Petitioner Transport Workers Union, Local 100 [the Union] on behalf of Grievant Edward Miller [Miller] moves, pursuant to CPLR § 7511(b), for an order to vacate and set aside the December 8, 2006 opinion and award of Arbitrator Randi E. Lowitt [Lowitt, or the Arbitrator], which sustained Mr. Miller's dismissal for "refusing" to give a urine specimen for a drug test. Petitioner asserts that the Arbitrator exceeded her authority by adding terms to the Collective Bargaining Agreement (CBA), in finding that Mr. Miller's failure to produce a sufficient urine sample in a random drug test, without an acceptable [*2]medical condition to explain this, constituted a "refusal" to give a urine sample. Further, petitioner claims that the Arbitrator irrationally sustained Mr. Miller's dismissal from employment with defendant New York City Transit Authority (TA). Respondent TA opposes the petition.

The Court finds that with the "peculiar facts" of the instant case, the Arbitrator exceeded her authority and issued an "irrational" opinion and award. For the reasons that follow, the arbitration award is vacated and set aside. Mr. Miller is restored to the job title he had at the time of his termination, and reinstated with the seniority, benefits and pension credit that he had at the time of this termination. In addition, Mr. Miller is awarded seniority and pension credit for the period from his dismissal to his restoration, with back pay and interest for his period of termination.

Hearing Officer Yvette Towe conducted a "Step III" hearing, on November 2, 2006. She upheld Mr. Miller's dismissal, based upon Appendix E-1, § 6.2 of the CBA, which states that "[r]efusal to take such test(s) as provided for . . . herein will be deemed an admission of improper use of Controlled Substances or Drugs and will result in dismissal from service." Hearing Officer Towe, in her decision, noted that: Mr. Miller was found positive for drug use, after a January 7, 2003-test, for providing an adulterated specimen; and, he was deemed positive a second time by his inability to submit a urine sample on September 29, 2006.

Petitioner appealed the Step III decision to the Arbitrator, who conducted a hearing on November 15, 2006. The Arbitrator closed the record on December 6, 2006, after the submission of written closing arguments and addendums. On December 8, 2006, the Arbitrator issued her opinion and award, upholding Mr. Miller's discharge for his "refusal" to test.

As the DER, when the collector informs you that the employee

has not provided a sufficient amount of urine . . . you must, after

consulting with the MRO [Medical Review Officer] direct the

employee to obtain, within five days, an evaluation from a licensed

physician, acceptable to the MRO, who has expertise in the medical

issues raised by the employee's failure to provide a sufficient specimen.

Petitioner claims that the arbitrator improperly relied on the testimony of Dr. Alan Genser and Dr. Avram Nemetz, who are not urologists, in reaching her determination that Mr. Miller did not have a medical condition on September 29, 2006 which would have prevented him from providing a sufficient urine specimen. Additionally, petitioner argues that the Arbitrator: ignored the medical evidence provided by petitioner's two licensed urologists (Dr. Adley Raboy and Dr. Eugene DeSalvo), who both stated that Miller had an enlarged prostate, which could be a basis for failing to provide a sufficient urine sample; and, exceeded her authority in deeming Miller's medically-based inability to urinate to be a "refusal."

Petitioner, in his second claim for relief, cites Appendix E-1, § 6.2 of the CBA, which the Step III hearing officer interpreted as mandating Mr. Miller's dismissal, for "refusing" to be tested. Mr. Miller contends that there is no evidence of any refusal by him to provide a urine sample. He alleges that he was limited to 32 ounces of water to drink, when the applicable rules allow for 40 ounces. He asserts that he must be reinstated because the Arbitrator exceeded her authority by irrationally changing the language of the applicable provision of the CBA from "refusing" to give a urine sample to "being medically unable" to give a urine sample at the time of the test.

Petitioner, in further support of his claim, to demonstrate that he was not using any controlled substances: took a urine test at Staten Island University Hospital, on Monday, October 2, 2006, which was negative; submitted a hair sample, on Wednesday, October 5, 2006, to Choice Point Medical Review Services, which tested negative; and submitted an unaffirmed letter, dated October 10, 2006, from a urologist, Dr. Raboy, who examined him on October 6, 2006, and opined that Mr. Miller's enlarged prostate could have been the reason for petitioner's inability to provide a sufficient urine sample on September 29, 2006. Petitioner asserts that the Arbitrator failed to consider this evidence in determining her award.

The TA, in opposition, contends that Mr. Miller's doctors failed to conclusively attribute petitioner's failure to urinate to an enlarged prostate. Respondent argues that the urologists' letters are both irrelevant and incomplete. Neither doctor expressed an opinion as to whether the purported "delay in urination" that an enlarged prostate might cause would cover the entire three-hour time period given to petitioner to provide a urine specimen. Respondent cites 49 CFR § 40.193 (d), which, it contends, provides that a failure to provide a specimen within the three-hour test period is a refusal unless "a medical condition has, or with a high degree of probability could have, precluded the [*4]employee from providing a sufficient amount of urine."

