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Friday, July 13, 2012

UFT Unity Refuse To Help Members And Align With The Mayor

Thursday, May 17, 2012

UNITY DOMINATED DELEGATE ASSEMBLY DECLINES TO SUPPORT STATE BILLS THAT WOULD END MAYORAL CONTROL OF SCHOOLS


Yesterday, the UFT Delegate Assembly would not allow an up or down vote on whether we should endorse state legislation to support one of two bills to end the mayor’s majority control over the Board of Education. The Board of Education is the legal name of what is now called the Panel for Educational Policy.  The PEP is dominated by the eight mayoral appointees who do whatever the mayor wants. When it is necessary, they always outvote the five borough president’s representatives.

Instead of supporting legislation (Senate Bill 6915) which would change the makeup of the Board of Education so that the majority would be appointed by the Borough Presidents and City Council, the Unity Caucus (Michael Mulgrew's political party) dominated Delegate Assembly referred this resolution, which I raised in April, to the UFT Executive Board.  Unity had a chance to make a statement that they opposed mayoral control and refused to do it.  As my friend Norm Scott says repeatedly, “Watch what UFT leaders do and not what they say.”  Every UFT member should memorize those words and say them whenever one of the Unity party faithful tells us the UFT opposes mayoral control or high stakes testing or that Danielson is our friend.

After last month’s surprise DA affirmative vote to place a resolution on the DA agenda to support either the Senate bill or a similar Assembly bill that would immensely improve the way schools are governed, people told me to watch out that the other shoe would soon drop and the UFT wouldn’t support legislation to end mayoral dictatorship.  I said let’s wait and see.  Maybe there is a real change in the thinking of UFT leadership.  I should have known better. 

This is especially troubling because Senator Bill Perkins, who is a staunch defender of public education, was the senator who introduced the bill in Albany . During the floor debate at Wednesday's DA, Unity people said that they examined the Senate bill and they oppose it in part because there wasn’t any place for parent representation on the new Board of Education.  (Are they serious? We can aim for a perfect school governance system down the road but now we need to take power out of the mayor’s hands as best as we can.)

In moving the resolution to support the end of mayoral dictatorship over the schools, I referred to Mulgrew’s earlier report where he told us that by a 7 to 1 margin, a new poll shows the public wants to end mayoral control of the schools.  I said that by the UFT endorsing either of the two bills introduced in the State Legislature, it was a way to start this discussion as the bills were similar and we need to come out boldly and forcefully as early as possible against mayoral dictatorship over the schools. 

I added that the current school governance law sunsets in 2015.  Why wait three years? We need to start pushing way before then and we made a mistake last time by doing committee work for years and then in 2009 accepting mayoral dictatorship version 2 which made no substantive changes to the 2002 law that put the mayor in charge.  Since the public is clearly on our side, I told the DA that we need to take this fight right to the heart of the chamber that is blocking change: the New York State Senate.  Majority Leader Dean Skellos is from Long Island so we should be having a rally in front of his office which is near the train station in Rockville Centre .  We can make it a big deal that we want our bills voted on.  I closed by saying my way of negotiating is to ask for the world (the end of mayoral majority on the Board of Ed now) and maybe we won’t get it today but we would have a much better chance of taking the mayor’s power to close or co-locate schools away from him or getting other legislation we want passed. 

Another delegate supported me but then someone from the fifth floor room said she opposed the Perkins bill and then another followed.  President Mulgrew then called on Middle School Vice President Richard Farkas, who moved that the resolution be referred to the Executive Board and now that they had their marching orders, the Unity faithful quickly thereafter ended debate and voted to refer the resolution to the Executive Board. 

I was not surprised but a little disappointed as our union has no strategy other than to repeat what did not work in 2009. UFT official policy continues from 2001.  That is when the UFT originally voted to support the mayor having majority control of the Board of Education.  I have opposed this policy all along and voted no on it back in 2001 and again in 2009. Will they ever learn?

 To all of my delegate friends who don’t come to the DA, all I can say is I could have certainly used your help Wednesday.  The absence of so many non Unity delegates makes it easy for the UFT leadership to almost always get what they want from the DA.

