On June 18,1985, the Fraternal Order of Police, Miami Lodge 20 (FOP), filed an unfair labor practice charge alleging that the City of Miami had violated Section 447.501 (1)(a) and (c), Florida Statutes (1983).[[1. All statutory citations are to the 1983 Florida Statutes unless otherwise indicated.]] Specifically, the FOP asserted that during the pendency of negotiations concerning chemical testing of police officers to detect the presence of a controlled substance, the City unlawfully directed three of its police officers to submit to urinalysis testing or be relieved of their duties.

On August 1, 1985, an evidentiary hearing was conducted. At that time the parties were given the opportunity to appear, to present evidence, and to cross-examine witnesses. On September 12, 1985, the hearing officer issued his recommended order, a copy of which is attached hereto and incorporated herein. The hearing officer determined that involuntary chemical testing to detect the presence of a controlled substance is a mandatory subject of bargaining. However, he concluded that the City did not act unlawfully because the collective bargaining agreement between the parties contained a waiver of the FOP's right to bargain on this issue. Both parties filed exceptions to the recommended order.

Based upon our reading of the entire record in light of the exceptions, we conclude that the hearing officer's findings of fact[[2. The City excepts to the hearing officer's finding of fact which states that after submitting to a urinalysis test administered by his family physician, Officer Beruvides 'learned that the test did not reveal the presence of any cocaine in his system." We do not read this finding to mean that the test results were in fact negative as to the presence of controlled substances. Rather, we read it to mean that Beruvides learned (from his physician) that the results were negative. The finding concerns Beruvides' belief concerning the test results, not the actual results themselves. And, in any event, the finding is not relevant to the subject of negotiability. Therefore, the City's exception is rejected.]] are supported by competent substantial evidence. We further conclude that the proceedings upon which these findings are based comply with the essential requirements of law. Therefore, the Commission adopts the hearing officer's findings of fact as its own. Furthermore, with the exception of the hearing officer's analysis and conclusions regarding the issue of waiver, we also adopt the hearing officer's analysis and conclusions of law. Accordingly, for the reasons set forth by the hearing officer, we conclude that by imposing a requirement that certain of its police officers submit to involuntary chemical testing (urinalysis) as a condition of continued employment, the City unilaterally and unlawfully altered a condition of employment of police officers. We thus reject the City's exceptions to the contrary.

We recognize the need of cities to safeguard the integrity of their law enforcement agencies. This concern has been addressed recently by the Fifth District Court of Appeal in City of Palm Bay v. Bauman, Nos. 84-1026 and 1715,10 FLW 2218, 2220 (Fla. 5th DCA Sept. 26,1985). There the court stated:

The nature of a police officer's...duties involves so much potential danger to both the employee and to the general public as to give the City legitimate concern that these employees not be users of controlled substances.

Their work requires and the safety of the public demands complete mental and physical functioning of these officers. There is competent, unrebutted evidence in the record that marijuana causes severe long and short term physical, mental and psychological effects; that the length and severity of the effects of that drug cannot be predicted because they depend on the physical make-up of the individual and the potency of the substance. However, while the effects may last for hours or for days, the effects are certain, and can include impairment of physical function, auditory and visual perception changes. Other controlled substances produce similar effects. Moreover, as pointed out by the trial court, police officers who are sworn to enforce the laws lose credibility and public confidence if they violate the very laws they are sworn to enforce. The City therefore has a right to insist that its law enforcers not be law breakers.

This determination accommodates the tension between a public employer's right to make a decision governing the operations of its organization and its duty to bargain with a certified employee organization about changes in the terms and conditions of employment of its employees. We believe that requiring negotiations over this subject best serves the public interest by providing stability and harmony in labor relations between the public employers and the employees and employee organizations of this state. We do not purport to govern a city's ultimate decision to implement a policy mandating involuntary chemical testing of its law enforcement employees. However, that is not to say that such implementation can be made without negotiations pursuant to Chapter 447, Part II.

