[Rhodes22-list] FW: FW: Humour-Outsourcing

[Michael D. Weisner]

Brad,

One copy of the paper would probably have been more than enough.

To push it to the extreme, if one were to fail the cognitive test, is it job 
related?  If it can be shown to be, the policy opens the door to disability 
rather than age related compensation.  If it were adopted, I am sure that 
the 1-800 lawyers would have a field day.

Is the DA-42 in "real" production yet?  Very pretty but half a mil is a bit 
too rich for me.

Mike
s/v Shanghai'd Summer ('81)
Nissequogue River, NY


From: "Brad Haslett" <flybrad at gmail.com> Friday, July 06, 2007 7:45 PM
Mike,

I'm not touching that first article. One, I know the players on my home
diamond, and two, I have my own strong opinion. Cabatage (the outsourcing of
flying jobs on American carriers) got shot down with the Twin Towers.  I
just got back into General Aviation after a 25 year absence. One of the new
airplanes that I'm really attracted to is the DA-42 powered by two Theilert
diesel engines.  They just pancaked one-in because the FADEC (fly-by-wire
engine management system) failed due to low voltage.  I'll stick with my
1948 Beechcraft Bonanza and 1970 DC-10 because of the cables and pulleys.
Back to the age 60 thing, I wrote a paper in grad school about the legal
issues surrounding that and didn't express my personal opinions.  I fear 59
year-old pilots more than terrorists.  I'll attach the guts of the paper but
you really have to be bored to read through the thing.

Brad

--------------------

Few issues in the piloting profession have been as contentiously debated or
heavily litigated as the Federal Aviation Administration (FAA) ruling that
airline pilots must retire at age sixty.  Depending on the personal
circumstances of each individual airline pilot, the early retirement ruling,
known in the industry as the "age 60 rule", is percieved as either a
blessing or a curse.  This paper will examine the history that led up to the
origins of the age-60 ruling (the Rule), the often questioned events at its
birth, and the subsequent forty-six years of litigation, studies, and
legislative battles to overturn this FAA mandated requirement.



THE BIRTH OF THE AIRLINE PILOT PROFESSION



The Wright brothers found little commercial interest in their
accomplishments at Kitty Hawk until the outbreak of World War One.  All the
major powers in the "Great War" used airplanes for various purposes.  At the
wars end, the airplane returned to its previous use, primarily a novelty for
entertainment and amusement.  Those pilots in the US and Europe who flew
airplanes were largely self-employed entrepreneurs called "barnstormers". 
In
the mid-1920's, the US Postal Service started experimenting with the
transportation of mail via aircraft.  The pilots who flew the mail were
brave and daring men, mostly very young and seeking adventure. After a brief
and disastrous attempt by the Army to fly mail, airmail transport was
returned to private companies. It was not until the early 1930's, when the
mail service was divided up amongst a handful of companies at the "Spoils
Conference" under the Franklin D. Roosevelt (FDR) administration, that
pilots considered flying a long term career.  FDR established the Civil
Aeronautics Board (CAB) to regulate commercial aviation, and his
administration was instrumental in establishing the airline piloting
profession as a safe and desirable livelihood. It was also during this time
frame that pilots organized the Air Line Pilots Association (ALPA) as a
collective bargaining agent, and developed ALPA as an instrumental agency
for the improvement of flying safety and the advancement of economic issues
for pilots. All current legacy airlines trace their history to that period.
With the outbreak of World War Two (WW2), commercial airlines sacrificed
their aircraft and pilots to the war effort.  The US Army Air Corps and the
US Navy had tens of thousands of airplanes constructed for the war and
trained even larger numbers of pilots.  At the cessation of hostilities, the
airline industry returned to normal operations and enjoyed a period of rapid
growth in technology and economic success.  Thousands of pilots who had
trained for military service entered the now desirable profession of airline
flying.  With the introduction of jet-powered aircraft in the late 1950's,
commercial aviation and the airlines entered the modern era.



