The TWU Air Transport Division (ATD) License Protection Program is designed to assist and inform TWU members of their rights when FAA action is taken against them for any violation of FAA rules or regulations.
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License Protection Program
This information, published by the ATD, is designed to inform TWU members holding a Federal Aviation Administration license of their rights in case action is taken against them for any violation of FAA rules or regulations.
This information is also designed to reassure our certificated members that the union is prepared to defend anyone so charged throughout the process, including appeals.
As noted, the ATD will provide an attorney, at the International Union’s expense, to defend any member charged with FAA violations.
In recent years, the FAA has increasingly focused on airline employees, especially certificated mechanics, as being the cause for accidents or other incidents involving air safety.
That is why this program is so important to protect our members from unfair accusations or action that might result in the loss of their license.
You are urged to familiarize yourself with this information in the event that the FAA instigates actions against you.
A mechanic faced with an FAA investigation of his/her work, and the possibility of a license suspension or revocation or a civil penalty, may face a number of difficult problems in framing a response. Most investigations relate to routine work performed weeks or even months earlier, which the mechanic has no reason to remember. The mechanic will then be asked to explain the relationship between accidents, incidents, equipment damage, or paperwork discrepancies and work he may have performed.
Indeed, the FAA initiates an investigation in virtually every case in which the paperwork indicates the possibility of failure to comply with the maintenance manual. The mechanic’s explanation will normally be called for as a response to a "Letter of Investigation" from the FAA Flight Standards District Office (FSDO).
In these circumstances it is important that the mechanic not engage in speculation.
There shall be a TWU maintenance representative designated by every local to handle FAA inquiries. Any time a mechanic receives a Letter of Investigation (LOI) he should contact the designated representative to assist him in examining the relevant paperwork, and setting out the facts as the mechanic actually recalls them.
Normally, a mechanic is given only 10 days to respond to the FAA's letter. Therefore, there should be no delay in seeking assistance. The initial response to a LOI is carefully examined by the FAA and may be used to back up a subsequent certificate or civil penalty action.
The FAA's response to its investigation can take a number of forms:
- Dismissal based on the mechanics the agency's investigation;
- Administrative Action (warning letter or letter of correction);
- License Suspension or Revocation (Notice of Proposed Certificate Action);
- Civil Penalty.
In our experience, FAA inspectors will close out an investigation only if the mechanic's response clearly establishes compliance with the maintenance manual or, in the case of an accident or incident, if the response verifies the mechanic's lack of involvement.
The FAA may also limit itself to administrative, rather than legal action. Administrative action is taken in those cases where a technical regulatory violation may have occurred but did not result in an unsafe condition. The FAA’s own handbook sets forth the following criteria for issuance of administrative, rather than legal, action:
- No significant unsafe condition existed;
- Lack of competency or qualification was not involved;
- The violation was not deliberate;
- The alleged violator has a constructive attitude towards complying with the regulations and has not been involved in previous similar violations.
If the above criteria are met the FAA will simply issue a letter warning the mechanic not to commit the same violation or request that he accomplish certain corrective actions. An administrative action is not considered to be a finding that the mechanic was guilty of the alleged violation. The FAA letter is, however, part of the mechanic's record for two years.
Legal Enforcement Action
Unfortunately, an increasing number of investigations are not being closed out or handled administratively. Instead, the FAA has taken a harder line and FAA inspectors are transferring their cases to FAA lawyers for legal actions. For this reason it is important that every mechanic understand the legal steps associated with FAA enforcement.
Any FAA action suspending or revoking a mechanic's license is initiated by a "Notice of Proposed Certificate Action." The letter will restate the allegations made in the LOI, and may reference certain statements made in the mechanic's written response, if the mechanic has made admissions. The letter will then advise the mechanic of the length of the proposed suspension or if full revocation is sought.
Each Notice of Proposed Certificate Action will provide the mechanic the following alternatives:
- Surrender your certificate on or before a given date. In this event the order proposed in the Notice will be issued at once, effective the date your certificate is surrendered or mailed to the FAA office listed in the order.
- Indicate your desire to have an order issued as proposed in the Notice of Proposed Certificate Action so that you can appeal to the National Transportation Safety Board (NTSB). This could be done by checking Item No. 2 on the reply form or by not responding to the Notice.
- Answer the charges in writing. With such answer you may furnish additional information, including statements by you or your representative or others, or other documentary evidence as you may wish to have considered.
- Request that you or your representative be accorded a conference with an attorney at an FAA Regional Office. At this conference you may state why the proposed action should not be taken, and you may present evidence and information on your behalf.
- If you filed an Aviation Safety Report with NASA concerning the incident set forth in the Notice of Proposed Certificate Action you may be entitled to a waiver, and you must present evidence satisfactory to the Administrator that you filed a report with NASA within 10 days of the incident. If you fail to provide this evidence to the Administrator within two weeks after receipt of the letter you will not be entitled to the waiver of penalty. You will only be entitled to wavier if it is found:
- That the alleged violation was inadvertent and not deliberate;
- That the violation did not involve a criminal offense, or accident, or discloses a lack of competence or qualification to the holder of a certificate; and
- You have not been found in any prior FAA enforcement action to have committed a violation of the Federal Aviation Act or any regulations promulgated under that act for a period of 5 years prior to the date of the occurrence.