The record in this case demonstrates the useful role that negotiations can play in maintaining harmonious labor relations at a time when a public employer wishes to change a condition of employment. Prior to the parties' 1985 negotiations, the City has never sought to chemically test its employees for controlled substances. The only time that the subject of employee use of illegal drugs had been discussed between the parties was in 1980-81 when the FOP raised the subject of drug rehabilitation programs. At that time the City rejected the idea. However, in 1985 the City decided to develop policy guidelines for chemical testing and negotiate the subject with the FOP. These guidelines were not completed when Colonel Billy Riggs decided to require three of his officers to submit involuntarily to urinalysis upon penalty of suspension or dismissal. His orders were issued before the negotiations process was completed, and without prior consultation with the City's labor relations personnel or other police department officials who were aware of the ongoing negotiations.

We do not view these three directives as indicating an effort by the City to avoid its constitutional and statutory obligation to bargain over this mandatory subject. See City of Tallahassee v. PERC, 393 So.2d 1147 (Fla. 1st DCA 1981), aff'd, 410 So.2d 487 (Fla. 1982). Instead, we view them as isolated instances which the City's top management neither approved beforehand nor continued thereafter. Nevertheless, because Colonel Riggs is an agent of the City, his unlawful acts are binding upon the City. Jess Parrish Memorial Hospital v. PERC, 364 So.2d 777 (Fla. 1st DCA 1978).

We have carefully considered the position concerning the negotiability of chemical testing expressed by our dissenting colleague in this case. He argues that the Commission should adopt a different test for determining what constitutes a mandatory subject of bargaining. We emphasize that the approach followed in the past by the Commission with the approval of Florida courts is not entirely inconsistent with the approach established in the private sector, but in fact borrows much from that experience. We agree with the hearing officer that private sector precedent strongly supports the conclusion that the requirement for urinalysis testing as a condition of continued employment is a mandatory subject of bargaining. As he stated in his recommended order:

Since, for the reasons expressed by the hearing officer in Medicenter [Mid-South Hospital, 221 NLRB 670 (1975)], employees in the private sector have the right to bargain collectively regarding the imposition of a testing requirement as a condition of continued employment, then it follows that public employees in this State have the same right under PERA, which was intended by the Legislature "to provide statutory implementation of s.6, Art. I of the Florida Constitution." [Footnote omitted.]

We now turn to the City's affirmative defense of waiver. The City urges that there is contractual language in the parties' collective bargaining agreement which demonstrates that the FOP waived its right to bargain over the imposition of urinalysis testing. As explained below, we are not persuaded that this language constitutes a clear and unmistakable waiver by the FOP of the right to negotiate this condition of employment. However, before we analyze the provisions which the City relies upon to demonstrate the affirmative defense of waiver, we will address the standard which we apply in determining whether a contractual waiver exists.

The issue of contractual waiver was recently discussed in an opinion issued by the Florida Supreme Court in Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 7 FPER  12300(1981), aff'd, 425 So.2d 133 (Fla. 1st DCA 1983), aff'd in relevant part, 475 So.2d 1221 (Fla. 1985). In that case the court approved the "clear and unmistakable" test that we apply to determine whether a union has effectively waived certain bargaining rights of public employees. Id. at 1224. The court noted that this strict standard is appropriate because in such a situation a union is waiving "rights reserved to employees." Id. Since a waiver of bargaining rights implicates statutory and constitutional rights, the court held that it cannot be accomplished through generalized language in management rights or traditional zipper clause. Id. at 1226; see also School Board of Orange County v. Palowitch, 3 FPER 280 (1977), aff'd. 367 So.2d 730 (Fla. 4th DCA 1979). In so holding the court quoted with approval our rationale concerning the ineffectiveness of generalized contractual waivers:

It is now axiomatic in Florida 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. Nor will a labor organization's agreement to such generalized contractual language, without more, be construed as a waiver of the right to negotiate concerning subsequent alteration of existing terms and conditions of employment.

A "clear and unmistakable" contractual waiver of bargaining rights is demonstrated by language which unambiguously confers upon an employer the power to unilaterally change terms and conditions of employment. Local 2226, IAFF v. City of St. Petersburg Beach, 10 FPER  15211 (1984). A waiver of this type must be stated with such precision that simply by reading the pertinent contract provision employees will be reasonably alerted that the employer has the power to change certain terms and conditions of employment unilaterally. Florida Public Employees Council 79, AFSCME v. State of Florida, 10 FPER  15208 at 417 (1984), aff'd mem., 472 So.2d 1184 (Fla. 1st DCA 1985).

