Flying, we have been told for years, is the safest mode of travel. Airplanes are winged marvels, over-engineered to a fault, with the kinds of redundant systems and safety protections no one buying, say, a Honda Civic would be willing to pay extra for.
When planes do crash, the thinking goes, the cause is usually something out of left field, like a terrorist attack or a suicidal pilot. Perhaps a catastrophic mechanical fluke, or a series of them--small things failing simultaneously and against the odds.
After all, the people who fix and fly the planes want them to go up and come back down intact just as much as the passengers do, we're told. Trained, licensed, and often backed by strong unions, they can be counted upon to put the public's safety ahead of their own job security. And if their bosses don't like it, well, there are systems to protect whistleblowers, aren't there ?
By all accounts, Thomas Regner believed in these things. A Northwest Airlines mechanic, Regner was described as a stickler for details, the kind of guy who spent his spare time finding out how his co-workers handled particularly challenging repairs. He even kept the "blue cards"--extra, unused carbons of maintenance orders he'd written up--on planes he worked on. When his shift ended before a challenging repair on a particular plane was completed, he'd use the cards to track what was done to resolve the problem. Frequently, he'd learn something new. His diligence served him well. Within a few years he had been promoted to crew chief.
But in the spring of 1998, that changed, according to court records. Regner noted a series of problems with the planes his crew was working on. Upset that several aircraft hadn't been properly fixed before they were put back into passenger service, he began reporting safety violations to the Federal Aviation Administration (FAA). He kept those blue cards, too, perhaps worried--because of an ongoing labor-management tussle--that he would need a record of his role. In fact, he would later argue, his FAA-issued license required him to take his obligation to safeguard the flying public seriously.
Northwest didn't see Regner's actions in the same light. In April 1998, the company fired him, contending that he was really participating in a mechanics' work slowdown in protest of stalled contract negotiations. For three and a half years he and his union fought to get his job back. Ultimately, a federal arbitrator concluded that Regner had been motivated by concern for public safety, and that there was no evidence he was involved in monkey-wrenching.
And by his advocates' lights, that's as much good news as the flying public can glean from Regner's case. Indeed, it appears that Northwest won't be made to answer for what it did to him. At the time Regner was fired, the federal government had no mechanism for protecting people like him. And the Minnesota Court of Appeals recently ruled that he can't sue Northwest under the state's law against punishing whistleblowers.
The supreme irony is that if Regner made raincoats or spatulas, or filed contracts in the basement of an insurance company, that wouldn't be the case. But despite the fact that airplane mechanics, pilots, and flight attendants take responsibility for hundreds of lives every day, they have some of the weakest protections of all American workers.
For Lee Seham, the attorney who represents Northwest's mechanics, there's only one important question to ask about the whistleblower protection Regner got: "Is it enough to make the next guy want to stick his neck out?"
No one who flies will feel very good about the answer.
It's easy to see why no one sets out to become a whistleblower. Usually it's happenstance that thrusts a reluctant employee into the role. Few are lauded as heroes, and even those whose names briefly become the stuff of headlines face uncertain futures. The ugliest scenes in The Insider, the movie about former tobacco exec Jeffrey Wigand, depict his life falling apart as a result of his disclosures. And whatever eventually befalls Enron vice president Sherron Watkins, it's a safe bet Fortune 500 honchos aren't tripping over each other to make her an offer.
Contacted for this story, a company spokesman would say only that "Mr. Regner's termination had absolutely nothing to do with airline safety or any reporting of safety issues." Thomas Regner himself is back on Northwest's maintenance line and he declined to be interviewed. But the record in his case suggests that he, too, was thrust reluctantly into the limelight. According to co-workers and court documents, after being fired from Northwest, Regner lost his house and spent several fruitless years trying to land another job as a mechanic. He was made a scapegoat, his co-workers say, and he paid a high price.
When Regner was fired in April 1998, tensions at Northwest Airlines' Twin Cities maintenance facility had reached a fever pitch. Members of the mechanics' union had been working without a contract for more than two years, and their attempts to negotiate a new one weren't going anywhere. For many, the dispute had personal overtones. The union's last contract had included major concessions designed to help Northwest recover from the industry-wide financial crisis of the mid-'90s. Yet while the machinists waited for the airline to make it up to them, Northwest execs were discovered exercising their stock options.