THE INTRODUCTION OF JET AIRCRAFT



The CAB was abolished in 1958 and replaced with the FAA under the Federal
Administration Act of 1958.  This change in the Federal regulatory body of
aviation coincided with the introduction of the Boeing 707 jet aircraft into
commercial service.  American Airlines, led by CEO C.R. Smith, was one of
the first customers for the new jet airplane.  Smith wanted to replace his
older pilots who had started with American during the airmail days with
younger war-trained pilots.  He believed that older pilots would require
substantially more time to train in the much more complex and faster
jets.  Sophisticated
flight simulators did not yet exist and training was primarily conducted in
actual aircraft, a very expensive process. Smith established a mandatory
retirement age of 60 at American in 1958 that was contested by three of his
pilots.  The three pilots, Captains Rentz, Cutrell, and Burns, won the right
through neutral arbitration to fly beyond age 60.  Smith ignored the
arbitrators ruling and refused to re-instate the over age 60 pilots. 
American
Airlines pilots began a twenty-day strike on December 20, 1958 and won
virtually all their demands, including the reinstatement of the three
"retired" pilots. Smith then tried to bargain with ALPA president Clarence
N. Sayen to establish a mandatory retirement age. Sayen refused to
negotiate. What Smith and American Airlines couldn't achieve through
intimidation and collective bargaining was accomplished by regulatory
change.  Smith contacted his wartime buddy, retired Lieutenant-General
Elwood "Pete" Quesada who had recently been appointed as the head of the
FAA.  Smith's personal correspondence to Quesada requested a maximum age of
55 to transition to jet aircraft and a mandatory retirement age for all
pilots at age 60.  American produced data to the FAA that supposedly
demonstrated that younger pilots, "especially selected for intelligence,"
required less transition time to jet aircraft.  Quesada convened an "expert
panel" to review Smith's requests and data.  The panel supported the
American Airlines data but backed off from the age 55 jet transition
cut-off.  FAA legal counsel advised that Smith's data be ignored and that
the FAA concentrate on "such medical data as is available concerning
deterioations in specific functions such as reaction time, glare tolerance,
night visual acuity, learning times, accuracy of learning, etc."  On
December 5, 1959, FAA regulation 14 CFR 121.383(c) was published in the
Federal Register.  Effective March 15, 1960, airline pilots were required by
law to retire before their sixtieth birthday.  One year later, "Pete"
Quesada retired as Administrator of the FAA and immediately took a seat on
the Board of Directors at American Airlines.



THE DAWN OF THE LEGAL CHALLENGES



Federal Aviation Regulation (FAR) 121.383(c) was constructed in a way that
would make litigation to challenge it difficult for appellants.  The
authority for FAR 121.383(c) was derived under Section 601 of the FAA act of
1958.  Section 601 empowers the FAA administrator to set minimum standards
and establish operating rules and regulations to promote the safety of
flight in air commerce.  Regulations governing pilot certification have
their authority under Section 602 of the FAA Act.  This difference has
tremendous impact on FAA regulations concerning operations versus medical or
pilot certification.  Under Section 601, "findings of fact by the
Administrator, if supported by substantial evidence, shall be
conclusive."  Parties
seeking to change rules under 601 must prevail in the United States Court of
Appeals.  The US Court of Appeals will only reverse the FAA when it can be
shown that a rule is shown to be arbitrary, capricious, an abuse of
discretion, or otherwise in violation of law.  Issues contested under
Section 602 do not appeal to the courts but rather to the National
Transportation Safety Board (NTSB). Under 602, the burden of proof rests
with the FAA rather than the appellant, and the NTSB is not bound by the
FAA's prior rulings.  Quesada's construction of the age-60 rule has made
overturning it a daunting legal task.



Between 1960 and 1979 ALPA filed seven major lawsuits to overturn the age-60
rule or exempt pilots from the Rule. The first challenge, *ALPA v
Quesada[1]<#_ftn1>
*, was filed March 16, 1960.  The court stated "they will not attempt to
substitute their judgement for that of the administrative agency."  The
number of airline pilots facing early retirement was then quite small.  The
judge in *Quesada* used this fact in his opinion citing "Any attempt to
weigh the

countervailing considerations of dollar loss to the approximately 40 pilots
against the public safety in air carrier operations borders on vulgarity."
Judge Bicks' published opinion then proceded to honor Quesada's wartime
experience as Commanding General of the 9th Tactical Air Command in
Europeduring WW2 and 12,000 hours of pilot time. Bicks quoted Harry F.
Guggenheim's opinion from a *Washington Post* article of December 8, 1959
supporting mandatory age 60 retirement for pilots.  The case essentially
revolved around the FAA's authority to make such rules and Queseda's
qualifications as Administrator.  Subsequent cases by ALPA were no more
successful in attacking the lack of scientific evidence behind the Rule or
the authority of the FAA to promulgate the Rule.



The airline industry enjoyed rapid growth during the late 1960's and early
1970's and thousands of new pilots were hired.  Younger pilots were anxious
for advancement up the airline's seniority lists, eager to see older pilots
retire, and they gained influence in ALPA's internal politics.  ALPA's
position on the age-60 rule changed to reflect the new demographics of its
membership and started giving support to mandatory retirement at age 60. By
the end of the 1970's, the wave of WW2 pilots were nearing retirement.  Most
had enjoyed stable and financially rewarding careers. Many of their
collectively bargained labor agreements had made provisions for retirement
funding to bridge the gap between age 60 and the age at which Social
Security benefits could be collected.  This group of pilots embraced the
Rule and younger pilots supported the Rule.  ALPA reversed its age 60
policy.



