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Changing the method oftesting employees for the use of illegal drugs constitutes a “procedure” thatis a mandatory subject of collective bargaining
City of New York v Patrolmen's Benevolent Assn. of the City of New York, Inc., 56 AD3d 70
On August 1, 2005, NYPD unilaterally discontinued using urinalysis as itspreferred method of random drug screening of its police personnel in favor orusing a type of hair follicle testing known as radioimmunoassay of hair (RIAH).The Detectives Endowment Association filed an improper practice petition withthe New York City Office of Collective Bargaining (OCB) on behalf of itself,the Patrolmen's Benevolent Association and the Sergeants Benevolent Association(the unions) contending that by unilaterally changing the drug testing method,NYPD violated New York City Collective Bargaining Law §12-306(a)(4)(Administrative Code, Title 12, Chapter 3).
OCB granted the unions' petition, finding that NYPD violated New York CityCollective Bargaining Law "by unilaterally changing drug testingprocedures, a mandatory subject of bargaining." Although NYPD argued thatprobationary police officers were subject to hair follicle testing for illegal drugs,OCB said that "even if NYPD's procedures for hair testing are the same asapplied to a subset of employees already subject to such testing, the expansionof the categories of employees to whom the procedures now are appliedconstitutes a unilateral change in drug screening procedures." The Cityappealed OCB’s ruling contending that OCB’s determination was arbitrary andcapricious,
The Appellate Division, disagreed, rejecting the City of New York’s argumentthat its changing the method of random drug testing utilized by NYPD for thescreening of police officers from urinalysis to hair analysis is exempt fromcollective bargaining because it involves the disciplinary authority of thePolice Commissioner, as conferred by New York City Charter §434 and AdministrativeCode of the City of New York §14-115.
Pointing out that the Administrative Code provision gives the Commissioner'sinvestigatory authority arises only after written charges have been preferredand reasonable notice of the alleged infraction has been given, the courtconcluded that “no persuasive policy reason has been advanced to require OCB todepart from its prior decisions, which have consistently found that routinedrug screening procedures are a mandatory subject of collective bargaining.”
The Appellate Division said that the City attempted to avoid its obligation toengage in collective bargaining with respect to the methods used for theroutine drug testing of NYPD members by extending the investigatory authoritygranted to the Commissioner beyond the context of formal disciplinaryproceedings to which it is confined. It then reversed the judgment of theSupreme Court, New York County that had granted the City’s petition andannulled OCB’s determination and reinstated OCB's ruling on its finding thatthe City failed to negotiate concerning a mandatory subject of collectivebargaining.
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07798.htm
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