[ 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