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PHD. MBA. MHS. Type rated on A350, A330, B777, B747-400, B747-200, B757, B767, B737, B727. International Airline Pilot / Author / Speaker. Dedicated to giving the gift of wings to anyone following their dreams. Supporting Aviation Safety through training, writing, and inspiration. Fighting for Aviation Safety and Airline Employee Advocacy. Safety Culture and SMS change agent.

Wednesday, June 7, 2023

Where is Justice When Safety is Concerned?

Not Under the RLA

While many people think justice was served in my case, it was not. Nobody was held accountable. And because justice was not served, unsafe practices are still ongoing in the airline industry. Modifying the AIR21 law is a start, but it's equally as important to abolish the Railway Labor Act (RLA)

The RLA is an archaic act from 1926 that says if the pilot belongs to a union and there is a dispute, the pilot must use the grievance process instead of court. The judge should not have to know and or interpret the pilot contract, just understand the law. Had Honorable Judge Morris not asserted that he did not need to "interpret" the Delta PWA to understand what retaliation was, I would have lost in the grievance process because the company owns the Arbitrators and ALPA allows it to happen. 

There is no luck in this process 
when it's bought and paid for!

Airlines own this process because the unions allow them to do so. At least ALPA does so with Delta and FedEx. I have yet to find a case that was successful for the pilot at the five person board within the Delta/ALPA alliance. Meaning, I have yet to find a case where ALPA saved a job at Delta. 

The reason that the AIR21 law was enacted in the first place was because our legal system determined that safety could not be placed in the hands of a businessman. If safety can't be sacrificed to a business men, then a pilot's life should not be placed there either. 

Regardless, when you silence pilots with this grievance process, you reduce safety because pilots fear job loss by coming forward. It's impossible to have a Safety System if employees fear retaliation for speaking out. An instructor pilot once said, "Be the monkey, push the button, and get the banana, if you want to pass through training." Now, if you want to keep your career, you must be the monkey who speaks nothing, see's nothing and hears nothing. 

Unfortunately the Airlines are using the HIMS program to remove pilots as well. Today another pilot lost her career with Delta. The following case does not conform to logic and ALPA did nothing. 

ALPA argued that the pilot's testimony of the collection process demonstrated violations of the "applicable collection protocol" that rendered suspect the positive results of that PEth test. 

The pilot stated that she first reviewed the USDTL Dried Blood Spot Collection Instructions shortly after the test was given. She further testified that in one of the emails she sent to the Company following her positive test, she alerted the Company to the particular collection issues about which she testified. 

The pilot specifically identified Captain Michael Levis, then Regional Director, Delta Flight Operations, as one of the Company representatives she informed in this fashion. As Delta pointed out, the pilot did not produce any email to substantiate that she made a complaint regarding the collection procedures used on that first test. 

In the Arbitration Process 
there is no Discovery! 

Assuming for purposes of this discussion that the pilot's recollection of the particulars of the collection process were entirely accurate, the question is whether any of the alleged collection discrepancies, inconsistent with USDTL Dried Blood Spot Collection Instructions would cause a false positive PEth test result. 

Included in the alleged collection discrepancies raised by the pilot during her testimony are the following:

  1. That neither she nor the collector washed their hands with soap and water prior to collection; 
  2. That she had been using ethanol based hand sanitizer once or twice a day around the time of the test; (COVID in season)
  3. Contrary to the USDTL instructions, the pilot's finger did not air dry after it was wiped with the alcohol pad prior to collection nor was the first drop of blood wiped; 
  4. Contrary to USDTL instructions the collection person “milked” or massaged her finger and layered successive drops of blood on the blood spot card; and, 
  5. Contrary to USDTL instructions that the sealed drying box containing the specimen should not be placed “inside an airtight plastic specimen transport bag,” her collector placed the specimen inside a plastic mailer which was sealed “immediately” once the collection was completed. 
To this last point, the pilot referenced a Separations 2022 article titled, False Positive Results of Phosphatidyethanol (PEth) Quantitation Dried Blood Spots (DBS): The Influence of Alcohol Vapors.  By, by Anton Bashilov 1,2 ORCID, Sergey Osipenko 1ORCID, Karolina Ikonnikova 3, Oxana Kovaleva 1,Boris Izotov 2,Evgeny Nikolaev 1 andYury Kostyukevich 1,

Dr. Eugene Howard Taylor, who is Board Certified by the American Board of Forensic Toxicology, and is also Board Certified by the American Board of Clinical Chemistry with a specialty in Toxicology, testified for the Company as an expert in the field of forensic toxicology. 

Dr. Eugene Howard Taylor

However, Taylor Previously Testified 
That the only thing he knows about PEth is what he read.

No research. No papers. No level of Understanding. 

Dr. Taylor was asked about each of the collection discrepancies alleged by the pilot. In response, Dr. Taylor testified that none of the discrepancies could have caused a false positive result. This testimony was identified as credible, despite these discrepancies were all conflicting with the "USTDL PEth test instructions."

This testimony by Dr. Taylor went unrebutted!  
Shame on ALPA attorneys!

The Arbitrator turns next to the questions the pilot raised relating to the self-directed tests she took subsequent to that initial false positive test, proving she did not drink. The Arbitrator recognized that the pilot's self-directed tests are not permitted in the DPAC program and that Delta has no obligation to consider them. 

Marlene Gold

Arbitrator Marlene Gold believes 
Truth does not set you free 
because of Delta's lack of obligation 
to acknowledge that truth rules 

There could be valid reasons why companies do not consider self-directed tests obtained by its employees outside of the designated testing protocol. These tests are not random, as the employee can choose when to test. Further, self-directed tests do not allow the employer to verify that the tests followed "approved guidelines, protocols and safeguards". Additionally, the employer cannot determine if the self-directed tests submitted comprise "all of" the self-directed tests that were taken by the employee, or if they represent only certain self-directed tests selected by the employee.  Should that matter?

Nevertheless, as the pilot focused on the self-directed tests taken after the initial test, Arbitrator Gold reviewed the evidence regarding them to ascertain whether they provided evidence that the initial test was not reliable.  

So Dr. Taylor testifies the "protocols don’t matter."
However, the arbitrator can’t accept self-directed tests 
because of the "uncertainty of protocols" not being followed. 
But their expert witness said protocols don't matter... 

 ALPA doesn't object to these illogical assertions!

Dr. Skipper testified on the pilot's behalf. Dr. Skipper has written numerous papers on PEth testing but is not considered an expert. ALPA knows that Dr. Taylor is an "named" expert, but by title only. He has no expertise on the subject, whereas Dr. Skipper does. Dr. Taylor also runs drug testing lab, of which he does not us PEth testing, this non-FDA approved test. And yet he's asserting the protocols don't matter.  

ALPA Does NOT Object. 
 Pilot loses her job!

Experts are easily purchased, but when ALPA doesn't object and the arbitrator knows what that the "non" expert is truly the expert on the subject, the writing is on the wall. 

This is not the end until we put a stop to this. 
Aviation Safety, the Pilot job, and Justice
Depend upon getting rid of the RLA

Enjoy the Journey

Dr. Karlene Petitt
A350, B777, A330, B747-400, B747-200, B767, B757, B737, B727