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 *fn1 or whether drug testing of police officers is advisable *fn2 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. *fn3

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) *fn4 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). *fn5 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). *fn6 Similarly an NLRB administrative law Court 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. *fn7 Thus in School Board v. Indian River County Education Association 373 So.2d 412 (Fla. 4th DCA 1979) a teachers' union challenged the school board's unilateral alteration of the number of periods into which the school day is divided. The district court agreed with PERC's conclusion that the subject though far from earth-shaking had to be collectively bargained:

"To the uninitiated the change involved may seem de minimis and the entire controversy much ado about nothing particularly since the new policy will result in 32 minutes of additional instruction time per week. However the Commission made it clear in its order that 'neither the qualitative difference between instruction and supervision nor the number of minutes per week that teachers are required to teach affects the Commission's decision in this case; consequently no further discussion is warranted.' The point seems to be that Section 447.309(1) Florida Statutes (1977) requires the appellant to bargain in good faith with respect to any changes in 'wages hours and terms and conditions of employment.' This change falls within the purview of that provision even though it may not be a change of great moment."

373 So.2d at 414 (emphasis added).

We also reject the City's contention that compulsory drug testing should be viewed as a fundamental decision concerning the direction of a private for profit business and thus an "entrepreneurial concern" which does not have to be submitted to collective bargaining. See Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College 425 So.2d at 137-38; Fibreboard Paper Products Co. v. NLRB 379 U.S. 203 85 S. Ct. 398 13 L. Ed. 2d 233 (1964). In our view the "entrepreneurial concern" doctrine has no place in this case; while drug testing undoubtedly is important see City of Palm Bay v. Bauman 475 So.2d 1322 (Fla. 5th DCA 1985) it is not--as history surely tells us--fundamental to the functioning of the police force. Further the NRLB General Counsel has declared that drug testing does not fall within the realm of managerial or entrepreneurial prerogatives. See Memorandum GC-87-5 [4 Labor Relations] Lab.L.Rep. (CCH) para. 9344 at 19 201.

Finally we reject the City's argument that the conclusion that drug testing is a term and condition of employment violates the prerogatives granted to management by Section 447.209 Florida Statutes:

"It is the right of the public employer to determine unilaterally the purpose of each of its constituent agencies set standards of services to be offered to the public and exercise control and discretion over its organization and operations. It is also the right of the public employer to direct its employees take disciplinary action for proper cause and relieve its employees from duty because of lack of work or for other legitimate reasons."

We think the decision below properly viewed simply recognized that while the City has the right to regulate the police the procedure used to regulate must be submitted to collective bargaining when the exercise of that right impacts on the lives of police officers. As the NLRB General Counsel stated a drug test is not simply a work rule--rather, it is a means of policing and enforcing compliance with a rule. There is a critical distinction between a rule against drug usage and the methodology used to determine whether the rule is being broken. Memorandum GC-87-5 [4 Labor Relations] Lab.L.Rep. (CCH) para. 9344 at 19 202.

The distinction between a managerial decision not falling within the ambit of "terms and conditions of employment" and the impact of those conditions on the employee's day-to-day life is made in Hillsborough Classroom Teachers Association v. School Board 423 So.2d 969 (Fla. 1st DCA 1982). In that case Court held that the setting of class size and staffing levels are policy decisions which are incorporated into the term "standards of service to be offered to the public listed in Section 447.209 as items to be unilaterally set by the public employer, but the impact of the implementation of such decisions on 'wages hours and terms and conditions of employment' when an appropriate showing of negotiable impact has been made" are subjects of mandatory bargaining. 423 So.2d at 970. See also Fire Fighters Union v. City of Vallejo 12 Cal.3d 608 116 Cal.Rptr. 507 526 P.2d 971 (1974) (while layoff decisions are not generally bargainable they are bargainable to the extent they affect remaining workers); Annot. Bargainable or Negotiable Issues in State Public Employment Labor Relations 84 A.L.R.3d 242 250 (1978) (courts have held that while many governmental rules and regulations are not "subjects of bargaining in themselves [they] are bargainable or negotiable to the extent that they have an impact on the wages hours or conditions of employment of employees."). Cf. City of New Port Richey v. Hillsborough County Police Benevolent Association Inc. 505 So.2d 1096 (Fla. 2d DCA) (no duty to bargain where employer changed employees' retirement plan but change did not have any impact on benefits from or contributions to the plan) review denied 518 So.2d 1275 (Fla. 1987).

