Boeing
Boeing
whistleblowers are making headlines and appearing before Congress to share their concerns over the design and manufacturing of Boeing’s planes. The company staunchly denies that it retaliates against whistleblowers and encourages employees to raise concerns. However, an expert panel review found that Boeing’s ‘Speak Up’ policy is not working.
The issues aviation whistleblowers face go beyond Boeing to the weak structure of the Federal Aviation Administration’s AIR21 program. An attorney specializing in whistleblower cases believes that so many whistleblowers are going public with their claims—to their detriment—shows that the FAA whistleblower program urgently needs fixing. That job would ultimately be up to Congress.
Boeing’s Engineering Union Sheds Light On Retaliation
This week, the Society of Professional Engineering Employees in Aerospace, a union whose members work at Boeing, Spirit AeroSystems
Spirit AeroSystems
, and Triumph Composite Systems, alleged that Boeing managers retaliated against two members designated as FAA Organization Delegation Authorization representatives. In 2022, the two engineers pushed for a review of work on the onboard computer networks for the 777 and 787 to ensure Boeing complied with an FAA advisory.
The union claims “Boeing managers strongly objected” to the review due to costs and production delays incurred. The engineers ultimately prevailed with backing from the FAA.
“This is exactly how Congress intended the ODA process to work,” SPEEA Director of Strategic Development Rich Plunkett said in a press statement on the case. “Working on behalf of the FAA, Boeing employees—who are experts in their field—go over the work that their colleagues have done to look for potential mistakes, and if there are mistakes, they make sure those are corrected.”
However, the union says the engineers’ success in ensuring compliance led to retaliation by Boeing managers. Both engineers received negative evaluations on performance reviews, which would have disqualified them for raises and promotions and put the employees at risk for layoffs.
Working through their union representatives, the two engineers tried to appeal their evaluations.
“SPEEA staff met with Boeing Labor Relations representatives several times to correct what seemed to be a clear case of retaliation to the union. Even after the manager of the two engineers admitted that he had rated them both poorly at the request of the 777 and 787 managers forced to resubmit their work, Boeing refused to change the engineers’ performance evaluations,” the union stated. “One of the engineers left in disgust; the other filed a formal ‘Speak Up’ complaint with Boeing.”
Because the engineers had ODA designation, Boeing had to report the engineer’s ‘Speak Up’ complaint to the FAA. Boeing did so but told the engineer his complaint “did not meet the legal threshold of interference nor the legal definition of retaliation, and as a result, they were closing his case,” according to the union.
The SPEEA asked Boeing for a copy of the report filed with the FAA. Boeing denied the request. On April 18, the union filed a National Labor Relations Board complaint to get access to the report.
“Boeing can tell Congress and the media all it wants about how ‘retaliation is strictly prohibited,’” said Plunkett. “But our union is fighting retaliation cases on a regular basis, and in this specific case, Boeing is trying to hide information that would shed light on what happened.”
The ODA designation of these employees makes this whistleblower complaint stand out. It means the engineers should have the authority of the FAA behind them at the plant. By retaliating against the employees for actions required within their ODA requirements, Boeing would effectively retaliate against the FAA.
However, the recent SPAA claim is consistent with the findings of an ODA expert panel review which showed Boeing’s “Speak Up” process is, at best, ineffective. Some employees hesitated to speak to the expert panel representatives, and the panel noted in its report that some employees had been briefed by Boeing legal before their meeting.
Plunkett said this latest whistleblower case reflects Boeing employees’ challenges when relying on Boeing’s ‘Speak Up’ process. “Whether it’s capital R ‘Retaliation’ or not, the fact remains that the two ODA-designated SPEEA members did the right thing and stuck to their guns despite heavy pressure from Boeing and then got hit with career-damaging performance reviews. This helps show why Boeing doesn’t have a healthy safety culture,” he said.
That Boeing refused to share its report to the FAA on the employee’s complaint and the union felt compelled to go public also sheds light on the limitations of the FAA’s whistleblower protections.
