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INTERNATIONAL FEDERATION OF PROFESSIONAL & TECHNICAL ENGINEERS LOCAL 194A AFL/CIO-CLC; FRANCIS A. FORST INDIVIDUALLY AND AS BUSINESS MANAGER OF LOCAL 194A; ROBIN R. HELLER AND VINCENT DINUCCI, PLAINTIFFS-RESPONDENTS
vs.
BURLINGTON COUNTY BRIDGE COMMISSION; J. GARFIELD DEMARCO JAMES LOGAN JR. AND EVA WEISS INDIVIDUALLY AND ASCOMMISSIONERS OF THE BURLINGTON COUNTY BRIDGE COMMISSION; AND FRANCIS J. OTT INDIVIDUALLY AND AS EXECUTIVE DIRECTOR OF BURLINGTON COUNTY BRIDGE COMMISSION DEFENDANTS-APPELLANTS
 
Case:
No. A-717-88T2
 
Location:
Superior Court of New Jersey, Appellate Division
 
Date:
March 26, 1990, Decided
 
Attorneys:
Stacy L. Moore Jr. argued the cause for appellants (Parker McCay & Criscuolo Counsels; Stacy L. Moore Jr. of Counsel; Richard M. Berman on the brief).
John F. Pilles Jr. argued the cause for respondents (Schlesinger Schlosser & Foy Counsels; John F. Pilles on the brief).
 
Court:
O'Brien Havey and Stern. The opinion of Court was delivered by Stern J.A.D.
 
Author:
The Hon. Justice Stern
 
OPINION: We hold that the drug testing of public employees physically involved in the opening and closing of bridges which cross the Delaware River may be conducted as part of an annual physical examination. Our holding is based on the totality of circumstances presented including the nature of the work performed by the employees to be tested the non-random nature of the test and the fact that the test is to be conducted as part of the employee's annual physical examination. We further conclude however that the procedures for the conduct of such examinations are subject to negotiation between the employer and employee. Accordingly we remand for further proceedings.

I.

In complaints filed in both the Federal District Court and the Law Division all plaintiffs sought to overturn the dismissal of plaintiffs Robin R. Heller and Vincent DiNucci by defendant Burlington County Bridge Commission (hereinafter "defendant" or "the Commission") on the ground that the drug testing procedure to which they had been subjected was illegal. The federal action was dismissed by consent "without prejudice to reinstatement should the state court decline for any reason to hear and adjudicate all issues as alleged in the complaint."

In the State complaint plaintiffs alleged among other things that the drug tests violated the individual-employee plaintiffs' rights under the First Fourth Fifth and Ninth Amendments to the Federal Constitution and Article I paras. 1 2 and 7 of the State Constitution; impaired their rights as public employees to negotiate terms and conditions of employment and violated New Jersey's Law Against Discrimination and specifically N.J.S.A. 10:5-4.1. In addition to demanding reinstatement plaintiffs sought to enjoin defendants from performing drug tests on other employees. In their answer defendants asserted (1) they "had probable cause to believe that [Heller and DiNucci] were using drugs and [were] under the influence of drugs during their regular daily work routines"; (2) plaintiffs' duties implicated the public's safety; (3) plaintiffs consented to drug testing; and (4) plaintiffs waived their rights to object to the testing by virtue of their failure to object to it at their disciplinary hearing.

Cross motions for summary judgment were filed and on June 15 1988 the motion Court invalidated the drug tests on constitutional grounds and ordered that plaintiffs be reinstated.

] II.

The facts are not substantially in dispute and we adopt the essential fact-finding embodied in the motion Court's written opinion:

The [defendant] Burlington County Bridge Commission is a public agency operating under N.J.S.A. 27:19-26 et seq. . . .

The International Federation of Professional and Technical Engineers AFL-CIO Local 194A (herein "Local" or "Local 194A") represents the permanent employees of the Commission who are assigned to the Tacony Palmyra and Burlington Bristol Bridges. The Local and the Commission have executed a collective bargaining agreement which is silent as to any physical examination requirements. However all job applicants before employment and all bascule *fn1 and lift-span operators annually have been subjected to physical examinations. The examinations which included urine testing for other than drug use were undertaken at the Zurbrugg Memorial Hospital. In 1986 the Hospital recommended annual drug screening by urinalysis for all bascule and lift-span operators a procedure then being used in connection with pre-employment examinations. This recommendation was sent to the Commission's Personnel Administratrix who accepted it after obtaining approval from the Commission's Executive Director. No formal action was taken by the Commission itself.