III.

Mandatory collective bargaining of compulsory drug testing as well as being required by Section 447.309 Florida Statutes is also required by the right to work provision of the Florida Constitution. This provision--Article I Section 6--states:

"Right to Work.--The right of persons to work shall not be denied or abridged on account of membership or non-membership 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 (emphasis added).

Construing this provision the supreme court has consistently held that "with the exception of the right to strike public employees have the same rights of collective bargaining as are granted private employees by Section 6." Dade County Classroom Teachers' Association Inc. v. Ryan 225 So.2d 903 905 (Fla. 1969); City of Tallahassee v. Public Employees Relations Commission 410 So.2d 487 (Fla. 1981) affirming 393 So.2d 1147 1150 (Fla. 1st DCA 1981) ("Since private employees have the right to collectively bargain as to retirement benefits public employees also have that right . . . ."); Hillsborough County Governmental Employees Association Inc. v. Hillsborough County Aviation Authority 522 So.2d 358 (Fla. 1988). If therefore private employees have the right to collectively bargain about drug testing public employees have that same right.

Federal agencies and courts interpreting the National Labor Relations Act have concluded that the subject of drug testing in private industry must be submitted to collective bargaining. While the National Labor Relations Board--like the Florida courts--has yet to address this issue its General Counsel has ruled that drug testing of private employees is a subject of mandatory bargaining. Memorandum GC-87-5 [4 Labor Relations] Lab.L.Rep. (CCH) para. 9344 (Sept. 8 1987). See Hebert Private Sector Drug Testing: Employer Rights Risks and Responsibilities 36 U.Kan.L.Rev. 850 853 (1988) (suggesting that "it seems likely that the Board will adopt the position" of the General Counsel). See also Star Tribune v. Newspaper Guild of the Twin Cities Nos. 18-CA-9938 & 18-CA-10296 slip op. at 17 (NLRB Nations A.L.J. Nov. 3 1988) (ruling by administrative law Court that "drug and alcohol testing of current employees falls within the scope of the mandatory bargaining obligation."). Likewise in cases decided under the Railway Labor Act (regulating labor relations in the railway and airline industries) courts have unanimously agreed that drug testing is a subject of mandatory bargaining. *fn8 Railway Labor Executives' Association v. Consolidated Rail Corp. 845 F.2d 1187 (3d Cir.) cert. granted 488 U. S. 815 109 S. Ct. 52 102 L. Ed. 2d 31 (1988); International Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers v. Southwest Airlines Co. 842 F.2d 794 rehearing en banc granted 853 F.2d 283 (5th Cir. 1988); Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Co. 838 F.2d 1087 (9th Cir. 1988) petition for cert. filed 57 U.S.L.W. 3017 (U.S. Apr. 1 1988) (No. 87-1631); Railway Labor Executives Association v. Norfolk & Western Railway 833 F.2d 700 (7th Cir. 1988); Brotherhood of Maintenance of Way Employees v. Burlington Northern Railroad Co. 802 F.2d 1016 (8th Cir. 1986); Railway Labor Executives' Association v. Port Authority Trans-Hudson Corp. 695 F. Supp. 124 (S.D.N.Y. 1988); Railway Labor Executives' Association v. National Railroad Passenger Corp. 691 F. Supp. 1516 (D. D.C. 1988).

Thus because Article I Section 6 of the Florida Constitution grants public employees the same bargaining rights as private employees and because private employees have the right to bargain over compulsory tests for drugs it follows that public employees in Florida have a constitutional right to bargain over drug testing.

The City contends however that the supreme court in United Teachers of Dade v. Dade County School Board 500 So.2d 508 (Fla. 1986) narrowed this constitutional requirement of equal treatment of public and private employees:

"Our holding in Ryan that 'public employees have the same rights of collective bargaining as are granted private employees ' 225 So.2d at 905 did not however mean that there are no differences between public and private employee bargaining. Indeed we recognized as much in City of Tallahassee by stating that '[i]t would be impractical to require that collective bargaining procedures . . . be identical in the public and the private sectors.' 410 So.2d at 491. Myriad distinctions not just those of procedures exist between public and private collective bargaining and have been noted by the highest courts of several sister states."

Id. at 512.