While this "clear and unmistakable" test might appear relatively simple to apply, particularly with the above-quoted requirement of specificity, that has not always been the case. A review of our decisions over the past ten years concerning contractual waivers reveals some apparent inconsistencies in the application of the test. In most cases we have indeed identified contractual language that clearly and unmistakably demonstrates waiver of specific subjects of bargaining. E.g., Local 2266, IAFF v. City of St. Petersburg Beach, 10 FPER  15211 (1984); Miami Association of Fire Fighters, Local 587, IAFF v. City of Miami, 10 FPER  15018 (1983); Federation of Public Employees v. City of Pompano Beach, 9 FPER  14111(1983). But in at least one case it is not so apparent that the "explicit delineation" required for an effective waiver has been met. E.g., Local 2266, IAFF v. City of St. Petersburg Beach, 9 FPER  14338 (1983) (employee rights provision allows City to change any "right, privilege or working condition" as long as such change is not made "arbitrarily or capriciously"). The difficulty that comes in applying the "clear and unmistakable" test is also evident from our occasional reversal of hearing officers' determinations on issues of waiver. E.g., Florida Public Employees Council 79, AFSCME v. State of Florida, 10 FPER  15208 at 417 (1984), aff'd mem., 472 So.2d 1184 (Fla. 1st DCA 1985); Hialeah IAFF, Local No.1102 v. City of Hialeah, 9 FPER  14364 (1983).

It is essential to smooth and harmonious labor relations that public employers and unions be able to ascertain whether their contracts authorize unilateral changes to working conditions. Reference to our decisions should assist rather than confuse them in making this determination. We read the recent Palm Beach Junior College case to stand firmly for the proposition that a "clear and unmistakable" contractual waiver must be one that explicitly and expressly delineates specific working conditions which an employer can unilaterally change. Id. at 1226. If the asserted contractual waiver does not contain unambiguous language that confers upon a public employer the power to unilaterally alter particular working conditions, then it is ineffective. To the extent that we may have given effect to generalized rather than specific contractual waivers in the past, we decline to do so in the future.

We recognize that by looking for particular subjects of bargaining encompassed by an alleged waiver, we will still encounter the problem of determining whether the waiver contains the requisite specificity. For example, in Federation of Public Employees v. City of Pompano Beach, 9 FPER  14111 (1983), the asserted waiver concerned the subject of subcontracting. In the management rights clause in question the union had conferred upon the City the power to subcontract services performed by unit employees. However, a separate contractual provision contained specific procedures to be followed in the event of subcontracting, including notice and recall from a preferential hiring list:

Section 1: If the City decides to subcontract unit work, the City agrees to advise the Federation and each affected employee of its decision at least fifteen (15) calendar days before the effective date of the subcontracting. In addition, the City agrees to place the name of any employee, who is laid off by the decision to subcontract, on a preferential hire list for a period of six (6) months commencing on the effective date of the employee's layoff. Further, the City agrees not to hire new employees for a subcontracted position while laid off employees qualified to perform the job remain on a preferential hire list. And the City agrees to establish a recall system to put laid off employees back to work when a vacancy occurs in such a position.

We now proceed to analyze and interpret the relevant provisions presented by the City in the instant case and relied upon by the hearing officer to ascertain whether the FOP clearly and unmistakably waived its right to bargain concerning urinalysis testing. In concluding that the FOP had waived its right to bargain over the requirement of involuntary urinalysis as a condition of continuing employment, the hearing officer relied upon two provisions of the parties' collective bargaining agreement. Article 4 is entitled "Management Rights" and states in pertinent part:

The Employee Organization agrees that the City has and will continue to retain, whether exercised or not, the right to operate and manage its affairs in all respects; and the powers or authority which tine City has not officially abridged, delegated or modified by the express provisions of this Agreement are retained by the City. The rights of the City, through its management officials, shall include, but shall not be limited to, the right to determine the organization of City Government; to determine the purpose of each of its constituent departments; to exercise control and discretion over the organization and efficiency of operations of the City; to set standards for service to be offered to the public; to direct the employees of the City, including the right to assign work and overtime; to hire, examine, classify, promote, train, transfer, assign, and schedule employees in positions with the City; to suspend, demote, discharge, or take other disciplinary action against employees for proper cause; to increase, reduce, change, modify or alter the composition and size of the work force, including the right to relieve employees from duties because of lack of work or funds; to determine the location, methods, means, and personnel by which operations are to be conducted, including the right to determine whether goods or services are to be made or purchased; to establish, modify, combine or abolish job pay positions; to change or eliminate existing methods of operation, equipment or facilities; and to establish, implement and maintain an effective internal security program.

Where an investigation is initiated by the City of Miami Police Department against an employee where a formal statement under oath is elicited from the employee, the interrogation shall be conducted under the following conditions:

No mechanical device including, but not limited to polygraph, psychological stress evaluator, et al., shall be forced onto an employee nor shall disciplinary action be taken against an employee who refuses to submit to such testing.

We disagree with the hearing officer's interpretation of Articles 4 and 8(i). Our reading of the provisions of the parties' contract does not lead us to conclude that it provides clear and unmistakable evidence that the FOP waived the right to bargain over the subject of involuntary urinalysis. Our difficulty springs in part from the location of the key word "examine" within the contract. It is placed within Article 4 in a sequence of events concerning the personnel functions of testing for job classification and promotion, rather than in a later sequence involving discipline. That the right to generically "examine" its employees does not clearly and unmistakably provide the right to chemically test them for disciplinary purposes is further indicated by the location of the right to "examine" in the broad management rights clause rather than in Article 8, which specifically concerns disciplinary procedures. The fact that mechanical testing is expressly authorized by Article 8 also does not support the finding of a waiver concerning chemical testing. In fact, to make such a finding would sanction waiver by silence rather than by clear and unmistakable language.

Finally, the provision in Article 4 that the City can "establish, implement and maintain an effective internal security program" cannot be construed as a clear and unmistakable waiver of the right to negotiate over involuntary chemical testing. Submission to involuntary urinalysis might conceivably be necessary to maintain an "effective" internal security program. However, as correctly explained by the hearing officer, the City has never required such testing in the past and there is no evidence of record to demonstrate that its internal security program has been ineffective. Nor does the City argue that there was some unforeseen emergency that might justify its unilateral change of past practice concerning the use of involuntary chemical testing.

Florida law requires that mandatory subjects of bargaining be negotiated regardless of whether they are perceived as essential or nonessential to internal security. This bargaining duty can be avoided only by clear and unmistakable waivers or emergencies. We cannot reasonably construe Articles 4 and/or 8(i) to confer that right unambiguously upon the City. Consequently, on the record as a whole we do not find unambiguous contractual language demonstrating a clear and unmistakable waiver of the FOP's right to negotiate urinalysis testing.

One final issue remains, that of attorney's fees. Because the negotiability of urinalysis testing is one of first impression before the Commission, the City was without established law in this jurisdiction with which to chart its course. Where such has been so in the past, we have not found that employers "knew or should have known" that their actions were contrary to law. Palm Beach Association of Fire Fighters, Local 1612, IAFF v. Palm Beach County, 9 FPER  14112 (1983); Lewis v. City of Clearwater, 6 FPER  11222 (1980), aff'd, 404 So.2d 1156 (Fla. 2d DCA 1981); Manatee Education Association v. Manatee County School Board, 6 FPER  11253 (1980). Thus, we do not find it appropriate to award fees to the FOP even though it is the prevailing party.  447.503(6)(c). Fla. Stat. (1983).

Based on the record in this case and for the reasons stated in the recommended order and in our discussion above, the Commission makes the following conclusions of law:

1. The City is a public employer within the meaning of Section 447.203(2).

2. The FOP is an employee organization within the meaning of Section 447.203(11).

3. Submission to involuntary urinalysis testing to detect the presence of controlled substances as a condition of continued employment is a mandatory subject of bargaining.

4. By unilaterally requiring certain of its police officers to submit to chemical testing as a condition of continued employment, the City committed an unfair labor practice within the meaning of Section 447.501(1)(a) and (c).

5. The FOP did not clearly and unmistakably waive its right to negotiate a change in the City's policy requiring certain employees to submit involuntarily to urinalysis testing to detect the presence of controlled substances as a condition of continued employment.

