LABOR RELATIONS ISSUES ARISING FROM RECENT FAA INITIATIVES AND PROPOSED LEGISLATION

Transcription

1 AMERICAN BAR ASSOCIATION SECTION OF LABOR & EMPLOYMENT LAW RAILWAY & AIRLINE LABOR LAW COMMITTEE MIDWINTER 2010 MEETING LABOR RELATIONS ISSUES ARISING FROM RECENT FAA INITIATIVES AND PROPOSED LEGISLATION Francis C. Heil Senior Attorney American Airlines, Inc. Marcus Migliore Managing Attorney ALPA Legal Department

2 1. Flight and Duty Time a. ARC Committee - June 15, 2009, FAA announced plans to establish an Aviation Rulemaking Committee (ARC) to develop recommendations for a new set of rules concerning pilot flight and duty time regulations. The regulations are to take into account recent scientific studies and research regarding factors that lead to fatigue (science-based regulations). The FAA chartered its ARC on July 15, 2009, which consisted of members from the FAA, industry and labor organizations with direction to make its recommendation to the FAA Administrator by September 1, b. Current FAA regulations concerning pilot flight time and rest requirements. i. Flight Time Limits Under current FAA regulations, carriers and pilots are responsible for ensuring that pilot flight time limitations are not exceeded. The FAA provides a separate set of regulations for domestic, flag (international) and supplemental operations (14 C.F.R Part 121, Subparts Q, R and S). For example, for domestic operations, current regulations prohibit a carrier from scheduling or a pilot from accepting an assignment if the pilot s total actual flight time will exceed: 1. 1,000 hours in any calendar year; hours in a calendar month; hours in any 7 consecutive days; 4. 8 hours between required rest period. ii. Rest requirements Under current FAA regulations, no carrier may schedule and no pilot may accept an assignment for flight time unless during the preceding 24 hours the pilot has received 9 hours of consecutive rest. The required rest may be reduced, not less than 8 hours, provided the next rest period is lengthened to provide for the appropriate compensatory rest. c. ARC s Proposal While the ARC s proposal to the FAA Administrator has not been made public, based on its charter, recent fatigue studies and media reports, it is believed that the proposed rule will likely represent a philosophical change in the way carriers schedule flight time for pilots. i. Pilot maximum flight duty period (hours) are likely to be based on number of flight segments and time of reporting. 1. The maximum hours of a duty period with start times during early morning hours (back of the clock) or late night would be less than those duty periods during normal start periods. 2. All maximum duty period hours would be reduced based on a sliding scale that accounts for the number of flight segments (takeoffs and landings). ii. Carriers will likely be driven to develop a Fatigue Risk Management System (FRMS) to support its scheduling practices on scientific data. 1. FAA to publish Advisory Circular to provide guidance on the use of FRMS and issues related to fatigue and commuting.

3 iii. Proposed rules will likely be more complex designed to account for fatigues risks, circadian cycles, time awake, time on task and acclimation to time zones. iv. FAA will have to determine whether one rule fits all types of operations? 1. Domestic 2. Flag 3. Supplemental (Cargo) d. Notice of Proposed Rulemaking (NPRM) - FAA states that it will issue its NPRM in April NPRM will be published in Federal Register. i. Likely to generate significant number of comments. FAA must review comments and prepare responses prior to issuing final rule. ii. FAA originally proposed issuing its final rule by end of year What impact will the final rule have for the airline-side labor lawyer? Impact on existing labor agreements (CBA) 1. In some cases, final rule may propose a new floor as to maximum hours for duty for an air carrier. 2. In some cases, new terms or definitions may be added or changed that may affect terms within CBA. Impact on negotiating new labor agreements (CBA) 1. Hours of Service 2. Potential new terms and definitions 3. Pilot scheduling practices and provisions 4. Fatigue Policy (FRMS) 5. Rest provisions Carrier Perspective/Issues Carriers are likely to be generally supportive of a duty-day regulation designed to account for fatigue risks, including circadian cycles, time awake, time on task, and acclimation to time zones. Carriers are likely to recommend that the regulation recognize and respond to different air carrier operational environments and models, including domestic and international passenger operators, domestic and international cargo operators, and on-demand (nonscheduled) charter operators. It is likely that Carriers will note that while the goal is one level of safety, this goal does not mean, and is not accomplished by, one form of regulation. Carriers do not believe that anything in fatigue/sleep research suggests a need for a one-size-fits-all regulation. Indeed, science recognizes that individual differences and operational contexts impact performance. Carriers believe that science-based guidelines, together with many years of operational experience, will allow the various air carrier models to continue to operate safely. Carriers are likely to favor that the regulation requires each air carrier to adopt an FAA-approved fatigue mitigation program documenting an air carrier s fatigue mitigation policies, training and programs. Means of compliance should be provided by an accompanying FAA Advisory Circular incorporating appropriate guidelines that offer more detail and explanatory background than could be included in a regulation. This process will provide flexibility for updating and modifying airline fatigue mitigation programs as needed without going through extensive rulemaking processes. As with all regulations, and given the significant number of FAA interpretations over the years concerning flight time limits and rest requirements, the Carriers will look to the FAA to issue a proposed rule that is understandable, 2