In its first objection to the petition, respondent alleges that the instant petition is untimely. The TA claims that the arbitration award is dated December 8, 2006, and that it appears that the index number for the instant proceeding was purchased on March 14, 2007. Therefore, because the 90-day statute of limitations (CPLR 7511[a]) runs from the date the award is received by the union, not its member, and because the latest date the union received the award, as reflected by the date stamp on the award, was December 14, 2006, the instant proceeding was commenced more than 90 days after that event.

The TA's second objection is that Mr. Miller "refused" to be tested on September 29, 2006. Petitioner was sent during work for a mandated drug retest, to produce 45 milliliters, or about three tablespoons, of urine in a three-hour period. Mr. Miller, at the arbitration hearing, claimed that he had urinated one hour and ten minutes before arriving at the test site. Further, respondent notes that petitioner explained that his failure to urinate resulted from a bout of diarrhea the night before.

Respondent observes that Mr. Miller, as a result of his failure to provide a sufficient amount of urine, met with the TA's MRO, Dr. Genser. Dr. Genser, based upon petitioner's explanation, referred Mr. Miller to Dr. Nemetz to determine whether a medical condition caused or, with a high degree of probability, could have caused petitioner's failure to provide the required amount of urine. Dr. Nemetz, after examining petitioner, concluded that there was no medical cause for Mr. Miller's failure to urinate. The TA asserts that this is not contradicted by the "hearsay" letters from petitioner's urologists. Dr. Genser then met with petitioner a second time, and obtained a consent form from Mr. Miller to allow Dr. Genser to speak with Dr. Raboy. Dr. Genser called Dr. Raboy. Dr. Raboy indicated to Dr. Genser that he had prepared the letter and then, according to Dr. Genser, Dr. Raboy "hung up" on Dr. Genser. Dr. Genser advised petitioner that Dr. Raboy had declined to cooperate, and petitioner was deemed a refusal.

Respondent argues that the Arbitrator considered the testimony of many witnesses, including Mr. Miller, Dr. Genser and Dr. Nemetz, and that although Mr. Miller did not claim any medical problems at the time of his failure to provide a sufficient amount of urine, Dr. Genser pursued all subsequent explanations. The TA argues that Mr. Miller failed to provide a legitimate or conclusive medical reason to excuse his failure to sufficiently urinate at the September 29, 2006-test. Thus, respondent submits that in evaluating credibility and resolving disputes of fact, as required, the Arbitrator had ample basis for her findings, and any purported legal or factual errors by the Arbitrator are beyond the scope of judicial review.

Petitioner, in reply, asserts that according to the dates given by respondent, the instant proceeding was timely. Further, petitioner asserts that the Arbitrator's reliance on the opinions of general practitioners, Dr. Genser and Dr. Nemetz, who are not urologists, impermissibly changed the language of 49 CFR § 40.193.

CPLR § 7511(a) imposes a ninety-day time limit for an application to vacate or modify an arbitration award. Professor Vincent C. Alexander, in his Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR 7511:1), observes:

Where the losing party initiates an application to vacate or

modify, the ninety-day time limit runs from the award's delivery to

him.' If the party was represented in the arbitration by an attorney

or labor union representative, service of the award on the agent will

commence the running of the time period (Case v Monroe Community

College, 89 NY2d 438 [1997]).

In the instant proceeding, the record, as evidenced by the appearances placed on the award itself, reveals that petitioner was represented by his union, TWU Local 100. In addition, petitioner's allegation that the Union received the arbitration award on December 14, 2006 is undisputed. Therefore, the instant proceeding was timely commenced ninety days later, on March 14, 2007.

Where a dispute has been arbitrated pursuant to a broad

arbitration agreement between the parties, the resulting award may

not be vacated unless it is violative of a strong public policy, is totally

irrational or clearly exceeds a specifically enumerated limitation on

the arbitrator's power. (Matter of Silverman [Benmor Coats], 61 NY

2d 299, 308 [1984]; Matter of Board of Educ. v Dover-Wingdale

Teachers' Assn., 61 NY2d 913 [1984]; Matter of Local Div. 1179

[Green Bus Lines], 50 NY2d 1007 [1980]; Rochester City School

Dist. v Rochester Teachers Assn., 41 NY2d 578 [1977]). [Emphasis

added].

