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Moments before a single-engine plane collided with a helicopter over the Hudson River in August 2009, the New Jersey air-traffic controller who should have been advising the plane’s pilot was chatting on the phone with an airport worker, making crude jokes about cooking up a dead cat. Nine people died. Government safety investigators determined the controller was distracted and partly to blame for the accident, yet two years later he still has a job with the Federal Aviation Administration. Although the FAA wanted to fire him, his punishment was ultimately reduced to a suspension, a transfer, and a demotion.
That’s more common than you might think. More than 4 of every 10 air-traffic workers the FAA tries to fire ultimately keep their jobs or are allowed to retire to avoid being fired, according to government records obtained under the Freedom of Information Act. The documents detail FAA disciplinary actions from October 2009 to May 2011. In that time the agency sought to fire 140 controllers for various rules violations. (Their names were not included in the papers.) In the end, only 82 were forced to leave. Those who hung on include controllers found to have committed serious violations. The agency began proceedings to fire 27 controllers for drug or alcohol abuse. Eighteen of them—two-thirds—managed to avoid being terminated.
The FAA can have a difficult time firing permanent employees because of a Byzantine government system and decades-old union provisions that allow controllers to delay or block disciplinary action. Employees can ward off punishment or dismissal by challenging proposed penalties before a government agency called the Merit Systems Protection Board. Or they can buy time by invoking a clause in their union contract that lets them demand that their case be taken to an arbitrator.
As a result, it can take months, even years, to settle cases. In 2009 the FAA tried to fire a controller after he tested positive for marijuana. At the time he was already in rehabilitation for an alcohol violation. The controller appealed to the Merit Systems Protection Board. Two years later the case is still pending before an administrative law judge, though the employee has moved on and no longer works for the FAA, according to an agency official who isn’t authorized to speak on personnel matters and asked not to be named.
When controllers in Seattle, Miami, and Knoxville, Tenn., made headlines earlier this year for sleeping on the job, Transportation Secretary Ray LaHood pledged to fire them. Months later the Miami worker still works for the FAA after the penalty was lessened, the Seattle case is pending, and the Knoxville worker was allowed to retire, the agency official says.
The National Air Traffic Controllers Assn. declined to answer specific questions. Spokesman Doug Church said in a statement that its members “work to ensure the safety of 70,000 flights every day and make our system the world’s safest.” And despite the difficulties, LaHood says he hasn’t given “one second worth of thought” to seeking changes in the controller contract, which expires next year, to make it easier to dismiss workers. “We have due process so that people can be treated fairly.” The FAA’s disciplinary system is “essentially the same process that every federal employee enjoys,” says FAA Administrator Randy Babbitt. The FAA’s firing rate is similar to other federal agencies’, where terminations are also rare, government data show. The difference is, nobody’s life is in danger if some guy at the Agriculture Dept. falls asleep at his desk.
Four months after the crash over the Hudson, Babbitt announced that the New Jersey controller who’d been talking on the phone would be fired.About two minutes after the controller had cleared a small plane for takeoff from the Teterboro Airport, he called an airport worker who had been asked to remove a dead cat from the grounds. “We got plenty of gas in the grill,” the controller said, according to a transcript of the call on the National Transportation Safety Board’s website. “Fire up the cat.” The call, which ended four seconds before the plane collided with the helicopter, distracted the controller from correcting the plane’s pilot, who mentioned the wrong radio frequency, according to the board. It also delayed the controller in handing off responsibility for the flight.
FAA officials cited him for “negligent or careless work performance.” They reduced the punishment to a suspension after concluding that the system would likely come down on the side of the controller. The employee still works at the agency but no longer controls traffic, according to the agency official. “He should have been fired,” says Representative John Mica (R-Fla.), who chairs the House Transportation and Infrastructure Committee. “That was just dereliction of duty.”
The bottom line: Union rules and a cumbersome bureaucracy mean 4 out of 10 controllers the FAA tries to fire end up keeping their jobs.