Opinion
December 29, 1995
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the judgment is affirmed, with costs.
The respondents' requirement that the petitioner submit to a return-to-work drug test pursuant to a collective bargaining agreement between the respondent New York City Transit Authority and the Transport Worker's Union Local 100 did not constitute an unreasonable search in violation of the Fourth Amendment. The constitutional rights of individual public employees represented by collective bargaining agents may be waived by the consent of those agents (see, Antinore v State of New York, 49 A.D.2d 6, 10, affd 40 N.Y.2d 921; Matter of Buffalo Police Benevolent Assn. v City of Buffalo, 20 PERB ¶ 3048; see also, Bolden v Southeastern Pa. Transp. Auth., 953 F.2d 807, 828, cert denied 504 U.S. 943). In any event, drug testing in the absence of individualized suspicion is reasonable within the meaning of the Fourth Amendment where, as here, the employee's position is safety sensitive (see, Matter of Caruso v Ward, 72 N.Y.2d 432, 437; Matter of Barretto v City of New York, 157 A.D.2d 116, 120).
The petitioner's claim that the drug test was administered in violation of Federal regulations (49 CFR part 40) introduces new facts that may not be raised for the first time on appellate review (see, Block v Magee, 146 A.D.2d 730, 732). In any event, those Federal regulations were not applicable to the respondents' drug testing program since they were vacated as exceeding the statutory authority of the Federal agency that had promulgated them (see, Amalgamated Tr. Union v Skinner, 894 F.2d 1362).
The petitioner's remaining contention is without merit (see, Laverpool v New York City Tr. Auth., 835 F. Supp. 1440, 1456, affd 41 F.3d 1501; Burka v New York City Tr. Auth., 739 F. Supp. 814, 821). Thompson, J.P., Altman, Friedmann and Florio, JJ., concur.