4 enforceable and unambiguous. It is important that the regulation should adequately and clearly address the responsibility of the crew member to properly prepare himself or herself for flight during the prescribed rest period. Carriers believe it is the responsibility of the crew member to report for duty adequately rested and prepared for a scheduled flight duty period. Similarly, Carriers should also recognize it should be prohibited from assigning a crew member to a flight duty period if the crew member has reported himself as not fit for duty or if the air carrier believes that the crew member is not fit for duty. Such clear requirements would address issues relative to pilot commuting and establish the framework from which a carrier can develop fatigue policies. Carriers would likely support FAA guidance material concerning commuting, though they should remain as advisory guidance material. Lastly, recognizing the scope of any proposed regulatory change and its impact on schedules, policies and labor agreements, the Carriers are likely to ask that FAA provide a transition period of at least two years or more after the final regulation is published. Union Perspective/Issues (1) All pilots operate in the same airspace and must be subject to the same comprehensive fatigue and rest rules. These rules should: (2) be based on science, including circadian rhythm study and other current knowledge as to best practices designed to increase alertness, (3) not allow for any carve-outs for supplemental flying, cargo flying, or other specialty areas that would compromise comprehensive safety of the common airspace, (4) address individualized situations as necessary through FRMS, which would be based on scientific modeling regarding the number of crews, required rest and involve validation and verification regarding the appropriate level of alertness that results for a specific situation, (5) not involve special regulation of commuting you cannot effectively regulate pilot lifestyles, as opposed to carrier and pilot behavior. 2. Pilot Training, Certification, Qualifications And Records a. 2/12/09 Buffalo, NY Colgan Crash Ramifications: Spotlight on Regional Operations, Pilot Performance, Training, Fatigue and Records, NTSB issued its findings and 25 recommendations on 2/2/10 i. NTSB Findings: pilot error, possible fatigue impact, sterile cockpit violations, inadequate carrier training procedures, especially regarding stall recovery and low-airspeed warnings, allegations that Captain did not disclose and carrier did not learn at time of hiring of two past important training (check rides) failures; ii. NTSB Recommendations: improving Captain upgrade procedures, professionalism best practices, coordinated promotion/enforcement of sterile cockpit, improved management of fatigue risks (especially regarding commuting), better pilot records retention, especially regarding pilot training events and failures and suggestion that additional notices should be provided of past training failures/unsatisfactory performance, better management of insuring that pilot records and training records are provided to hiring employers downstream, better stall recovery training procedures regarding automatic stickpusher systems. 3

5 b. FAA s Call to Action June 2009 started series of industry-wide meetings regarding safety in the regional industry focus on pilot records, increasing training requirements, interim request pending change in Pilot Records Improvement Act requirements on requesting full disclosure of all FAA records on part of applicant, transfer of experience/mentoring of junior pilots, increasing flight hours requirements and training and pilot certification requirements, focus on quality and scope of training in addition to increase in minimum flight hours June, 24, 2009, FAA letters sent to Part 121 carriers and unions requesting: i. From Carriers: 1. Asking carriers to ask pilots to voluntarily disclose of all FAA records, including notices of disapproval for checkrides and other evaluation events; 2. Carriers who have contracts with regional feeder partners should seek specific and concrete ways to ensure that regional partners adopt and implement the most effective practices for safety; 3. For carriers that have not yet done so, establish FOQA (collection of flight data re operations outside of normal parameters) and ASAP Programs (self-reporting of violations by pilots) and self-collection of data systems in 3-way partnership between FAA, the carriers and unions, promoting self-correction rather than discipline; 4. Focused Inspection Initiative to flag for monitoring and remedial training pilots with a history of proficiency failures; 5. FAA suggests to major airlines that they enter contract arrangements with regional partners to permit safety audits of regional operations by the major airline partner as well as review of the regionals ASAP/FOQA data; 6. Asking major airlines to require their regional partners to implement ASAP, FOQA and similar safety standards; 7. In addition, the Call to Action plan states that DOT and FAA will develop authority and processes to review agreements between major and regional airline partners, including possibly incorporating such review into certificate process for granting economic and operating authorities. ii. From Unions: 1. Establish peer audit review procedures, professional standards and ethics committees; 2. Establish a code of pilot ethics for professional behavior, appearance and overall fitness to fly. c. Pilot Training NPRM (2009), SNPRM (April 2010) i. 1/12/09 FAA NPRM Proposal to Mandate Use of Simulation Training and increase training requirements in safety critical phases of training to reduce accidents in which human error is a cause. Full Flight Environment Training, Simulators, Increase Loss of Control/Upset/Recovery Training Requirements, Increase Crew Resource Management (CRM) Training, also Increase Hands-On and 4