Meanwhile, management was brandishing statistics it said proved that the union was engaged in a form of economic warfare that's particularly painful to an air carrier: the work slowdown. When Regner's problems started, the atmosphere had become poisonous. A technician had been fired; mechanics understood the reason to be a minor maintenance oversight that typically would not have provoked any discipline at all. At the same time, there was an influx of management at the Minneapolis facility, accompanied by increased scrutiny.
As a mechanic licensed by the FAA to work on commercial jets, Regner had a legal duty to report dubious maintenance practices to the agency. According to testimony in his arbitration hearings (later submitted to state courts as a part of his lawsuit), by the time Regner finally resorted to calling the feds, he had been giving the company the benefit of the doubt for a while. Several times in the months before the work slowdown, he contended in his testimony, he was criticized when the pace of maintenance got in the way of keeping planes on schedule.
In November 1997, after working on a plane that had experienced repeated system failures at high altitudes, Regner was forbidden to order a "test hop" to determine that the problems had been fixed, according to court records. Concerned, he refused to release the plane to fly. When his supervisor threatened to "take action," Regner filed a written complaint with the company. He got no response.
In February 1998, mechanics throughout the facility were having problems determining whether the company's fleet of DC-9s contained the right kind of fire containment tape used to seal seams in the walls, floor, and ceiling of a plane's cargo bin. The tape can be the sole mechanism for containing a fire in the cargo bin. According to testimony in Regner's hearings, the technicians asked for guidance in the matter for more than two weeks. Hearing nothing, some pulled planes out of service, while others resorted to replacing the tape. On March 11, Regner complained about the situation to the FAA. The next day, the company specified guidelines.
On March 23, Regner reported to the FAA that a 727 was sent into service before the batteries that powered its emergency backup lights could be charged for the required number of hours. The crew chief responsible had relied not on the manual, but on his own "eyeballing technique" to determine whether the lights were strong enough, according to testimony at the arbitration hearing. Northwest ended up clarifying the relevant portion of its 727 maintenance manual.
On April 18, Regner spotted a heavy coating of oil inside a plane's tailpipe, according to court records. Following up two days later, he learned that work had been done to correct the problem, but no one had taken the final step of running the engine to determine whether more oil would pool. He went to the agency again, and Northwest was forced to ground the plane in Ontario, California, where it had no maintenance facility.
On April 20 and 21, Regner reported two more unresolved problems to the FAA. (In both cases, Regner alleged in court documents, repair work had been performed but not logged--itself a safety violation. In response to the second complaint, the agency ended up "counseling" a manager who improperly attempted to backdate maintenance paperwork.) In each of the five instances in which Regner complained to the FAA, the agency agreed that the aircraft should not have left the ground.
It didn't matter to Regner, though. When he showed up for his shift on April 24, he was suspended. Northwest security walked him off the property. A few days later, he was called in for a formal question-and-answer session. The attorney who conducted the interrogation asked Regner about his need to "bond" with the FAA, and why he thought it was all right to "turn the company in," according to Regner's testimony. Management was convinced that Regner had made his reports because he was the ringleader of a work slowdown.
Regner was one of eight mechanics Northwest fired the following week. The other seven were eventually given back their jobs. Not Regner, however--because he had "involved a third party," he later testified his co-workers were told.
Things might have ended there if it hadn't been for a twist of union politics. Unhappy with the failure of their union to secure a new contract, in November 1998 the mechanics voted to dump the International Association of Machinists and Aerospace Workers (IAM) in favor of the newer, smaller Airline Mechanics Fraternal Association, or AMFA. The IAM had been dutifully pursuing Regner's grievance against the company, but AMFA and its attorney saw his case as pivotal: Not only did mechanics have a right to go to the agency; under the terms of their licenses, it was their legal duty.
"If we lost this, it would be saying we couldn't go to the FAA. If they say you can lose your job for going to the FAA, you can lose your ability to feed your family. You don't want an airline technician deciding between those two things when he's deciding whether to let an airplane go," says Steve MacFarlane, who until the end of December was president of AMFA Local 33 in Minneapolis. "We spent a couple of hundred thou to represent [Regner]. We couldn't afford a maybe."