Whistleblower Programs With Rewards Get Results, But The FAA Doesn’t Have One
Wanting to better understand the challenges of aviation employees raising concerns, I spoke with Gordon Schnell, a partner of Constantine Cannon. Schnell founded the firm’s whistleblower practice and specializes in representing whistleblowers under federal and state whistleblower laws.
He told me one of the first hints that something is broken in aviation whistleblower protections is that so many Boeing employees share details of their concerns and complaints with the media. Doing so, he says, it can negatively affect the whistleblower over time, adding another source of stress to an already stressful process and potentially compromising their case.
“The road of a whistleblower is extremely difficult, and when it becomes part of the public profile, it becomes even worse,” Schnell told me. “We never encourage our clients to go to the press. And in fact, we don’t let them go to the press. What we do is we go through the protected confidential channels, which allows us to take it to the Department of Justice or to the Securities and Exchange Commission, or to the various other agencies that have formalized programs.”
As Schnell explained, the problem is that the FAA needs a more formalized whistleblower program to be effective and drive change.
“It has protections, but it doesn’t really have a program,” Schnell said. “Every agency has a hotline. You can report it, but that doesn’t provide what I think is necessary for a successful whistleblower program. You need a dedicated unit, like the SEC and the DOJ have.”
The only agency under the Department of Transportation with a formal program to protect whistleblowers is the National Highway Transportation Safety Administration, which Schnell says is still developing and could improve.
“The current protections that the FAA has for whistleblowers, like many other agencies that don’t have reward programs, doesn’t do much to discourage companies from punishing whistleblowers who come forward,” he said. “I think that scares a lot of whistleblowers away.”
Schell believes the current FAA AIR21 program is too limited a resource. It requires employees to report retaliation within 90 days or forfeit their rights. Furthermore, the FAA’s AIR21 complaints are handled through the Occupational Safety and Health Administration.
“OSHA doesn’t have a great track record with protecting whistleblowers,” Schnell said. “You have a right to appeal that, but it’s not as good as having a right to sue in a court at the outset. But even if you convince OSHA that you’re right, and you win, you just get your job back with back pay, and maybe some compensatory damages, but usually not, and it’s a little squishy what that even means. So that doesn’t provide much of a deterrent for companies to go after whistleblowers because if they lose, they break even.”
How Many AIR21 Whistleblower Cases Have Succeeded?
Boeing whistleblower John Barnett, a quality control manager who worked at the company for over three decades and who raised concerns over the manufacturing practices for the 787 Dreamliner program, lost his life earlier this year on the day he was due to complete his deposition on his AIR21 complaint. It is difficult to know if Barnett would have succeeded had he lived, but he had already lost years trying to bring his case to a satisfactory close. In the intervening years, Barnett went public with concerns about Boeing’s quality, speaking to multiple media outlets.
Boeing engineer Sam Salehpour also went public with his claims about the integrity of Boeing 787 Dreamliner and 777 fuselages. He hired an attorney and testified before a Senate Committee last week.
Other Boeing whistleblowers have emerged over the years, shedding light on problems, testifying before Congress, but how many of them have been effective in fixing the issues they raised or compensated for any retaliation?
Finding details on how many Boeing whistleblower complaints under the AIR21 program have succeeded has proven challenging. I contacted the FAA for more information, and the FAA advised that I must file a request under the Freedom of Information Act. I replied that I only needed statistical information on the number of cases filed and their ultimate determination, not case details, but I have yet to hear back.
There’s the old adage that you can’t fix what you don’t measure. Without statistics on the number and nature of complaints against Boeing and other aviation manufacturers, it’s difficult to spot a pattern. Although, in Boeing’s case, a pattern emerges all the same.
2021 Senate Whistleblower Report Didn’t Address The Challenges Whistleblowers Face
In 2021, following the first 737 MAX grounding, which resulted from two deadly accidents, U.S. Senate Committee on Commerce, Science, and Transportation Chair Maria Cantwell published an Aviation Safety Whistleblower Report resulting from multiple interviews with seven whistleblowers who shared details of their concerns about Boeing’s manufacturing and quality systems and the ODA program.
The Committee lauded the whistleblowers for their public service and willingness to come forward. It pledged to act on their recommendations but took for granted that the current whistleblower protections for the aviation industry were adequate.
