Fraternal Order of Police, Miami Lodge 20 v. City of Miami

• Decision Date: 19 November 1992
• Docket Number: No. 77394,77394
• Citation: 609 So.2d 31
• Parties: 17 Fla. L. Week. S704 FRATERNAL ORDER OF POLICE, MIAMI LODGE 20, Petitioner, v. CITY OF MIAMI, Respondent.
• Court: Florida Supreme Court

Page 31

609 So.2d 31

17 Fla. L. Week. S704

FRATERNAL ORDER OF POLICE, MIAMI LODGE 20, Petitioner, v. CITY OF MIAMI, Respondent.

No. 77394.

Supreme Court of Florida.

Nov. 19, 1992.

Robert D. Klausner of Klausner & Cohen, P.A., Hollywood, for petitioner.

Peter J. Hurtgen of Morgan, Lewis & Bockius, Miami, for respondent.

Mark R. Brown, Associate Professor of Law, Stetson University, College of Law, St. Petersburg, amicus curiae for The American Civil Liberties Union Foundation of Florida, Inc.

Lorene C. Powell, Asst. Gen. Counsel, Tallahassee, amicus curiae for Florida Educ. Ass'n/United.

Gene "Hal" Johnson, Tallahassee, amicus curiae for The Florida Police Benev. Ass'n.

Jane C. Hayman, Deputy Gen. Counsel, Tallahassee, amicus curiae for Florida League of Cities, Inc.

George N. Aylesworth and Thomas Guilfoyle, Metro-Dade Police Dept., Police Legal Bureau, Miami, amicus curiae for Florida Sheriff's Ass'n, Florida Police Chief's Ass'n, Dade County Ass'n of Chiefs of Police, and Florida Ass'n of Police Attys.

Terence G. Connor and Wayne D. Rutman of Morgan, Lewis & Bockius, Miami, amicus curiae for Florida Public Employer Labor Relations Ass'n.

OVERTON, Justice.

The Fraternal Order of Police, Miami Lodge 20, petitions for review of City of Miami v. F.O.P., Miami Lodge 20, 571 So.2d 1309 (Fla. 3d DCA 1990), in which the en banc court held that, where there are complaints of drug use by specifically identified police officers, the requirement of drug testing of those officers was a matter of management prerogative and not a subject of mandatory collective bargaining. The district court then certified the following question as one of great public importance.

AS PRESENTED BY THE FACTS IN THIS CASE, IS THE COMPULSORY DRUG TESTING OF POLICE OFFICERS A MANDATORY SUBJECT OF COLLECTIVE BARGAINING OR, IN THE ALTERNATIVE, MAY A GOVERNMENTAL ENTITY REQUIRE ITS POLICE OFFICERS TO SUBMIT TO DRUG TESTING WITHOUT HAVING FIRST ENTERED INTO COLLECTIVE BARGAINING REGARDING THE SUBJECT?

Id. at 1333. We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and approve the district court's holding. We conclude that, although mandatory collective bargaining is necessary for random drug testing absent express legislation, such drug testing is permissible and within the management prerogative when there is some evidence of drug involvement by specific officers. To hold otherwise would adversely affect public safety, given the responsibility and discretionary authority of police officers. As a result, we find no unfair labor practice.

The relevant facts reflect that, in June, 1985, two separate incidents occurred involving City of Miami police officers, which resulted in their being required, as a condition of continued employment, to submit to drug testing to determine the presence of drugs in their systems. The first incident arose after an off-duty police officer was allegedly seen taking cocaine in a restaurant restroom. As a result, his commanding officer ordered him to submit to chemical testing. The police officer declined to take the test and was terminated from employment for refusal to obey a direct order. Subsequently, that officer submitted to a test administered by his personal physician. The test was not accepted by the City and has not been submitted as part of the record in this proceeding.

The second incident occurred when two officers, who had made a number of arrests in a high-drug area of the City, were accused in an anonymous telephone call of purchasing marijuana from an individual at a specific location. The evidence reflected that the officers and their car were in that location at approximately the time of the alleged buy. These two officers were also directed to undergo drug testing. They submitted to the drug tests under protest upon the advice of the union. The tests proved negative and the officers suffered no disciplinary action.