6 Full Flight Environment Training Requirements for Flight Attendants, propose 5-year transition period to put new regulations into effect, but newly hired crewmembers or crewmembers upgrading to new equipment would have to be trained under new rules. ii. More than 3000 pages of comments received to NPRM. iii. FAA to issue SNPRM to allow public comment on revisions. iv. Effect of rule on additional training requirements for pilots. d. FAA Pilot Certification Changes ANPRM (2/2/10) i. FAA asks for public comment on ways to enhance pilot certification requirements and process focus on co-pilot minimum requirements and minimum co-pilot training requirements for Part 121 operations in light of Colgan crash 1. New Requirements for Co-Pilots to hold ATP Certificate/750/1500 hours minimum? 2. Academic Credit (partially) in lieu of flight hours/experience? 3. Consideration of new endorsement requirements for newly hired pilots showing additional flight hours, training and operating experience in high altitude pressurized aircraft? 4. Consideration of Airline-specific authorizations based on carrier-specific training geared to specific conditions carrier operates in, authorization surrendered when leaving the employ of carrier, these could be based on training and flight hours requirements. e. Proposed Legislative Changes To Pilot Training, Certification And Records Requirements i. H.R Airline Safety and Pilot Training Improvement Act of Certification Requirements: a. Mandates ATP Certificate as condition of being hired by Part 121 Airline (3-year phase-in); b. Increase in flight hours requirement from 250 to 1500 (a six-fold increase), with flexibility for FAA to give credit for academic training courses beyond those that will enhance safety. 2. Promotion of Best Practices/Mentoring: Would establish FAA Task Force for Industry Best Practices, calls for implementation of NTSB Recommendations from Colgan Crash. 3. Establishes comprehensive pre-employment screening of prospective pilots. 4. Mandates pilot mentoring programs, increase compliance efforts to enforce "sterile cockpit" rule. 5. Mandates study of flight education and pilot academic training programs. 6. Pilot Records: a. Pilot records reporting requirements changes current PRIA requirements, 5 year performance and discipline records from previous employer; 5

7 b. Current regulations also address carrier obtaining records from FAA carriers can get release from prospective pilot to turn over records to maintain compliance with Privacy Act of 1974; c. Would modify PRIA to include in the pilot database all training records generated by proficiency checking events in private pilot certification training (Part 61) in addition to current Part 121 training records; d. FAA would maintain the database, airlines could access it for hiring purposes only, going forward all training records must be maintained on 5-year look back basis; e. FAA to amend AC D (May 2010) guidance re Pilot Records; f. Proposal in H.R for FAA-maintained Pilot Records Database including pilots' licenses, aircraft ratings, check rides, Notices of Disapproval, and other flight proficiency tests carriers would only be allowed to access for hiring purposes; g. Expungement What guidance will be provided for airlines and unions in cases when carrier discipline is overturned if there is a new pilot records database regime? What impact would these proposed legislative or regulatory changes in training and certification requirements have for the airline-side labor lawyer? Possible post-regulatory impact on existing labor agreements (CBAs) and bargaining: 1. Increase in minimum hours or experience requirements might lead to increases in minimum pilot pay, particularly at the bottom of the scale for new entrant pilots with greater experience? 2. Post-regulatory impact on possible changes in CBA requirements regarding Pilot Records Act requirements, expungement provisions, impact of Advisory Circular (will it become regulatory or remain advisory)? 3. Possible post-regulatory changes to agreements regarding remedial training programs for pilots subject to increased monitoring -- may necessitate certain revisions to certain discipline or discharge procedures 4. Dealing with the aftermath of possibly increased requirements for more detailed carrier checkride/training/upgrade training event records (beyond simple pass/fail notations usually noted today) 5. New or expanded CBA arrangements for greater unionmanagement cooperation in training, mentoring, professional standards and related areas. 6

