Failed to Negotiate: BCB Chops NYPD Hair Drug-Tests

Failed to Negotiate
BCB Chops NYPD Hair Drug-Tests

By REUVEN BLAU

The city Board of Collective Bargaining ruled last week that the Police Department failed to bargain in good faith with its unions when it switched from random urine drug exams to hair-sample screenings nearly two years ago.

JOHN F. DRISCOLL: Elated by ruling. The 5-to-2 decision stated that the unilateral move violated the unions' collective bargaining agreements, and ordered the NYPD to restore the traditional urine tests and negotiate any future changes to the policy with the affected unions.

Unions' Objections

Shortly after the new test was implemented on Aug. 1, 2005, the police unions filed grievances charging that the issue was a mandatory subject of collective bargaining. They successfully contended that the hair test was unfairly invasive, as some of their members without hair on their heads have had their legs cut by allegedly unsanitary razors.

"I'm very happy that the board recognized our position," said John F. Driscoll, president of the Captains' Endowment Association. "We all want a drug-free department, but the method was intrusive; people were getting cut up."

The NYPD maintained that it didn't have to bargain the issue because it did not constitute a change in existing policy, as the department currently uses hair tests for new recruits and officers under "reasonable suspicion."

The board, however, did not credit that argument. "The expansion of the categories of employees to whom the procedures now are applied constitutes a unilateral change in drug screening procedures," the majority decision stated.

Kelly: Better This Way

Police Commissioner Raymond W. Kelly Nov. 14 said that the NYPD switched from urine drug-tests to hair exams based on expert recommendations. "We are governed by the scientific community and our Medical Division," he remarked. "Their belief is that this is the most effective way to do this test."

But according to the Police Department, only seven officers failed hair drug-tests from Jan. 1 through July 31. That was a slight increase from the four officers whose urine tested positive for illegal substances over that same period in 2005.

In contrast, the Fire Department, which has approximately 11,000 members, fired 49 firefighters for drug-related problems in 2004 and 2005.

The NYPD's change to hair-testing makes it harder for officers to cheat than with the urine-based tests. The hair test doesn't require as much privacy as a urine screening, so there is no chance for workers to substitute someone else's sample for their own or slip in a fake substance.

"Obtaining a snippet of hair is arguably less intrusive than monitoring one urinate," said Paul J. Browne, the NYPD's chief spokesman.

More Comprehensive

The hair screening also can detect a wider array of drugs within 90 days of use. Standard urine tests only show illegal drug use within the previous day or two. The department calls 20 percent of the force each year for random urine tests.

Critics of hair-testing have charged that it unfairly violates the privacy of union members who are bald or who have no body hair. In those cases, lab technicians remove pubic hair.

The unions have also claimed that dark-haired individuals, including African- Americans, are more likely to come up positive. Medical testing experts have cited scientific studies that have proven there are no statistical differences between different populations under the hair test.

Others contend that hair can be contaminated by exposure to illicit smoke at a party or a concert. It also can yield false positives among narcotics officers who are exposed to drugs by the nature of their activities on the streets.

Lab Switch Improper

The BCB also ruled that the department failed to properly negotiate with the unions when it switched the labs handling the hair samples. The NYPD initially designated the California-based lab Psychemedics Corporation, which was approved by the U.S. Food and Drug Administration. The lab handled the tests until around January 2006, when the department switched to Quest Laboratories without informing the unions.

"The selection of the laboratory that will perform drug screening is an aspect of procedures for the implementation of drug-testing that cannot be changed unilaterally," the board's majority ruling concluded.

It is unclear why the switch was made. In October, a department spokesman denied that the change had occurred.

The police unions successfully contended that the new drug testing program is a department policy and not a disciplinary issue. "We find here that, unlike the matter of discipline, there is no statutory or policy basis to remove the procedures by which drug testing is to be conducted from within the scope of mandatory collective bargaining," the majority decision ruled.

BCB Chair Marlene A. Gold, and members George Nicolau, Carol A. Wittenberg, Charles G. Moerdler, and Bruce H. Simon made up the majority. In a dissenting opinion, M. David Zurndorfer and Ernest F. Hart argued that the department did not change procedures and that the Police Commissioner's statutory authority over discipline matters supersedes any bargaining obligations.