On November 6, 2001, following three and a half years of legal wrangling and two weeks of testimony, federal arbitrators sided with Regner. The three-member panel found that the number of planes out of service had actually risen after his firing, and noted that even Northwest's managers had conceded that all of the problems he flagged were indeed violations. The abitrator returned him to his job with back pay.
A few paragraphs from the end of the arbitrators' written opinion, there lurked a final irony: After Regner's firing, Northwest instituted a policy barring mechanics from keeping their so-called blue cards. Instead, the technicians were to put the spare carbon of their maintenance orders into a locked box. "According to the union, an elaborate re-education campaign was then necessary in order to avoid mass terminations," the arbitrators wrote. "As a grim reminder of the grievant, the company has christened the padlocked container for depositing blue copies as the 'Regner box.'"
If the violations regner flagged sound like small potatoes, consider how often in recent years spectacular crashes have been caused by seemingly small glitches. For example, the National Transportation Safety Board conclusions regarding the 2000 crash of Alaska Airlines flight 88 in California, released just last month: The airline used the wrong kind of grease on the plane's jackscrew, a tail component that sets the angle of flight, causing it to wear and fail. The panel blamed the airline, but also took the FAA to task for allowing Alaska Air to extend the intervals between greasing and inspecting tail components.
And that confusion about the fire-containment tape that first drove Regner to call the FAA? Statistically, fires--and the resulting toxic smoke in the cockpit--cause just 4 percent of crashes, but that category accounts for two of the more notorious recent incidents: ValuJet in 1996 and SwissAir in 1998.
Plenty of critics argue that safety has deteriorated in the wake of the 1978 deregulation of the airlines. In the 25 years since, the industry's profit margins became perilously thin. Recently, they disappeared altogether. When United declared bankruptcy last month, the aviation behemoth would have needed to sell 110 percent of the seats on each of its flights to break even, according to one airline lobbyist. Accordingly, airlines are under constant pressure to cut costs.
"Since deregulation, maintenance is just one more line item, just one more thing for the bean counters to take a whack at," says attorney Seham. As proof, he cites the lengthening time between line checks, just-in-time delivery of spare parts, and a cutback in de-icing procedures to fewer months of the year. There is, he says, an increasing willingness to reason that "it flew in, it can fly out." Plus, maintenance managers' pay often is pegged to their ability to keep planes in the air.
"All the public cares about is on-time performance and price," says Seham. "You're really counting on the mechanic and his sense of professionalism and his desire to retain his license."
Indeed, Regner's case has been probed as an example of the ways in which U.S. aviation policy fails to encourage safety. His firing was discussed before the Presidential Emergency Board that stepped in during Northwest's contract dispute. And it was among a number of whistleblower stories recounted in recent testimony before the investigative arm of Congress, the General Accounting Office (GAO), which is looking into the effect of a decline in the number of mechanics' jobs throughout the industry.
Regner's saga might be less worrisome if the FAA had a better record of standing up to the industry it's supposed to police. Until 1996, the agency had two stated missions: to safeguard the flying public and to promote commercial aviation. Their role as industry booster endures even now. Both the GAO and the National Transportation Safety Board have frequently taken the FAA to task for allowing airline executives "direct and frequent access" and for putting their needs before the public's.
Mary Sciavo was the U.S. Department of Transportation's inspector general from 1990 to 1996. Convinced that the airlines were vulnerable to terrorism, she pushed for greater security measures. She was continually rebuffed, however, by the FAA, which agreed with the industry's argument that any additional security measures--such as matching checked bags to passengers--would be too cumbersome. After the 1996 ValuJet crash in the Florida Everglades, Sciavo wrote scathing reports of the FAA's ignoring massive safety violations at the airline. Upon seeing those reports buried, she quit her job. Sciavo now works with a law firm that handles airline liability lawsuits.