[Plaintiffs] Robin R. Heller and Vincent DiNucci are commission employees and members of the Local. Heller's employment commenced on September 17, 1976; he was promoted to bascule operator on March 17, 1986. DeNucci's employment commenced on January 28, 1975; he was promoted to lift-span operator on December 1, 1981. Both employees were identified as drug users on the basis of results obtained from drug tests performed during their May 22, 1986 annual examination and were suspended for that reason on May 29, 1986 which date became effective for termination purposes after the employees were given a hearing.

Bascule and lift-span operators control the raising and lowering of the Commission's bridges permitting the passage of ships moving up and down the Delaware River. Their job is important not only to the safety of ships but also to the safety of motorists and pedestrians crossing the bridges.

Heller and DiNucci were not aware of the required drug screening procedure until they presented themselves to the Occupational Health Co-Care Unit at Zurbrugg where they were advised of the drug test and asked to sign a written consent form. Heller offered no resistance asked no questions signed the form and submitted to the urinalysis. DiNucci inquired as to the reason for the screen and was advised to call the Commission's Personnel Administratrix for an answer. He ignored that opportunity signed the form and submitted to the test. Heller's urinalysis revealed the presence of amphetamine Methamphetamine morphine and marijuana DiNucci's the presence of marijuana. The Hospital rendered no opinion as to whether the drug usage's were recent or otherwise.

The Commission's Executive Director having learned of the test results suspended both Heller and DiNucci without pay pending their submission to requested blood tests which they did not take. On June 17 1986 the Commission met considered the suspensions and by letter dated June 20 1986 advised both men that a hearing would be held followed by final disciplinary action. The hearing took place on September 4 1986; a letter from the Executive Director dated October 23 1986 terminated Heller and DiNucci's employment effective May 29 1986.

The September 4 1986 hearing was conducted by a Bridge Commissioner. He received several documents in evidence and heard testimony from the Commission's Personnel Administratrix its Executive Director and the doctor in charge of the laboratory which performed the drug tests. The Commissioner's opinion underlined the significant safety responsibilities of bascule and lift-span operators. He noted the doctor's opinion that both employees would be impaired not only while drugs were being used but also over periods of time subsequent to such use. The Commissioner found the employees activity to be "a violation of the criminal laws of the State of New Jersey with possible catastrophic effects on the health safety and welfare of the public." He therefore recommended that both Heller and DiNucci be terminated from employment.

III.

The motion Court concluded that drug testing can survive constitutional attack only if grounded in a "reasonable individualized suspicion " based on reason to believe that the employees had been working while drug impaired. Defendants do not now justify the testing on that basis; rather they insist that the Court was wrong to impose such a precondition and urge that their program be sustained without the need to show particularized suspicion. They stress the reasonableness of the testing given their need to protect the public safety and contend that their mandated program must be sustained under case law upholding "administrative searches" in highly regulated industries.

The motion Court began with the undisputed premise that a urine test is a search and seizure in the constitutional sense and we agree. Skinner v. Railway Labor Exec. Assn. _U.S._ 109 S.Ct._ 1402 1412-13 103 L.Ed.2d 639 659-660 (1989); Treasury Employees v. Von Raab _U.S._ 109 S.Ct._ 1384 1390 103 L.Ed.2d 685 701 (1989); Harmon v. Thornburgh 878 F.2d 484 487 (D.C.Cir.1989) cert. den. sub nom. Bell v. Thornburgh _U.S._ 110 S.Ct._ 865 107 L.Ed.2d 949 (1990). Thus he concluded the issue to be decided was whether the search and seizure was "reasonable" under any of the exceptions to the prohibition against warrantless searches. Since the search in this case was not for the purpose of a criminal prosecution the Court observed that "less than a probable cause standard" had to be shown.

