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."