The passage of Airline De-Regulation Act of 1978 introduced financial
instability into the airline marketplace and several large air-carriers
failed. Some airlines rapidly expanded with an influx of young pilots
looking for advancement. Pilots at other well established airlines such as
Braniff, Eastern, PanAm, and others found themselves starting over at other
carriers mid-career after their employers went out of business.  As these
pilots started facing their own retirements, many realized they were not
financially prepared, and a new thrust to expand the time frame of a pilot's
career began. Whether a given pilot supported extending the retirement age
was largely a result of their own airline's and personal financial health.
New entrants into the passenger air-carrier market were often non-union or
had weak independent unions, and at these carriers, pilots did not enjoy a
well-funded retirement program as earlier pilots received. Throughout the
1980's and 1990's, a new series of appeals to the FAA for amending or
exempting the Rule was sought.



The US Congress passed the Age Discrimination in Employment Act of 1967
(AEDA) prohibiting mandatory retirement before age 70 except "where age is a
bona fide occupational qualification (BFOQ) reasonably necessary to the
normal operation of the particular business."  In *TWA v Thurston[2]<#_ftn2>
*and *Western Air Lines v Criswell[3] <#_ftn3>,* the courts determined that
flight engineers were not pilots and under the AEDA were not prohibited from
working past age 60.  The gist of the *Thurston* decision was that employers
attempting to discriminate on the basis of age using BFOQ must provide
medical evidence submitted by parties with a "rational basis in fact."  As a
result of these decisions, pilots flying for airlines with three-man
cockpits, could continue their careers past age 60 as flight engineers.



In 1988, pilots asserted in *Anan v FAA[4] <#_ftn4> *that since the FAA
allowed certain pilots from foreign carriers over the age

of sixty to fly in the United States airspace, and has granted exemptions to
pilots with known medical conditions, they should be exempted from the Rule.
While the *Anan* decision ruled in favor of the FAA, it also cautioned that
the deference accorded an agency action "should not be equated with a
license to issue inconsistent determinations."  Another group of pilots
sought review of an FAA order which had denied their petition for an
exemption in *Baker v FAA[5] <#_ftn5>*.  The Baker court once again affirmed
the FAA's decision but warned, "we caution the agency that its Age Sixty
Rule is not sacrosanct and untouchable." The senior district Judge in *Baker
*, Judge Will, asserted in his dissent that "the rule is simply an
arbitrary, overly broad and outmoded presumption, smelling of age
discrimination…more-over, in light of the agency's policy of never granting
age 60 exemptions, its present regulations are a fraud."



The FAA, sensing an onslaught of tests against the Rule, produced its own
study in 1993, known as the Hilton Study, which concluded that there was "no
support for the hypothesis that the pilots of scheduled air carriers had
increased accident rates as they neared the (mandatory retirement age) of
60." They then hardened the agency's stance in 1995 by announcing that
future petitions for exemptions would be summarily denied unless the
petitions contain a proposed technique, not previously discussed, to assess
an individual pilot's abilities and risks of subtle and sudden
incapacitiation.



International airlines have been more lenient in allowing pilots to continue
their careers.  Japan Airlines for example, raised their retirement age
initially to 63, then to 65.  Of the Contracting States to the International
Civil Aviation Organization (ICAO) 22 member countries allow pilots to fly
beyong age 60.  The Israli flag carrier, El Al, allows pilots to fly until
65 and are allowed to operate in over 37 countries.  While the FAA's own
studies have been inconclusive if not openly supportive of over age 60 pilot
operations, and they have allowed foreign carriers to operate in US airspace
with over 60 pilots, the agency's policy has remained firm and their defense
of it steadfast.





