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In re Roberts

Supreme Court of New York, First Department

November 26, 2013

In re Lillian Roberts, etc., et al., Petitioners-Appellants,
v.
New York City Office of Collective Bargaining, et al., Respondents-Respondents.

Petitioners appeal from a judgment of the Supreme Court, New York County (Robert E. Torres, J.), entered April 30, 2012, denying the petition seeking an annulment of respondent Board of Collective Bargaining's determination, dated April 28, 2011, that respondent Fire Department of the City of New York's "zero tolerance" policy requiring automatic termination of certain emergency medical services employees who fail or refuse to provide a specimen for a drug test was not subject to mandatory collective bargaining, and dismissing the proceeding brought pursuant to CPLR article 78.

Mary J. O'Connell, New York (Steven E. Sykes of counsel), for appellants.

John F. Wirenius, and Michael T. Fois, New York, for The New York City Office of Collective Bargaining, Board of Collective Bargaining and Marlene Gold, respondents.

Michael A. Cardozo, Corporation Counsel, New York (Benjamin Welikson, Leonard Koerner and Paul T. Rephen of counsel), for the City of New York, Mayor's Office of Labor Relations and the Fire Department of the City of New York, respondents.

David Friedman, J.P., Karla Moskowitz, Rosalyn H. Richter, Sallie Manzanet-Daniels, Judith J. Gische, JJ.

OPINION

RICHTER, J.

This appeal raises the question of whether the New York City Fire Department's "zero tolerance" policy, requiring automatic termination of certain emergency medical services [EMS] employees who fail or refuse to provide a specimen for a drug test, should have been subject to mandatory collective bargaining. The New York City Board of Collective Bargaining found that this issue was not required to be bargained, and unions representing the employees brought this article 78 proceeding. We now uphold the Board's decision because the City Charter provides that the discipline of these EMS employees is the sole province of the New York City Fire Commissioner, and because the Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety.

In 1996, respondent Fire Department of the City of New York (FDNY) took over EMS functions from the New York City Health and Hospitals Corporation, and became the municipal provider of pre-hospital emergency medical treatment and transport for City's 911 system. EMS personnel include paramedics and emergency medical technicians (EMTs) who respond to 911 calls, provide initial emergency medical assistance to sick or injured persons, and safely transport them to the hospital.

In June 1999, FDNY issued a written policy setting forth procedures for testing EMTs and paramedics (hereinafter EMS workers) suspected of being under the influence of intoxicating substances while on duty (the 1999 policy). The 1999 policy did not provide for any specific penalties for a positive drug test result, but merely stated that employees testing positive were to be served with appropriate departmental charges. Although the policy contained no penalty provisions, in practice, FDNY would not always terminate the employment of EMS workers who tested positive for drugs. Instead, some first-time offenders could avoid termination, in the discretion of FDNY on a case-by-case basis, if they sought counseling and treatment.

This practice changed in May 2007, when FDNY implemented a new alcohol and drug testing policy for EMS workers. The new policy imposes "zero tolerance" for illegal drug use, and provides that EMS workers who test positive for illegal drugs, or who refuse to provide a specimen, shall be terminated for a first offense (the termination provision). EMS workers with a drug problem who voluntarily come forward can avail themselves of counseling services without any disciplinary consequences.

Petitioners, who are union officials representing EMTs and paramedics, filed an improper practice petition alleging that FDNY violated the New York City Collective Bargaining Law (NYCCBL) (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 (see NYCCBL 12-306[a][4]) [1]. In their answer, FDNY and respondent City of New York maintained that the termination provision was not a substantive change in policy and, in any event, was not subject to mandatory collective bargaining. Respondent Board of Collective Bargaining (the Board) conducted a hearing at which petitioners and the City presented testimony and documentary evidence.

In a decision dated April 28, 2011, the Board denied petitioners' improper practice petition insofar as it challenged the termination provision [2]. The Board concluded that this provision constituted a change to the 1999 policy because it mandated termination upon a positive drug test or refusal to provide a specimen. The Board found that this 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. Nevertheless, the Board concluded that the implementation of the termination provision was within management's right to take disciplinary action against its employees, and thus was outside the scope of mandatory bargaining. Petitioners brought this article 78 proceeding challenging the Board's decision. The City and the Board each moved to dismiss the proceeding, and in a decision entered April 30, 2012, the motion court granted the motions. This appeal ensued.

It is well-settled that New York's Taylor Law (Civil Service Law § 200 et seq.) requires collective bargaining over all terms and conditions of employment (Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 N.Y.3d 876, 879 [2012]). Local governments are permitted to enact their own procedures governing labor relations as long as they are substantially equivalent to those set forth in the Taylor Law (Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 97 N.Y.2d 378, 382 [2001]). In the City of New York, the NYCCBL regulates the conduct of labor relations between the City and its employees. Consistent with the Taylor Law, the NYCCBL requires public employers and certified or designated employee organizations to bargain in good faith on wages, hours and working conditions (NYCCBL 12-307[a]).

There 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 (Matter of Patrolmen's Benevolent Assn. of City of N.Y. Inc. v New York State Pub. Empl. Relations Bd., 6 N.Y.3d 563, 571-572 [2006]). This presumption can be overcome, however, where there exists clear legislative intent to remove an issue from mandatory bargaining (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 79 [2000]). Indeed, "some subjects are excluded from ...


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