a charge against Joe Lester, but I can't tell you what it is."
He confirms that Lester is still considered to be a company employee and is
still being paid his base salary. The only other notes in Lester's
personnel file, he five calls of commendation from customers, and three
calls of complaint.

On the general issue of random drug testing, Gibbons says, "We believe the
guidelines are clear." That opinion is echoed by Health System Minnesota
spokeswoman Sara Goetz: "[We] do these collections based on the guidelines
given to them by the federal Department of Transportation." She notes that
company testers perform similar services for 600 local clients.

Bob Rossman, president and business agent for ATU Local 1005, declines to
address the matter while it's in the grievance process. But he will say
that he's been hearing member complaints about the conduct of what he calls
the "collection agency" - Pathways - which since August has been in charge
of administering the tests. "We think the vendor is overzealous in how they
do things," says Rossman, who charges that testers are in the habit of
quoting nonexistent Federal Transit Administration regulations, such as
telling subjects they're not allowed to read while waiting to produce a
sample.  "There is no regulation like that," he adds - nothing on the law
books that would bar testees from bringing books along with them. Rossman
addressed the issue in a recent union newsletter, writing that he raised
the question of reading materials with a federal staffer at a recent
workshop: "The FTA official laughed and said there are no such regulations
prohibiting reading."

Perhaps the strangest twist in Lester's case is that it's not about urine
or drugs, but literature. Lester, who says he has been battling depression
since his dismissal, reiterates that his true purpose amid all the
contention is to put an end to what he sees as an unwarranted procedure
that puts workers' privacy in jeopardy. "Anyone that does our job under the
influence should be horse-whipped and run off the property forever," he
remarks sternly.  "But what a person does on their own time is pretty much
their own business."
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