In the event that you prove your entitlement to the waiver of penalty an order will be issued finding you in violation but imposing no civil penalty or certificate suspension. Your claim of entitlement to waiver of penalty would constitute your agreement that the order may be issued without further notice. You will, however, have the right to appeal the order to the NTSB pursuant to Section 609 of the Federal Aviation Act.
TWU Will Provide An Attorney
TWU advises that you should always request an informal conference. Upon request, the ATD will provide the assistance of an attorney for each informal conference.
Except in cases involving an emergency suspension, where the administrator finds that safety in air transportation requires immediate suspension or revocation, the penalty described in the Notice is stayed until all administrative procedures have been exhausted.
The purpose of an informal conference is to bring out facts and circumstances not accounted for in the Notice of Proposed Certificate Action. The FAA will frequently reduce the penalty based on this conference and engage in settlement discussion. Occasionally they will entirely rescind the action. The fundamental purpose of the conference is to negotiate.
If the informal conference does not result in a settlement satisfactory to the mechanic, he has the right to appeal to an NTSB Administrative Law Judge (ALJ).
The ALJ must conduct a formal hearing giving both sides the right to present evidence and cross-examine. The ATD will provide an attorney for such proceedings. Based on the record before the ALJ, he may reverse or modify the FAA’s penalty. Either side may appeal the ALJ's decision to the full NTSB. This is done through the filing of briefs. The NTSB does not conduct a new trial after there has been a hearing before the ALJ.
After the NTSB has made its decision concerning the FAA’s Order, if the Order has not been reversed, it goes into effect. The mechanic may still appeal the decision to federal court, but the appeal does not normally delay the penalty. Federal courts have limited discretion to overturn NTSB decisions and such appeals are seldom useful.
The following is a diagram of the normal sequence of appeal in a certificate action:
- INFORMAL CONFERENCE
- APPEAL TO NTSB
- NTSB HEARING
- FEDERAL COURT
In assessing the proper course of action to take in response to a certificate action, the mechanic should keep in mind that suspension of a certificate is not necessarily, or even normally grounds for discipline. That is an independent decision made by the company which can be challenged by the union under the "just cause” provisions of the TWU contract. Further, suspension or revocation of a license does not normally require that a mechanic cease doing all maintenance and repair work. But it suspends or prevents him from performing work or making decisions which require an FAA license.
In 1988 Congress passed, on an experimental basis, a program to allow the FAA to fine carriers and airmen for regulatory violations, rather than suspend licenses. This program was re-enacted in 1990. The hearing and appeal alternatives provided a mechanic who faces a fine are similar to those involved in certificate actions. In particular, the mechanic is provided the opportunity for an informal conference with an FAA attorney. However, the new civil penalty regulations provide for appeal to an FAA Administrative Law Judge, rather than a judge from the NTSB, and there is no right to further appeal to the full NTSB.
The NASA Program
NASA has developed an Aviation Safety Reporting System (ASRS) in which it encourages aviation employees to report problems or deficiencies in aviation operations. In the event a mechanic becomes aware that he is involved in an accident or incident, or may have committed a regulatory violation, he can fill out a NASA report. The report is confidential and cannot be used in an enforcement action.
Further, the FAA under certain circumstances cannot take enforcement action based on the violation reported to NASA. NASA's report will immunize the mechanic from enforcement action under the following limited circumstances:
- The violation was inadvertent and not deliberate.
- The violation did not involve a criminal offense, or accident, or action under Section 609 of the Act which discloses a lack of qualification or competency.
- The person has not been found in any prior FAA enforcement action to have committed a violation of the Federal Aviation Act or of any regulation promulgated under the Act for a period of 5 years prior to the date of the occurrence; and
- The person proves that, within 10 days after the violation, that person completed and delivered and mailed a written report of the incident or occurrence to NASA under ASRP (FAA Advisory Circular No. 00-46C, 2-4-85).
While the NASA program provides some limited protection, it is more applicable to pilots and dispatchers than mechanics. The primary reason for this is that most certificate actions or civil penalty actions against mechanics involve inadvertent failure to comply with the maintenance manual with respect to routine repairs or piecework. In many instances the mechanic will not realize he has made a mistake and may not become aware of it until many months after the work is completed and the problem is reported by a pilot or another mechanic. Under this circumstance, the NASA program provides no protection.
The most skilled, experienced airline worker, whether he or she is an Aircraft Mechanic, Flight Dispatcher or Pilot, is open to investigation by the FAA at any time for a wide variety of alleged violations.
TWU is prepared to defend our members to the fullest, including providing an attorney at the International Union's expense.
Your union has the experience and expertise to represent you so that your job and license are protected against unfair charges.
Just remember, if you are ever charged by the FAA for any violation, contact your TWU local immediately. Your union is your best protection against any charge or discipline.