LEGISLATIVE ATTEMPTS TO CHANGE FAA POLICY



Three FAA administrators have expressed doubts about the Rule.  David
Hinson, President Clinton's first FAA administrator made this comment
regarding the Rule, "in many ways, it was arbitrary because there wasn't
enough medical evidence" at the time to support it.  Hinson discussed
changing the rule with his superiors but, "they didn't want to talk about
it."  Hinson indicated that opposition to change came straight from the
White House. Donald Engen, an earlier administrator from the mid-1980's told
the New York Times, "its not a medical issue."  Former FedEx Vice-President
and FAA Administrator, T. Allan McMartor, testified in an administrative
hearing that the Rule was "an arbitrary standard" and that "I have never
seen any credible evidence to support the mandatory requirement for
USairline pilots to retire at age 60." ALPA has been funnelling
millions of
dollars through its Political Action Committee over the years for its
support of the Rule, including $1.3 million to the Clinton campaign during
the 1992 election.  Senator Frank Murkowski, R-Alaska, introduced
legislation into the Senate in March 2001, citing a shortage of pilots in
his home state as a necessity to eliminate the Rule.  Rep. James Gibbons,
R-Nevada, and a former airline pilot, introduced a similar bill in the
house.  Both bills remained a low priority for Congress and the events of
9/11 killed any interest for additional consideration.  Since 9/11, several
airlines have gone out of business or declared bankruptcy.  The Chapter 11
bankruptcy proceedings of United Airlines and USAirways have decimated their
pilot's retirement programs.  Other airlines are negotiating deep cuts if
not outright eliminations of their pilot retirement programs.  There is now
broad support among ALPA member pilots as well as non-ALPA and non-union
pilots to end the age 60 restriction.  ALPA has recently begun an age-60
policy review, and age-60 education program, has published two age-60
related articles in their union magazine, *Air Line Pilot*, and is
conducting a survey of their members for attitudes about lobbying for a
change in the Rule.  Senator James Inhofe, R-Oklahoma, and Congressman
Gibbons have re-introduced bills this year to change the pilot retirement
age to the Social Security minimum, currently age 65. This proposed
legislation will be heavily lobbied from both sides. In a February 22, 2002
*Wall Street Journal* article, spokesman for ALPA, John Mazur, says, "the
first question to be resolved is whether older pilots would degrade safety.
If the union is convinced that they wouldn't, then it becomes an economic
question, and an internal struggle between older pilots who won't have the
pension they thought they would have, and younger pilots-many still on
furlough from struggling airlines-who want jobs."  The same article
contrasts the pilots at American Airlines, (with generous retirements
intact) where 83% of their pilots oppose an increase in the retirement age
versus SouthWest Airlines pilots (with only a 401k retirement) who want the
retirement age raised.



CONCLUSIONS



The age-60 Rule was born with questionable political and scientific
parentage.  Supportors and detractors have largely followed their own
economic self-interests.  Those who have attempted to change it or seek
exemption have faced an obstinate FAA and reluctant courts.  If it is to be
changed, it will most likely be by act of the Congress.  Whether ALPA
members support their union in lobbying for change, joined by the non-ALPA
pilot associations, will probably determine the legislative outcome.  With
the current political debate on the solvency of the Social Security system,
the questionability of the Pension Guarantee Board to absorb failing airline
pension obligations at current funding levels, and the improvements in
medical testing procedures and diagnosis, the rule is likely to change.  If
so, it will not be the end of the debate.  J. Randolph Babbit, former
president of ALPA, thinks pilots working beyond age 60 will probably get
additional testing, including new exams such as cognitive tests.  "The
elephant in the room for the pilots is, when are you going to start doing
it?  Such testing might find guys who should retire at 55," according to Mr.
Babbit. Babbit's comment's raises an interesting question; would the failure
of a cognitive test be a medical failure under Section 602, or failure to
meet a standard under Section 601? Other unknown changes are how the
Internal Revenue Service (IRS) will respond to an age-60 Rule change and how
airline collective bargaining agreements will be re-negotiated. Under
current IRS rules, pilots are allowed to base pension benefits on a higher
gross income than other taxpayers to reflect the difference between their
retirement rules and other taxpayers.  Those pilots with defined benefit
plans have bargained for funding formulas that reflect the early retirement
age. How will future contracts be constructed? If the age-60 Rule is
changed, a likely scenerio, it will probably not be the end of litigation
for this issue.









------------------------------

[1] <#_ftnref1> Air Line Pilots Ass'n, Int'l v. Quesada, 276 F.2d 892, 898
(2d Cir. 1960)

[2] <#_ftnref2> TWA v Thurston, 469 U.S. 111 (1985)

<#_ftnref3>3 Western Air Lines, Inc. v. Chriswell, 472 U.S. 400 (1985)

[4] <#_ftnref4> Anan v FAA, 856 F.2d 946 (7th Cir., 1988)



[5] <#_ftnref5> Baker v FAA, 917 F.2d 318 (7th Cir., 1990)