“The Committee attempted to honor these whistleblowers by addressing many of their concerns when drafting the Aircraft Certification, Safety, and Accountability Act,” the 2021 report states. “Whistleblower protections have long existed for Federal employees, and have been improved and strengthened significantly over the past several decades. In 2000, whistleblower protections were also codified for airline employees. Last year, the Aircraft Certification, Safety, and Accountability Act, took the important step of extending these same kinds of protections to employees, contractors, and suppliers of aircraft manufacturers.”
Schnell told me that, in reality, current protections are not enough. Whistleblowers take personal risks that require a stronger whistleblower program than AIR21. Many encounter high levels of stress throughout the process, with their careers and sometimes their families on the line. They endure a process that could take years to resolve and face harassment. At the end of all that, he says, whistleblowers who are most often motivated by a genuine desire to do the right thing and protect the company they love, feel little satisfaction whether they win or lose.
Whistleblower Rewards Worked With Boeing False Claims On Osprey V-22 Program
One successful case I found as part of my research involved Boeing whistleblowers who reported fraud against the Department of Defense in September last year.
The whistleblowers alleged that Boeing made false claims to the U.S. government on its DOD contract for V-22 Osprey aircraft. The whistleblowers reported that Boeing manufactured V-22 components without performing the government’s specified critical Temperature Uniformity Surveys. Furthermore, Boeing delivered V-22s using these components, knowing they did not meet the specifications. Boeing also failed to disclose a non-compliant “Free Air Cure” process and products to the Department of Defense and created false Temperature Uniformity Survey Compliance Reports, which it submitted in place of the reports required.
Boeing settled the Qui Tam lawsuit brought by attorneys F. Emmett Fitzpatrick, III, and Joseph D. Mancano under the federal False Claims Act for $8.1 million, plus the whistleblowers’ attorneys’ fees. The whistleblowers were awarded $1,539,000 from the Boeing settlement.
The attorneys stated in a public announcement of the settlement, “The whistleblowers in this case should be commended for their courage and perseverance and for the vital assistance they provided to the government over the nearly seven years since their claims were filed.”
For Whistleblowers, It’s Not About The Money
As Schnell explained, pursuing cases through whistleblower channels with adequate protections and rewards, such as the False Claims Act, is a better path forward for aviation whistleblowers than going public.
“It’s never about the money,” Schnell said. “It’s really about allowing or creating a program with a solid foundation. Unfortunately, you need lawyers with these whistleblowers, and unless there’s a rewards program, it’s not easy for the whistleblower to hire a lawyer.”
Having a rewards-based whistleblower program opens up an opportunity for individuals to gain attorney representation for their cases through contingent fees. The FAA’s AIR21 program says whistleblowers can hire attorneys to guide them through the process, but the “systems for both OSHA and FAA are designed so that you do not require legal counsel to file a complaint.”
Still, that leaves individuals representing themselves against a giant corporation through a cumbersome bureaucracy, so it’s no surprise that some get frustrated and go public.
“It goes to the press, and then it kind of spins out of control,” Schnell said. “Nobody’s happy about how this has come to pass—not the FAA, not the DOJ, not Boeing, and not the whistleblowers.”
Schnell believes the current rash of Boeing whistleblowers should prompt the government to consider creating a similar program for the FAA that would more effectively cover aviation employees and could genuinely discourage retaliation.
“I think if everyone’s being honest, they know that whistleblower rewards programs are really critical to creating a viable channel for whistleblowers to feel safe, protected, and able to come forward with serious concerns,” he said. Schnell told me that, given recent events, the FAA would want to prevent a situation where whistleblowers try to come forward but are silenced.
“It would have to come from Congress, but they should have a whistleblower rewards program as they do for auto safety; where there’s an office that oversees it, there’s a clear channel of reporting, and there are rewards,” he said.
If Congress were to establish a more formal rewards-based program, aviation whistleblowers would have a clearer and more effective route to take in addressing their complaints and driving real change.
“Knowing there’s this formalized program out there would also probably make the aviation companies tread a little more carefully with how they treat whistleblowers,” Schnell said.
