FDXLAG

No but since he left out the part of the MEC working the language to get retro for the over 60 engineers he may be eligible for CNNBCBSABCMSNBC.

Huck

Go ahead, explain this argument for me.

Given the ICAO changes, the fact that foreign pilots were going to be flying in our airspace, what exactly was going to happen that made our age change so inevitable?

I honestly want to hear you. You may be the one guy to finally convince me.

Until then, I stick with my fireman example. Age restrictions exist, they exist in both state and federal law. They are not applied equally. Ageism does not invoke heightened scrutiny.

So... let me hear it. Why was the rule change so inevitable, with or without our support?

And, question number B: is it really the job of an advocacy group to tell its constituency that a fight is unwinnable? Again... the cargo cutout is already regulatory. No one in congress gives us any hope of reversing it. Yet we are up there lobbying to change it right now. WHY didn't we at least put up our fists on Age 65?

Think of the trouble we would have avoided, later. For one thing I'd still be a tongue-talking member, instead of a perpetual whiner on APC....

CloudSailor

TonyC,

Nicely summarized. I was unaware of most of what you wrote, thanks for setting the record straight for me.

By the way, have you considered writing a book, or two? You could get paid for your lack of writer's block .

HIFLYR

This is the part most guys I know have a problem with, since they had filled the backseat to artificially high manning level. Also, in some cases just went to special projects and NQA to wait and see.

TonyC

That's a pretty heavy responsibility that I take in all seriousness. I've tried to convince you before, with no success, and I've lost count of how many times I've had this same conversation with countless others. I'm not saying that I'll stop trying if I fail to convince you this time, but I'm going to do my best to make this a convincing closing argument.


So let's start by talking about what this was not. It was not about age discrimination. Now, I know this must come as a blow to FoxHunter and his APAAD (Airline Pilots Against Age Discrimination) buddies, but the Regulated Age did not change because somebody was persuaded by their arguments that the Regulated Age should be abolished because it constitutes age discrimination. Step back and apply the common sense test. If Age 60 was discrimination, what is Age 65?

The FAA (Federal Aviation Agency) issued the age rule in December, 1959, and it took effect in March, 1960. For 20 years, ALPA challenged the rule, even suing the FAA, arguing among other things that the rule was discriminatory. The FAA has argued that the rule is not discriminatory. The Age Discrimination in Employment Act of 1967 (ADEA) forbids discrimination in employment decisions. It provides an exception to the prohibition when age is a bona fide occupational qualification (BFOQ), reasonably necessary to the normal operation of the particular business. In 1968, the U.S. Secretary of Labor declared the Age 60 rule to be a BFOQ. ADEA was later amended by Congress, and jurisdiction for enforcement was transferred from the Department of Labor to the Equal Employment Opportunities Commission (EEOC). In 1981, the EEOC rescinded the Department of Labor's determination that the Age 60 rule constitutes a BFOQ.

However, a 1997 lawsuit against the FAA resulted in a decision which stated that ADEA did not limit the authority of the FAA to regulate air carriers in the interest of safety. That decision essentially upheld the Age 60 rule as a BFOQ.

Furthermore, the FAA did not view the Age 60 rule to be a mandatory retirement policy, as there were opportunities to serve in other capacities (flight engineer or instructor) or in Part 135 operations.

Again, it was not about age discrimination.

So far, I think you can agree.


Huck, you and I are engineers. We like formulas, we need empirical data, we want mathematical proof. I can't give you that here. It doesn't exist. Perhaps I can appeal to Huck, Esq.

The best I can do is describe what was happening and what people were saying and doing. In particular, what is important is what was going on in Congress.

Long before the ICAO changed their rule about the maximum age of pilots, efforts were underway to change our Federal Aviation Regulations by act of Congress. I may be a bit cynical, but I don't know of anyone who believes that Congress can do a better job of formulating and implementing avaition rules than the FAA, but that's what they were trying to do.

H. R. 65 was introduced in the 109th Congress, 1st session, by Representative James Gibbons (R-Nev) to replace Age 60 with "social security retirement age." It was a simple bill with a simple purpose, but it did not contemplate that the subject matter and the unintended consequences of changing the age were far from simple. You can read the full text in THOMAS - it's only 3 paragraphs, 2 sub-paragraphs. H. R. 65 To amend the age restrictions for pilots. H. R. 65 was referred to House Subcommittee on Aviation.

Senator James Inhofe (R-OK) introduced the identical language as S.65. (Cute, they both managed to get the same sequence number -- 65. Nothing coincidental about that, huh?) S.65 was introduced in Senate (Jan 24, 2005), and it was reported in Senate (Mar 30, 2006) with amended language, basically substitute language for the original. S.65 To amend the age restrictions for pilots. -- Reported in Senate

The first paragraph of the new language tells a compelling story.The issue at this point was ICAO standards, and making our own rules consistent with the international standard.

H. R. 65 and S. 65 died with the close of the 109th Congress, but inertia had been established.

Annex 1 to the Convention on International Civil Aviation (cited in the Senate bill) is "Personnel Licensing". (Read it here: Annex 1 to the Convention on International Civil Aviation - Personnel Licensing - Eleventh Edition July 2011) Amendment 167 was adopted 10 March 2006 and became effective 17 July 2006. Among the changes in that amendment was "Revised and new medical provisions on the upper age limits for flight crew members."

In 1978, a change to ICAO standards permitted first officers to fly until their 65th birthday. In 1999, the Joint Aviation Authority (JAA) in Europe adopted a rule that allowed either pilot to fly until their 65th birthday, so long as the other pilot was under age 60. Under the Chicago Convention, any ICAO country must allow airlines from other ICAO countries to enter if they meet ICAO standards. Consequently, while a Delta pilot could not fly from Chicago to Paris once he reached his 60th birthday, an Air France pilot could serve as First Officer from Paris to Chicago. In late 2005, ICAO was about to change its age standards to match the JAA standard, allowing either pilot to fly to age 65, so long as the other pilot was under 60.

As you know, we are not governed by ICAO. Member states can choose to follow their rules, or publish exceptions. We could have chosen to ignore the new ICAO age restriction. But we did not. The President of the United States, George Bush, instructed the FAA Administrator Marion Blakey to not oppose ICAO rule change. We were then faced with the proposition that our FARs would be more restrictive than the ICAO rules.

Since 1980, when ALPA's Board of Directors reversed ALPA's policy of opposing the Age 60 rule, ALPA had argued that we should maintain the age limit because of Safety. The Safety argument became more and more difficult to defend as ICAO first officers flew until their 65th birthdays, and JAA Captains did the same. With Over-60 foreigners in our skies, it became non-sensical to argue that over-60 Americans could not safely do the same.

As all of those forces came to focus, Senators and Congressmen began to view ALPA as obstructionists. They were no longer persuaded by the safety argument. They saw foreign pilots flying in our skies until age 65. They saw the ICAO rule change, and they saw that we would honor the ICAO rule. They began to tell our lobbyists that we were on the wrong side of the argument. In fact, as long as we continued to oppose the Age 60 rule change, they were not inclined to listen to us on any issue at all. They were convinced the rule should change, and they began excluding us from the conversation.

They had figuratively put their palm in our face and declared, "Enough. This conversation is over."

As I said before, there is no mathematical proof that change was inevitable. Yet, our legislative affairs experts and our lobbyists believed that it was. The speed with which the final legislation passed is not proof that they were correct, but it certainly supports their assessment.



I believe it is the job of leaders to tell the truth, even if it's tough to swallow. It has been said that a negotiating committee has two negotiations, one with The Company, and one with the membership. The second is usually the more difficult. It feels good to promise the membership great things, but if they can't be delivered, it only sets up disappointment, and that can lead to failure. It feels good to repeat over and over and over that every day is another day of retro pay, but when the deal is done and there's no retro pay, the disappointment makes it difficult to see the good things in the deal. Being honest and realistic is far more important than promising unrealistic outcomes. We are reminded of Don Quixote tilting at windmills.

