[Rhodes22-list] FW: FW: Humour-Outsourcing
Brad Haslett
flybrad at gmail.com
Fri Jul 6 20:16:54 EDT 2007
Mike,
Too rich for me too but it is in production. I realized my error in hitting
the button twice one second after hitting the button the second time. See!
Retire me at 60 or before! I can't keep up with technology!
Brad
On 7/6/07, Michael D. Weisner <mweisner at ebsmed.com> wrote:
>
> 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
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>
>
> __________________________________________________
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