Bladder Up

The tinkle wrinkle: Veteran driver Joe Lester kept his book and lost his job
Michael Dvorak

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 communiqué, 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 adds, are 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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