December 03, 2013

Automatic termination of certain NYC Emergency Medical Service employees violating the Department’s zero drug tolerance policy not subject to collective bargaining

Automatic termination of certain NYC Emergency Medical Service employees violating the Department’s zero drug tolerance policy not subject to collective bargaining
Roberts v New York City Off. of Collective Collective Bargaining, 2013 NY Slip Op 07870, Appellate Division, First Department

The issue raised in this appeal was whether the New York City Fire Department’s policy of "zero tolerance" regarding the use of illegal drug that required automatic termination of certain emergency medical services [EMS] employees who fail or refuse to provide a specimen for a drug test is subject to mandatory collective bargaining.

The New York City Board of Collective Bargaining decided that this policy was not subject to collective bargaining under the Taylor Law [Civil Service Law Article 14].

The Appellate Division upheld the Board’s determination, explaining that [1] “the City Charter provides that the discipline of these EMS employees is the sole province of the New York City Fire Commissioner” and [2] “the Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety.”

Initially the Department’s “no illegal drug” policy did not always result in the termination of EMS workers who tested positive for drugs and in some instances “first-time offenders could avoid termination, in the discretion of FDNY on a case-by-case basis, if they sought counseling and treatment.”

However in May 2007 the Department implemented a new alcohol and drug testing policy for EMS workers which imposed a "zero tolerance" for illegal drug use, and provided that “EMS workers who test positive for illegal drugs, or who refuse to provide a specimen, shall be terminated for a first offense.” However, the policy also provided that EMS workers with a drug problem who voluntarily come forward could avail themselves of counseling services without any disciplinary consequences.

The Union representing EMTs and paramedics filed an improper practice petition alleging that the Department had violated the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-301 et seq.) by unilaterally implementing the termination provision without first bargaining in good faith with the unions. The Department contended that the termination provision was not a substantive change in policy and, in any event, was not subject to mandatory collective bargaining.

Although the Board found that the new policy deviated from the earlier policy, which allowed for some exercise of discretion in deciding whether offenders should be offered alternative dispositions, including counseling and rehabilitation, it ruled that the new automatic termination provision was within management's right to take disciplinary action against its employees, and thus was outside the scope of mandatory bargaining.

The Appellate Division said that while “[t]here is no question that New York has a strong policy of supporting collective bargaining, and a presumption exists that all terms and conditions of employment are subject to mandatory bargaining,” this presumption can be overcome where there exists clear legislative intent to remove an issue from mandatory bargaining

Citing Matter of Patrolmen's Benevolent Assn., 6 NY3d at 563, the Appellate Division noted that the Court of Appeals held that “police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.”

Subsequently the Court of Appeals ruled that “the triggers and methodology for testing city police officers for drugs are matters within the Police Commissioner's disciplinary authority and thus excluded from collective bargaining as a matter of policy” [Matter of the City of New York v Patrolmen’s Benevolent Asso., 14 NY3d 465.

The Appellate Division held that these two decisions by the Court of Appeals mandate a conclusion that [Department’s] implementation of a policy of terminating EMS workers after failing or refusing to take a drug test is not subject to collective bargaining” as New York City Charter §487(a) gives the Fire Commissioner the "sole and exclusive power" to "perform all duties for the government, discipline, management, maintenance and direction of the fire department."

The policy of deterring illegal drug use by EMS workers is just as crucial as the policy of preventing police officers from using prohibited drugs and the Department “has a substantial and compelling interest in ensuring that workers responsible for the well-being and transportation of injured and sick citizens are free from the effects of illegal drugs.”

The Appellate Division also noted that the Court of Appeals has ruled that a public employer “cannot be compelled to bargain over ‘inherent and fundamental policy decisions relating to the primary mission of the public employer," citing Matter of New York City Tr. Auth., 19 NY3d 876.

Because the determination of the appropriate penalty for drug use by EMS workers goes directly to the Department’s core mission and involves public safety, and because specific legislation vests disciplinary authority over such matters with the Fire Commissioner, this issue is removed altogether from the sphere of collective bargaining.

The Union has also contended that the Department’s automatic termination policy “interferes with EMS workers' procedural due process rights to have an administrative law judge or arbitrator determine the appropriate penalty”

The Appellate Division disagreed, noting that the employee’s due process rights “were not abrogated completely by the challenged policy because they still are entitled to a hearing on any charges arising from drug testing, and to appeal any finding of guilt.” Further, said the court, the Union’s primary position that penalties for specific offenses must always be collectively bargained is a position that is at odds with both the City Charter and controlling Court of Appeals precedent.

The decision is posted on the Internet at: