[ v53 p1246 ]
53:1246(104)NG
The decision of the Authority follows:
53 FLRA No. 104
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
PROFESSIONAL AIRWAYS SYSTEMS SPECIALIST
MEBA/NMU
(Union)
and
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)
0-NG-2287
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 29, 1998
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute). It
concerns the negotiability of three proposals. The proposals
concern the Agency's policy regarding its abstinence requirement
for employees who are offered last chance rehabilitation
agreements as a consequence of alcohol abuse.
For the reasons that follow, we dismiss, without prejudice,
the petition for review as to Proposal 2 because the Agency has
not alleged that the proposal, as amended, is inconsistent with
law, rule, or regulation. We conclude that Proposal 3, which
would preclude the Agency, in administering its alcohol
rehabilitation program, from imposing any requirements in addition
to those required by law and regulation, is outside the duty to
bargain because it affects the Agency's right to determine its
internal security practices under section 7106(a)(1) of the
Statute and there is no basis for concluding that it constitutes
an appropriate arrangement. Proposal 4, which would place limits
on the Agency-imposed alcohol abstinence requirement, is outside
the duty to bargain because it affects the Agency's right to
determine its internal security practices under section 7106(a)(1)
of the Statute and there is no basis for concluding that it
constitutes an appropriate arrangement.
II. Background
This dispute arose out of the parties' negotiations over
the Agency's proposed change in its alcohol abstinence policy.
The new policy "requires all safety sensitive employees who are
diagnosed as alcohol dependent and successfully complete a 'last
chance' rehabilitation agreement to be subject to [the Agency's]
career-long abstinence requirement from alcohol consumption."
Statement of Position (Statement) at 1.
Under the previous policy, "only employees . . . with a
diagnosis of a substance dependency were required to adhere to a
total abstinence requirement for the duration of their employment
in the [Agency] while they . . . occupy a safety sensitive
position." Id. Employees who were "diagnosed only as alcohol
'abusers' were given a 1 year abstinence requirement and could
then resume moderate drinking without violating their 'last
chance' treatment agreement." Id. (emphasis added.)
III. Proposal 2
It is the Agency's policy to use licensed
professional[s] who are not FAA employees to perform
evaluations.
A. Positions of the Parties
1. Agency
The Agency addresses Proposal 2 as it was appealed in the
Union's petition for review and as set forth above. The Agency
asserts that Proposal 2 interferes with its rights to contract out
and assign work to employees under section 7106(a)(2)(A) and (B)
of the Statute. According to the Agency, the proposal would
require the Agency to have all treatment evaluations done only by
non-Agency employees who are licensed professionals, and would
thereby preclude it from assigning this work to qualified Agency
employees.
2. Union
In its petition for review, the Union appealed the Agency's
allegation of nonnegotiability of Proposal 2 as set forth above.
However, in its response to the Agency's statement of position,
the Union states that this version of Proposal 2 "is incomplete,
and [was] declared non-negotiable by the Agency prior to
finalization." Response at 2. According to the Union, during
negotiations it requested that the initial proposal be amended so
that it reads:
It is the Agency's policy to use licensed
professional[s] who are not FAA employees to
perform evaluations . . . whenever possible. If
this policy should change, the Union will be
notified as required by the parties' National
Agreement."
Id. (amended language underscored).
The Union contends that, as amended, the proposal is within
the duty to bargain.
B. Analysis and Conclusions
The Agency's assertions are directed at the initial
proposal as set forth in the Union's petition. The Union amended
the initial proposal prior to the Agency's declaration of
nonnegotiability. However, in its declaration, the Agency
addressed the initial proposal. The Union petitioned for a
determination as to the initial proposal and did not advance the
amended proposal as a basis for a negotiability determination
until its opposition to the Agency's statement. The Agency has
not alleged that the amended proposal is inconsistent with law,
rule, or regulation.
Under section 7117 of the Statute and section 2424.1 of the
Authority's Regulations, the Authority will consider a petition
for review of a negotiability issue only where the parties dispute
whether a proposal is inconsistent with law, rule, or regulation.
5 U.S.C. 7117(a); 5 C.F.R. 2424.1. As the Agency has not
alleged that the amended proposal is inconsistent with law, rule
or regulation, the petition does not meet the conditions governing
review of negotiability issues. Therefore, we dismiss the
petition as it relates to Proposal 2 without prejudice to the
Union's right to file an appeal if the conditions governing review
are met and the Union chooses to file such an appeal. See, e.g.,
American Federation of Government Employees, Local 1900 and U.S.
Department of the Army, Headquarters, Forces Command, Fort
McPherson, Georgia, 51 FLRA 133, 137-38 (1995); National
Association of Agriculture Employees and U.S. Department of
Agriculture, Animal and Plant Health Inspection Service,
Hyattsville, Maryland, 48 FLRA 599, 601-02 (1993).
IV. Proposal 3
The Federal Air Surgeon and staff will administer the
alcohol rehabilitation program without placing
additional requirements on the treatment process not
required by law and regulation.
A. Positions of the Parties
1. Agency
The Agency states that most unit employees are in
safety-sensitive positions and "are subject to periodic alcohol
and drug testing and [A]gency rules restricting or prohibiting
alcohol and drug use[]" that are set forth in Department of
Transportation (DOT) Order 3910.1C, "Drug and Alcohol-Free
Departmental Workplace." Statement at 4 and Attachment 1. The
Agency asserts that under the Employee Assistance Program (EAP),
the Agency's medical officer (the Federal Air Surgeon) must
approve all rehabilitation treatment agreements for employees in
safety-sensitive positions. The Agency explains that this ensures
that, upon completion of a rehabilitation program and return to
safety duties, the employee will be medically qualified and pose
no threat to aviation safety.
According to the Agency, the proposal would prevent the
Federal Air Surgeon from imposing any requirements in addition to
those proposed by the contract provider, unless required by law.
The Agency contends that this would operate to bar the Federal Air
Surgeon from exercising his or her authority to disapprove or
modify recommendations of its contractor on matters directly
related to internal security--the maintaining of aviation safety
through a drug and alcohol-free work force. The Agency asserts
that because the proposal interferes with its right to determine
its internal security practices under section 7106(a)(1) of the
Statute, it is outside the duty to bargain. The Agency does not
address the Union's claim that the proposal is within the duty to
bargain under Executive Order 12871.
2. Union
The Union asserts that the Agency seeks to modify its
abstinence policy under DOT Order 3910.1C for individuals who have
been diagnosed as alcohol abusers or alcohol dependent. According
to the Union, the policy set forth in the Agency order is based on
the Omnibus Transportation Employee Testing Act of 1991 (the Act),
Pub. L. No. 102-143, title V, 2(5)and 3(a), 105 Stat. 917, 952
(1991). The Union contends that the proposal is intended to
address this proposed change.
The Union asserts that the proposal is within the duty to
bargain under Executive Order 12871 and the Agency has not shown a
compelling need for not negotiating on the proposal.
The Union contends that Proposal 3 is within the duty to
bargain because the Authority has found a proposal requiring a
drug-testing program to comply with law to be within the duty to
bargain. The Union claims that the proposal constitutes an
appropriate arrangement for adversely affected employees. In
support, the Union cites, but does not discuss, American
Federation of Government Employees, Department of Education
Council of AFGE Locals and U.S. Department of Education,
Washington, D.C., 39 FLRA 1241 (1991) (Proposal 1)
(Education II).
B. Analysis and Conclusions
1. Meaning of the Proposal
The Union explains that Proposal 3 addresses the Agency's
proposed policy change revising its abstinence requirement for
employees diagnosed as alcohol abusers or alcohol dependent.
Based on the Union's explanation and the wording of the proposal,
the proposal seeks to preclude the Agency, in administering its
alcohol rehabilitation program, from imposing any requirements on
the treatment process in addition to those required by law and
regulation.
2. We Reject the Union's Bare Assertion That the
Proposal Is Within the Duty to Bargain Under
Executive Order 12871
Although the Union does not cite section 7106(b)(1) or
claim that the proposal concerns a subject matter set forth
therein, it does contend that the proposal is within the duty to
bargain under Executive Order 12871. We construe the Union's
contention as an assertion that the proposal concerns section
7106(b)(1) matters. The Agency claims that negotiation over the
proposal is precluded by section 7106(a) of the Statute.
In National Association of Government Employees, Local
R5-184 and U.S. Department of Veterans Affairs, Medical Center,
Lexington, Kentucky, 51 FLRA 386, 393 (1995), the Authority set
forth the approach that it applies in negotiability disputes where
parties disagree whether a proposal comes within the terms of
section 7106(a) or section 7106(b)(1) of the Statute. Under this
approach, the Authority first examines the contention that a
proposal is electively bargainable under section 7106(b)(1). If
the proposal concerns a subject set forth in section 7106(b)(1),
the Authority does not address contentions that the proposal also
affects the exercise of management's authorities under section
7106(a). If, however, the proposal is not encompassed by section
7106(b)(1), the Authority proceeds to analyze it under the
appropriate subsection of section 7106(a). In this regard, where
a party asserts that a proposal concerns a matter within the
subjects set forth in section 7106(b)(1), but offers no argument
or authority to support its bare assertion to that effect, and it
is not otherwise apparent that the proposal concerns a section
7106(b)(1) matter, the Authority will reject the assertion.
National Association of Government Employees, Local R1-109 and
Department of Veterans Affairs, Medical Center, Newington,
Connecticut, 53 FLRA 403, 408 (1997).
The parties' assertions, as construed, dispute whether the
proposal comes within the terms of section 7106(a) or
section 7106(b)(1). Other than its bare assertion concerning
Executive Order 12871, the Union offers no basis for finding that
the proposal concerns a matter within the subjects set forth in
section 7106(b)(1). Further, it is not otherwise apparent that
the Union's proposal concerns matters governed by section
7106(b)(1). Consequently, we reject the Union's claim that the
proposal concerns matters within the meaning of section
7106(b)(1).
3. The Proposal Affects Management's Right to
Determine Its Internal Security Practices
Under 49 U.S.C. 45102(b) and 45105(b), the Agency is
required to establish alcohol and controlled substances testing
programs, including a rehabilitation program. Management's right
to determine its internal security practices under section
7106(a)(1) includes the right to establish and administer these
programs, including the rehabilitation part of the program. See
International Federation of Professional and Technical Engineers,
Local 89 and U.S. Department of the Interior, Bureau of
Reclamation, Grand Coulee Project Office, 48 FLRA 516, 519, 521
(1993) (Interior); American Federation of State, County and
Municipal Employees, Local 3097 and U.S. Department of Justice,
Justice Management Division, 42 FLRA 412, 459 (1991) (DOJ);
American Federation of Government Employees, Local 1513 and U.S.
Department of the Navy, Naval Air Station, Whidbey Island, Oak
Harbor, Washington, 41 FLRA 589, 610 (1991). The Agency's
implementation of its alcohol and drug testing programs, including
requirements for rehabilitation pursuant to the Act, involves
determinations concerning its internal security practices.
Proposal 3 would affect the Agency's right to determine its
internal security practices by precluding the Agency from imposing
any requirements for treatment under its alcohol rehabilitation
program other than those required by law and regulation. We find,
therefore, that the proposal affects management's right to
determine its internal security practices under section 7106(a).
See Interior, 48 FLRA at 523-24.
4. Proposal 3 Is Not an Appropriate Arrangement
The Union's only support for its claim that the proposal is
negotiable as an appropriate arrangement is its citation to
Education II. In that case, the Authority found that a proposal
that required the agency to establish and administer its drug
testing program in strict compliance with the U.S. Constitution
and all applicable laws, rules and regulations, and the parties'
agreement was negotiable as an appropriate arrangement.
Education II was overturned because the court found that
the proposal did not constitute an arrangement. Minerals
Management, 969 F.2d at 1162. According to the court, the
proposal was not an arrangement because it was not tailored to
compensate employees suffering the adverse effects attributable to
management's exercise of its right to determine its internal
security practices. Id. Subsequently, the Authority agreed with
the court that a purported arrangement must be "tailored" to
compensate or benefit employees suffering adverse effects
resulting from the exercise of management's rights. National
Treasury Employees Union, Chapter 243 and U.S. Department of
Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994)
(Member Armendariz concurring in part and dissenting in part).
See also American Federation of Government Employees, National
Border Patrol Council and U.S. Department of Justice, Immigration
and Naturalization Service, 51 FLRA 1308, 1319 (1996) (DOJ, INS).
The Union has not explained how its proposal is
distinguishable from the proposal in Education II or why the
decision in that case should not be followed here. It is well
established that the parties bear the burden of creating a record
on which the Authority can make a negotiability decision. See,
e.g., National Federation of Federal Employees, Local 2079 and
U.S. Department of Agriculture, Forest Service, Umpqua National
Forest, Roseburg, Oregon, 49 FLRA 396, 403 (1994). A party
failing to meet this burden acts at its peril. Id. In view of
the Union's failure to provide any support for its claim that
Proposal 3 constitutes an appropriate arrangement under section
7106(b)(3) of the Statute, we reject this assertion.
5. Proposal 3 Is Not Within the Duty to Bargain
As discussed above, Proposal 3 impermissibly affects
management's right to determine its internal security practices
under section 7106(a)(1) of the Statute and there is no basis for
concluding that the proposal constitutes an appropriate
arrangement. Consequently, we conclude that Proposal 3 is not
within the duty to bargain.
V. Proposal 4
The Agency will limit any regulatory abstinence to
the duration of the rehabilitation/treatment program
as determined by the SAP (substance abuse
professional) in accordance with the provisions for
the follow-up testing as described in the [Act].
A. Positions of the Parties
1. Agency
According to the Agency, once employees who have completed
a rehabilitation program for alcohol dependency return to their
safety-sensitive duties, they must maintain total abstinence for
the rest of their career with the Agency. The Agency explains
that this policy is based on a medical determination. The Agency
states that, as explained by the Union, the purpose of the
proposal is to limit the Agency's abstinence requirement for
employees under a rehabilitation treatment program to a maximum of
5 years, which is the same time limitation used for conducting
follow-up testing under the industry program. Without citation,
the Agency asserts that the law governing the industry program
does not apply to Federal agencies' rehabilitation treatment
programs.
The Agency contends that by limiting the amount of time
that its abstinence requirement can be in effect, the proposal
affects management's right to determine the internal security
measures necessary to protect its personnel and the safety of the
flying public. The Agency asserts, therefore, that the proposal
interferes with its right to determine its internal security
practices under section 7106(a)(1). The Agency further contends
that the proposal does not constitute an appropriate arrangement
because it excessively interferes with its right to determine its
internal security practices.
The Agency also argues that the proposal interferes with
its right to discipline under section 7106(a)(2)(A) of the
Statute. According to the Agency, the proposal would prevent
removal of an employee who had completed a rehabilitation program
for any violation that occurred after expiration of the 5-year
period. The Agency asserts that both the Act and Agency rules
require employees performing safety-sensitive duties to remain
alcohol and drug-free at all times.
The Agency further argues that the duration of its
abstinence requirement is not a matter that is within the duty to
bargain under section 7106(b)(2) or (3) of the Statute because it
is part of a rehabilitation treatment agreement offered to
employees whose conduct is otherwise subject to removal.
According to the Agency, acceptance of a last chance agreement is
a voluntary choice.
2. Union
Without citing any provision of the Act, the Union asserts
that the Act "requires the Agency to perform follow-up testing on
employees who have entered into a rehabilitation/treatment
program" and that it "pr[e]scribes a minimum number of 6 tests
over a duration of twelve months and a maximum of 60 months for
follow-up testing of employees." Petition at 1. The Union states
that its proposal is based on research showing that after
abstinence has been maintained for 5 years, relapse is rare. The
Union contends that the Act does not regulate what an employee in
a safety-related position consumes during off-duty hours as long
as the employee abstains from the consumption of alcohol while on
duty and during the time immediately before entering on duty.
The Union contends that the Agency's abstinence requirement
violates employees' Constitutional right to privacy because what
employees do away from work is their choice. The Union also
maintains that the requirement violates the Fifth Amendment's
equal protection clause and the Americans with Disabilities Act
(ADA) because the same off-duty restrictions are not placed on
employees who are not diagnosed with an alcohol addiction.
The Union further disputes the Agency's contention that a
last chance agreement is voluntary. According to the Union, such
an agreement is mandatory for continued employment. Lastly, the
Union claims that the proposal constitutes an appropriate
arrangement for adversely affected employees.
B. Analysis and Conclusions
1. Meaning of Proposal
Based on its wording, Proposal 4 would require the Agency
to limit its abstinence requirement for an employee who has
completed a rehabilitation program for alcohol dependency and
returned to his or her safety-sensitive duties, to the duration
determined by the substance abuse professional. As explained by
the Union, this would limit the period during which the employee
is required to abstain from alcohol use to a maximum of 5 years.
The record indicates that both parties interpret the
proposal as applying this time limit. As the Union's explanation,
adding a time limit not stated in the proposal, is not
inconsistent with the wording of the proposal, we adopt it. See,
e.g., National Education Association, Overseas Education
Association, Laurel Bay Teachers Association and U.S. Department
of Defense, Department of Defense Domestic Schools, Laurel Bay
Dependents Schools, Elementary and Secondary Schools, Laurel Bay,
South Carolina, 51 FLRA 733, 737 (1996) (when a proposal is silent
as to a particular matter, a union statement clarifying the matter
is considered consistent with the proposal's plain wording so long
as the statement otherwise comports with the proposal's wording).
2. The Proposal Affects Management's Right to
Determine Its Internal Security Practices
As discussed in Section IV. B.3. above, the Agency's
administration of its alcohol and drug testing programs, including
requirements for rehabilitation pursuant to the Act, involves
management's right to determine its internal security practices
under section 7106(a)(1). A requirement that rehabilitated
employees in safety-sensitive positions abstain from the use of
alcohol affords protection to Agency property, personnel and
operations and the safety of the flying public. See, e.g., DOJ,
42 FLRA at 459. The establishment of such a requirement
constitutes an exercise of management's right to determine its
internal security practices because such requirement safeguards
Agency property, personnel and operations against internal and
external risks and prevents disruption to the flying public by
deterring alcohol use by identified alcohol abusers.
Proposal 4 would limit the abstinence requirement for
employees completing a rehabilitation program for alcohol
dependency to no more than 5 years. By doing so, the proposal
affects management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.
3. Proposal 4 Is Not an Appropriate Arrangement
The approach for determining whether a proposal is within
the duty to bargain under section 7106(b)(3) is set out in
National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that
approach, the Authority initially determines whether the proposal
is intended to be an "arrangement" for employees adversely
affected by the exercise of a management right. In order to
constitute an arrangement, a proposal must seek to mitigate
adverse effects "flowing from the exercise of a protected
management right." United States Department of the Treasury,
Office of the Chief Counsel, Internal Revenue Service v. FLRA,
960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a
proposal is an arrangement, a union must identify the effects or
reasonably foreseeable effects on employees that flow from the
exercise of management rights and how those effects are adverse.
KANG, 21 FLRA at 31.
In this case, the proposal would preclude the Agency from
establishing an alcohol abstinence requirement longer than 5
years. The Union does not explain, and it is not apparent, how
imposing this time limit relates to an effect flowing from the
exercise of a management right. It also is not explained or
apparent how requiring employees diagnosed as alcohol-dependent,
who have completed a rehabilitation treatment program, to abstain
from consuming alcohol for longer than 5 years while employed in
safety-sensitive positions would adversely affect them. As the
record does not provide a basis for finding that the proposal
addresses an adverse effect on employees attributable to the
exercise of a management right, we find that it does not
constitute an arrangement. See DOJ, INS, 51 FLRA at 1317.
4. Proposal 4 Is Not Within the Duty to Bargain
As discussed above, the proposal affects management's right
to determine its internal security practices under
section 7106(a)(1) of the Statute and the Union has not
demonstrated that the proposal constitutes an appropriate
arrangement. Consequently, we conclude that Proposal 4 is not
within the duty to bargain.
VI. Order
The petition for review is dismissed as to Proposals 3 and
4. The petition for review concerning Proposal 2 is dismissed
without prejudice to the Union's right to file a negotiability
appeal if the conditions for review are satisfied. APPENDIX
CHAPTER 451--ALCOHOL AND CONTROLLED SUBSTANCES TESTING
. . . .
45102. Alcohol and controlled substances testing
programs
. . . .
(b) Program for employees of the Federal Aviation
Administration.--(1) The Administrator shall establish a program
of preemployment, reasonable suspicion, random, and post-accident
testing for the use of a controlled substance in violation of law
or a United States Government regulation for employees of the
Administration whose duties include responsibility for safety-
sensitive functions. . . .
(2) When the Administrator considers it appropriate in the
interest of safety, the Administrator may prescribe regulations
for conducting periodic recurring testing of employees of the
Administration responsible for safety-sensitive functions for use
of alcohol or a controlled substance in violation of law or a
Government regulation.
(c) Sanctions.--In prescribing regulations under the programs
required by this section, the Administrator shall require, as the
Administrator considers appropriate, the suspension or revocation
of any certificate issued to an individual referred to in this
section, or the disqualification or dismissal of the individual,
under this chapter when a test conducted and confirmed under this
chapter indicates the individual has used alcohol or a controlled
substance in violation of law or a Government regulation.
45103. Prohibited Service
(a) Use of alcohol or a controlled substance.--An individual may
not use alcohol or a controlled substance after October 28, 1991,
in violation of law or a United States Government regulation and
serve as an airman, crewmember, airport security screening
contract employee, air carrier employee responsible for
safety-sensitive functions (as decided by the Administrator of the
Federal Aviation Administration), or employee of the
Administration with responsibility for safety-sensitive functions.
(b) Rehabilitation required to resume service.--Notwithstanding
subsection (a) of this section, an individual found to have used
alcohol or a controlled substance after October 28, 1991, in
violation of law or a Government regulation may serve as an . . .
employee of the Administration with responsibility for
safety-sensitive functions only if the individual completes a
rehabilitation program described in section 45105 of this title.
(c) Performance of prior duties prohibited.--An individual who
served as an . . . employee of the Administration with
responsibility for safety-sensitive functions and who was found by
the Administrator to have used alcohol or a controlled substance
after October 28, 1991, in violation of law or a Government
regulation may not carry out the duties related to air
transportation that the individual carried out before the finding
of the Administrator if the individual--
(1) used the alcohol or controlled substance when on duty;
(2) began or completed a rehabilitation program described in
section 45105 of this title before using the alcohol or controlled
substance; or
(3) refuses to begin or complete a rehabilitation program
described in section 45105 of this title after a finding by the
Administrator under this section.
. . . .
45105. Rehabilitation
. . . .
(b) Program for employees of the Federal Aviation
Administration.--The Administrator shall establish and maintain a
rehabilitation program that at least provides for the
identification and opportunity for treatment of employees of the
Administration whose duties include responsibility for
safety-sensitive functions who need assistance in resolving
problems with the use of alcohol or a controlled substance.
. . . .
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Cabaniss did not participate in this decision.
2. In general, a "last chance agreement" is a contract between an employee and an employer that gives the employee an opportunity to conform his/her conduct or performance to meet the employer's requirements in exchange for the retraction of disciplinary or adverse actions. American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, n.1 (1990), enforced, 949 F.2d 475 (D.C. Cir. 1991).
3. The proposals are numbered according to the Union's numbering scheme.
4. Neither the Agency nor the Union, which also cites to DOT Order 3910.1C, provided a copy, or referred to any provision, of the order in their submissions.
5. Title V, § 3(a) of the Act amended the Federal Aviation Act of 1958 (49 App. U.S.C. §§ 1421 et seq.) by adding Section 614, a provision on alcohol and controlled substances testing codified at 49 U.S.C. Appendix § 1434 note. Section 614 was subsequently revised and codified at 49 U.S.C. §§ 45101-45106. The pertinent text of the revised law is set forth in the Appendix to this decision. The Union did not refer to any section of the Act in its petition or response.
6. The Union's assertion that the proposal is within the duty to bargain under Executive Order 12871 also applies to Proposal 4 and will not be repeated in conjunction with the discussion of that proposal. Also, because the Agency is not raising any compelling need arguments, the Union's contention concerning compelling need will not be addressed in this decision.
7. Education II is the decision on reconsideration of 38 FLRA 1068 (1990) (Education I). Education II was reversed by the court in U.S. Department of the Interior Minerals Management Service v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management).
8. This analysis also requires the rejection of the identical claim advanced by the Union with respect to Proposal 4.
9. As stated in Section IV. A.2. above, the Union explains that its proposal is intended to address the proposed change in the Agency's alcohol policy. Based on the Union's explanation, we construe the phrase "any regulatory abstinence" in Proposal 4 to mean abstinence requirements pertaining to alcohol use.
10. The Union's contentions concerning the ADA and the Fifth Amendment appear to challenge the lawfulness of the Agency's abstinence policy. As these contentions do not address the negotiability of the proposal, they will not be addressed further. See American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 496 n.9 (1995), aff'd, 110 F.3d 810 (D.C. Cir. 1997); National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 45 FLRA 1204, 1212 (1992).
11. In view of our finding that this proposal affects management's right to determine its internal security practices under section 7106(a)(1) of the Statute and our rejection of the Union's assertion that this proposal constitutes an appropriate arrangement under section 7106(b)(3), we find it unnecessary to address whether this proposal would also affect management's right to discipline employees under section 7106(a)(2)(A).