6. An award of reasonable attorney's fees and litigation costs to the prevailing party in this case is not appropriate.

Pursuant to Section 447.503(6)(a) the Commission ORDERS that:

1. The City of Miami shall cease and desist from:

(a) Unilaterally 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

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of any rights guaranteed to them by Chapter 447, Part II.

(a) Reinstate police officers Beruvides, Ferrer, and McKinnon to the status they enjoyed prior to Colonel Billy Riggs' action in ordering them to submit involuntarily to urinalysis as a condition of continued employment; (b) Post immediately for 60 days in conspicuous locations where notices to law enforcement personnel are customarily posted the attached notice to employees stating that the City shall cease and desist from the actions set forth in paragraph 1 above and that it shall take the affirmative action set forth in this paragraph. Copies of the notice shall be signed by the City's authorized representative prior to posting. The City shall take reasonable steps to ensure that the notices are not altered, defaced or covered by other material; and (c) Notify the Public Employees Relations Commission in writing within twenty calendar days from the issuance of this order of the steps that have been taken in compliance.

This order may be appealed within thirty days by filing a notice of appeal with the Commission and the district court of appeal. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Sections 447.504 and 120.68, Florida Statutes (1983), and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed with the Commission within fifteen days. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15.05.

It is so ordered.

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SHELLEY, Commissioner, dissenting:

The majority decision prohibits a police department from unilaterally assuring that its sworn police officers have not ingested illegal drugs. In this case the commander of the Patrol Division of the City of Miami's Police Department, acting upon reliable evidence that three of his officers had been observed in activity involving illegal drugs, ordered the three to submit to a urinalysis test to determine the presence of controlled substances. The majority's decision prohibits the commander's action without bargaining collectively with the union.

There is nothing more important or fundamental to a local government than its overriding interest in assuring the integrity of its police officers. Certainly it is more important than determining the organizational structure of a city, deciding to subcontract the functions of a fire department, or setting the requirements or qualifications a job applicant must have for any position of employment with a public employer. The majority would presumably allow a city to unilaterally make these types of decisions, but requires the City here to participate with the union in the decision to assure its police officers are drug-free and are not law breakers. The majority states that it recognizes the need for cities to safeguard the integrity of their law enforcement agencies; however, its order prohibits the City from unilaterally assuring and determining this fundamental issue.

The hearing officer's analysis and conclusion, adopted by the majority, signals the death knell for statutory management rights in Florida. Moreover, the analysis and conclusion is contrary to that adopted by the federal courts interpreting the National Labor Relations Act, and is contrary to the analysis and standard utilized by most administrative agencies and state courts defining the scope of public sector bargaining in other jurisdictions.

Section 447.209, Florida Statutes (1983), provides in pertinent part:

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....

The majority's decision, adopting the hearing officer's analysis, purports to follow NLRB precedent, but is in fact contrary to the analysis used in the private sector in determining whether a subject is a management prerogative or a mandatory subject of bargaining. In the private sector the question of whether an item is a mandatory subject of bargaining is determined on a case-by-case basis. Normally, matters which constitute wages, hours, and other terms and conditions of employment are mandatory, unless they "lie at the core of entrepreneurial control" or "are fundamental to the basic direction of a corporate enterprise..." Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,223, 85 S. Ct. 398, 409-10 (1964). In a later decision, First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 5. Ct. 2573 (1981), the Supreme Court discussed the need to utilize a balancing test to determine whether certain fundamental decisions, although certainly affecting terms and conditions of employment, are mandatory subjects of bargaining.

If a proper parallel to the private sector scope of bargaining analysis is drawn, the City's interest in the fitness of its police officers should be compared to decisions at the heart of private employers' entrepreneurial enterprise. As indicated above, the United States Supreme Court has indicated that fundamental decisions concerning the direction of a private, for profit, business are not mandatorily negotiable. There is nothing more fundamental to a municipality than the fitness of its police force. The latter should be no more subject to the give and take of bargaining than the former, notwithstanding that both decisions may affect terms and conditions of employment.

