Wednesday, 19 April 2017

Chicago airport police attack passenger on Republic Airlines plane

Schedule of "United Express" flights from Chicago O'Hare to Louisville on 9 April 2017

[Schedule of "United Airlines" flights from Chicago O'Hare to Louisville on April 9th]

Many of my readers, and NPR listeners who heard me interviewed on WBEZ in Chicago last week about air travel and class, have been asking for my take on the airline passenger dragged off a plane by police at O'Hare Airport on April 9th.

Inquiring minds want to know why four members of the crew for another flight were trying to board a flight that was already full and otherwise ready to depart, why the airline was willing to remove paying passengers to make room for the deadheading crew, whether an airline has the legal right to remove a paying passenger who has already been given a boarding pass and seated, who called the police, and what authority the airport police had in this situation.

I've held off on posting this while I tried to find out more about the back story and identify who was really responsible. But since none of the airlines involved have chosen to talk to me, despite my diligent efforts, and many questions may be answered publicly only at trial (or never publicly if the likely lawsuits are settled out of court), here's my educated guess as to what happened and who's responsible.

There's plenty of blame to go around:

The as-yet-unnamed police, who worked for the city of Chicago and were accredited as law enforcement officers although through an agency independent of the Chicago Police Department (more on that below), deserve much more serious sanctions than they have received to date. So does the city of Chicago for its continuing failure to hold any of its multiple police forces accountable or rein in their bigotry and brutality. (Full disclosure: I write this as a former Chicago resident and victim of "minor" but routine Chicago police torture who still feels the pain of my police-inflicted injury occasionally, more than 35 years later.)

United Airlines -- the airline most passengers thought was operating the flight -- shares significant blame, especially for its initial choice to defend the actions of the police who roughed up the passenger and of the gate agents (who may or may not have worked for United) and/or the flight attendants and pilots (who definitely didn't work for United) who called in the police.

But some of the responsible companies have yet to be sufficiently shamed, and some may not yet have been publicly named.

For starters, this flight wasn't operated by United Airlines. It had a United Airlines flight number, but it was a Republic Airlines flight operated by Republic Airlines pilots and flight attendants and under the operational control of Republic Airlines management.

This wasn't the sort of bait and switch code-sharing that occurs when a flight is labeled with multiple flight numbers. This is a different but equally deceptive form, in which an airline puts its flight number -- i.e. its brand label -- on a flight actually operated by a contractor. The contractor's identity is disclosed to ticket purchasers or passengers as inconspicuously as the law allows, if at all. Typically, the flight crews and gate agents handling these flights are required to wear United uniforms, even when they are employees of a ground handling service or a contractor airline like Republic.

Regular travellers on some routes come to realize what airline actually operates the flights on that route. But as the schedule at the top of this article shows, "United Express" flights with United flight numbers from Chicago O'Hare to Louisville are operated by three different contractors: Skywest, Republic Airlines, and Trans States Airlines. In this situation, it's unlikely that any but the most sophisticated passengers noticed which airline would be operating their flight, even if that information was somewhere in the fine print. If you choose to fly on United Express on this route, you are taking pot luck (especially in case of any change of schedule) on which of three airlines will actually operate your flight.

Even fewer of the passengers on Republic Airlines Flight 3411 probably realized that, as has been noted in my FAQ about Airline Bankruptcies, Republic Airlines is bankrupt and has been operating in bankruptcy for the last year.

Proponents of airline deregulation and "free markets" would claim that if you don't want to fly on this airline, you could choose another (solvent) airline instead. O'Hare to Louisville is a "competitive" route served by both United and American. But some of the connections with American flight numbers between O'Hare and Louisville are actually American Eagle flights operated by -- you guessed it -- Republic Airlines.

So it looks like you can "choose" between big-name competitors United and American. But regardless of whether you choose "United Express" or "American Eagle", you might end up being transported by the same bankrupt contractor you've never heard of, Republic.

For my next "Jeopardy" question, I'll take "Tweedledum or Tweedledee?" for $800 in Monopoly money, if you please.

