Aviation safety is not intuitive; in fact, so much detail is needed to regulate operations that the FAA has issued over 1,500 pages of rules plus many more thousands of pages to clarify what the FARs mean. There is a level of expertise needed to determine whether the procedures used to comply with an Alternate Means of Compliance, as requested by the owner of a powerplant subject to an Airworthiness Directive, meets Part 39 requirements. The below article and the relevant statutory basis do not comment on the competency of the Department of Labor to determine the underlying predicate—whether the employer’s requirement that its employee do “X” violated the FARs (among others) (49 USC §42121(a) (1)).
The same legislation (Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21),49 U.S.C. §42121) is the jurisdiction for the FAA’s Whistleblower Protection Program, which is administered by the FAA Office of Audit and Evaluation, which reports directly to the Administrator. That group includes individuals knowledgeable about the FARs and can ask the above hypothetical question. It is not, however, a rubberstamp; its Director, Clayton Foushee, worked initially at NASA, then the FAA, then at Northwest Airlines and next the very House Committee which investigated the whistleblower issues. There Mr. Foushee aggressively dug into the facts and supported the claims of the employees; the ultimate result was the end of several career employees. It is hard to conceive of someone who would be more diligent in protecting the interests of whistleblowers.
AIR21 created another avenue for review of allegations that airlines have violated the rights of employees who have claimed that they were being compelled to violate the regulations. There is no doubt that the Department of Labor is knowledgeable about and sensitive to issues involving employer-employee relations. That is an appropriate assignment, but the statute also makes DoL the judge on whether the management directives were justifiable under the FARs.
An airline has a difficult job trying to discern what a specific directive means; the rules are not always crafted with the precision which results in a single rational answer. Now, that manager in establishing a work order for his workers must worry whether Labor will agree. Duplication of jurisdiction is recognized as not good administration. The §42121(a) (1) avenue creates the potential for conflicting interpretations; in the safety world, ambiguity is much to be avoided.
Congress, might you reconsider?
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