In searching for the proper standard the motion Court considered two New Jersey cases. First he relied on Fraternal Order of Police v. City of Newark 216 N.J.Super. 461 524 A.2d 430 (App.Div.1987) which he deemed binding." In that case the Newark police director issued a directive ordering all members of the Narcotics Bureau to submit to urine-drug testing upon transfer into the Bureau and at least twice yearly thereafter. The trial court upheld the directive against an attack under the New Jersey and United States Constitutions but on appeal we reversed. Id. at 465 524 A.2d 430. We rejected the city's theory (also raised by defendants here) that the testing was valid under the "pervasively regulated industry" exception to the probable cause requirement such as had been applied to the casino racing and public utility industries. Id. at 468-469 524 A.2d 430. We declined to extend that exception to public employees such as police who were engaged in a non-commercial enterprise and who were not subject to a comprehensive regulatory scheme. Id. at 469 524 A.2d 430. Rather we concluded that the issue required consideration of a balancing test which weighed the extent of the governmental need against the degree of the invasion of the individual's privacy interests id. at 470-471 524 A.2d 430 an approach subsequently developed in Von Raab and Skinner supra.

In reviewing the drug-testing cases elsewhere in the Fraternal Order case we found that "[virtually] all of the reported cases have concluded that [drug/urine testing of public employees] is unconstitutional in the absence of some reasonable individualized suspicion." Id. at 471-472 524 A.2d 430 (citing cases). Our holding was based "exclusively on Article I para. 7 of the New Jersey Constitution " particularly because "our state constitution has been found to afford greater protection against unreasonable searches and seizures than may be required by the United States Supreme Court's interpretation of the Fourth Amendment." Id. at 477 524 A.2d 430.

The other case relied on by the motion Court was Allen v. Passaic Cty. 219 N.J.Super. 352 530 A.2d 371 (Law Div.1986) in which Court refused to enforce in the absence of "reasonable suspicion" a county sheriff's directive requiring his employees to undergo urine-drug tests "no less than twice and no more than four times annually." Id. at 383 530 A.2d 371. There Court concluded that a "reasonable suspicion standard" should be applied because of the constitutional requirement that government "must be able to point to specific objective facts" suggestive of reasonable suspicion directed to a specified person. Id. at 380 530 A.2d 371. Thus in Allen the Law Division refused to enforce the policy of random searches with respect to all employees since it did not require prior suspicion. Id. At 381-382 530 A.2d 371. *fn2

Similarly here the motion Court found the absence of the requisite "reasonable suspicion standard for urine testing of New Jersey public employees in a non-criminal setting." The Court found that there were no such "reasonable individualized suspicions of Heller and DiNucci"; indeed "[they] were given their tests routinely as part of the Commission's informally adopted drug screening physical examination policy." Hence that "policy " insofar as it did not require individualized suspicion was found to be unenforceable. *fn3

IV.

In our view there is a crucial factual difference between the tests involved in this case and those in the Fraternal Order and Allen cases. Those tests were to be conducted at random whereas these were part of the routine annual physical examination to be given to all bascule and lift-span operators; and as Court Gaulkin expressly noted in Fraternal Order "[drug] testing that is conducted as part of a bona fide health checkup is not constitutionally objectionable." 216 N.J.Super. at 469 n. 6 524 A.2d 430. Similarly in Allen Court Mandak limited the injunction to random searches stating that "[the] requirements of physicals at the commencement of employment or regular annual physical checkups are common and normal employment practices and should not be deemed as rendered impermissible by this decision." 219 N.J.Super. at 381 530 A.2d 371. *fn4

The reason that drug testing during routine scheduled physicals is less objectionable than random tests is that employees have a lower expectation of privacy as to such testing and thus the testing is only minimally intrusive. See Jones v. McKenzie 833 F.2d 335 340 (D.C.Cir.1987) (upholding routine examination of school bus attendant) vac. and rem. For further consideration sub. nom. Jenkins v. Jones _U.S._ 109 S.Ct._ 1633 104 L.Ed.2d 149 (1989); Amalgamated Transit U. v. Cambria Cty. Tr. Auth. 691 F.Supp. 898 902 (W.D.Pa.1988) (no Fourth Amendment violation in a transit authority's policy of drug testing bus drivers and mechanics during annual physical exams). In Amalgamated Transit the fact that the testing was done "as part of a bona fide annual physical examination" was found to guard against "arbitrary invasions by government officials" of legitimate individual rights to security and privacy. Ibid.