The union representing the officers, the Fraternal Order of Police, Miami Lodge 20 (FOP), filed unfair labor practice charges against the City in a complaint before the Public Employees Relations Commission. The union sought injunctive relief, claiming that the City had failed to bargain and had interfered with the employees' rights. The hearing officer of the Public Employees Relations 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). The hearing officer, however, concluded that, in these circumstances, the City had not committed an unfair labor practice because, in his view, the union had waived its right to bargain about drug testing when it agreed, in the management clause of the collective bargaining agreement, that the City would have the right "to establish, implement and maintain an effective internal security program." The hearing officer noted that this is not a customary or usual provision in the standard management clause.

On appeal to the Public Employees Relations Commission, the Commission rendered a majority opinion which: (1) concluded that drug testing was the subject of mandatory collective bargaining; (2) contrary to the hearing officer, found that the union had not clearly waived its right to bargain about drug testing, finding the provision about implementing an internal security program to be ambiguous; and (3) found that the City had committed an unfair labor practice proscribed by section 447.501(1)(a), (c), Florida Statutes (1983). The Commission explained in its order that its "decision ... does not prohibit a public employer from requiring its employees to submit involuntarily to chemical testing as a condition of continued employment. It only requires that this condition of employment be bargained before being implemented." Fraternal Order of Police, Miami Lodge 20, v. City of Miami, No. CA-85-041 (Pub.Empls.Rels.Comm'n Dec. 11, 1985) (order No. 85U-287 at 2). The Commission ordered the City to cease and desist from unilaterally requiring its law enforcement employees to submit to chemical testing and directed the City to reinstate the three officers to the status they enjoyed prior to June of 1985. The dissenting commissioner "would find the urinalysis ordered under the facts of this case to be a management prerogative since the City's interest in the integrity of its law enforcement personnel is overwhelming." Id. at 18.

This decision was appealed to the Third District Court of Appeal which originally, in a panel decision, upheld the Commission's decision. The district court then accepted the cause for en banc consideration and entered a majority opinion vacating the panel decision, finding, in these circumstances, that "drug testing of police officers falls within the management prerogative of the City and, thus, is not a subject of mandatory collective bargaining." City of Miami, 571 So.2d at 1320. The panel opinion by Judge Pearson and the en banc opinion by Judge Levy thoroughly address both sides of this issue.

Each of the quasi-judicial and judicial entities in this cause have noted that this is a case of first impression. The issue we must determine is whether compulsory drug testing of police officers is a mandatory subject of collective bargaining under circumstances where there is a suspicion of misconduct by a particular individual or individuals. Whether the City of Miami was guilty of unfair labor practices depends upon whether drug testing in these circumstances is a subject of mandatory collective bargaining.

The Florida Constitution, article I, section 6, entitled "Right to work," provides as follows:

The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

Section 447.309(1), Florida Statutes (1983), provides, in pertinent part, as follows:

[T]he bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit. The chief executive officer or his representative and the bargaining agent or its representative shall meet at reasonable times and bargain in good faith.

Generally, a public employer may act unilaterally if the conduct or action does not fall within the statutory definition or if it is considered a permissive subject because it falls within the managerial prerogative. City of Miami, 571 So.2d at 1321. While there is no precise test or definition to determine what terms must mandatorily be collectively bargained for and which are permissive, several cases have interpreted this chapter to mean that a public employer must bargain those terms "affecting, or impacting upon, employment or a condition of employment." Board of County Commissioners v. Central Fla. Fire Fighters Ass'n, 467 So.2d 1023, 1026 (Fla. 5th DCA 1985). ¹ However, as the Third District Court stated in this case:

No Florida case has adequately discussed the analysis to be utilized in determining whether a subject must be collectively bargained when that subject both directly relates to employment security or conditions of employment and also directly relates to the functioning of an enterprise.... Where, as here, we are dealing with a subject which is arguably both a managerial prerogative and a "term or condition of employment," we hold that a balancing test should apply to determine which characteristic predominates.

City of Miami, 571 So.2d at...