In my opinion the US Airways MEC made a mistake in telling their members that Arbitrator Nicolau would produce an integrated seniority list for them and America West pilots based on date of hire. They continued the disservice by convincing the members that the binding arbitration could somehow be ignored. The same people are still trying to convince their members (albeit of a different named organization) that there is some way to ignore the seniority list which resulted from binding arbitration to which both parties voluntarily committed. Sure, it must feel good to fight, but with what results? I believe it was that MEC's job to tell the members then that the fight against that seniority list integration was unwinnable. They'd be a lot farther ahead today.

I wish we could have kept the age limit, but I've had a lot of other wishes that didn't come true, too. I believe we might have delayed the change by days or weeks or maybe even by months, but I don't believe we could have delayed it by years. Even if we had been successful in creating a delay, our victory would have been pyrrhic, as we would have forfeited during that same time our ability to have a positive effect on other issues that mattered to us. Indeed, our impairment might have persisted longer than the age 60 fight, as our reputation would have suffered.

Now, I realize I've gone beyond arguing the change was inevitable and started dipping into the issue of our influence over the process. I think it's relevant because that was part of the famous Poll Question #2. The purpose of dropping opposition to the rule change, as stated in that multiple choice answer to the question, was in order to play a part in formulating the inevitable legislation. I believe we were quite successful in that regard.

ALPA changed its policy to drop opposition to the rule change, but it was contingent upon certain specified conditions. We saw that the languge currently under consideration by Congress was unacceptable. By dropping opposition, we were welcomed back into the chambers of Congressmen, and all of our priorities were met with new language in the bills. Compare that first iteration with H. R. 1125 - Freedom to Fly Act, introduced Feb 16, 2007, and then to the final bill, H. R. 4343 - Fair Treatment for Experienced Pilots Act, which was passed into law (110-135) December 12, 2007. ALPA's influence in the evolution of the language is clear. Compare the language of the final law to ALPA's priorities as stated in the Executive Board Resolution to drop opposition to the rule change:

• Appropriate legislative language to prevent retroactive application of a change to the Age 60 Rule, to the effect that: “No person over 60, except active flight deck crewmembers, on the effective date may serve as a pilot (captain or first officer) for a Part 121 airline unless such person is newly hired as a pilot on or after such effective date without credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier.”
• Appropriate legislative language to ensure stronger liability protection for airlines and pilot unions in implementing a change to the rule, to the effect that: “Any action in conformance with this Act or with a regulation under this Act may not serve as a basis for liability or relief before any court or agency of the United States, or of any state or locality, nor may any action taken prior to the effective date of enactment on the basis of section 121.383(c) of title 14, Code of Federal Regulations as then in effect.”
• Ensuring that, under a defined benefit retirement plan, a change to the Age 60 Rule will not reduce a participant’s or beneficiary’s accrued benefit nor reduce a benefit to which a participant or beneficiary would have been entitled without enactment of such a change to the Rule.
• Opposing any additional age-related diagnostic medical testing.
• Opposing any attempt by the FAA to obtain greater access to pilot medical records.
• Supporting FAA Air Surgeon Tilton’s recommendation to require a 1st Class Medical certification every six months for pilots over age 60.
• Opposing for domestic operation the implementation of the ICAO standard that at least one pilot in the cockpit be under age 60. Once sufficient data on pilots over age 60 becomes available, unless the necessity for this mitigation for the long term is clearly shown, advocate for removal of the ICAO over/under mitigation for all operations.
• Support the ability of a pilot to retire prior to the mandatory age without penalty.

All of those priorities were met.

In summary, I believe that the change to the regulated change was inevitable. I believe that by dropping our opposition to the change, we were able to exert our influence and create a law that was much more favorable than what the legislators were able to fabricate on their own. Therefore, I think we did the right thing.

I yield the balance of my time to the gentleman from Alabama.