In Skinner supra the Supreme Court reviewed regulations of the Federal Railroad Administration which mandated blood and urine tests of railroad workers involved in certain kinds of train accidents. The regulations had been adopted in response to evidence that alcohol or drug abuse was a contributing factor in many such accidents.

Court began its analysis by reaffirming the well-settled principle that blood and urine testing is a search and seizure which triggers the protections of the Fourth Amendment. _U.S._ at 109 S.Ct._ at 1412-1413 103 L.Ed.2d at 659-660. The question to be decided however was whether the search in that case was reasonable since the Fourth Amendment proscribes only those searches which are unreasonable. Id. at 109 S.Ct._ at 1414 103 L.Ed.2d at 661. Court concluded that reasonableness must be judged by a balancing test weighing the degree of intrusion into the employee's interests in privacy against the importance of the government's interest in the testing. Ibid.

Court recognized that reasonableness normally requires either a warrant or probable cause but that exceptions are countenanced when "special needs " unrelated to criminal prosecutions render the normal process impracticable. Ibid. Such a "special need" is presented by the government's "interest in regulating the conduct of railroad employees to ensure safety." Ibid. However even a "special need" search is subject to the requirement that it be reasonable under all the circumstances and reasonableness must generally be grounded in "individualized suspicion." Id. at 109 S.Ct._ at 1417 103 L.Ed.2d at 664. Nevertheless Court observed that that condition is not always constitutionally required:

In limited circumstances where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion a search may be reasonable despite the absence of such suspicion.

We believe this is true of the intrusions in question here. [Ibid.]

As to the urine tests Court in Skinner cited the following factors weighing in favor of reasonableness: (1) the regulations allowed the urine samples to be produced in private out of the presence of a monitor and the samples were to be "collected in a medical environment by personnel unrelated to the railroad employer and [are] thus not unlike similar procedures encountered often in the context of a regular physical examination" id. at 109 S.Ct._ at 1418 103 L.Ed.2d at 666; (2) railroad employees had a lower expectation of privacy "by reason of their participation in an industry that is regulated pervasively to ensure safety a goal dependent in substantial part on the health and fitness of covered employees" id. at 109 S.Ct._ at 1418 103 L.Ed.2d at 666 and (3) the government's "compelling" at 109 S.Ct._ at 1419 1421 103 L.Ed.2d at 667 670 and "surpassing" id. at 109 S.Ct._ at 1421 103 L.Ed.2d at 670 interests in transportation safety an interest that could not be adequately protected by testing based only on individualized suspicion. See National Federation of Federal Employees v. Cheney 884 F.2d 603 608 (D.C.Cir.1989) cert. den. _U.S._ 110 S.Ct._ 864 107 L.Ed.2d 948 (1990).

In contrast to this relatively slight impairment of the workers' interests the Skinner Court found the government's "interest in testing without a showing of individualized suspicion [was] compelling." _U.S._ at 109 S.Ct._ at 1419 103 L.Ed.2d at 667. As Court explained: Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities see e.g. Rushton v. Nebraska Public Power Dist. 844 F2d 562 566 (CA8 1988); Alverado v. Washington Public Power Supply System 111 Wash 2d [424] at 436 759 P2d [427] at 433-434 [1988] employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. An impaired employee the Agency found will seldom display any outward "signs detectable by the lay person or in many cases even the physician." 50 Fed Reg 31526 (1985).

[Ibid.]

In sum the Skinner Court found no Fourth Amendment violation in testing for drugs in the absence of individualized suspicion given the great public-safety interest of government the minimal impairment of the workers' privacy interests and the diminished privacy expectations of those choosing to work in such a closely regulated field. Id. at 109 S.Ct._ at 1421-1422 103 L.Ed.2d at 670-671.

This case is factually different from Skinner in that the urine tests are conducted during routine annual physicals and not after the occurrence of an accident. *fn5 However that distinction is not dispositive as evidenced by the holding of the Supreme Court in Treasury Employees v. Von Raab supra decided the same day as Skinner.