The hearing officer's reliance upon Medicenter Mid-South Hospital, 221 NLRB 670 (1975), which held that a requirement that employees must submit to a polygraph exam constituted a mandatory subject of bargaining, is a perfect example of blind adherence to NLRB law, ignoring the differences in the public and private sector. Obviously private employers do not have the same or as great an interest in having its employees drug-free as a public employer has in assuring that its law enforcers are drug-free.

Under the NLRA, most matters which fall within the sphere of managerial prerogatives relate to basic decisions concerning the control by the owner of his property and enterprise. However, even in the private sector the NLRB has not limited management rights to typical entrepreneurial or economic decisions where the nature of the employer indicated other fundamental concerns. In Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB, 636 F.2d 550 (D.C. Cir. 1980), the United States Court of Appeals for the District of Columbia upheld the NLRB's decision allowing a newspaper to unilaterally impose a code of ethics on its employees. In explaining its decision, the NLRB stated that the substantive provisions of the code of ethics constituted a legitimate attempt by the publisher to protect and preserve the credibility and quality of his publication and, for that reason, went beyond the scope of mandatory bargaining. In affirming the NLRB's decision, the appellate court stated:

We agree with the conclusion reached by the Board in this case and in Capital Times, supra, that protection of the editorial integrity of a newspaper lies at the core of publishing control. In a very real sense, that characteristic is to a newspaper or magazine what machinery is to a manufacturer. At least with respect to most news publications, credibility is central to their ultimate product and to the conduct of the enterprise....

When there is a conflict between an employer's freedom to manage his business in areas involving the basic direction of the enterprise and the right of the employees to bargain on subjects which affect the terms and conditions of their employment, a balance must be struck, if possible, which will take account of the relative importance of the proposed actions of the two parties....

The proper analysis of the public sector duty to bargain requires the Commission to balance the statutory management prerogatives with the right of public employers to bargain collectively. Obviously, most matters which deal with terms and conditions of employment affect management prerogatives. Conversely, most management prerogatives, irrespective of how narrowly defined, affect terms and conditions of employment. This overlap of management prerogatives and conditions of employment has caused administrative agencies and courts which deal with public sector bargaining laws in other jurisdictions to adopt a balancing test when determining the negotiability of a particular issue. Most public sector jurisdictions have adopted such a balancing test and such a test has been adopted irrespective of whether the employees in that jurisdiction have the right to strike and irrespective of whether the jurisdiction's bargaining law favors a broad or narrow scope of mandatory bargaining.

The overlap between areas of management rights and terms and conditions of employment and the resulting need for a balancing of the two sets of rights is aptly summarized by Minnesota's highest state court:

[A]reas of 'inherent managerial policy' and 'terms and conditions of employment' often times overlap. [Citation omitted.] A decision in respect to a matter of inherent managerial policy --a discretionary decision which a public employer is not required to negotiate-- may well impinge upon negotiable terms and conditions of employment. [Citations omitted.] The impact upon the terms and conditions of employment of an inherent managerial policy decision does not, however, render the policy decision a subject of mandatory negotiation if the decision and its implementation are so inextricably interwoven that requiring the public employer to meet and negotiate the method of carrying out its decision would require the employer to negotiate the basic policy decision.

The role of the courts in a scope of negotiations case is to determine, in light of the competing interests of the State and its employees, whether an issue is appropriately decided by the political process or by collective negotiations. In making this sensitive determination, the mere invocation of abstract categories like 'terms and conditions of employment' and 'managerial prerogatives' is not helpful. To determine whether a subject is negotiable, the Court must balance the competing interests by considering the extent to which collective negotiations will impair the determination of governmental policy.

Our opinions on public employment have established a three-part test for scope of negotiations determinations.

. . .
a subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees: (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.

In Police Officers Local 364 v. LRC, 117 LRRM 2927 (Mass. 1984), the Massachusetts Supreme Judicial Court reviewed a decision of the Massachusetts Labor Relations Commission which found that a municipality was not required to negotiate with a union over a police department's decision to use polygraph examinations in an investigation of criminal conduct by police officers. The Massachusetts Commission applied a balancing test and determined that the police department's overriding interest in the integrity of its police officers outweighed the union's interest in treating this subject as a condition of employment. The Massachusetts court stated:

We conclude that the commission properly took into account the unique requirements of a police employer in distinguishing the cases relied on by the union and correctly determined that the town was not required to negotiate with the union before ordering polygraph examinations.
. . .
The Commission's decisions also hold that management decisions directly affecting the work relationship required negotiations, unless the employer has an overriding interest which outweighs the negotiation process. ("[O]nly if [a proposal's] impact on terms and conditions of employment outweighs its impingement on core managerial prerogatives or concerns will the proposal be deemed mandatorily bargainable"). There is no error in the commission's conclusion that the police department's overriding interest in the integrity of its police officers exempted the town from negotiating with the union over the use of polygraph examinations to investigate criminal activity by police officers.

