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City of New York v. Patrolmen's Benevolent Association of the City of New York

December 17, 2009

IN THE MATTER OF THE CITY OF NEW YORK, ET AL., APPELLANTS,
v.
THE PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. ET AL., DEFENDANTS, THE SERGEANTS' BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Read, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In January 2005, the New York City Police Department (NYPD) informed representatives of various police unions, including the Detectives Endowment Association (DEA), Patrolmen's Benevolent Association (PBA), Sergeants' Benevolent Association (SBA), and Captains Endowment Association (CEA) (collectively, the unions), that it intended to use a methodology for hair testing known as radioimmunoassay (hereafter, RIAH or hair analysis) for all drug screening of uniformed members, beginning the following summer. The unions protested that this decision was subject to collective bargaining. We disagree: the Police Commissioner's disciplinary authority over the NYPD vests him with discretion to choose the scientific methodology to be used for drug testing, and the circumstances prompting testing; i.e., so-called testing triggers.

I.

At the time this dispute began to take shape, drug testing of uniformed members was governed by several Patrol Guide Procedures (PGPs), effective January 1, 2000, two of which called for checking either urine or hair samples. Specifically, PGP No. 205-30 specified testing either the urine or hair of members reasonably suspected of illegal drug use; and PGP No. 205-35, which allowed members subject to unsubstantiated allegations of illegal drug use to request voluntary testing, provided for testing of either hair or urine samples. In addition, all probationary NYPD members received an end-of-probation medical examination, which included drug testing of hair samples. RIAH was the methodology used for hair testing.

PGP No. 205-29 addressed random drug testing, whereby an automated database was used to select uniformed members who were directed to appear at a specified time and date for testing. While this PGP did not identify urine analysis as the testing methodology, it incorporated a number of steps specific to urine testing. Three other PGPs similarly did not actually identify the method of drug testing, but referred only to the collection of urine samples: PGP No. 205-32 (covering members applying for and assigned to the Organized Crime Control Bureau); PGP Nos. 205-31 and 205-33 (covering members applying for assignment to designated specialized units); and PGP No. 205-34 (covering members applying for discretionary promotions).

Representatives of the City of New York and the unions met several times to discuss the NYPD's plan to phase out urine analysis in favor of RIAH. At the first meeting, held on January 7, 2005 at the New York City Office of Labor Relations, the City explained that there would be no change to existing NYPD policies regarding drug testing triggers, due process protection, and disciplinary consequences; the only modification of existing policies was the switch from urine analysis for most drug testing to RIAH for all drug testing. At a second meeting with the City on February 15, 2005, the unions asked questions and voiced concerns, and the City provided additional information about hair analysis.

By letter to the New York City Commissioner of Labor Relations, dated April 21, 2005, the unions requested an additional meeting "to continue our collective bargaining*fn1 to discuss our concerns regarding hair follicle testing which the [NYPD] intends to implement over the summer." On April 27, 2005, the Commissioner sent the unions a copy of a planned Finest Message from the NYPD's Chief of Personnel, addressed to all commands. The cover letter identified the Finest Message as "the Police Department's drug testing policy regarding the use of hair analysis," and stated that "[a]s previously discussed, the City is providing you with a copy of this policy in advance of its August 1, 2005 implementation."

The subject of the enclosed Finest Message was "Expanding the Use of Hair Analysis as a Means of Drug Screening Uniformed Members of the Service." It began by explaining that effective August 1, 2005, the NYPD would "expand the use of hair analysis as a means of drug screening uniformed members of the service. Beginning on that date, the [NYPD] will use hair analysis in lieu of the current practice of using urine analysis to conduct random drug screening as well as for promotional drug screening. Hair analysis drug screening will also be used for uniformed members applying for assignment to designated specialized units."

The Finest Message set out the protocol for collecting hair samples, and gave an assurance that appropriate chain-of-custody procedures would be followed; asserted that the NYPD had used hair analysis when testing for cause and at the end of probation since May 1995 and February 1996 respectively; and provided the following rationale for the changeover from urine analysis in most cases to RIAH in all cases:

"Hair analysis provides a window of detection of approximately ninety (90) days, compared with a relatively shorter window with urine analysis, and thereby provides a more effective method of detection. In addition, hair analysis cannot be evaded in the same fashion as urine analysis, where drug users can attempt to substitute clean specimens, or merely abstain from drug use for a few days, and pass the screening test. Furthermore, drug residues remain permanently embedded in the hair -- they cannot be washed or bleached out."

Finally, the Finest Message suspended any conflicting provisions of the NYPD's manual or other directives.

Letters in the record from the Deputy Commissioner of the NYPD to the unions, dated June 6, 2005, indicate that City and union representatives met on June 1, 2005 to discuss further "the NYPD's planned implementation of Hair Testing for [its] random drug screening program" and, according to the City, to address each of the unions' outstanding concerns. These letters included as an enclosure a list of laboratories approved by the New York State Department of Health to conduct hair analysis "for reference only and pursuant to discussions at [the June 1st] meeting." On August 1, 2005, the NYPD issued the same Finest Message supplied to the unions on April 27th.

On August 26, 2005, the DEA filed an improper practice petition on behalf of itself, the PBA and the SBA to commence proceedings before the Board of Collective Bargaining (the Board), a constituent body of the New York City Office of Collective Bargaining (OCB) (see New York City Collective Bargaining Law [NYCCBL] [Administrative Code of City of NY] § 12-306; Rules of the NY City Office of Collective Bargaining [61 RCNY] §§ 1-07, 1-12). This petition generally alleged that the NYPD violated NYCCBL § 12-306 (a) (4) by unilaterally changing its policy regarding drug testing.*fn2 The CEA filed an improper practice petition on November 7, 2005, which is described in the record as essentially identical to the earlier DEA petition.

The CEA alleged in its petition*fn3 that the "procedures used by [the NYPD] in implementing a decision to conduct drug testing on employees [were] mandatory subjects of bargaining." The CEA petition does not define what the word "procedures" is meant to encompass, but refers to "'testing methodology, choice of laboratory, collection procedures, chain of custody, sample screening, conditions for retesting, and reporting and recording of test results'" (quoting District Council 37 and The N.Y. City Emergency Med. Serv. of N. Y. City Health & Hosps. Corp., 57 OCB 16 [BCB 1996] [Decision No. B-16-96] [following Matter of Nassau County Police Benevolent Assn. [County of Nassau], 27 PERB ΒΆ 3054 [1994]). The singular thrust of the CEA petition is that the NYPD engaged in an improper practice by "using RIAH exclusively in lieu of urine analysis to ...


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