The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon. Claimant was present for and provided the opportunity to participate in hearings on his case.
Claimant, a Chauffeur (truck driver), has a commercial driver's license (CDL) and occasionally drives CDL required vehicles for the Carrier. This latter circumstance placed Claimant in a pool of employees who, by reason of working in certain positions, are subject to random drug testing as mandated by Federal (Department of Transportation, i.e., DOT) regulations and Carrier policy. As an employee in the random drug testing pool, Claimant was randomly selected for drug screen on September 2, 2003. Claimant reported as directed for the drug screen. However, Claimant failed to provide a sufficient volume of urine for testing. In this respect, Claimant was notified by letter of September 11, 2003 to report for an investigative hearing in a charge that reads as follows:
notified by the donor that they can't yet produce a specimen. The collector must document the time at which the three hour period begins and ends on the "Remarks" line of the CCF.
Every effort must be made to get the donor to provide an acceptable specimen. The collector must make fluid available, and permit the donor to drink up to 40 ounces of liquid. A collector may not terminate a shy bladder collection because a donor refuses to drink. Regular reminders that the donor should drink, however, are strongly recommended.
The donor may not leave the collection area unescorted or be sent back to work during the waiting period. In all cases, the donor should be monitored during this time by either the collector or some other designated person. The donor's behavior while waiting (how much they drink, etc.) would be valuable information for the collector to record. During the monitoring period, the collector is permitted to conduct other collections as long as someone else is monitoring the shy bladder donor. The monitor does not have to be a qualifled or trained collector.
At least once during the three hours, it would be beneficial for the collector to encourage the donor to make another attempt. The collector may extend the collection deadline briefly beyond the three hours only if it appears that the donor may be able to shortly provide an acceptable sample. When possible, the collector should obtain the carrier's concurrence for a time extension.
Once three hours have passed, the collector is to terminate the collection and report the situation to the carrier. After consultation with the MRO, the carrier must have the donor evaluated by a physician acceptable to the employer. The role of the referral physician is to examine the donor and determine whether there is a legitimate medical or pre-existing psychological reason not to have provided an acceptable specimen volume.
The physician's final report must specifically answer the question at issue without equivocation. There must be a direct link between a medical condition or disease, a medication, or an anatomical problem and the inability to provide a sufficient sample. Dehydration is not an acceptable medical explanation. Situational anxiety is not an acceptable psychological explanation. The physician's report is to be submitted to the employer via the MRO, who may comment but not
The Organization maintains that the record developed at the formal investigation does not support the assessment of discipline against Claimant. It also says that even assuming, arguendo, Claimant was guilty of culpability in the incident, that discipline as assessed is arbitrary and excessive.
Study of the hearing record shows that after reporting for duty at 7:00 a.m. on September 2, 2003, and attending a job briefing, Claimant was directed to report to the Workplace Health Clinic of the Maine General Medical Center in Waterville, Maine for the purpose of submitting to a random drug screen. While at the Clinic, Claimant made five separate attempts to provide the requisite 45cc of urine for a drug screen between 8:45 a.m. and 11:45 a.m. During this time frame, Claimant drank five cups (600cc) of water, but was only able to provide 15cc of urine. The Carrier, upon being contacted by the Clinic about such matter, in a good faith attempt to allow Claimant a reasonable opportunity to provide the required amount of urine, permitted Claimant to remain at the clinic beyond the three hour limit established by Federal regulations. During this additional time Claimant reportedly drank two 20-ounce cans of soda and another five or six cups of water, but again failed in another five attempts to provide 45cc of urine. Claimant was still only able to provide 15cc of urine. Claimant left the Clinic at 4:40 p.m.
Notwithstanding that Claimant was at the Clinic for more than three hours, or a total of eight hours, and did provide some urine, albeit an insufficient amount for testing, the report as filed by the Clinic, under the remarks section stated: "He was here for 3 hours and was unable to provide any urine." The Board also finds it significant that although testimony at the company hearing revealed that Claimant had, in fact, offered to provide a catheter specimen or permit the drawing of blood for the purpose of the drug test, no mention was made of this in the Clinic report.
Claimant's personal physician provided a statement, under date of September 2, 2003, in which he said that Claimant was under his care and has a "medical condition which makes it difficult for him to urinate on command."
The Medical Review Officer (MRO) for the Carrier (Health Resources of Woburn, MA), after contacting Claimant's physician, issued a report to the Carrier under date of September 5, 2003 that reads:
The Director of Occupational Health at Health Resources also testified that she had spoken with their Dr. Morris, who was in Philadelphia at the time, about the letter that Dr. Baker, Claimant's personal physician, had addressed to Dr. Morris under date of September 12, 2003, supra, as concerns Claimant having "a shy bladder." The Director said that Dr. Morris told her that he remained of the belief that he "did not feel it is a medical condition." The Director also said that Dr. Morris had checked three past drug screens in their records involving Claimant, and that the Clinic was not aware of any past voiding problems being experienced by Claimant. The Director did not have present at the hearing support documentation pertaining to any past test, but asserted that Claimant had a collection on February 25, 2002, and had provided a sufficient urine sample within one hour and five minutes after reporting to the Clinic.