In Von Raab the Supreme Court considered regulations adopted by the United States Customs Service for a drug-testing program -- by means of urinalysis -- for all existing employees who applied for transfer or promotion to positions (1) involving drug interdiction (2) requiring the handling of firearms or (3) giving access to classified materials. Applying the principles of Skinner the Court held that the government's "special needs" to keep drug enforcement personnel free from their own drug usage and to keep them alert while using firearms justified a departure from the usual individualized suspicion requirement. _U.S._ at - 109 S.Ct._ at 1390-1393 103 L.Ed.2d at 702-705. These "special needs" outweighed the interference with personal liberty which a urine test would cause. Id. at - 109 S.Ct._ at 1393-1394 103 L.Ed.2d at 705-706. Court recognized that the "operational realities" of certain types of government employment may diminish privacy expectations with respect to body searches. Id. at - 109 S.Ct._ at 1393-1394 103 L.Ed.2d at 705-706. Customs employees who are charged with drug interdiction and with carrying firearms "reasonably should expect effective inquiry into their fitness and probity." Id. at 109 S.Ct._ at 1394 103 L.Ed.2d at 706.

The employees in Von Raab like the plaintiffs here argued that the testing program was unreasonable because it was not prompted by any evidence of a drug problem among Customs Service employees. However Court rejected the premise that testing must be preceded by objective indicia that it will uncover drug usage:

Petitioners do not dispute nor can there be doubt that drug abuse is one of the most serious problems confronting our society today. There is little reason to believe that American workplaces are immune from this pervasive social problem as is amply illustrated by our decision in Railway Labor Executives. See also Masino v. United States 589 F2d 1048 1050 [218 Ct.Cl. 531] (Ct Cl 1978) (describing marijuana used by two Customs Inspectors). Detecting drug impairment on the part of employees can be a difficult task especially where as here it is not feasible to subject employees and their work-product to the kind of day-to-day scrutiny that is the norm in more traditional office environments. [Id. at 109 S.Ct._ at 1395 103 L.Ed.2d at 707.]

Equally unpersuasive was the argument that testing had not revealed many abusers:

The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity. The same is likely to be true of householders who are required to submit to suspicionless housing code inspections see Camara v Municipal Court 387 _U.S._ 523 18 L Ed 2d 930 87 S Ct 1727 (1967) and of motorists who are stopped at the checkpoints we approved in United States v. Martinez-Fuerte 428 _U.S._ 543 49 L Ed 2d 1116 96 S Ct 3074 (1976). The Service's program is designed to prevent the promotion of drug users to sensitive positions as much as it is designed to detect those employees who use drugs. Where as here the possible harm against which the Government seeks to guard is substantial the need to prevent its occurrence furnishes an ample justification for reasonable searches calculated to advance the Government's goal. [Id. at 109 S.Ct._ at 1395 103 L.Ed.2d at 708 footnote omitted].

See also Guiney v. Roache 873 F.2d 1557 (1 Cir.1989) (remanding for further consideration in light of Skinner and Von Raab) cert. den. _U.S._ 110 S.Ct._ 404 107 L.Ed.2d 370 (1989); Policemen's Benev. Ass'n of N.J. v. Washington Tp. 850 F.2d 133 141 (3 Cir.1988) cert. den. _U.S._ 109 S.Ct._ 1637 104 L.Ed.2d 153 (1989) (upholding a New Jersey township's plan for (1) suspicionless random drug testing of policemen and (2) drug testing of police as part of their annual medical examination noting the highly regulated nature of the "police industry" and the "need in a democratic society for public confidence respect and approbation of" those on whom the State confers the "awesome power" to use force in arresting its citizens); Jones v. McKenzie supra (remanded for reconsideration in light of Skinner and Von Raab although the testing was upheld by the D.C. Circuit); Annotation "Drug Testing of Public Employees " 86 A.L.R.Fed. 420 (1988).