THE BIRTH OF THE AIRLINE PILOT PROFESSION



The Wright brothers found little commercial interest in their
accomplishments at Kitty Hawk until the outbreak of World War One.  All the
major powers in the "Great War" used airplanes for various purposes.  At the
wars end, the airplane returned to its previous use, primarily a novelty for
entertainment and amusement.  Those pilots in the US and Europe who flew
airplanes were largely self-employed entrepreneurs called "barnstormers". 
In
the mid-1920's, the US Postal Service started experimenting with the
transportation of mail via aircraft.  The pilots who flew the mail were
brave and daring men, mostly very young and seeking adventure. After a brief
and disasterous attempt by the Army to fly mail, airmail transport was
returned to private companies. It was not until the early 1930's, when the
mail service was divided up amongst a handful of companies at the "Spoils
Conference" under the Franklin D. Roosevelt (FDR) administration, that
pilots considered flying a long term career.  FDR established the Civil
Aeronautics Board (CAB) to regulate commercial aviation, and his
administration was instrumental in establishing the airline piloting
profession as a safe and desirable livelihood. It was also during this time
frame that pilots organized the Air Line Pilots Association (ALPA) as a
collective bargaining agent, and developed ALPA as an instrumental agency
for the improvement of flying safety and the advancement of economic issues
for pilots. All current legacy airlines trace their history to that period.
With the outbreak of World War Two (WW2), commercial airlines sacrificed
their aircraft and pilots to the war effort.  The US Army Air Corps and the
US Navy had tens of thousands of airplanes constructed for the war and
trained even larger numbers of pilots.  At the cessation of hostilities, the
airline industry returned to normal operations and enjoyed a period of rapid
growth in technology and economic success.  Thousands of pilots who had
trained for military service entered the now desirable profession of airline
flying.  With the introduction of jet-powered aircraft in the late 1950's,
commercial aviation and the airlines entered the modern era.



THE INTRODUCTION OF JET AIRCRAFT



The CAB was abolished in 1958 and replaced with the FAA under the Federal
Administration Act of 1958.  This change in the Federal regulatory body of
aviation coincided with the introduction of the Boeing 707 jet aircraft into
commercial service.  American Airlines, led by CEO C.R. Smith, was one of
the first customers for the new jet airplane.  Smith wanted to replace his
older pilots who had started with American during the airmail days with
younger war-trained pilots.  He believed that older pilots would require
substantially more time to train in the much more complex and faster
jets.  Sophisticated
flight simulators did not yet exist and training was primarily conducted in
actual aircraft, a very expensive process. Smith established a mandatory
retirement age of 60 at American in 1958 that was contested by three of his
pilots.  The three pilots, Captains Rentz, Cutrell, and Burns, won the right
through neutral arbitration to fly beyond age 60.  Smith ignored the
arbitrators ruling and refused to re-instate the over age 60 pilots. 
American
Airlines pilots began a twenty-day strike on December 20, 1958 and won
virtually all their demands, including the reinstatement of the three
"retired" pilots. Smith then tried to bargain with ALPA president Clarence
N. Sayen to establish a mandatory retirement age. Sayen refused to
negotiate. What Smith and American Airlines couldn't achieve through
intimidation and collective bargaining was accomplished by regulatory
change.  Smith contacted his wartime buddy, retired Lieutenant-General
Elwood "Pete" Quesada who had recently been appointed as the head of the
FAA.  Smith's personal correspondence to Quesada requested a maximum age of
55 to transition to jet aircraft and a mandatory retirement age for all
pilots at age 60.  American produced data to the FAA that supposedly
demonstrated that younger pilots, "especially selected for intelligence,"
required less transition time to jet aircraft.  Quesada convened an "expert
panel" to review Smith's requests and data.  The panel supported the
American Airlines data but backed off from the age 55 jet transition
cut-off.  FAA legal counsel advised that Smith's data be ignored and that
the FAA concentrate on "such medical data as is available concerning
deterioations in specific functions such as reaction time, glare tolerance,
night visual acuity, learning times, accuracy of learning, etc."  On
December 5, 1959, FAA regulation 14 CFR 121.383(c) was published in the
Federal Register.  Effective March 15, 1960, airline pilots were required by
law to retire before their sixtieth birthday.  One year later, "Pete"
Quesada retired as Administrator of the FAA and immediately took a seat on
the Board of Directors at American Airlines.



THE DAWN OF THE LEGAL CHALLENGES



Federal Aviation Regulation (FAR) 121.383(c) was constructed in a way that
would make litigation to challenge it difficult for appellants.  The
authority for FAR 121.383(c) was derived under Section 601 of the FAA act of
1958.  Section 601 empowers the FAA administrator to set minimum standards
and establish operating rules and regulations to promote the safety of
flight in air commerce.  Regulations governing pilot certification have
their authority under Section 602 of the FAA Act.  This difference has
tremendous impact on FAA regulations concerning operations versus medical or
pilot certification.  Under Section 601, "findings of fact by the
Administrator, if supported by substantial evidence, shall be
conclusive."  Parties
seeking to change rules under 601 must prevail in the United States Court of
Appeals.  The US Court of Appeals will only reverse the FAA when it can be
shown that a rule is shown to be arbitrary, capricious, an abuse of
discretion, or otherwise in violation of law.  Issues contested under
Section 602 do not appeal to the courts but rather to the National
Transportation Safety Board (NTSB). Under 602, the burden of proof rests
with the FAA rather than the appellant, and the NTSB is not bound by the
FAA's prior rulings.  Quesada's construction of the age-60 rule has made
overturning it a daunting legal task.