And while many of the agency's administrators either come from or leave for jobs as airline executives, those who attempt to become activists find themselves confronting the industry's political clout. Donald Engen, an FAA administrator during the '80s, has complained that on those occasions when the agency does try to impose rules the airlines don't like, the companies simply go up the ladder. "They went to Congress or the president of the United States, or to the public," he told Newsday, "saying that this regulation was uncalled-for."
Sometimes the agency is even more forgiving than the airlines themselves. In an investigative report two years ago, USA Today reported that Kapton, a type of electrical wire, was a fire hazard. At the time of the report, the U.S. Air Force had outlawed the material and a number of airlines had unilaterally begun replacing it, yet the FAA was still unwilling to ban its use.
All of this, say Seham and other critics, makes it important that airline employees feel free to blow the whistle any time they're not sure a plane should be carrying passengers. But even as Regner's union was trying to get his job back, he was learning that airline whistleblowers are not entitled to a day in court--literally.
In October 1998, Regner filed suit against Northwest under Minnesota's whistleblower statute. In December 2001, a Hennepin County District Court judge dismissed his case. And last November the Minnesota Court of Appeals upheld that court's argument that the federal Airline Deregulation Act (ADA) prohibited such suits in state courts.
The 1978 law was intended to allow airlines to do business in as many states as they chose without having to make sure that every aspect of their business adhered to the laws of each place its planes stopped. States, it mandated, "may not enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier."
Despite the specificity of that language, airlines over the years have used the ADA to ward off all manner of claims. In the most widely known case, Omni Air successfully used the law to stop a flight attendant from suing after she was fired for refusing an assignment that she said would have had her on duty for more hours than the law allows. Northwest relied on the ADA to get rid of a lawsuit filed by a flight attendant who claimed to be injured by exposure to tobacco smoke on trans-Pacific flights. For a time, several airlines even used the law to fend off lawsuits filed by passengers who were injured during flights. In late 1998, however, the U.S. Court of Appeals for the Ninth Circuit overruled that practice.
The airlines' expansive reasoning has plenty of detractors. "Clearly what Congress was talking about is where you're going to serve and what you're going to charge," offers Charlie Collins, a St. Paul employment attorney who has represented transportation industry workers and unions. "Okay, fine, that's constitutional. But what then of employees' claims? The question is, Does this relate to a price, route, or service? And [Regner's case] really doesn't. It's a safety thing. And the intent of deregulation was economic deregulation."
The net result, he complains, is that "state court protection is available for a guy who manufactures Scotch tape. But people who work in aviation, rail, shipping, hazardous materials, pharmaceuticals, pipelines, and telecommunications, they're all subject to federal preemption.
"They should," he concludes derisively, "call it the airline immunity act."
Viewed as a states'-rights issue, ADA preemption should not be allowed in cases such as Regner's where there is no compelling reason for taking authority away from a state and giving it to the federal government, Collins says. He is, he adds, articulating a classic conservative position, but ironically one that apparently doesn't interest big business.
Until Collins is proven right, Regner and his brethren are left with just two means for protecting themselves: their unions and a relatively weak federal program for airline whistleblowers. And while the public perception is that the industry's workforce is represented by big, old-line unions with the power to ground an airline on a whim, the reality is that airline employees enjoy far less legal protection than many other unionized workers. Organized transportation industry employees are covered by the Railway Labor Act of 1926, which mandates mediation of contract disputes and worker grievances.
"Airline workers are all greatly circumscribed in terms of striking," says Peter Rachleff, a labor expert and professor of history at Macalester College. "If they can have an economic impact, they can't strike."
And in the airline industry, any move by labor has an economic impact. In times of recession, labor becomes the most accessible pocket to pick when airlines need to lower costs. Unless labor accepts pay cuts and makes other concessions, airlines frequently argue, the company will go broke and all the jobs will disappear anyway. That argument, coupled with the airlines' political largesse, historically has had a powerful effect on Congress. Right now lawmakers are considering a bill that would further insulate the industry from organized labor by mandating baseball-style contract negotiations. (Under the practice, which has been used to settle Major League Baseball disputes since 1974, management and players each come up with a salary proposal, and then an arbitrator picks one and declares it binding. No appeals can be made.)
"Open the can of worms of labor legislation," says Rachleff, "and you discover what a limited democracy we really have."