THE REST OF THE DA
In the President’s Report, Michael Mulgrew told us there will be a special Delegate Assembly on congressional endorsements since the Democratic Primary has been moved up to June 26.  The special DA will take place next Wednesday at 4:15.  Mulgrew then boasted about the Spring Conference and how the new workshops, particularly the Danielson one, were successful.  He said that Charlotte Danielson herself was there and appreciated it. 

Mulgrew reported on mayoral control.  He said it was a big issue.  He said the UFT supports a bill that would compel the Community Education Councils (district school boards under the old system) to approve any new school co-location.  He also stated that we support a bill that would put a moratorium on school closings.  He continued by saying we could get these pieces of legislation by the Assembly but they would die in the Republican controlled State Senate.  (Well then why not picket their leadership?)

He continued by pointing out that mayoral control sunsets in 2015 but that we are hoping to make changes before that time.  He added that we have to be careful here but that we are hopeful of getting a workable State Senate next year. He said that parent groups and politicians are coming to us hoping to get our support on how the schools should be governed.  (I don’t think we can afford to wait for the perfect bill and must demand real change now.)  Mulgrew talked about the need for checks and balances.  (I have a poster  from 2009 in the UFT office at school that says the following: “MAYORAL CONTROL NEEDS CHECKS & BALANCES.”  I say today to beware of UFT Presidents calling for checks and balances because we got none in the 2009 law.)  Mulgrew closed by saying that it is too early to say what we will and won’t support. 

On the city budget Mulgrew reported that there would be 1,000 to 2,000 more teachers next year as the City Council held tough in budget negotiations.  He then said there are still major problems with the budget because the Day Care Providers who helped us fight layoffs last year now need our help as they are being threatened.  He told us that 16,000 daycare slots were on the chopping block.  He pointed out that the Mayor’s Early Learn program was really an attempt to privatize day care and we must oppose it.  He closed the budget part of his report by saying we are trying to get back teachers’ choice funding.

Mulgrew then gave his monthly speech on how disastrous special education reform is going and how many parents believe this is the mayor’s last ditch effort to destroy the school system.

Mulgrew then reported on the court case with the Turnaround schools that were closed.  He said that we would be back in court tomorrow because we have been doing the contractual article 18D hiring process for almost twenty years and now the DOE wants to make the committees work by majority vote instead of consensus.  He said that he is not looking to stop the 18D process but he wants it to work according to the contract.  He added that there would be no final decisions on hiring until after there is an arbitration.  (I thought we were suing to stop the schools from closing.  Can anyone help me on this?)

Next Mulgrew talked about a principal in the Bronx who had been removed from the job and made an assistant principal who now had new allegations against him.  Mulgrew quoted Chancellor Dennis Walcott who said: "Just because an allegation is made, it doesn’t mean the person is guilty.”  The UFT President then turned back to the lawsuit on closing the turnaround schools to say that we are working with the Council of Supervisors and Administrators on this case.  He talked about planning committees in the turnaround schools and stated that many schools didn’t have planning committees. 

The President then told us about a silent march on Father’s Day (June 17) opposing the Police Department’s Stop and Frisk policy which targets the minority community unfairly.  He then reported that using Monday and Tuesday June 25 and 26 for staff development was a DOE idea and not a UFT proposal and that we can do it if we like but we should inform the parents that this was not a UFT idea.  UFT staffer Amy Arundel then reviewed the School Based Option process.  Staff Director Leroy Barr went over some dates for events and then it was time for the question period.

The first question concerned absences. A delegate asked if more than ten absences in a year would automatically lead to charges against a teacher based on Education Law 3020A (process to discipline teachers). Mulgrew responded that it did not lead to automatic charges but that members should avoid being absent more than ten days at all costs.

A delegate asked about the principal interfering in UFT Chapter Elections.  Mulgrew answered that if there is documentation, we would slap a Public Employees Review Board case on that principal in a second as it is an improper practice.

