Why do I say "infamous?
Because of Randi Lowitt's decision to terminate Christine Rubino after Christine was brought to 3020-a for a stupid facebook comment. Indeed, the entire world is about to see how a supposedly "neutral" arbitrator, namely Randi Lowitt, became the angry and vindictive person she has shown herself to be in her bizarre rulings in Christine's case.
I'll start with the 2007 decision by Lowitt which was vacated in the Supreme Court, King's County :
Matter of Transport Workers Union, Local 100 v New York City Tr. Auth.[*1] Matter of Transport Workers Union, Local 100 v New York City Tr. Auth. 2007 NY Slip Op 52238(U) [17 Misc 3d 1132(A)] Decided on November 27, 2007 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 27, 2007
Supreme Court, Kings County
In the Matter of the Application of Transport Workers Union, Local 100, Edward Miller, Grievant, Petitioner, (Article 75 Proceeding to Vacate an Arbitration Award)
The New York City Transit Authority, Respondent.
David McGruder, Esq.
Martin B. Schnabel, Esq.
NYC Transit Authority
Arthur M. Schack, J.
Petitioner, a tenured TA employee, as a "Track Specialist" at the time of hisdismissal, was a member of Local 100 of the Transport Workers Union, the collective bargaining representative for TA employees. On Friday, September 29, 2006, Mr. Miller was ordered by the TA to provide a urine specimen for a routine random drug test. Petitioner claims that at the time of the test he was unable to provide a sufficient urine specimen. The TA declared Mr. Miller's failure to provide 45 milliliters of urine a "refusal" to test and dismissed petitioner from its employment.
Petitioner, in his first claim for relief, contends that the Arbitrator exceeded her
Authority by failing to properly consider 49 CFR § 40.193 [part of the Urine Specimen Collection Guidelines issued by the U.S. Department of Transportation], with respect to the collection of a sufficient urine sample for a drug test. As noted in the Arbitrator's opinion and award, 49 CFR § 40.193 (b) (4) requires the urine collector "[I]f the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen . . . discontinue the collection . . . and immediately notify the DER [Designated Employee Representative]." Further, 49 CFR [*3]
§ 40.193 (c) requires:
The Arbitrator, after reviewing the testimony presented at the hearing, as well as [*5]
relevant CBA provisions and Federal guidelines, noted the limits of her authority, particularly in the context of the CBA, where refusal to undergo a drug test mandates a specific penalty. She found the testimony of respondent's witnesses (Dr. Genser, Dr. Nemetz and Vernel Weeks, the technician assigned by the TA as the urine collector for Mr. Miller's September 29, 2006-test) to be credible. She also found the petitioner to be credible "inasmuch as he testified that he did not know why he was unable to urinate after three hours." She went on to find that the "information provided by . . . [petitioner's] own doctors was insufficient for Dr. Genser to change the medical opinion rendered by Dr. Nemetz," who was 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 that could have, precluded the employee from providing a sufficient amount of urine,'" and that "[n]otwithstanding Mr. Miller's outside urine and hair tests, Dr. Genser acted appropriately and within the regulations, even when he refused to consider either of those two tests." The Arbitrator denied the TWU's grievance and found that the TA "does have cause to discharge Mr. Edward Miller."
(See Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 ; 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]).
(See Major League Baseball Players Association v Garvey, 532 US 504 ). 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 ), 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]."
The Court of Appeals, held at 336-337:
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.
Accordingly, it is
HON. ARTHUR M. SCHACKJ. S. C.