(See Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991]; Matter of Loiacono v Nassau Community College, 262 AD2d 485 [2d Dept 1999]; Matter of United Fed. of Teachers, Local 2, AFT, AFL-CIO at 79; Matter of County of Westchester v Doyle, 43 AD3d 1055, 1056 [2d Dept 2007]; Matter of WBP Central Associates, LLC v Deco Construction Corp.; ___AD3d ___, 2007 NY Slip Op 07709 [2d Dept October 9, 2007]).

The Court, in an Article 75 review of an arbitration award, "questions whether the decision was rational or has a plausible basis (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Justice William O. Douglas, for the United States Supreme Court (United Steel Workers of America v Enterprise Wheel and Car Corp., 363 US 593, 597), instructed that:

When an arbitrator is commissioned to interpret and apply

the collective bargaining agreement, he is to bring his informed

judgment to bear in order to reach a fair solution of a problem . . .

[A]n arbitrator is confined to interpretation and application of the

collective bargaining agreement; he does not sit to dispense his

own brand of industrial justice. He may of course look for guidance

from many sources, yet his award is legitimate only so long as it

draws its essence from the collective bargaining agreement. When

the arbitrator's words manifest an infidelity to this obligation, courts

have no choice but to refuse enforcement of the award. [Emphasis

added]

(See Major League Baseball Players Association v Garvey, 532 US 504 [2001]). Citing

[*7]United Steel Workers of America v Enterprise Wheel and Car Corp., the Court of Appeals (Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383 [1960]), in discussing when arbitrators "exceeded their power," held that "arbitrators may be said to have done so only if they gave a completely irrational construction to the provisions in dispute and, in effect, make a new contract for the parties. [Emphasis added]."

In a case very similar to the instant case (Matter of New York Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332 [2005]), Franklin Woodruff, a TA stock worker with 22 years service, returned to work after an absence of about six weeks for an on-the-job injury. The CBA required workers returning after an absence of more than 21 days to submit a urine specimen for drug-screening. Mr. Woodruff reported to the Medical Assessment Center [MAC], and was unable to urinate and provide a specimen. Mr. Woodruff was sent to Dr. Nemetz, just as Mr. Miller in the instant case. Similar to the instant case, Dr. Nemetz found no medical condition or reason which prevented Mr. Woodruff from urinating. Mr. Woodruff was terminated by the TA for his "refusal" to test. After going through the various grievance Steps, Mr. Woodruff's dismissal for a "refusal" to test was sustained. Mr. Woodruff then appealed to arbitration. The Arbitrator concluded, as the Court noted, at 335-336, that Mr. Woodruff:

constructively failed to comply with the legitimate request by the

Authority for a urine test,' but that the peculiar facts of this case do

not indicate that this becomes the equivalent of a failure of a drug

test.' The arbitrator then reduced the penalty from termination to

suspension and reinstatement to the former position with back pay.

The Transit Authority filed a CPLR article 75 petition to

vacate the arbitrators's award . . . Supreme Court granted the petition,

concluding that the arbitrator's decision was irrational . . . The

Appellate Division affirmed.

The Court of Appeals, held at 336-337:

Here, the decision by the arbitrator was not irrational nor

did it exceed a specifically enumerated limitation on his power. The

arbitrator did not find that the employee refused to provide a urine

sample as outlined in paragraph 6.2. The arbitrator was within his

authority to determine that the employee's failure to provide a urine

sample for a drug test was not a refusal when that employee reported

for the exam and was prepared to provide a sample but claimed he

was physically unable to. It was also appropriate . . . for the arbitrator

to fashion a remedy short of dismissal for what he found to be misconduct

falling short of a refusal. [*8]Accordingly, the order of the Appellate Division should be reversed,

with costs, and the petition dismissed.

Black's Law Dictionary 1285 [7th ed 1999] defines "refusal" as "the denial or

rejection of something offered or demanded." Mr. Miller, in the case at bar, reported as ordered to the MAC, but was only able to produce drops of urine on September 29, 2006. He didn't reject what was demanded of him (45 milliliters of urine.) The Court of Appeals, as cited above in the Woodruff case (Matter of New York Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336-337), held, "[t]he arbitrator was within his authority to determine that the employee's failure to provide a urine sample for a drug test was not a refusal when that employee reported for the exam and was prepared to provide a sample but claimed he was physically unable to."Appendix E-1, § 6.2 of the CBA, states that "[r]efusal to take such test(s) as provided for . . . herein will be deemed an admission of improper use of Controlled Substances or Drugs and will result in dismissal from service." Arbitrator Lowitt exceeded her authority by determining that an employee reporting to give a urine specimen for a drug test but physically unable to do so engaged in a "refusal" to take a drug test.

