Congress, in its infinite wisdom, in 2000 enacted an amendment to 49 USC Chapter 421. A Whistleblower Protection program was created at §42121 and OSHA was designated to determine whether an air carrier discriminated against an employee. Here the issue was whether United, by terminating 13 Flight Attendants:
“…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 Regulations, other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States…”
According to the OSHA complaint filed, the sole issue of law or fact, given the flight attendants’ attorney’s statement of facts, is whether:
· the flight attendants engaged in “protected activity” –the above quote defines that conduct,
· United took unfavorable action towards the complainants, and
· the protected activity was a contributing factor in their termination.
That carefully worded list really does not include what FAR was at issue. The complaint includes an extensive litany of points which cite the FAA regulations, the primary rule alleged to be violated is 49 CFR §1544.303(b)(2). In order for the referenced standard to be subject to a Whistleblower complaint, there must be a “credible threat”.
The judgment of whether the grease smiley drawings constituted a credible complaint and whether United responded appropriately is within the exclusive purview and competence of the FAA. According to one news source, United responded to the allegation of a violation by saying:
“All of FAA’s and United’s own safety procedures were followed, including a comprehensive safety sweep prior to boarding, and the pilots, mechanics and safety leaders deemed the aircraft entirely safe to fly,”
Perhaps most tellingly, both the Captain and the First Officer, who do bear legal responsibility for the flight’s and aircraft’s safety, reviewed all of the facts, conducted a review of the aircraft and chose to fly the airplane.
An early reference to Congress mentioned its “wisdom” of this enactment somewhat facetiously. The reason for that comment is well demonstrated by the instant case. OSHA will now be called on to exercise its judgment of what actions may constitute a violation of an FAR. Overlapping or duplicative jurisdiction is something to be avoided and this complaint offers OSHA the opportunity to decide what 49 CFR 1544.303(b)(2). If that labor safety organization finds that the FAA violated this rule, must the FAA defer to the Labor Department decision?
The FAA recently signed a Memorandum of Understanding which ceded some of its inflight oversight to OSHA; so there may be little worry about duplication. The entities regulated by the FAA and now OSHA, which must seek to comply with two sets of rules, may not be as sanguine.
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