Criminal History Records Checks
ALPA has been working hard on several fronts, from lobbying on Capitol Hill to defending individual pilots, in response to the unintended consequences of federally mandated fingerprint-based criminal history record checks (CHRCs).
On Dec. 6, 2001, the FAA promulgated a final rule on CHRCs as required by the Aviation and Transportation Security Act (ATSA). Airlines must submit fingerprints of all employees who have unescorted access to an airport’s Security Identification Display Area (SIDA)—in other words, the secure part of the airport—so that the FBI fingerprint-based records checks can be performed. All CHRCs must be completed by Dec. 6, 2002.
Index, Middle, Ring, Pinkie;
ALPA representatives toured the American Association of Airport Executives’ offices near Ronald Reagan National Airport in Arlington, Va., recently and confirmed the security and procedures used by the Aviation Security Clearinghouse (ASC), which AAAE administers under contract to the FAA. ASC has been operational since early January and processes fingerprint files for submission to the FBI for criminal history records checks (CHRCs).
The AAAE says that the ASC is processing approximately 4,500 electronic and 275 paper files of fingerprints per day; last autumn, the interim manual system—sending fingerprints to the Office of Personnel Management and checks to the FAA—could process only 10,000 records per month, the number ASC handles now in 2 days.
No one knows how many aviation employees will have to have fingerprint-based CHRCs by December 6, the statutory deadline. AAAE Vice-President for Government Affairs Carter Morris estimates the total might run to more than 700,000 persons.
If the records check reveals that an employee has been convicted (or found not guilty by reason of insanity) of any of 36 specified crimes within the last 10 years, the employee is disqualified from having unescorted access to airport secure areas.
For flightcrew members, this means: No SIDA badge, no job.
Outreach to MECs
On April 11, Capt. Dennis Dolan, ALPA Security Task Force chairman and the Association’s first vice-president, sent a letter to the MEC chairmen of all ALPA pilot groups, warning about ALPA’s concerns about CHRCs and asking for detailed facts about any such cases that might arise within their pilot group.
"We have recently begun to hear reports that raise concerns about the way in which the regulation is being applied," Capt. Dolan explained. "We have heard, for instance, that action has been taken against some pilots whose criminal background check revealed convictions, or even arrests, for crimes that are unrelated to those set forth in the regulation. We have also heard of some pilots who have been adversely affected when their criminal records check revealed convictions or arrests that are more than 10 years old.
"If abuses such as these are happening, we want to know about them, so that we can work with you to address them….If you hear of a pilot who has been adversely affected as a result of overreaching by management, ask your [ALPA] contract administrator to gather the appropriate facts and provide them to [the ALPA Legal Department].
"In addition, we have heard reports of pilots who have been, or may be, disqualified as a result of minor offenses that appear to fall within the 36 crimes enumerated in the regulation. If you hear of individuals who have been, or may be, disqualified as a result of such minor offenses, again please ask your contract administrator to follow up with [the ALPA Legal Department]. We are now exploring the best way to address such problems. Obtaining detailed facts regarding such accounts is critical to this process."
Northwest vows not to abuse CHRC process
At some airlines, ALPA’s productive relationship with senior airline officials has helped to correct these problems.
For example, on April 24, Northwest Airlines’ Senior Vice-President for Labor Relations Robert A. Brodin sent a letter to the heads of all seven unions represented on Northwest’s property, declaring management’s intent to limit the use of information obtained as a result of a CHRC.
Brodin wrote, "CHRC results will be reviewed only to determine whether an employee has been convicted, or found not guilty by reason of insanity, of any of the listed disqualifying criminal offenses within the past 10 years. Non-disqualifying information, i.e., information concerning crimes other than those listed in the federal regulations, or relative to convictions over 10 years old, will not be used as a basis for employment action against incumbent non-probationary employees."
Fund Set up
for Wrongfully Charged, Terminated
US Airways pilots have established a fund, called Pilots Against Irrational Security (PAIRS), to help two fellow captains in their legal battles as a result of inconsistent security screening at Philadelphia International Airport (PHL).
Capt. Chris Beebe, chairman of the US Airways pilots’ Master Executive Council, announced establishment of the fund on March 22 after the airline decided to fire the second captain.
Both pilots were arrested after Sept. 11, 2001, while trying to report for work at PHL, where US Airways operates one of its largest pilot bases. In ALPA’s view, the pilots were wrongfully criminally charged, and then terminated by US Airways, after experiencing and commenting on inconsistent security screening procedures at PHL.
The arrests occurred at the same security checkpoint at the airport—Terminal B—and are the only two such reported arrests of ALPA pilots in the entire United States.
Both pilots recently got their jobs back but incurred legal expenses and went months without a paycheck. One captain was acquitted of all charges by a Philadelphia court.