See also Pinellas County Police Benevolent Association v. Hillsborough County Aviation Authority 347 So.2d 801 803 (Fla. 2d DCA 1977) ("A public employee's constitutional right to bargain collectively is not and cannot be coextensive with an employee's right to so bargain in the private sector. Certain limitations on the former's right are necessarily involved."). But notwithstanding that there may be differences between public and private employee bargaining rights the supreme court found that the employer in City of Tallahassee 410 So.2d at 491 had "failed to demonstrate an interest justifying the abridgment" of bargaining rights. And finally the supreme court recently stated that the right to collectively bargain is a fundamental right subject to abridgment only upon a showing of a compelling state interest. "This strict-scrutiny standard is one that is difficult to meet under any circumstance." Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority 522 So.2d 358 362 (Fla. 1988).

Therefore although it appears that Florida courts would allow constitutional collective bargaining rights to be abridged under certain circumstances no case has found the special circumstances or compelling state interest which would justify abridging public employees' constitutional right to collective bargaining. *fn9 The case before us is hardly the one to break the ice. Here as in Hillsborough County Governmental Employees Association Inc. v. Hillsborough County Aviation Authority 522 So.2d at 362 there is "some less intrusive means of accomplishing [the employer's goal] without impeding so dramatically on the right to bargain collectively. "See also City of Tallahassee v. Public Employees Relations Commission 410 So.2d at 491 ("[T]he state has failed to demonstrate an interest justifying the abridgment . . . ."). Collective bargaining is not such a formidable obstacle to the City's goal of a drug-free police force that the unilateral institution of compulsory drug testing should be permitted.

IV.

Our conclusion that compulsory drug testing is a subject for mandatory collective bargaining does not answer the question whether the City's failure to bargain on the subject is ipso facto an unfair labor practice under Section 447.501(c) Florida Statutes. Compare City of New Port Richey v. Hillsborough County Police Benevolent Association Inc. 505 So.2d 1096 1097 (Fla. 2d DCA 1987) ("[A] public employer who unilaterally alters any of these mandatory subjects of collective bargaining commits an unfair labor practice.") and City of Orlando v. Florida Public Employees Relations Commission 435 So.2d 275 278 (Fla. 5th DCA 1983) ("[A] public employer is obligated to bargain collectively in the determination of the wages hours and terms and conditions of employment of the public employees within the bargaining unit and the failure to bargain on such mandatory items is an unfair labor practice.") with Public Employees Relations Commission v. District School Board 374 So.2d 1005 1012 (Fla. 2d DCA 1977) (expressing "no opinion" on the hearing officer's conclusion that breach of collective bargaining agreement is per se an unfair labor practice). But even assuming arguendo that not all breaches of collective bargaining agreements constitute unfair labor practices this one certainly did. The record indicates that after the grievance was brought the City would not agree to refrain from testing other employees. This drug testing by the City was a repudiation of past policy impacting on the collective interests of the police and constituted an unfair labor practice.

V.

Lastly the City argues that even if FOP had the right to bargain over drug testing the union waived that right. The City's claim of waiver is based on Article 4 of the collective bargaining agreement between the City and FOP which provides that the City has "the right to operate and manage its affairs in all respects and that these rights include the right to establish implement and maintain an effective internal security program" and the right to "suspend demote discharge or take other disciplinary action against employees for proper cause." The City says (and indeed the hearing officer found) that "[b]y agreeing to this contractual provision the FOP gave to the City the power the City would otherwise not have to unilaterally require its police officers who are the subject of an internal security investigation to submit to examination at any time during the term of the agreement."

But waiver of a bargaining right will be found only if the waiver is "clear and unmistakable." See Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College 475 So.2d 1221 1224 (Fla. 1985) affirming on this point 425 So.2d 133 (Fla. 1st DCA 1982). According to the NLRB General Counsel:

"A waiver by contract may be found where the language of the agreement is specific and/or the history of prior contract negotiations suggests that the subject was discussed and 'consciously yielded.' Waiver will not be inferred from the contract's silence on the subject from a generally worded management prerogatives clause or from a 'zipper' clause."

Memorandum GC-87-5 [4 Labor Relations] Lab. L.Rep. (CCH) para. 9344 at 19 203 (Sept. 8 1987) (footnotes omitted).