Between 1960 and 1979 ALPA filed seven major lawsuits to overturn the age-60
rule or exempt pilots from the Rule. The first challenge, *ALPA v
Quesada[1]<#_ftn1>
*, was filed March 16, 1960.  The court stated "they will not attempt to
substitute their judgement for that of the administrative agency."  The
number of airline pilots facing early retirement was then quite small.  The
judge in *Quesada* used this fact in his opinion citing "Any attempt to
weigh the

countervailing considerations of dollar loss to the approximately 40 pilots
against the public safety in air carrier operations borders on vulgarity."
Judge Bicks' published opinion then proceded to honor Quesada's wartime
experience as Commanding General of the 9th Tactical Air Command in
Europeduring WW2 and 12,000 hours of pilot time. Bicks quoted Harry F.
Guggenheim's opinion from a *Washington Post* article of December 8, 1959
supporting mandatory age 60 retirement for pilots.  The case essentially
revolved around the FAA's authority to make such rules and Queseda's
qualifications as Administrator.  Subsequent cases by ALPA were no more
successful in attacking the lack of scientific evidence behind the Rule or
the authority of the FAA to promulgate the Rule.



The airline industry enjoyed rapid growth during the late 1960's and early
1970's and thousands of new pilots were hired.  Younger pilots were anxious
for advancement up the airline's seniority lists, eager to see older pilots
retire, and they gained influence in ALPA's internal politics.  ALPA's
position on the age-60 rule changed to reflect the new demographics of its
membership and started giving support to mandatory retirement at age 60. By
the end of the 1970's, the wave of WW2 pilots were nearing retirement.  Most
had enjoyed stable and financially rewarding careers. Many of their
collectively bargained labor agreements had made provisions for retirement
funding to bridge the gap between age 60 and the age at which Social
Security benefits could be collected.  This group of pilots embraced the
Rule and younger pilots supported the Rule.  ALPA reversed its age 60
policy.



The passage of Airline De-Regulation Act of 1978 introduced financial
instability into the airline marketplace and several large air-carriers
failed. Some airlines rapidly expanded with an influx of young pilots
looking for advancement. Pilots at other well established airlines such as
Braniff, Eastern, PanAm, and others found themselves starting over at other
carriers mid-career after their employers went out of business.  As these
pilots started facing their own retirements, many realized they were not
financially prepared, and a new thrust to expand the time frame of a pilot's
career began. Whether a given pilot supported extending the retirement age
was largely a result of their own airline's and personal financial health.
New entrants into the passenger air-carrier market were often non-union or
had weak independent unions, and at these carriers, pilots did not enjoy a
well-funded retirement program as earlier pilots received. Throughout the
1980's and 1990's, a new series of appeals to the FAA for amending or
exempting the Rule was sought.



The US Congress passed the Age Discrimination in Employment Act of 1967
(AEDA) prohibiting mandatory retirement before age 70 except "where age is a
bona fide occupational qualification (BFOQ) reasonably necessary to the
normal operation of the particular business."  In *TWA v Thurston[2]<#_ftn2>
*and *Western Air Lines v Criswell[3] <#_ftn3>,* the courts determined that
flight engineers were not pilots and under the AEDA were not prohibited from
working past age 60.  The gist of the *Thurston* decision was that employers
attempting to discriminate on the basis of age using BFOQ must provide
medical evidence submitted by parties with a "rational basis in fact."  As a
result of these decisions, pilots flying for airlines with three-man
cockpits, could continue their careers past age 60 as flight engineers.



In 1988, pilots asserted in *Anan v FAA[4] <#_ftn4> *that since the FAA
allowed certain pilots from foreign carriers over the age

of sixty to fly in the United States airspace, and has granted exemptions to
pilots with known medical conditions, they should be exempted from the Rule.
While the *Anan* decision ruled in favor of the FAA, it also cautioned that
the deference accorded an agency action "should not be equated with a
license to issue inconsistent determinations."  Another group of pilots
sought review of an FAA order which had denied their petition for an
exemption in *Baker v FAA[5] <#_ftn5>*.  The Baker court once again affirmed
the FAA's decision but warned, "we caution the agency that its Age Sixty
Rule is not sacrosanct and untouchable." The senior district Judge in *Baker
*, Judge Will, asserted in his dissent that "the rule is simply an
arbitrary, overly broad and outmoded presumption, smelling of age
discrimination…more-over, in light of the agency's policy of never granting
age 60 exemptions, its present regulations are a fraud."



The FAA, sensing an onslaught of tests against the Rule, produced its own
study in 1993, known as the Hilton Study, which concluded that there was "no
support for the hypothesis that the pilots of scheduled air carriers had
increased accident rates as they neared the (mandatory retirement age) of
60." They then hardened the agency's stance in 1995 by announcing that
future petitions for exemptions would be summarily denied unless the
petitions contain a proposed technique, not previously discussed, to assess
an individual pilot's abilities and risks of subtle and sudden
incapacitiation.



