NYPD Must Bargain Over Drug Testing Method

The collective bargaining laws covering the City of New York have a relatively unique patchwork of what is negotiable and what is not. For example, New York’s courts have held that disciplinary standards in NYPD are not mandatory for collective bargaining, a ruling to the contrary of many reached in other areas of the country.

A recent case concerning drug testing illustrates the unusual nature of bargaining in New York. On August 1, 2005, NYPD abandoned the use of urinalysis as its preferred method of random drug screening of its members and substituted a type of hair follicle testing known as radioimmunoassay of hair. Three of the unions representing NYPD’s officers filed an “improper practices” charge against the City, alleging that the City was required to bargain over a change in drug testing procedures.

An appeals court ruled against the City. The Court acknowledged that “as a matter of public policy, interference with the prerogative of an agency to conduct an investigation” was not mandatory for bargaining. The Court also acknowledged that no bargaining need occur where “the public policy at stake is the mandate to ensure the honest workings of the City through criminal investigation of its internal affairs.”

However, while the Court seemed to concede that the issue of drug testing was not negotiable, it nonetheless held that the procedures for drug testing were mandatory for bargaining. The Court reasoned that the method of drug testing “does not implicate the Police Commissioner’s discretion to conduct an investigation into an alleged infraction by a member of the force, a prerogative that arises only after written charges have been preferred. The City attempts to surmount this shortcoming by characterizing routine drug testing as ‘ancillary’ to the Commissioner’s disciplinary powers, intimating that hair analysis should not be subject to collective bargaining because it might disclose drug use that would then constitute a basis for disciplinary proceedings. However, the Department’s own operational procedures limit the use of such testing to the determination of whether to confer full member status upon probationary officers and the investigation of those full members of the force suspected of illegal drug use. In the former instance, testing is employed in connection with a general investigation into the background of a candidate prior to permanent admission to the police force, the propriety of which is not in question. In the latter instance, testing is performed in the course of a formal investigation into charges brought against a member of the Department that are deemed to be supported by reliable information.”

City of New York v. Patrolmen’s Benevolent Association of City of New York, Inc., 865 N.Y.S.2d 206 (A.D. 2008).

This article appears in the December 2008 issue