City of Miami v. F.O.P. Miami Lodge 20

• Decision Date: 31 January 1989
• Docket Number: No. 85-2863,85-2863
• Citation: 571 So.2d 1309,14 Fla. L. Weekly 299
• Parties: 131 L.R.R.M. (BNA) 3171, 14 Fla. L. Weekly 299, 15 Fla. L. Weekly D979, 16 Fla. L. Weekly 247 CITY OF MIAMI, Florida, Appellant, v. F.O.P., MIAMI LODGE 20, and Florida Public Employees Relations Commission, Appellees.
• Court: Florida District Court of Appeals

Page 1309

571 So.2d 1309

131 L.R.R.M. (BNA) 3171, 14 Fla. L. Weekly 299,

15 Fla. L. Weekly D979, 16 Fla. L. Weekly 247

CITY OF MIAMI, Florida, Appellant, v. F.O.P., MIAMI LODGE 20, and Florida Public Employees Relations Commission, Appellees.

No. 85-2863.

District Court of Appeal of Florida,

Third District.

Jan. 31, 1989.

On Rehearing En Banc April 17, 1990.

On Motion to Certify Question Jan. 22, 1991.

Morgan, Lewis & Bockius and Peter J. Hurtgen and Claudia B. Dubocq, Craig J. Freger, Miami, for appellant.

Klausner & Cohen, Miami, and Robert Klausner, Hollywood, for appellee F.O.P. [Fraternal Order of Police], Miami Lodge 20 H. Lee Cohee, II, Tallahassee, for appellee Florida Public Employees Relations Com'n.

James R. Wolf, Tallahassee, for Florida League of Cities, Inc., as amicus curiae.

Thomas D. Guilfoyle and George Aylesworth, Miami, for Florida Sheriff's Ass'n, Florida Police Chief's Ass'n, Dade County Ass'n of Chiefs of Police, Florida Ass'n of Police Attorneys, as amici curiae.

Terence G. Connor, Miami, for Florida Public Employer Labor Relations Ass'n, as amicus curiae.

Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Prologue

We begin with a warning that although the words "drug testing" appear throughout this opinion, the reader who wishes to explore such issues as whether any constitutional right of police officers is infringed by compulsory drug testing, ¹ or whether drug testing of police officers is advisable, ² should look elsewhere. Here, "[t]he determinative factors are not whether drugs are dangerous, or whether drug testing is intrusive...." International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers v. Southwest Airlines Co., 842 F.2d 794, 799, rehearing en banc granted, 853 F.2d 283 (5th Cir.1988). Instead, this case, unlike its more exotic relatives living under the same key number, involves the quite ordinary issue of whether compulsory drug testing of police officers employed by a city is a subject of mandatory collective bargaining between the city and the union which represents the officers.

I.

One day in June 1985, two incidents involving Miami police officers were reported to the Miami Police Department. One report was from a person who stated that he had just seen a Miami police officer using cocaine in the restroom of a Miami restaurant. The second report was that a police officer had been seen purchasing marijuana while another officer waited in the car. The police department ordered the three officers to submit to urinalysis tests for the presence of drugs. The alleged cocaine user refused and was relieved of duty; the other officers submitted to the tests under protest and retain their jobs pending the outcome of this case and the ultimate disclosure of the results of the tests. ³

A short time later, the Fraternal Order of Police, Miami Lodge 20 [FOP], the union representing the officers, filed unfair labor practice charges against the City of Miami. FOP sought injunctive relief, claiming, inter alia, that the City had failed to bargain and had interfered with the employees' rights. Although the hearing officer of the Public Employees Relations Commission [hereafter, PERC or the Commission] concluded that compulsory drug testing as a condition of the officers' continued employment was a subject of mandatory collective bargaining under Chapter 447, Florida Statutes (1983), he determined that the City had not committed an unfair labor practice because FOP had waived its right to bargain about drug testing when it agreed that the City would have the right to "examine" police officers and to "establish, implement and maintain an effective internal security program."

The City and FOP both appealed to the Commission. The Commission concluded that drug testing was a subject of mandatory collective bargaining, but, contrary to the hearing officer, found that FOP had not clearly and unmistakably waived its right to bargain about drug testing. Finding that the City had committed the unfair labor practices proscribed by Section 447.501(1)(a) and (c), Florida Statutes (1983), ⁴ the Commission ordered, inter alia, that the City "cease and desist from ... [u]nilaterally requiring its law enforcement employees represented by the FOP to submit to chemical testing (urinalysis) to detect the presence of controlled substances as a condition of continued employment ..." and that the City reinstate the three officers to the status they enjoyed prior to the events of June 1985. The City appeals, and we affirm.