Further, 49 CFR § 40.193 (c) states that the Designated Employee Representative [DER] "must, after consulting with the MRO . . . direct the employee to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen [Emphasis added]." The Arbitrator's decision makes no mention of the DER consulting with Dr. Genser, the MRO. Dr. Genser, on his own, referred Mr. Miller to Dr. Nemetz [pp. 4 and 7 of the Lowitt award]. The Arbitrator notes, at pp. 4 and 7, that Dr. Genser told Mr. Miller to see his own doctor. The Arbitrator, at p. 8, states that "Dr. Genser denied that the federal regulations require or direct him to send a person to a specialist in the area in question.'"

The Arbitrator, at p. 9, quoted Dr. Nemetz, who testified that he "provides independent evaluations for people who could not produce urine during drug testing . . .' He is a certified MRO for the Authority, and a generalist . . . '" Dr. Nemetz testified that Mr. Miller's blood and urine laboratory test results were normal [p. 9]. He also testified that he took a history from Mr. Miller and "I did a good, complete physical exam [p. 9]." Arbitrator Lowitt, at p. 3, stated "[t]urning to the examination he had with Dr. Nemetz, Mr. Miller said his total time with Dr. Nemetz was about 5 - 7 minutes . . . he took my blood pressure, listened to my airways . . . lay down and pushed on my mid-section . . . then a prostate exam." Dr. Nemetz, the self-declared "generalist," with no apparent expertise in urology, found Mr. Miller to have a normal prostate [p. 10].Further, Dr. Nemetz, on cross-examination "acknowledged that diarrhea could effect a person's hydration [p. 11]."

Meanwhile, the two urologists visited by Mr. Miller had different findings. [*9]According to his October 10, 2006-letter, Dr. Adley Raboy, a board-certified urologist, examined Mr. Miller on October 6, 2006. He stated "[a] rectal examination indicated a slightly enlarged prostate. A bladder scan indicated post void residual of 54 cc of urine [a test not performed by Dr. Nemetz]. My impression is early benign prostatic hypertrophy (BPH) with early obstructive symptoms. This condition could cause delay in urination." Dr. Eugene DeSalvo, another urologist, examined Mr. Miller, on November 10, 2006. His letter, of that date, states that he found after a rectal examination of Mr. Miller, "his prostate was slightly enlarged for his age. This could cause a delay in urination."

At pp. 17-18 of her award, the Arbitrator bases her decision upon her interpretation of 40 CFR § 40. 193 (d) (1), which requires the referring physician to recommend to the MRO a cancellation of the drug test if, "[a] medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine." She found Dr. Genser as "the person with sole authority, under the regulations, to make any determination of a medical condition that has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of urine.' He has not rendered that as his opinion." This is an irrational finding. Arbitrator Lowitt upheld Dr. Genser's medical decision based upon the findings of a doctor who is a "generalist," not a urologist, in violation of CFR § 40.193 © which requires "an evaluation from a licensed physician . . . who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen."

It is clear that the Arbitrator in her December 8, 2006 decision and award exceeded her power, issuing an irrational decision, that impermissibly amended the CBA negotiated by the Union and the TA. Mr. Miller appeared as ordered at the MAC on September 29, 2006, to provide a urine sample. His failure to produce a sufficient amount of urine was declared a "refusal," despite his appearance at the test site. The DER did not consult with the MRO in sending Mr. Miller to Dr. Nemetz, who fails to possess medical expertise in urology. Yet, the Arbitrator allowed Dr. Genser, the MRO, to make a medical finding based upon a limited examination by a physician who is not a urologist. Further, the instant case has "peculiar facts," similar to those in Mr. Woodruff's case, supra, in which the Court of Appeals found that Mr. Woodruff's failure to provide the TA with a sufficient urine sample to not be a refusal to test. The late Mr. Justice Douglas eloquently stated, as noted previously, (United Steel Workers of America v Enterprise Wheel and Car Corp., 363 US at 597) that an arbitrator's "award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award."

To make Mr. Miller whole for his period of termination, it is just and proper to restore Mr. Miller to his job title, with seniority, benefits and pension credit as if he was never terminated. Further, Mr. Miller shall receive back pay with statutory interest for the period of his termination until his restoration to service.

ORDERED that, the petition of the Transport Workers Union, Local 100 on behalf of Grievant Edward Miller, pursuant to CPLR § 7511(b), to vacate and set aside the December 8, 2006 opinion and award of Arbitrator Randi E. Lowitt, which sustained Mr. Millers's dismissal for "refusing" to give a urine specimen for a drug test, is granted; and it is further

ORDERED that, Mr. Miller is restored forthwith to his tenured position of "Track Specialist," with the seniority, pension credit and benefits he had on the date of his termination; and it is further

ORDERED that, Mr. Miller is awarded seniority and pension credit for the period from his dismissal to his restoration forthwith to service; and it is further

ORDERED that, Mr. Miller receive back pay for the period of his involuntary termination, with interest at the CPLR § 5004 rate of nine per cent per annum.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.