.

TonyC

It's a bit ironic, but the provision which creates this angst is titled, in the law, "NONRETROACTIVITY". Even the first iterations of the legislation included language to prevent pilots who had already retired from using the law to claim they should get their jobs and seniority numbers back. One might assume that similar language would have made it to the final act without our influence, but one might also assume wrong. It could have also been changed to allow retirees to come back and reclaim "their" seats.

What we did was stand up for the seniority rights of every pilot on the seniority list. Absent this provision, we would have had two classes of pilots. One class of pilots could sit in a front seat after their 60th birthday, and the other class could not. That's an abrogation of seniority rights, and I'm glad we didn't support that.

Can you imagine us doing that today? Although the regulated age is 65, let's only allow pilots under age 60 to bid Captain seats. Captains who are already over 60 can stay in their seats, but no new over-60 Captains.

That's ridiculous, and ridiculous is what we would have had absent the clause we added to protect the seniority right of every pilot on the list.

Oh, and don't deceive yourself into thinking all the old pilots are the most senior pilots. We have Over-60 pilots in every seniority block.

When we decide it's OK to discriminate against any small group of our seniority list, we've decided it's OK to descriminate against every small group of our seniority list, and pretty soon we'll have nothing but a bunch of small groups, with no sense of unity whatsoever. Sometimes those small groups become big groups and feel the need to retaliate for their disparate treatment. In the long term, nobody is served by excluding any single person.

Nobody gets a pass. Nobody gets left behind.



Close. When he bid the B-777, the arbitration hearing had been conducted and all briefs filed. We were only waiting for the arbitrator's decision. At that point, nothing we could do would influence the outcome or determine the pay rate.






.

FamilyATM

Tony, thank you for that summary and how the the FedEx union leadership viewed the issue. I also agree with you and the leadership at that time on many of the points you bring out but I was still opposed to the change. Here is what rubs me the wrong way with what went down:

"Most FedEx pilots did not want the regulated age to change. That was immaterial, and the FedEx MEC had no power to prevent the change." TonyC

The leadership here at FedEx ALPA knew the membership was against the change. They challenged us and tried to convince us, the membership, to change our personal view and go with what ALPA National wanted. Our local leaders fought the good fight but did not convince the membership and now needed to go to ALPA National and vote against the change in ALPA policy. Unfortunately, that is not what happen. They, the FedEx ALPA leaders, instead went to Washington and did not represent what their members wanted, dismissed it as "immaterial" and voted in favor of changing the ALPA national policy regarding age 60.

"I believe it is the job of leaders to tell the truth, even if it's tough to swallow." TonyC

I believe this is where our FedEx ALPA leaders failed us. They started down the right track telling the membership what they believed was the "truth" and that we needed to change our view regarding the regulated age. We were not convinced so now the FedEx leaders needed to go to Washington, tell the "truth" and represent our view "even though it's tough to swallow". The motion to change the policy would have carried whether we, FedEx, voted for or against. But voting against would have made the local membership happy and possibly avoided the one of the huge wedges that has been driven into this group. The opinion of the membership should never be "immaterial" but it seems that most people elected to "represent" the people now days view "the people" as immaterial, be they union or governmental representatives.

The ATM

Pakagecheck

Actually Tony, this would have been a great alternative if it would have happened on in the initial verbiage when the law changed. That way all the pilots on the seniority list seat progression to captain would not have been effected. Thus, allowing them the possibility to achieve their ave high 5 earlier and retire as originally planned. It would also still allow the pilots that wanted to stay at all of the airlines until 65(not just ones with F/Es). Win, win.... but that's in the past now.

TonyC

I'm not sure if you implied it or not, but let me make it clear just in case. I wasn't part of the "union leadership" then. This all preceded my time on the MEC. I was on the outside looking in, standing up at Joint Council meetings and giving DW a hard time like everybody else.






.

FamilyATM

Tony, I did not mean to imply that you were in a leadership role at that time. I was just referencing your post. That's all. The ATM