Regner wasn't the first whistleblower to find himself hung out to dry by this legal conundrum. In fact, before he even filed his suit, the unions representing pilots and flight attendants had already invested a decade in lobbying Congress to create a program to protect airline whistleblowers.
"Flight attendants and pilots--their job takes them from state to state, so all of their job has to be dealt with on a federal level," says Joan Wages, the Washington, D.C., representative of the Association of Professional Flight Attendants. "In general, the carriers didn't want it to be implemented. Their concern was that there would be all kinds of false accusations of safety violations. Plus, in general they oppose any more federal fingers in their pie."
Nonetheless, in 2000, Congress ordered the creation of the FAA Whistleblower Protection Program. Under its provisions, an aggrieved worker first files a complaint with the U.S. Department of Labor, which assigns an investigator. After the investigator issues an opinion, the loser can appeal to an administrative-law judge. At that point, both sides are allowed to engage in discovery, the legal process of ordering the other side to turn over records and cooperate with the collection of testimony.
Early last year, the program's first cases were decided. As AMFA's attorney, Seham is one of very few attorneys in the country who have used the process. So far he has represented two people. One, a United mechanic disciplined after he reported a crack in an airplane's frame, won his case. "The investigator did a fairly good job and issued findings in our favor," he says. "At that point the airline appealed and then we got discovery and asked to depose Mr. A, Mr. B, Mr. C, etc. And then the company came forth and said, 'Let's settle.'"
The other complaint was initially decided in the airline's favor. "They dismissed the charges after the investigator was inexplicably reluctant to ask the company for the documents that would prove the case," he says. Seham has appealed and intends to pursue the evidence himself.
There have been other cases, too. According to Forbes, Denver mechanic George Davis was fired by United in 2000 after alleging there were problems on two planes, one with a hydraulic leak that could have affected the pilot's ability to control the plane, and the other a tire with a gash in it. In both instances, Davis's supervisors insisted the planes were safe; both times, the pilots refused to fly until the reported problems were fixed.
In June, the American Airlines dispatcher responsible for the flight carrying alleged shoe bomber Richard Reid filed a complaint. Julie Robichaux claims that her higher-ups told her not to ground the overseas flight in Boston because "it would be forever before we could get the plane out of there," according to CBS News and other news media. Robichaux ignored the order and filed an internal complaint. After American concluded that a "difference in perception" was to blame, she asked to hear the tapes of the conversations in question, but reportedly was told that they had been erased. Six months later, she was supposedly chastised after alerting crews about safety concerns involving passengers on two other flights.
These are hardly isolated cases. An April 2002 story in Forbes cited the cases of a dozen mechanics at United who say they are facing discipline for writing up problems that could interfere with the airline's on-time performance ratings.
The program is "better than a sharp stick in the eye," Seham quips, but its weaknesses are obvious. While the Labor Department can order one side to pay the other's attorney's fees, there is no allowance for punitive damages, the "pain and suffering" awards juries can use to punish an offender. Not only does that make it cheap for companies to continue to offend; it also makes it hard for attorneys who count on winning punitive damages in every third or fourth case to pay themselves and their expenses, he says.
"Mechanics don't make enough to pay an attorney's standard hourly rate," he says. "So you're going to have to start relying on ideologically motivated attorneys, and there are fewer and fewer of us."
"It would have been better overall to have a federal law patterned on Title VII, the Civil Rights Act," he continues. "Given the enormity of the public welfare at stake, you'd want those protections to be at least as strong as in a discrimination case."
Collins is similarly pessimistic. "They [FAA administrators] are political appointees, political hacks," he says. "It's a very different creature. It's extremely weak. There's no money, no lawyers, no discovery, no subpoena power, so there's very limited protection for anybody who wants to step up to the FAA and say, 'Hey, we're cutting corners here.'"
Yet he's betting that sooner or later, the airlines will end up standing up for the program, which will ultimately prove a lot easier to manipulate than a state court. "It's the closed house of government and industry, which are indistinguishable," he concludes. "Things you think of as needing higher standards and greater enforceability are actually going to end up with lower standards and less enforceability than those of the manufacturers of mousetraps."
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