II.

Section 447.309(1), Florida Statutes (1983), requires that the certified employee organization and the public employer "bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit." FOP contends, and we agree, that the statute is to be interpreted as requiring a relatively broad scope of negotiations to balance the absence of the right to strike by public employees. Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So.2d 133 (Fla. 1st DCA 1983), affirmed in part, reversed in part on other grounds, 475 So.2d 1221 (Fla.1985).

The reason for requiring this broad scope of negotiations is:

"Because there is no statutory procedure afforded the public employee to bring pressure upon an employer to make concessions in collective bargaining, either through a strike or binding arbitration, PERC has been provided broad authority under Section 447.503, as a means of allaying a significant imbalance of bargaining power in favor of the employer."

425 So.2d at 140.

See also School Board v. Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979); School Board v. Public Employees Relations Commission, 350 So.2d 819, 821 (Fla. 1st DCA 1977). ⁵ The requirement obviously extends to the "terms and conditions of employment," a phrase not otherwise defined in Chapter 447.

The question now becomes whether a certain subject--here, compulsory drug testing as a condition of employment--is "important enough to be considered a 'term and condition of employment.' " City of Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 278 (Fla. 5th DCA 1983). While no precise test exists for determining whether a certain term and condition of employment must be the subject of collective bargaining, it seems clear enough that a public employer must bargain over a change in rules "affecting, or impacting upon, employment or a condition of employment." Board of County Commissioners v. Central Florida Professional Fire Fighters Association, 467 So.2d 1023, 1026 (Fla. 5th DCA 1985). See also City of New Port Richey v. Hillsborough County Police Benevolent Association, Inc., 505 So.2d 1096, 1097 (Fla. 2d DCA) (employer must bargain over wages, hours, and terms and conditions of employment, and over other issues that have an impact on them), review denied, 518 So.2d 1275 (Fla.1987). It is likewise said that a public employer must bargain over an issue which "settle[s] an aspect of the relationship between the employer and employees." City of Orlando v. Florida Public Employees Relations Commission, 435 So.2d at 278-79 (quoting Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971)). Perhaps more obviously, "[d]emotion and discharge, including the definition of 'cause' for discharge, are mandatory subjects of bargaining concerning which the parties are obligated to negotiate in good faith...." Orange County Police Benevolent Association v. City of Casselberry, 457 So.2d 1125, 1128 (Fla. 1st DCA 1984), affirmed in part, reversed in part on other grounds, 482 So.2d 336 (Fla.1986). See also Public Employees Relations Commission v. District School Board, 374 So.2d 1005, 1013 (Fla. 2d DCA 1979) ("It cannot be disputed that matters pertaining to the discharge of a teacher are terms and conditions of employment.").

Thus, there is little doubt that under these criteria, compulsory drug testing is a term and condition of employment which settles an aspect of and impacts upon the employment relationship and can lead to discipline and discharge and, therefore, is the subject of mandatory collective bargaining. Indeed, the National Labor Relations Board [NLRB] General Counsel has concluded that "obligatory tests, which may reasonably lead to discipline, including discharge, are plainly germane to the employees' working conditions and, therefore, are presumptively mandatory subjects of bargaining." Memorandum GC-87-5, [4 Labor Relations] Lab.L.Rep. (CCH) para. 9344, at 19,201 (Sept. 8, 1987). ⁶ Similarly, an NLRB administrative law judge, in ruling that compulsory drug testing is a term and condition of employment, found that drug testing is "germane" to the working environment. Star Tribune v. Newspaper Guild of the Twin Cities, Nos. 18-CA-9938 & 18-CA-10296, slip op. at 19 (NLRB, Nations, A.L.J., Nov. 3, 1988). Finally, in another case involving the drug testing of police officers, a state labor board ruled that compulsory urinalysis constitutes a subject of mandatory bargaining. City of New Haven v. New Haven Police Local 530, No. 2554-A (Conn.State Bd. of Lab.Rel. May 28, 1987). Accord City of Buffalo (Police Department), No. U-8922 (N.Y.PERC A.L.J. March 30, 1987).

We reject the City's contention that we must balance the importance of bargaining about a subject with the impact of such bargaining on the protection of the public. While the contention is certainly not meritless, see Local 346, International Brotherhood of Police Officers v. Labor Relations Commission, 391 Mass. 429, 462 N.E.2d 96 (1984); West Hartford Education v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972), Florida courts have not utilized a balancing test to determine whether a matter must be submitted to collective bargaining. ⁷ Thus, in School Board v. Indian River County Education Association, ...