8 Union Perspective/Issues ALPA believes that new airline pilots are now being asked to fly very sophisticated, high performance multi-engine jet aircraft in complex and congested airspace, and therefore must have an appropriate level of experience to handle these challenges. The current experience level of most new line pilots is significantly lower than in the past. ALPA therefore believes that pilot experience, academic study and knowledge testing requirements to qualify as a Part 121 airline pilot need to increase dramatically. Pilots who wish to operate as Second In Command (SIC) in Part 121 operations should be required to demonstrate the same academic knowledge and aptitude necessary to be issued an Airline Transport Pilot certificate (ATP), as opposed to just possessing a pilot license. In addition, all pilots acting as a SIC in Part 121 operations should be required to possess an aircraft type rating, and training and evaluation for the SIC type rating should be equivalent to that required for the Pilot In Command rating. Testing requirements should be greatly increased, to at least the level used by European regulators, who go far beyond the simple multiple-choice exams currently given by the FAA. The FAA should also require the establishment of Mentor Flight Crewmembers, with an officially sanctioned designation similar to that of Line Check Airmen, which would involve experienced pilots who would be paired to mentor less experienced pilots. Training for all carrier pilots on how to effectively mentor less experienced pilots should be required by the FAA. The FAA should also require carriers to adopt unionmanagement committees to continually review and improve pilot training and professional development at the carrier. Specific Pilot-In Command Training should be required for all pilots wishing to advance to the Captain position, particularly in light of the overall lower level of pilot experience among new-hire pilot entrants today. Captains and First Officers should be placed on the same six-month schedule for recurrent training (FOs today only take it every year). The FAA should also require the establishment of a Director-level position at each carrier for Pilot Training and Development. Mandatory training for pilots on how to recognize and deal with fatigue should also be required, including specific issues posed by long-haul international and multi-leg domestic operations. Training requirements for pilots who wish to be carrier Pilot instructors and evaluators also need to be increased to deal with the decreased experience level of incoming pilots. Note, because many of these requirements would be new to the existing line pilot, ALPA believes they should be phased in. Airlines should be required to offer this newly enhanced training to new crewmembers and be required to also offer it on a voluntary basis to existing crewmembers, but should not be allowed to require it as a condition for continued employment of current pilots. Carrier Perspective/Issues In response to the FAA s Call to Action, according to the FAA, 82 percent of U.S. air carriers representing 99 percent of the commercial fleet responded with written commitments to implement best practices and to adhere to the highest professional standards. More than 98 percent of air carriers have or plan to implement a program to routinely monitor safety data to identify trends and precursor events. Seventy-six air carriers had systems in place to comply with remedial training requirements. 7

9 Many airlines, if they did not already have it in place, are now taking steps to ensure that their smaller partner airlines adopt the larger airlines most effective safety practices. Many carriers, like the Air Transport Association s (ATA) Safety Council which now includes safety directors from the National Air Carrier Association and the Regional Airline Association, include representatives of partner airlines in periodic safety meetings. As to disclosure of Pilot Records, according to the FAA, of the 80 air carriers who responded to FAA on this issue, the majority reported that they already require full disclosure of a pilot applicant s FAA records or plan to implement the same policy. The airlines further agreed to use best practices for pilot record checks to produce a more expansive search for all records available from a pilot's career. The expanded search includes all the records the FAA maintains on pilots in addition to the records airlines already receive from past employers. The carriers would likely look to the FAA to address the concerns of individual pilots as to the proper use and limitations on the use of those records, perhaps in the form of an FAA Advisory Circular. Most carriers generally support the establishment of professional standards and ethics committees and safety risk management meetings between FAA and major and regional air carriers. To that end, most carriers have or intend to implement ASAP and have or intend to implement both ASAP and FOQA programs. FOQA collects and analyzes digital flight data from normal operations. Some air carriers may be too small or have too limited operations for FOQA programs to be practical. ASAP encourages air carrier and repair station employees to voluntarily report safety information that may be critical to identifying potential precursors to accidents. Safety issues are resolved through corrective action rather than through punishment or discipline. These programs are based on a safety partnership that includes the FAA and the certificate holder, and usually includes a third party, in most cases a labor organization. While the carriers, like the FAA, are committed to putting the best trained and prepared pilots in the cockpits of our nation s airlines, many carriers believe that increasing the number of flight hours as a certification requirement should not be viewed as the sole determining factor for improving pilot performance. Pilots must have the quality, mission appropriate training and experience. Quantity of flight hours alone does not determine quality of training and preparedness. Increasing the number of flight hours as a condition of being hired by a Part 121 carrier will effectively further reduce the pilot applicant pool. More than 3,000 pages of comments were received to the FAA s NPRM concerning the Pilot Training NPRM. According to ATA comments to the rulemaking, while supportive of improvements to training, its member carriers believe that any rule changes in this area must be an improvement over existing regulatory requirements. The ATA comments that the NPRM is not data driven, meaning after many years of sharing data with the FAA, the documents supporting the proposed changes lack the substantial data to support the changes. Further, the ATA notes that because specific time limits and tasks are written into the regulatory text, it will be extremely difficult for airlines and the FAA to change training programs to adapt to changing operational needs or concerns. Without the ability to change, innovative training methods will languish, stifling the most advanced training methods and techniques. Lastly, carriers with Advanced Qualification Programs (AQP) 8

10 for pilot training believe that while the FAA has indicated that this proposal would not impact AQP carriers, the proposal in fact would. Carriers would also need significant period of time to implement any changes to its training programs. 9