New York Police Have No Right To Bargain Over Method Of Drug Testing

The New York Police Department randomly tests its members for drugs. For a number of years, the testing was conducted on either the urine or hair of members. In 2005, the Department switched to a methodology for hair testing known as radioimmunoassay, or RIAH. The Patrolmen’s Benevolent Association and the Sergeants’ Benevolent Association filed the equivalent of an unfair labor practice complaint, alleging that the method of drug testing was a mandatory subject of bargaining that could not be unilaterally changed by the City.

New York’s highest court, known as the Court of Appeals, dismissed the complaint, and found that given the structure of New York law, the method of drug testing was a management right.

Citing some unusual provisions of New York law, the Court held that “the Police Commissioner’s disciplinary authority is not limited to the formal disciplinary process; i.e., situations where allegations of misconduct have been made or are being adjudicated against identified officers. The detection and deterrence of wrongdoing within the NYPD – particularly crimes such as illegal drug use – is a crucial component of the Police Commissioner’s responsibility to maintain discipline within the force. The Commissioner may unilaterally institute drug testing of uniformed officers. The unions would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In our view, however, these subjects are inextricably intertwined with the Commissioner’s authority to conduct drug testing in the first place; they are not ancillary or tangential to his disciplinary authority.”

The Court concluded what would otherwise appear to be a sweeping opinion with a caution: “We emphasize that we are answering only the discrete question posed in this case: Whether drug testing methodology and testing triggers are encompassed within the Police Commissioner’s disciplinary authority and therefore are excluded from collective bargaining as a matter of policy. We are not saying that every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining. The full extent or the limits of his unilateral disciplinary authority in the context of drug testing are simply not presented on this record.”

City of New York v. Patrolmen’s Benev. Ass’n of City of New York, Inc., 2009 WL 4840229 (N.Y. 2009).

Note: The resolution of “scope of bargaining” issues, which deal with what topics are negotiable and those that are management rights, is relatively uniform across the country. When it comes to disciplinary issues, however, New York often stands apart from general trends. For example, New York police officers cannot challenge discipline through arbitration, and the right to representation under the Weingarten rule does not exist in the same fashion as in other environments.

This article appears in the March 2010 issue