As recently noted in Harmon v. Thornburgh supra 878 F.2d at 488-489 a "random" drug testing case: The Von Raab majority made no effort to articulate an analytical rule by which legitimate drug-testing programs could be distinguished from illegitimate ones. It simply weighed individual privacy interests against the government's policy objectives enumerating several factors that it deemed relevant in performing this balancing process. Court did not however indicate whether it deemed the case a close one in the sense that minor variations in the facts would have tipped the balance in the other direction. Nor did it indicate which (if any) of the relevant factors was essential to a constitutional testing plan. (Footnote omitted; emphasis in original).

As a result of Skinner and Von Raab it appears that nothing in the federal constitutional law prevents drug testing of public employees whose positions involve the public safety by the taking of urine samples particularly during an annual or regularly scheduled physical exam even where there is no reasonable suspicion that the tested individuals are drug users. *fn6 However the drug testing must serve some "special needs" of the employing governmental body rather than being designed to gather evidence for a criminal prosecution. Even if the "special need" appears the individual's privacy interest must be balanced against the public employer's interest. We recognize there was no notice with respect to the drug test component of the May 1986 physicals. Compare the procedure in Von Raab where an "independent contractor contacts the employee to fix the time and place for collecting the sample." _U.S._ at 109 S.Ct._ at 1388 103 L.Ed.2d at 699. However we uphold that examination even if deemed "random " under the totality of circumstances because of the nature of the employment and the exam which was part of the annual physical and for which a urine specimen was routinely taken. in cases where the public safety depends on the fitness of employees courts have recently upheld even random drug tests. See e.g. Harmon v. Thornburgh supra; Rushton v. Nebraska Public Power Dist. 653 F.Supp. 1510 (D.Neb.1987) aff'd 844 F.2d 562 566-567 (8 Cir.1988) (upholding random testing of nuclear power plant workers given the great potential for danger and resulting lowered expectation of privacy).

It appears insignificant that the initial May 1986 drug screen may be deemed "random." The governing "balancing test" now appears to be the same for "random" as well as post-accident (Skinner) or "pre-ascension" (Von Raab) type drug testing. As very recently said in National Federation of Federal Employees v. Cheney supra 884 F.2d at 608-609 in addressing the random portions of drug testing of civilian employees of the Department of the Army: In Von Raab and Skinner the Supreme Court laid out a balancing test that while not self-executing focuses our attention on a single question: Does the government's need to conduct the suspicionless searches outweigh the privacy interests of the covered employees in such a fashion that it is "impractical to require a warrant or some level of individualized suspicion?" If so the Army's testing scheme cannot be deemed unreasonable. See Von Raab 109 S.Ct._ at 1390 1392. Accord Skinner 109 S.Ct._ at 1414.

Initially appellees ask that we find Von Raab and Skinner of "little or no impact" on the present case since the Army tests on a random rather than post-accident or pre-ascension basis. . . . To settle this contention we need look no further than our recent decision in Harmon v. Thornburgh 878 F.2d 484 (D.C.Cir.1989) where while recognizing that a random plan might plausibly be considered different in kind from the programs approved by the Supreme Court we concluded that "the random nature of the [subject] testing plan is a relevant consideration " but does not "require[] us to undertake a fundamentally different analysis from that pursued by the Supreme Court." At 489 (emphasis in original).

We therefore conclude that the testing involved here does not violate the Fourth Amendment. Defendants had a qualifying "special need " in that their aim and responsibility was to insure that the public was not endangered by driving over or passing under bridges whose openings were being controlled by drug-impaired operators. *fn7 Here plaintiffs' jobs had a clear impact on public safety. Plaintiffs knew that their urine was to be tested during their annual physicals and hence had a lowered expectation of privacy (even though they did not know prior to the May 22 1986 exam that there would be a drug test component); and they were allowed to supply the urine samples in private.

Under these circumstances where defendants have a legal responsibility to maintain safe bridges N.J.S.A. 27:19-10 -26 we see no reason to apply the State constitution to provide more protection to the individual employees a opposed to the individuals who use the bridges involved. See Dfraternal Order supra 216 N.J.Super. at 477 524 A.2d 430. This is particularly true where we are dealing with safety concerns on bridges that span the Delaware River and are situated in two States. *fn8 As previously noted Fraternal Order involved random testing which involves a much greater privacy interest than a regularly scheduled annual physical and plaintiffs do not suggest any reason as to why the state constitution requires a stricter scrutiny of the drug testing involved here than the federal constitutional values involved.