Contrary to testimony of the Director of Occupational Health that Claimant had not exhibited any past problem in voiding for a drug test, and that the letter from Dr. Baker to Dr. Morris did not establish a medical problem, the Board finds it worthy of note that the Carrier hearing officer recognized Dr. Baker's letter as having provided an explanation for why Claimant could not urinate. In his questioning of Claimant, the hearing officer said to Claimant: "And the exhibits testify to the fact that your doctor did . . . did provide an explanation for why you couldn't urinate, to our doctor." Claimant, in turn, said the following:
The hearing officer then asked Claimant if, up to this point, he had ever told anyone that he had this problem, and Claimant responded: "No, because to me it's a little bit embarrassing, you know. And I always have gotten through it. This time I didn't."
In the opinion of the Board, difficult as it may be to comprehend Claimant not being able to provide 45cc of urine for a drug screen in consideration of the volume of fluids that he drank over an eight-hour period of time, it seems evident that Claimant made an earnest attempt to provide a specimen for the random drug test,
including his volunteering to do so by means of a catheter specimen or blood sample. At the same time, it must be recognized that Claimant's personal physician only expressed a belief that Claimant had a "shy bladder" situation during the time of testing. He did not specifically state that Claimant had been diagnosed as having a shy bladder problem. Thus it would seem to the Board that the Carrier MRO had reason to conclude that the mere contention of a shy bladder problem did not support a legitimate medical or pre-existing psychological reason for Claimant not to have provided an acceptable specimen volume.
The above observations notwithstanding, the Board finds nothing of record shows that a formal medical evaluation had been made of Claimant by a physician acceptable to Carrier to determine whether there is a legitimate medical or preexisting psychological reason for Claimant not to have provided an acceptable specimen volume, as mentioned in the Federal regulations, supra.
In the absence of a formal medical evaluation, the Board finds of interest several published articles that the Organization offered into evidence involving what is called the shy bladder syndrome or psychogenic urinary retention problem.
One article referenced by the Organization, states that there are around 17 million Americans with this problem. Moreover, that in workshops conducted by a professor of social work at the University of Maryland (Steven Soifer, MSW, PhD, author of The Shy Bladder Syndrome: Your Step-By-Step Guide to Overcoming Paruesis, and president of the International Paruresis Association), Dr. Soifer has "talked to people who've held their bladder for 12, 16, 20 hours because they could not rind a `safe' bathroom, and that unless you've experienced it, it's difficult to understand how this can be." Dr. Soifer is also reported to have said: "People [with SBS[ get anxious and fear that others may be watching, listening, or waiting. It's a classic mind-body problem. If you perceive danger, your body reacts in certain ways. For people with paruresis, the internal sphincter shuts and urination is impossible."
Claimant has been an employee of the Carrier for over 34 years. He has what appears to be an exemplary record of service, save but for a reprimand in 1996 and a three-day suspension in 1999. Moreover, as concerns the instant dispute, nothing of record shows that Claimant had ever tested positive in the past for either drug or alcohol abuse. Claimant's immediate supervisor described him as an excellent, qualified, very knowledgeable, safe and conscientious employee, who had never reported for work in an unfit condition. And, as concerns this supervisor having been dispatched to the Clinic when it was reported that Claimant was experiencing a problem, when asked if Claimant had offered an explanation as to why he could not produce a urine sample said: "Just that he has trouble providing samples when he goes to these things and this time it's a bigger problem than in the past."
In view of the particular mitigating circumstances of record, the Board finds discipline as imposed by the Carrier, i.e., termination of service, to be harsh and unreasonable. The Board will, therefore, direct that discipline be modified to a suspension from service in the amount of time that Claimant will have served to the date of adoption of this Award, with seniority and other benefits unimpaired, but without payment for time lost. This reinstatement to service will be subject to Claimant successfully passing a return to duty physical and toxicological testing. In this latter regard, should Claimant again exhibit an inability to provide a sufficient urine specimen for a drug screen, the Board will hold that the Carrier MRO have the option of either directing Claimant for examination by a physician acceptable to the Carrier for a determination as to whether Claimant has a legitimate medical or psychological reason for not being able to provide a sufficient void for a drug screen, or, as Claimant and his personal physician have offered, that the drug screen test results be determined from a catheter specimen or blood sample. Further, as concerns those provisions of the Compliance Manual, supra, that proscribe an automatic nine-month removal from covered service for a refusal to test, the Board will direct that the time Claimant has been out of service be counted as a part of the nine-month period of time.