Opinion
March 14, 1996
Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).
The requirement that the petitioner submit to a return-to-work drug test pursuant to the respondent's Drug Policy and Instruction, agreed to by the petitioner's union in the applicable collective bargaining agreement, contrary to the finding of the trial court, was not unconstitutional. Certain constitutional rights of individual public employees represented by collective bargaining agents may be waived by the consent of those agents ( Matter of Briggs v Stangl, 222 A.D.2d 672, 673, citing, Antinore v State of New York, 49 A.D.2d 6, 10, affd 40 N.Y.2d 921; Buffalo Police Benevolent Assn. v City of Buffalo, 20 PERB ¶ 3048; Bolden v Southeastern Pa. Transp. Auth., 953 F.2d 807, 828, cert denied 504 U.S. 943). Consequently, the second random recheck consented to by the petitioner himself in a written agreement was not tainted by any constitutional infirmity. Given the valid consent of the petitioner's union to the drug tests in question, the constitutional issues which might otherwise provide a basis for vacatur of the award are not implicated herein.
Concur — Ellerin, J.P., Kupferman, Ross and Williams, JJ.