Representing BUEs in Accident Investigation Interviews By The FAA and NTSB

Mar 2, 2016

This article will focus on representing employees during accident-related interviews conducted by the FAA and the National Transportation Safety Board (NTSB). The NTSB interviews are different from other types of management meetings such as formal discussions, Weingarten meetings, and security investigations. There are two main reasons why NTSB interviews are different:

The interviews are conducted by a third party entity (the NTSB) that is separate and distinct from the FAA; and
The Union representative has a more limited role in representing employees during an NTSB interview.

Although an interview of an employee by the NTSB meets the definition of a Weingarten meeting, it is a different type of meeting than that of the traditional Weingarten meeting. Article 6, Section 1 of the CBA provides the authority to represent employees in NTSB interviews. It states, in relevant part, as follows: “This Section applies to meetings conducted by all Management representatives, including DOT/FAA security agents, EEO investigators and agents of the Inspector General. “The above provisions shall apply to meetings conducted by the National Transportation Safety Board (NTSB) to the extent the provisions are consistent with NTSB regulations and procedures.” As you can see, NATCA is bound by the regulations and procedures that are promulgated by the NTSB, which do not allow the same level of aggressive representation as those available during a traditional Weingarten meeting. We will explain the differences later on.

The only reason an employee would be subject to an interview by the NTSB, would be in relation to an aircraft accident or incident. It is the job of the NTSB to investigate and determine the probable cause of any such accident or incident. During the accident investigation interview process, the employee will actually undergo two separate and distinct interviews, the “Pre-Interview” and the “Actual Interview.”

The Pre-Interview:

The first interview is with representatives from the FAA and is known as the “pre-interview.” During this interview, the FAA attempts to prepare the employee for what can be expected in the actual NTSB interview. They also use this interview to glean from the employee whatever information they can about the specifics of the accident, for their own purposes. The FAA usually has two or so representatives present at the pre-interview:

An attorney from the FAA’s Office of General Counsel (responsible for running the interview);
A representative from ATO-Terminal and/or ATO-En Route, depending on which organization is involved; and,
A representative from ATO-Safety.

During the pre-interview, the FAA will ask questions of the employee that they think will be asked by the NTSB. Any of the FAA representatives may ask the employee questions. The pre-interview should be conducted on the employee’s duty time and the FAA is responsible for altering the schedule of both the employee as well as the NATCA representative in order for both of them to appear in a duty status.

The pre-interview also may be argued to meet the definition of a formal discussion as outlined in 5 USC 7114(a)(2)(A) and Article 6, Section 3 of our CBA. As such, the Union as a whole is entitled to be notified of this meeting separately and distinctly from that of the employee. The Union then has a right to designate a Union representative to be present, if it chooses. That being said, if the Local Union gets into an argument with management as to whether or not the pre-interview constitutes a true formal discussion, or if management refuses to let the employee have a representative in the pre-interview, the best course of action is to elevate the issue immediately to the National Office for immediate resolution (via communication with upper level management in Washington, D.C., who have intervened in the past to resolve similar problems very quickly). (It is important to also know that Union attorneys from the National Office that are trained in and familiar with all aspects of the NTSB interview process are available to act as representatives should the local Union feel uncomfortable taking on the role of representative. Additionally, in the case of serious accidents, both the FAA and the NTSB often agree to wait for the attorney to arrive on-site prior to beginning the interviews).

At the outset of the “pre-interview,” the FAA attorney will explain the reason for his or her presence and the fact that they are there representing the FAA both as a party to the official NTSB investigation as well as to protect the interests of the FAA from any potential future litigant that may arise as a result of the accident or incident. The FAA attorney will then discuss that the employee is entitled to have a representative of their choosing present at the actual NTSB interview. Although the FAA would like for the employee to choose the FAA attorney as their representative for the NTSB interview, the employee should tell the FAA attorney at that time that they have chosen the Union representative to represent them at the NTSB hearing. It is important to remind the employee before the pre-interview begins that, at this point in the process, the FAA attorney is there only to represent the FAA, not the interests of the employee, and will be focused solely on the interests of the FAA.

