For Third Time, Newark Told To Bargain Over Drug Testing

Written on 11/05/2022
Will Aitchison

The Newark Police Superior Officers’ Association (SOA) represents supervisors in the Newark Police Department. On March 20, 2018, the New Jersey attorney general issued Law Enforcement Direc­tive 2018-02, implementing statewide mandatory random drug testing for all state, county, and municipal law en­forcement agencies and sworn officers. The directive required all state, county, and municipal law enforcement agencies to “adopt and/or revise their existing drug testing policies” consistent with the directive.

Later in 2018, Newark’s public safety director announced revisions to General Order 99-04 regarding Newark’s existing random drug testing program. Substan­tively, the revisions related to both the frequency of random drug testing, as well as to the number of officers to be randomly drug tested.

The SOA quickly sent a letter to the City demanding negotiations over the revisions to General Order 99-04, and the impact of those revisions on terms and conditions of employment. When the City refused to bargain over the impacts, the SOA filed an unfair labor practice charge with New Jersey’s Public Employment Relations Commission.

A hearing officer for PERC showed little patience for the City’s position. The hearing officer noted that “Newark ap­propriately argues that it has a managerial prerogative to implement revisions to its general order, as it was required to do so by the Attorney General’s directive. How­ever, it is well settled that even if a public employer has a managerial prerogative to implement a substantive decision, the procedural aspects of that decision, and their severable economic consequences or ‘impact,’ are mandatorily negotiable.

“Beyond the well-settled principle that a public employer must engage in impact negotiations after it exercises its managerial prerogative, the Commission has also previously recognized – in two separate matters also involving Newark – that public employers must negotiate random drug testing procedures. In the first case, the Commission found that a negotiated agreement on drug testing procedures would not significantly inter­fere with the exercise of Newark’s inher­ent or express managerial prerogatives, as drug testing procedures addressing notification, chain of custody, confiden­tiality and accuracy protect employees’ interests without significantly interfering with the exercise of any prerogatives.

“Indeed, this same principle that police drug testing procedures are man­datorily negotiable was recognized in the second Newark matter, involving an earlier version of the same General Order 99-04 at issue in this matter. Further­more, it is undisputed that the SOA ex­pressly demanded impact negotiations, which Newark refused. Therefore, even if Newark had a managerial prerogative to revise its random drug testing program, at the very least, Newark was required to negotiate over the impact of those revisions with the SOA.”

City of Newark, 49 NJPER ¶ 20 (N.J. PERC ALJ 2022)

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