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June 27, 2012

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is 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 its preferred method of random drug screening of its police personnel in favor or using a type of hair follicle testing known as radioimmunoassay of hair (RIAH). The Detectives Endowment Association filed an improper practice petition with the 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 City Collective Bargaining Law "by unilaterally changing drug testing procedures, a mandatory subject of bargaining." Although NYPD argued that probationary 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 as applied to a subset of employees already subject to such testing, the expansion of the categories of employees to whom the procedures now are applied constitutes a unilateral change in drug screening procedures." The City appealed OCB’s ruling contending that OCB’s determination was arbitrary and capricious,

The Appellate Division, disagreed, rejecting the City of New York’s argument that its changing the method of random drug testing utilized by NYPD for the screening of police officers from urinalysis to hair analysis is exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner, as conferred by New York City Charter §434 and Administrative Code of the City of New York §14-115.

Pointing out that the Administrative Code provision gives the Commissioner's investigatory authority arises only after written charges have been preferred and reasonable notice of the alleged infraction has been given, the court concluded that “no persuasive policy reason has been advanced to require OCB to depart from its prior decisions, which have consistently found that routine drug screening procedures are a mandatory subject of collective bargaining.”

The Appellate Division said that the City attempted to avoid its obligation to engage in collective bargaining with respect to the methods used for the routine drug testing of NYPD members by extending the investigatory authority granted to the Commissioner beyond the context of formal disciplinary proceedings to which it is confined. It then reversed the judgment of the Supreme Court, New York County that had granted the City’s petition and annulled OCB’s determination and reinstated OCB's ruling on its finding that the City failed to negotiate concerning a mandatory subject of collective bargaining.

The full text of the decision is posted on the Internet at:

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