The balancing test applied by the commission in this case is consistent with the standard enunciated by the United States Supreme Court in construing the bargaining requirements imposed by the parallel provisions of the National Labor Relations Act.

. . .
Few institutions depend as heavily on integrity and credibility for the effective performance of their duties as do police departments. We have little hesitation in concluding that, when the functions of a police department are disrupted by police officers, the police department's decision to subject officers reasonably suspected of criminal activities to lie detector tests furthers law enforcement objectives that override the employees' interest in negotiations. To require collective bargaining over a police department's use of available techniques for investigating substantial allegations of criminal activities by officers "would be totally subversive of the of the discipline and efficiency which is indispensable to a public law enforcement agency." [Citations and footnotes omitted.]

Wisconsin also applies a balancing test in identifying mandatory bargaining subjects. That test "recognizes that the municipal employer, the employees, and the public have significant interests at stake and that their competing interests should be weighed to determine whether a proposed subject for bargaining should be characterized as mandatory." West Bend Education Association v. WERC, 357 N.W. 2d 534,538 (Wis. 1984). See also, Kansas State Board of Regents v. Education Association, 116 LRRM 2696 (Kan. 1983); Metro. Educ. Association v. Community College, 102 LRRM 2142 (Neb. 1979); PLRB v. School District, 90 LRRM 2081 (Pa. 1975).

Although the specific issue of urinalysis testing has apparently not been addressed in New York or any other jurisdiction, the New York Board has dealt with polygraph testing and with bargaining proposals which would prohibit the employer from requiring fire fighters to submit to a blood test, breathalyzer test, or any other test to determine alcohol in the blood. In Troy Uniformed Fire Fighters Association, 10 NYPERB  3015(1979), the New York Board stated that such a demand extends beyond investigation of departmental misconduct, thereby going beyond the employment relationship and accordingly beyond the scope of mandatory negotiations. Other union bargaining proposals which would prohibit the employer from compelling a statement from police employees have been found to be nonmandatory to the extent the statements reach conduct which might constitute the subject of a criminal investigation. Police Association of New Rochelle, Inc., 10 NYPERB 3042(1977).

The majority and the hearing officer indicate they are following precedent in finding the action of the police department to be a mandatory subject of bargaining. However, from my perspective, this is a case of first impression. I am not aware of any prior Commission or court decision concerned with the negotiability of a particular item which is so fundamental to a police department's operation while at the same time affecting employees' terms and conditions of employment. I am not advocating a repudiation of those prior decisions which indicate that the scope of bargaining in Florida is broad. The critical point is that the analysis should be based on a balancing test wherein the interests of both parties are weighed. This is consistent with both public and private sector precedent. Where the scope of bargaining is broad, as in this state, that will weigh heavily for the union when utilizing the balancing test. However, this does not mean that every item which touches a term or condition of employment should be negotiated, since the public employer's interest must also be weighed. Utilizing such a balancing test, I would find the urinalysis ordered under the facts of this case to be a management prerogative since the City's interest in the integrity of its law enforcement personnel is overwhelming. Based on the precedent cited above from other public sector jurisdictions, I also question if those jurisdictions would reach the same result as the majority.

I sincerely do not believe that the majority's decision best serves the public interest or promotes harmonious labor relations in this state. Likewise, I find nothing in the record to demonstrate the useful role of negotiations in attempting to deal with this issue. The fact that the City submitted bargaining proposals relative to this issue does not indicate that the City considered the issue a mandatory subject of bargaining. More importantly, we have no indication from the record as to he outcome of negotiations, we do not know if an agreement was reached or if impasse occurred, and we do not know the result of any impasse.