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Air Carriers Withdraw from Voluntary Safety Programs, Just as Congress Seeks to Mandate Them

How ‘voluntary’ is voluntary?

Aviation Maintenance Technology recently reports that Comair’s mechanics have dropped out of the Aviation Safety Action Program (ASAP), a voluntary safety reporting program,

The International Association of Machinists (IAM) is the union that represents the employees, and the union accused Comair of wrongly punishing ASAP reporters (called whistle-blowers by IAM) who were identified in the ASAP program.

Under the ASAP program, airline employees are encouraged to report to the FAA issues that could become safety problems.  They are promised a limited immunity from FAA civil penalty or certificate action.  The ASAP program requires the air carrier to make bona-fide remedial efforts.  In some cases, particularly those shown to be non-systemic, this can mean job action taken against the responsible party to prevent future recurrence.  IAM feels that Comair has violated “the letter and the spirit” of the program by acting against workers who submitted voluntary reports.  Comair has not commented in response but you can imagine that they feel as though their hands are tied when the FAA demands remedial action, and wrong-doers hide behind their ASAP reports.

The Comair mechanics are not the first to consider withdrawing from a safety reporting programs.  Pilots at Delta and American Airlines dropped out of the program for a while because of similar disputes between labor and management over alleged sanctions against employees who filed reports. Programs at those carriers were later revived.

One problem with all of these programs is that some FAA employees in the Flight Standards Service approach aviation safety from the point of view of enforcers, requiring a “pound of flesh,” rather than focusing on cooperative efforts to effect systemic changes in order to prevent future recurrences.  In 2009, I represented a pair of pilots who participated in voluntary reporting, but were pursued for enforcement action by the FAA nonetheless.  The air carrier supported the pilots through the fight, and the air carrier felt pressure from the FAA in response (ultimately, the charges were dismissed by the Judge, but it would have been far easier for the air carrier to abandon the pilots instead of courageously supporting them).

It is likely that none of these programs will be ‘voluntary’ for long.  In the recently passed HR 5900 (signed into law August 1 as Public Law 111-216), Congress required the FAA to promulgate a rule requiring SMS for air carriers, and directed that the new rule incorporate several voluntary safety programs as regulatory mandates.  The Aviation Safety Action Program – the same program from which Comair’s mechanics have resigned – is one of those programs.  If well-drafted, the new regulation could address some of the concerns that have been raised by groups like IAM concerning the contradiction between the requirement to take remedial action (which can include taking job action against an employee who has performed incorrectly) and the desire to encourage employees to make voluntary safety reports in order to improve the system.  But to ensure that it is well-drafted, it will be important for industry groups and companies to work together to file comments to aid in the proper drafting of the proposed rule, when it is released for comment this Fall.

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About Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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