A real Whistleblower ought to cite a violation of the FARs

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The opening line of the below legal review states straightforwardly:

The FAA and OSHA have entered into a Memorandum of Understanding to facilitate coordination and cooperation concerning enforcement of the AIR21 whistleblower protection law.

The author goes onto describe the policies and procedures defined in the AIR21 statute as further articulated in an MOU between the FAA and OSHA. The advice given therein demonstrates the writer’s knowledge and provides useful information.

osha fact sheet

What is not included is the context of the odd history of whistleblowers and the FAA.

That protected status was first highlighted by a 2008 hearing of the House Transportation and Infrastructure Committee, chaired by Rep. Oberstar and led by Committee Investigator Dr. Clay Foushee, who had experience with the FAA and an airline before this job on the Hill. The focus of the testimony was a difference of opinion between Aviation Safety Inspectors and their managers. The “whistleblowers” contended that they had found safety violations and that their findings were rejected by the FSDO leadership.

The facts were, to say the least, complicated, but Committee’s proceedings had a significant negative public opinion aviation safety impact. It also severely altered the national relationship between FSDO managers and line personnel. The FAA field personnel believed that the Congressional statements created free reign to ignore their managers.

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Two years later, Dr. Foushee was appointed to a very high profile position at the FAA, reporting directly to the Administrator. As Director of the Office of Audit and Evaluation (AAE), his primary duty is to

“…serve as an objective venue for the oversight and evaluation of all FAA safety programs, policies, and regulatory compliance, thereby avoiding conflicts of interest by providing independent oversight. AAE manages the Federal Whistleblower Protection Program for the agency. It serves as the FAA liaison to the Department of Transportation, Office of Inspector General, and the Government Accountability Office and manages FAA responses to external audits and investigations. It is also the investigative unit for the handling of referrals from the U.S. Office of Special Counsel. AAE operates the FAA internal and external hotlines.”

As noted in his job description, in compliance with the FAA Modernization and Reform Act of 2012 (Public Law 112-95), he was appointed to a 5-year term by the Secretary of Transportation on September 11, 2012. His appointed mission is to enforce the AIR21 provisions which are the subject of the MOU.

That raises a question of whether AEE was not adequately protecting the rights of whistleblowers. The creation of added “coordination and cooperation” was needed for what reasons?

Both OSHA and FAA have safety as their respective missions. Over the last few years, there has been a detectable movement by OSAH to oversee the FAA’s basic jurisdiction. This incursion began in 2012, grew to such an extent in 2014 to create redundancy, and evidenced itself in an explicit complaint to 2015 involving allegations of whistleblowing over an alleged FAR violation. Direct conflict between the two federal agencies was proved by a  recent decision by OSHA awarding an airline employee back pay under AIR21, even though the FAA, as the sole aviation safety agency, determined that there was no underlying violation!

That history is hardly a good prelude to further cooperation between the two.

The basic statute created the problem, through poor drafting. In the general statement of his section, 49 U.S.C. §42121(a)(1), the purpose is stated as follows:

(1) provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

(2) has filed, caused to be filed, or is about to file (with any knowledge of the employer) or cause to be filed a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

(3) testified or is about to testify in such a proceeding; or

(4) assisted or participated or is about to assist or participate in such a proceeding

[emphasis added]

Whereas when defining the standard for invoking the protection, the statute deletes reference to the underlying “violation,” 49 U.S.C. §42121(b) (2)(b) states

(A) unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint.

That omission appears to allow an employee to complain about something which is NOT a FAR violation. It authorizes the Secretary to issue some remedy, because the airline took action against the “whistleblower” without regard to whether there was a real problem. If one is to take an expansive reading of 49 U.S.C. §42121 and determine that as a predicate to a remedial finding that there was an underlying FAR violation at issue, then that assessment of 14 CFR Parts 1 et. seq. should be made by the FAA, not OSHA or Labor—that’s beyond their statutory competence.

The OSHA-FAA relationship was already a fine mess and this MOU does not improve it.

 

ARTICLE: FAA and OSHA Enter into Agreement to Strengthen Enforcement of AIR21 Whistleblower Protection Law

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