International airlines have been more lenient in allowing pilots to continue
their careers.  Japan Airlines for example, raised their retirement age
initially to 63, then to 65.  Of the Contracting States to the International
Civil Aviation Organization (ICAO) 22 member countries allow pilots to fly
beyong age 60.  The Israli flag carrier, El Al, allows pilots to fly until
65 and are allowed to operate in over 37 countries.  While the FAA's own
studies have been inconclusive if not openly supportive of over age 60 pilot
operations, and they have allowed foreign carriers to operate in US airspace
with over 60 pilots, the agency's policy has remained firm and their defense
of it steadfast.





LEGISLATIVE ATTEMPTS TO CHANGE FAA POLICY



Three FAA administrators have expressed doubts about the Rule.  David
Hinson, President Clinton's first FAA administrator made this comment
regarding the Rule, "in many ways, it was arbitrary because there wasn't
enough medical evidence" at the time to support it.  Hinson discussed
changing the rule with his superiors but, "they didn't want to talk about
it."  Hinson indicated that opposition to change came straight from the
White House. Donald Engen, an earlier administrator from the mid-1980's told
the New York Times, "its not a medical issue."  Former FedEx Vice-President
and FAA Administrator, T. Allan McMartor, testified in an administrative
hearing that the Rule was "an arbitrary standard" and that "I have never
seen any credible evidence to support the mandatory requirement for
USairline pilots to retire at age 60." ALPA has been funnelling
millions of
dollars through its Political Action Committee over the years for its
support of the Rule, including $1.3 million to the Clinton campaign during
the 1992 election.  Senator Frank Murkowski, R-Alaska, introduced
legislation into the Senate in March 2001, citing a shortage of pilots in
his home state as a necessity to eliminate the Rule.  Rep. James Gibbons,
R-Nevada, and a former airline pilot, introduced a similar bill in the
house.  Both bills remained a low priority for Congress and the events of
9/11 killed any interest for additional consideration.  Since 9/11, several
airlines have gone out of business or declared bankruptcy.  The Chapter 11
bankruptcy proceedings of United Airlines and USAirways have decimated their
pilot's retirement programs.  Other airlines are negotiating deep cuts if
not outright eliminations of their pilot retirement programs.  There is now
broad support among ALPA member pilots as well as non-ALPA and non-union
pilots to end the age 60 restriction.  ALPA has recently begun an age-60
policy review, and age-60 education program, has published two age-60
related articles in their union magazine, *Air Line Pilot*, and is
conducting a survey of their members for attitudes about lobbying for a
change in the Rule.  Senator James Inhofe, R-Oklahoma, and Congressman
Gibbons have re-introduced bills this year to change the pilot retirement
age to the Social Security minimum, currently age 65. This proposed
legislation will be heavily lobbied from both sides. In a February 22, 2002
*Wall Street Journal* article, spokesman for ALPA, John Mazur, says, "the
first question to be resolved is whether older pilots would degrade safety.
If the union is convinced that they wouldn't, then it becomes an economic
question, and an internal struggle between older pilots who won't have the
pension they thought they would have, and younger pilots-many still on
furlough from struggling airlines-who want jobs."  The same article
contrasts the pilots at American Airlines, (with generous retirements
intact) where 83% of their pilots oppose an increase in the retirement age
versus SouthWest Airlines pilots (with only a 401k retirement) who want the
retirement age raised.



CONCLUSIONS



The age-60 Rule was born with questionable political and scientific
parentage.  Supportors and detractors have largely followed their own
economic self-interests.  Those who have attempted to change it or seek
exemption have faced an obstinate FAA and reluctant courts.  If it is to be
changed, it will most likely be by act of the Congress.  Whether ALPA
members support their union in lobbying for change, joined by the non-ALPA
pilot associations, will probably determine the legislative outcome.  With
the current political debate on the solvency of the Social Security system,
the questionability of the Pension Guarantee Board to absorb failing airline
pension obligations at current funding levels, and the improvements in
medical testing procedures and diagnosis, the rule is likely to change.  If
so, it will not be the end of the debate.  J. Randolph Babbit, former
president of ALPA, thinks pilots working beyond age 60 will probably get
additional testing, including new exams such as cognitive tests.  "The
elephant in the room for the pilots is, when are you going to start doing
it?  Such testing might find guys who should retire at 55," according to Mr.
Babbit. Babbit's comment's raises an interesting question; would the failure
of a cognitive test be a medical failure under Section 602, or failure to
meet a standard under Section 601? Other unknown changes are how the
Internal Revenue Service (IRS) will respond to an age-60 Rule change and how
airline collective bargaining agreements will be re-negotiated. Under
current IRS rules, pilots are allowed to base pension benefits on a higher
gross income than other taxpayers to reflect the difference between their
retirement rules and other taxpayers.  Those pilots with defined benefit
plans have bargained for funding formulas that reflect the early retirement
age. How will future contracts be constructed? If the age-60 Rule is
changed, a likely scenerio, it will probably not be the end of litigation
for this issue.