"Contributions may be made by anyone who wishes to help these two pilots," Capt. Beebe advises. Contributions should be made payable to the PAIRS Fund and sent to ATTN: PAIRS Fund, ALPA US Airways MEC, One Thorn Run Center, Suite 400, 1187 Thorn Run Road, Moon Township, PA 15108. Contributions solicited for the PAIRS Fund are purely voluntary and are not tax deductible.
He added that discussions with several of the union leaders were instrumental in the company’s management modifying its original position on this issue. Earlier, Northwest had said it would "review and consider such information on a case-by-case basis."
Similarly, ALPA has received a copy of a letter that United Airlines submitted to the Department of Transportation, dated April 1, supporting the Association’s position on due-process protections for employees.
Meanwhile, ALPA attorneys have developed a draft letter of agreement (LOA) between the Association and individual airlines that would protect flightcrew members from abuse of CHRC information. All of ALPA’s contract administrators have been given a copy of the template LOA to use in negotiations for the pilot groups they serve.
Taking the case to Capitol Hill
ALPA also has taken the case for employee protections against misuse of CHRC information to Capitol Hill.
The Association submitted its own comments regarding CHRCs to the Department of Transportation on January 4. ALPA noted that it supports CHRCs for pilots hired after the effective date of the rule, but argued that "pilots who are currently employed have already undergone background checks, have a demonstrated employment record, and are required to report convictions as they occur on their FAA medical applications, which are renewed regularly."
The Association also objected to the fact that the CHRC regulation makes no provision for any exceptions if an employee has been convicted of a listed crime but the facts are compelling that the employee is not a security risk.
"The rule should provide for some due process for pilots in this or similar circumstances to show that past conduct does not affect airport security," ALPA said.
ALPA also helped draft more detailed comments on the CHRC mandate included in ATSA that were submitted to the DOT on March 11 by the Transportation Trades Department (TTD) of the AFL-CIO, of which ALPA is a member. The TTD comments reiterated labor’s concerns about workers’ rights to due process and the right to an appeal; the need for clarification of certain offenses; confidentiality and access to information; and the fairness of allowing, in certain circumstances, employees denied access to the SIDA to transfer to jobs in non-secure areas.
On April 22, lobbyist Brendan Kenny of ALPA’s Government Affairs Department and attorney Suzanne Kalfus of ALPA’s Legal Department joined lawyers from the TTD and four other labor unions in a meeting with Senate Commerce Committee staff members. The union representatives sought support from the Commerce Committee for amending ATSA to provide certain protections for employees.
Kalfus reports, "Specifically, we sought
"(1) amendments to afford due process for pilots with disqualifying offenses to enable them to present evidence showing that they are not a security risk, and to give them the right to appeal a denial or withdrawal of their access to secure areas of airports;
"(2) reaffirmation that the law limits the release and use of information only if there is a showing that a disqualifying offense has been reported,
"(3) a modification to the law to limit the disqualifying offenses to felonies, and
"(4) confirmation in the law that an expungement or pardon of a crime prevents it from being disqualifying."
Says Kenny, "They understand our concerns. They listened carefully to everything we said, and they’re looking at possible legislative remedies to these issues."
ALPA has helped save the jobs of pilots with prior criminal convictions that had been subsequently "expunged." In cases involving pilots at two different airlines, the Association helped get the TSA and the airlines to recognize the expungements and to find that expunged prior convictions did not disqualify the pilots.
Obtaining a Copy of a Criminal History Background Check
Airlines have been conducting criminal background checks of all new and existing employees, looking back 10 years from the date of application, as mandated by the Aviation and Transportation Security Act (ATSA). The potential for abuse and misuse of these background checks is great—and errors undoubtedly will be made in carrying out a task this enormous, which involves hundreds of thousands of workers.
The Delta pilots’ Master Executive Council (MEC) recently issued an alert to all Delta pilots, providing information on how individual flightcrew members may obtain a copy of their criminal background check.
"It’s like getting a credit check before applying for a loan," advises Capt. Dennis Dolan, ALPA’s first vice-president and chairman of ALPA’s Security Task Force. "It costs about $34, and you get an answer back in about 10 days."
You may obtain a criminal history records check (CHRC) in two ways:
1. After completing your fingerprinting through your airline’s human resources department or other party as part of your records check, you can ask that a copy be provided to you via letter.
2. You may also send a written request to the FBI with the following information:
Send the request by mail or overnight delivery service to FBI—CJIS Division, SCU-MOD-D2, 1000 Custer Hollow Road, Clarksburg, WV 26306.
You should receive your results in about 10 days. When you receive your record, it should include instructions for disputing an entry. You may then correct the record with accurate information, in a way similar to correcting a credit report.