Marjorie Stamberg asked the next question.  She said that having Absent Teacher Reserves vote for chapter leader in a school they are passing through for a week and know nothing about was ridiculous.  The Unity faithful accused her of making a speech and not asking a question but Marjorie then turned it into a question by asking how this process makes any sense.  Mulgrew kind of answered it but mostly tried to avoid the issue she raised.  He talked about how the DOE is violating the agreement from last year and that if they placed all of the ATRS in positions where members were on leave or long term absence, then all would be placed.  Since DOE is not living up to their end of the agreement on this and not having an oversight committee meet as per last year's agreement, we are grieving and taking it to arbitration.  Mulgrew then stated that allowing ATRS to vote in a school they are at is the best thing we could do for them.  (I would not agree.)

Someone then asked about strengthening collaboration with CSA but Mulgrew said that this was hard when many CSA people are after our members but he pointed out that we would work with the CSA when possible.  Someone asked about community schools in Cincinnati and Mulgrew replied that we are piloting this with the City Council in NYC.

The new motion period was next and Megan Behrant introduced a motion for the UFT to support a rally for the Turnaround Schools at Tweed ( 52 Chambers Street ) on June 12 at 5:00 p.m.  There is no debate allowed when there is a motion for this month’s agenda and it needs a 2/3 vote to carry.  The first vote  looked like it received the 2/3 vote needed to pass but Mulgrew said he wanted a second vote and then said it didn’t carry.  This caused anger as people saw many in support of the rally.  Mulgrew then reprimanded people who were calling out asking for a count of the vote saying that the rules don’t allow debate.  Someone raised a point of order to say that we were not calling for debate but were calling for a count.  Mulgrew then asked for people to stand who supported the rally and by this time the Unity faithful knew they better stay seated so Unity easily turned down the rally.

David Pecararo from Beach Channel told a horror story about his own reassignment and asked that the UFT reaffirm its support for Chapter Leaders.  Surprisingly, someone spoke against it saying it doesn’t need to be reaffirmed but the motion passed easily.

The regular motion period was next where there was a resolution to support an increase in the state minimum wage followed by a motion to support the silent march on June 17th to oppose stop and frisk.  Then came the mayoral control debacle.

All in all, The DA was another waste of time but this one was at least interesting as it took quite a bit of maneuvering by the leadership to hold their people in line.  I still wish everyone who complained about how the DAs aree run would show up so we could change it. 

2 comments:

Anonymous said...
At last night's delegate assembly, I raised the issue of the union's cyncial "solution" to the UFT's disenfranchisment of ATRs in the union elections. Many ATRs had no place to vote in teh union elections as they trudge from school to school on a weekly basis, where they are treated as non-people until they move on the next week. This week-to-week trek was agreed upon by the union and the DOE last spring, as part of the deal that there be no teacher layoffs. Last fall, I and others put forward motions for the ATRs be accorded their full voting rights with their own chapter. We have been fighting for this for several years, and it has always been brushed off with the excuse that their situation is only "temporary." 

Last week, the UFT leadership announced a "solution" -- with chapter elections upon us, they decided, ATRs would vote at the school where they are for the week the elections are held. This is outrageous -- how can ATR teachers effectively advocate for their needs when they are "here today, gone tomorrow," and the chapter representatives are not accountable to them. 

Yesterday, when I raised this issue in the question period at the delegate assembly, Mulgrew refused to let me get a sentence out, interrupting me, harassing and yelling, "What's your question," "Make it a question," "That's not a question!" Following his lead, a passel of Unity delegates obediently picked up the jeer. Over the din, I was finally able to get out, "My question is, how do you justify this outrageous cynical disenfranchisement of the ATRs' right to vote?" and saying "the ATRs need their own chapter."

Mulgrew answered with a time-honored evasion: The union is in arbitration, he said, because the DOE has not kept to its commitment to place ATRs in open positions, and long-term vacancies. Until this arbitration is settled, the union is doing the "best it can" to give ATRs voting rights. He was silent on the fact that the weekly trek of ATRs is happening with the consent of the UFT leadership, which agreed to it as part of the deal on layoffs last spring.