The General Counsel noted therefore that "broad management rights clauses giving an employer the right . . . to 'make and apply rules and regulations for production discipline efficiency and safety' . . . do not standing alone constitute a waiver of the union's right to bargain over drug testing." Id. See Star Tribune v. Newspaper Guild of the Twin Cities Nos. 18-CA-9938 & 18-CA-10296 slip op. at 25 (NLRB) Nations A.L.J. Nov. 3 1988) (drug testing; "To find waiver the Board has required that a matter be fully discussed and explored during negotiations and 'consciously yielded' by the Union."). See also School Board v. Palowitch 3 Fla. Publ. Empl. Rep. 280 (1977) (to find waiver where agreement does not directly speak of particular management right would encourage public employers to refrain from raising at the bargaining table subjects which it hopes to change) affirmed 367 So.2d 730 (Fla. 4th DCA 1979).

There is nothing in the present agreement which specifically mentions drug testing or can be fairly said to allude to it. The City's contractual right to maintain an "effective" internal security program does not include the right to require urinalysis. In this case there was no evidence that the drug testing was even part of an internal security program; there were no department rules passed that might indicate that the drug testing requirement was part of a program; the drug tests were ordered not by Internal Security but by the commander of the patrol section. Nor is the City's argument supported by the clause giving it the right to "suspend demote discharge or take other disciplinary action against employees for proper cause." This generalized management rights clause is in our view analogous to a "zipper clause the labor law equivalent of an integration clause. The Florida Supreme Court, in a case involving a claimed waiver of bargaining rights by public employees through a zipper clause said that such clauses are generally interpreted only to maintain the status quo of a contract and are not to be used to allow an employer to make unilateral changes in working conditions without bargaining." Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College 475 So.2d at 1226. We agree with PERC "that neither a generalized management rights clause nor a 'zipper clause' in a collective bargaining agreement grants an employer plenary authority to unilaterally alter any and all working conditions which are not explicitly delineated in the agreement." Hillsborough County Police Benevolent Association v. City of Tampa 5 Fla. Pub. Empl. Rep. 1103 (1980) (quoted in Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College 475 So.2d at 1226).

Epilogue

We have concluded therefore that the issue of compulsory drug testing of police officers was one which the City was required to collectively bargain with the officers' union. Having failed to do so and having acted unilaterally when it required the officers to submit to testing the City committed unfair labor practices.

Lest we be misunderstood nothing we have said would prohibit the City from testing its police officers for drugs. It may do so of course if a drug testing program is made a part of a collective bargaining agreement. *fn10 Also in the event of an impasse in bargaining the City acting in its legislative capacity could unilaterally impose drug testing if it deemed it to be in the public interest. See SEC. 447.403(4)(d) & (e) Fla. Stat. As an NLRB administrative Court concluded recently:

"[A] determination that the components of the company's drug and alcohol testing policy are mandatory subjects of bargaining does not mean that Respondent or any other employer is barred from proposing and/or ultimately implementing such a policy. . . . Even the finding of a bargaining obligation does not prohibit the company from having a drug testing program after agreement or impasse is reached."

Star Tribune v. Newspaper Guild of the Twin Cities Nos. 18-CA-9938 & 18-CA-10296 slip op. at 23 (NLRB Nations A.L.J. Nov. 3 1988).

Moreover a public employer may argue the "exigent circumstances" exception to collective bargaining well established in labor law which permits employers under certain circumstances to engage in acts which are contrary to the collective bargaining agreement. As PERC has stated the affirmative defense of exigent circumstances provides "relief to an employer who is forced by an emergency to quickly and immediately modify the wages hours or terms and conditions of employment of its employees Florida School for the Deaf and the Blind Teachers United v. Florida School for the Deaf and Blind, 11 Fla. Publ. Empl. Rep. para. 16080, at 263 (1985), affirmed, 483 So.2d 58 (Fla. 1st DCA 1986), and is an exception to the prohibition on employers unilaterally changing employees' wages, hours, or terms and conditions of employment. Id. at 267 n.6. See also School Board v. Indian River County Education Association, 373 So.2d 412 (Fla. 4th DCA 1979). In the present case, the PERC hearing officer found that the City had not pleaded exigent circumstances, and the City, as it admits, decided not to argue it on appeal. Quite obviously, this court is in no position to decide the applicability of exigent circumstances in this case.

Finally we should emphasize that the City was at all times free to bring disciplinary proceedings against the police officers based on such evidence other than the compelled drug tests that the City may have possessed to show that the officers were using illegal drugs.

In conclusion although our decision is adverse to the City it hardly leaves the City weaponless in its declared war on illegal drug use by its police officers.

Affirmed.