Accordingly we conclude that the testing program here involved is constitutional under both the federal and state law.

V.

The individual plaintiffs in this case were dismissed after a hearing before the Commission. Because of the holding of the trial Court and our reversal various issues remain. We believe it advisable to comment on some of them for guidance on the remand.

While the fact of testing is a non-negotiable managerial prerogative cf. Township of Bridgewater v. P.B.A. Local 174 196 N.J. Super. 258 261-262 482 A.2d 183 (App.Div.1984) (test criteria for testing physical fitness of police officers not negotiable) there is a clear distinction between the decision to test on the one hand and the procedure to be utilized on the other. Id. at 261-262 482 A.2d 183. See also N.J. State College Locals v. State Bd. of Higher Ed. 91 N.J. 18 32-34 449 A.2d 1244 (1982) ("procedures for implementing [non-negotiable] substantive decisions" id. at 34 449 A.2d 1244 are negotiable). See also In re IFPTE Local 195 v. State 88 N.J. 393 404-405 443 A.2d 187 (1982). *fn9 Cf. Consolidated Rail Corp. v. Railway Labor Exec. Assn. _U.S._ 109 S.Ct._ 2477 105 L.Ed.2d 250 (1989). Hence we do not decide that the issue of discipline is non-negotiable or that it is not subject to review where appropriate by the Department of Personnel. Nor do we pass upon plaintiffs' claims that they have rights under the Law Against Discrimination N.J.S.A. 10:5-4.1. While we conclude that the decision to conduct the drug testing is non negotiable we leave for development and resolution on remand all issues concerning the testing procedures to be utilized and the negotiability thereof the appropriate discipline and sanctions to be imposed in this and future cases and the forum in which these issues are to be considered.

VI.

Accordingly the judgment is reversed and remanded for further proceedings consistent with this opinion.

 
Notes:

*fn1 A bascule is a weight which is lowered in order to raise the center portion of the bridge when necessary to permit ships to pass thereunder. (This footnote was not part of the text).

*fn2 Court enjoined the testing in the absence of "reasonable suspicion" but upheld it with respect to two employees where the standard was satisfied. 219 N.J.Super. at 381-382 530 A.2d 371.

*fn3 The Court also rejected application of the "consent search" principle and the "public hazard" theory to sustain the searches. We do not address those issues in light of our holding.

*fn4 The fact that all sheriff's employees were involved in the testing in Allen did not make the testing non-random. 219 N.J.Super. at 376 380-381 530 A.2d 371.

*fn5 Further while the record does not suggest that this case deals with a "closely regulated field " it does concern transportation and related public safety.

*fn6 Our Supreme Court recently declined to consider a constitutional attack on a state police urine-drug testing program while remanding that issue for development of a factual record in light of Skinner and Von Raab. Matter of Carberry 114 N.J. 574 587-588 556 A.2d 314 (1989).

*fn7 While the case before us has been argued under the Fourth Amendment we note that Shoemaker v. Handel 795 F.2d 1136 (3 Cir.1986) cert. den. 479 _U.S._ 986 107 S.Ct._ 577 93 L.Ed.2d 580 (1986) (upholding random search of jockeys for drugs and alcohol under administrative search exception) also rejected an equal protection claim; and contentions regarding the right to privacy free exercise of religion and Fifth Amendment were rejected in Rushton. See 844 F.2d at 567.

*fn8 At oral argument we were told that the Commission was unique because it operated interstate bridges without an interstate compact. The bridges were apparently initially "constructed" and operated before 1953. See N.J.S.A. 27:19-40.

*fn9 Plaintiffs also attack the initial drug testing conducted here without prior notice on the grounds that it constituted a unilateral change in a term of employment. However the record reflects the filing of no relevant petition with the Public Employees Relations Commission and plaintiffs could not properly obtain a ruling on this subject from the Law Division. Bd. Of Education of Bernards Tp. v. Bernards Tp. Ed. Assn. 79 N.J. 311 315-316 399 A.2d 620 (1979); Ridgefield Park Ed. Assn. v. Ridgefield Park Bd. of Ed. 78 N.J. 144 154-155 393 A.2d 278 (1978).