Don't worry, I will keep on raising this issue. With more schools closing than ever, there will be a huge swelling of the ATR pool next fall. As we all know, "If you're not ATR, you could be soon." The fight for rights of ATR teachers is everyone's fight.
Thursday, May 17, 2012 10:05:00 PM
Anonymous said...
At last night's delegate assembly, I raised the issue of the union's cyncial "solution" to the UFT's disenfranchisment of ATRs in the union elections. Many ATRs had no place to vote in teh union elections as they trudge from school to school on a weekly basis, where they are treated as non-people until they move on the next week. This week-to-week trek was agreed upon by the union and the DOE last spring, as part of the deal that there be no teacher layoffs. Last fall, I and others put forward motions for the ATRs be accorded their full voting rights with their own chapter. We have been fighting for this for several years, and it has always been brushed off with the excuse that their situation is only "temporary." 

Last week, the UFT leadership announced a "solution" -- with chapter elections upon us, they decided, ATRs would vote at the school where they are for the week the elections are held. This is outrageous -- how can ATR teachers effectively advocate for their needs when they are "here today, gone tomorrow," and the chapter representatives are not accountable to them. 

Yesterday, when I raised this issue in the question period at the delegate assembly, Mulgrew refused to let me get a sentence out, interrupting me, harassing and yelling, "What's your question," "Make it a question," "That's not a question!" Following his lead, a passel of Unity delegates obediently picked up the jeer. Over the din, I was finally able to get out, "My question is, how do you justify this outrageous cynical disenfranchisement of the ATRs' right to vote?" and saying "the ATRs need their own chapter."

Mulgrew answered with a time-honored evasion: The union is in arbitration, he said, because the DOE has not kept to its commitment to place ATRs in open positions, and long-term vacancies. Until this arbitration is settled, the union is doing the "best it can" to give ATRs voting rights. He was silent on the fact that the weekly trek of ATRs is happening with the consent of the UFT leadership, which agreed to it as part of the deal on layoffs last spring.

Don't worry, I will keep on raising this issue. With more schools closing than ever, there will be a huge swelling of the ATR pool next fall. As we all know, "If you're not ATR, you could be soon." The fight for rights of ATR teachers is everyone's fight.

Tuesday, July 10, 2012

The Story of Teddy Smith, Former Teacher in NYC

I know the story of Teddy Smith very well, as you can see from the articles I wrote which you can read at the end of Teddy's statement.

His lawyer, the person who called Theresa Europe of the Gotcha Squad up to tell her that his client had threatened to kill his arbitrator, has been MIA somewhere in Malaysia since Teddy's 3020-a hearing began. Where in the world are you, David Kearney?

Teddy Smith, Teacher


I am a former tenured teacher employed by The New York City Department Of  Education from 1995 through 2010. At the same time, I also worked with the United Nations After-School Program. Until 2005, I had only the highest annual evaluation rating in every category, and I earned a Supervisory License and planned to become a principal. I also earned the highest evaluations while working for The United Nations After School Program for Fifteen Years from 1995 through 2010. Prior to this, I owned my own Martial arts And fitness Schools. Today, I am a broadcaster working as an On Air Radio Personality, Sales Person, And Commercial Voice Talent, and an author.

In 2004, I accepted a position of teaching Physical Education And Health at The New York City Museum School In Manhattan. I was told that an Assistant Principal vacancy was opening up. I was a full-time teacher, but was hired for what amounted to a part-time position. Instead of making the program full-time, the school was cramming between Sixty and over One Hundred Students into many of the classes, and made the program part-time, without providing me an assistant. I tried to discuss this issue with Principal Lindley (Lindy) Uehling but she insisted that it was my job to teach and to maintain the safety of the children regardless of the size of the classes, and my transfer request was also denied. I complained and filed grievances with The United Federation Of Teachers, but they failed to act on my behalf as a union member. I began the school year by getting great observations from Principal Lindley (Lindy) Uehling until I complained about teaching such dangerously oversized classes. Then everything went down hill from here. Uehling began sabotaging my personnel file. According to an email I received accidentally from Fay Pallen to Uehling, they were conspiring to terminate me before this problem exposed. Uehling put disiplinary letters in my file every week. Out of frustration, I complained to The DOE, UFT, Mayor Michael Bloomberg and Chancellor Joel Klein. In 2005 after Ten Years of satisfactory service, I received my first unsatisfactory rating from Principal Lindley (Lindy) Uehling. She then resigned, and I was sent to the notorious "Rubber Room" while waiting to have my hearing.  