------------------------------

[1] <#_ftnref1> Air Line Pilots Ass'n, Int'l v. Quesada, 276 F.2d 892, 898
(2d Cir. 1960)

[2] <#_ftnref2> TWA v Thurston, 469 U.S. 111 (1985)

<#_ftnref3>3 Western Air Lines, Inc. v. Chriswell, 472 U.S. 400 (1985)

[4] <#_ftnref4> Anan v FAA, 856 F.2d 946 (7th Cir., 1988)



[5] <#_ftnref5> Baker v FAA, 917 F.2d 318 (7th Cir., 1990)







On 7/6/07, Michael D. Weisner <mweisner at ebsmed.com> wrote:
>
> Brad,
>
> I wasn't accusing you of using Google, I was!
>
> More Google stuff about outsourcing jobs, closer to home:
> http://www.hr-topics.com/wire-usa/pilot-jobs.htm
>
> or with respect to the 787 Dreamliner:
> "But now that it's becoming fly-by-wire, it is becoming more modular. So
> it
> can lend itself to outsourcing."
> http://www.aviationtoday.com/av/issue/feature/11668.html
> Interesting (scary) thought, the pilot need not even be on board!  Of
> course, we all know that systems don't fail, although I seriously wonder
> if
> my limbs will be of much use in controlling the craft in the case of a
> failure.
>
> Mike
> s/v Shanghai'd Summer ('81)
> Nissequogue River, NY
>
>
> From: "Brad Haslett" <flybrad at gmail.com> Friday, July 06, 2007 7:05 PM
> > Mike,
> >
> > That's pretty funny!  I didn't just Google a joke, the story is true.  I
> > asked Fan after I read the story why she couldn't cut her workload the
> > same
> > way and spend some more time at home. She went off on all this
> > propitiatory
> > information issues, and employment contract bullshit!  Bush will be
> > toppled
> > in 18 months.  The problems will not end when O'bama is sworn in!  Get
> it?
> > He's Irish.
> >
> > Brad
> >
> > On 7/6/07, Michael D. Weisner <mweisner at ebsmed.com> wrote:
> >>
> >> Brad,
> >>
> >> You've got to be carefull when you just Google "outsourcing jobs joke",
> >> you
> >> turn up stuff like this: http://www.topplebush.com/other58.shtml
> >>
> >> Mike
> >> s/v Shanghai'd Summer ('81)
> >> Nissequogue River, NY
> >>
> >> From: "Brad Haslett" <flybrad at gmail.com> Friday, July 06, 2007 5:51 PM
> >> > Al,
> >> >
> >> > Is this the story about the American dude who outsourced his job?  I
> >> read
> >> > too much to keep track of everything but I crossed paths this week
> with
> >> a
> >> > story about an American code producer who made about $65K a year,
> >> > outsourced
> >> > his job to some Indian for $12K, and told his boss he was
> >> tele-commuting.
> >> > He then went out to look for another 'job'.
> >> >
> >> > Brad
> >> >
> >> > On 7/6/07, Al Miller <al_shell at verizon.net> wrote:
> >> >>
> >> >> the pps attachment keeps getting stripped off....sorry
> >> >>
> >> >> -----Original Message-----
> >> >> From: rhodes22-list-bounces at rhodes22.org
> >> >> [mailto:rhodes22-list-bounces at rhodes22.org] On Behalf Of Al Miller
> >> >> Sent: Friday, July 06, 2007 5:38 PM
> >> >> To: rhodes22-list at rhodes22.org
> >> >> Subject: [Rhodes22-list] FW: Humour-Outsourcing
> >> >>
> >> >> I fouled up the attachment...Hope this gets through...
> >> >>
> >> >> >The Global Economy may have unintended consequences in some
> quarters.
> >> >>
> >> >> >Alton
> >> >>
> >> >> >S/V Mishka
> >> >>
> >> >>
> >> >>
> >> >>
> >> >>
> >> >> No virus found in this outgoing message.
> >> >> Checked by AVG Free Edition.
> >> >> Version: 7.5.476 / Virus Database: 269.10.0/886 - Release Date:
> >> 7/4/2007
> >> >> 1:40 PM
> >> >>
> >> >>
> >> >> __________________________________________________
> >> >> Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
> >> >>
> >> > __________________________________________________
> >> > Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
> >> >
> >> >
> >>
> >>
> >> __________________________________________________
> >> Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
> >>
> > __________________________________________________
> > Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
> >
> >
>
>
> __________________________________________________
> Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
>
__________________________________________________
Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list