During the pre-interview with the FAA, all rights afforded to the employee regarding Weingarten meetings apply. The representative should:

Prevent the employee from making inconsistent statements;
Take notes;
Advise and counsel the employee;
Ask clarifying questions;
Help the employee articulate clarifying answers;
Request breaks as necessary;
Ensure that any extenuating circumstances are raised; and
Temporarily stop the meeting in order to have a confidential conversation with the employee (as long as it does not “unreasonably delay” the meeting)

A representative may not disrupt the meeting, answer a question for the employee, insist on taping the meeting, or unreasonably delay the meeting.

Before the pre-interview, the Union representative should also ask to review the material germane to the employee that will be involved, introduced, or utilized during the NTSB interview, such as time on position logs or statements made immediately after the accident. This will ensure that the employee is properly prepared for the questions that will follow.

In addition to the questions aimed at the employee, the Union representative should advise the employee to watch for questions that may require the employee to speculate on the actions or intentions of another person. The Union representative should intervene by stating that such question calls for speculation. The employee should only be responsible for answering questions for which they have direct knowledge. Counsel the employee in beforehand to hesitate before answering any question. This will allow the Union representative the opportunity to interject. If forced or pressed to answer, the employee should simply respond: “I have no direct knowledge of that.”

The NTSB Interview:

As with the pre-interview, the NTSB interview is also scheduled on the employee’s duty time. As such, the FAA is responsible for altering the schedule of both the employee as well as the Union representative in order for both of them to appear in a duty status.

The NTSB will not be the only entity that is present during this NTSB interview. The FAA will have a representative as part of the panel and will also be allowed to ask questions of the employee. Other groups such as ALPA or the airline may also have a representative on the panel. Additionally, if NATCA is granted “party status” to an investigation, we will also have a representative present. NATCA is granted “party status” in virtually all NTSB investigations that directly involve the actions of air traffic controllers. As a holder of “party status” the NATCA representative will also be allowed to ask questions of the employee being interviewed. It is important to point out that although the NATCA representative on the NTSB panel is from NATCA, they are not there to represent the employee, but to participate in the safety investigation. That is why the employee is allowed to have a separate representative.

The representative should advise the employee to conduct themselves during the NTSB interview as follows:

Conduct oneself at all times in a professional manner.
Always tell the truth.
Do not embellish an answer.
Do not speculate.
Answer the question with “yes” or “no” if possible.
If you cannot remember, the best answer is “I do not recall.”
Request a break as needed.

During the NTSB interview, the representative’s role is more limited than during the pre-interview. Unlike in the pre-interview, all rights afforded to the employee regarding Weingarten meetings do NOT apply during the NTSB interview. That being said, it is very important for the NATCA representative to take the following actions:

Ask clarifying questions;
Help the employee articulate clarifying answers;
Request breaks as necessary;
Take copious notes.

During the NTSB interview, there is often a lot of “down-time.” This means that there are several and/or long periods, during the interview, of total silence, due to the fact that all of the members of the NTSB panel are writing down the employee’s answers to their questions. The NATCA representative should also use this “down-time” to take precise notes that accurately capture the employee’s answers. It is also important to remind the employee that they should not fill this silence with talking. Once the interview is completed, the representative should remain with the employee and escort them out of the room.

Remember, it is very important that the employee is briefed by the NATCA representative on how to answer questions and how to conduct themselves prior to both the pre-interview and the NTSB interview. If the NATCA representative is not comfortable with how the employee answered a particular question in the pre-interview, the NATCA representative needs to make the employee aware of this problem prior to the NTSB interview. If you follow all of this advice, an employee’s rights should remain protected. If you have any questions, contact your RVP or the NATCA National Office Labor Relations Department.