In 2007, I was asked to sign an agreement for returning to work, which included accepting my first unsatisfactory rating, and giving up my legal rights to appeal. I refused to sign this unjust agreement and upset the unexpected, my own attorney, David Kearney. With our contingency agreement, Kearney was expecting me to sign the agreement and end this case. Before the supposed final hearing date scheduled for May 10th 2007, Kearney threatened me to change our contingency agreement to hourly based. When he did not succeed, he then sabotaged me by falsely accusing me of threatening him and the life of the arbitrator. The arbitrator, The Deputy Counsel to the Chancellor and DOE representatives went along with his false statements without investigation and disregarding my complaint to The Special Commissioner of Investigation For The New York City School District, Richard Condon. The SCI submitted a falsified report by stating that my denials were not credible when I was never questioned by them regarding any threats in an interview that lasted almost two hours. Kearney, on the other hand, had never filed a police report and gave conflicting dates about the alleged threat. They could not prove Kearney's accusation as to when the threat happened, never the less, the SCI sent this falsified report and investigation along with a press release to the New york Daily News and to the Publication the Chief as well as publishing it on the internet to make the case sound valid. The SCI claimed that I was unfit regardless my excellent record from other schools; and the DOE Psychiatrist found nothing wrong with me and that I should return to work in 2007. In 2008, current Principal of New York City Museum School, Darlene Miller, who I had never met, filed new accusation of misconduct and unfit for the job based on this SCI's falsified report.

After two more years of turmoil, in 2010 I was found guilty and terminated. The  case is under appeal. According to the arbitrator, it didn't matter that key witness, David Kearney, could not be found to testify and cross examined, it didn't matter to the arbitrator that the DOE doctors found me fit and should return to work. "You are Terminated!" The Principal Lindley (Lindy) Uehling has worked for six different educational positions after she left The New York City Museum School in 2005. The current Principal of The New York City Museum School, Darlene Miller, was recently arrested for drunken driving and hitting a patrol car, according to The New York Post.

This is one of the sad stories under Mayor Bloomberg's budget cut in education. A principal used a teacher as a scape goat to deal with this issue, and sabotage the welfare of students and a good teacher. Bad principals are being protected while teachers are vulnerable when it comes to justice. It took two principals, three arbitrators, 10 lawyers, and six years to find me guilty. I would like to know the real reason as to why this system failed me and why I was fired. The money the city spent on terminating me, could have been used to reduce the oversized classes. I am an excellent teacher, and I ask for my reinstatement.

For further details, please also visit:

Infamous Arbitrator Randi Lowitt Was Overturned In 2007 In Local 100 Decision

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) 

against

The New York City Transit Authority, Respondent. 
8752/07 
Petitioner: 
David McGruder, Esq. 
 
Respondent: 
Martin B. Schnabel, Esq. 

NYC Transit Authority 
Brooklyn NY 

Arthur M. Schack, J.
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.
Background

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.
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. 
Contention of the parties

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:
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. 
The arbitration award

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." 
Discussion
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. 
Arbitration proceedings conducted pursuant to collective bargaining agreements are consensual in nature, subject to the limited scope of review established by CPLR § 7511 (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York. 94 NY2d 321 [1999]; Johnson v Jorling, 150 AD2d 896, 897 [3d Dept 1989], lv dismissed, lv denied 75 NY2d 764 [1989]). The statute provides the exclusive grounds for vacating an arbitration award (Matter of New York Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332 [2005]); Matter of United Fed. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School District of NY, 1 NY3d 72, 79 [2003]; Matter of New York State Correctional Officers & Police Benevolent Assn., at 326-328; Matter of Cox, 188 AD2d 915, 917 [3d Dept1992]). CPLR § 7511 (b) (1) (iii) states that an arbitration award shall be vacated if the rights of a party [*6]were prejudiced because "an arbitrator . . . exceeded his [or her] power. The Court of Appeals, in Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit] (70 NY2d 907, 909 [1987]), instructed that:
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. 
[*10]Conclusion

Accordingly, it is
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.