What, if anything, does this say about who was responsible for the decision to put a deadheading crew on the flight at the last minute, at the expense of paying passengers?

The division of operational and financial responsibilities for decisions like this is spelled out in interline agreements between the "marketing" airline" (United) and the operating contractor (Republic).

I haven't been able to find the current interline agreement between United Continental Holdings and Republic Airways Holdings for the operation of United Express flights. But the predecessor 2006 interline agreement between United and Shuttle America (a subsidiary of Republic Holdings which was merged into Republic Airlines earlier this year) for United Express flights is available as part of a public filing by Republic with the SEC. I've been unable to find any amendment to this agreement in more recent SEC filings, although an amendment or replacement may be included in court documents from the United and/or Republic bankruptcy reorganizations and the merger of United into Continental. But whether or not this specific agreement is still in force or has been updated or superseded, I suspect that the applicable terms of the current agreement for operation of United Express flights by Republic are similar.

The United-Republic agreement is pretty typical of "feeder" flights marketed solely in the name of a major airline rather than joint or shared operations or code-share flights sold under more than one airline's names and flight numbers. United pays some fixed amount (redacted in the public SEC filing) to operate the flight, but gets to set fares, control all the "inventory" of saleable seats, and keep all the revenue:

United shall be entitled to 100% of the fares and prorates received by United or Contractor in connection with any fares attributable to passengers who travel on Contractor's United Express Services.... United will have the sole right to use, set and control availability, levels and use of all seat inventory for the aircraft used by Contractor in Contractor's United Express Services. United will take all revenue and inventory risk and will maintain inventory and pricing responsibility. Contractor is prohibited from providing positive space leisure travel, or any other confirmed leisure travel that requires removal of a seat from inventory, to any person other than the people outlined in Appendix J, on Contractor's United Express flights without the prior written consent of United.... Positive space travel is permitted for Contractor's, Contractor's affiliates and United's employees for actual business purposes, including deadheading flight crews, and for Contractor's employees and Contractor's affiliates and Eligibles in emergency situations only. Contractor may not issue positive space business travel to anyone other than Contractor's own employees and Contractor's affiliates' employees and only in connection with business purposes and emergency situations related to United Express Services. If in any way Contractor issues tickets in violation of this provision in any form, within two (2) years of each such violation, Contractor may be billed via the ACH, and Contractor will pay United, the full unrestricted fare for the class of service provided on such route for any such inappropriate ticketing. Contractor also agrees to comply with all rules and regulations for positive space and space available travel as outlined in the Related Agreements.

Note that seats occupied by Republic or United crews or other employees on company business are not considered to be part of "inventory", since they are not available for sale or assignment to paying customers. And a flight is "overbooked" if there are more confirmed passengers (after no-shows are cancelled) than there are seats available in saleable inventory.

Seats can be, and sometimes are, taken out of inventory for other reasons, at any time including after passengers have boarded. Rising air temperatures can reduce the maximum allowable takeoff weight and require that passengers and/or cargo be offloaded. Or some especially heavy last-minute cargo, such as a spare engine for another plane, may require reducing the number of available seats to make weight. Or a seat can break. Events like these can suddenly cause a flight to become "overbooked" relative to an unexpectedly-reduced number of "available" seats.

The only provision of this agreement related to denied boarding compensation requires the "Contractor" (Republic) to give United, on request, "best estimates regarding the weight restrictions and aircraft limitations, which could reasonably be expected to routinely result in denied boardings," and makes Republic liable to United for "denied boarding expenses resulting from weight restrictions relating to such failure to respond or materially inaccurate response." That suggests that in all other situations, such as overbooking, United and not Republic is solely liable for denied boarding expenses.

Under this agreement, seats can be removed from inventory for business travel by employees of the "Contractor" (Republic) or United only, and not for crew members or employees of other contractors that also operate United Express flights. Presumably, United imposed generally the same terms on all its contractors. So Republic can take seats out of inventory to transport its own crew, and United bears the cost of compensating the passengers denied boarding in order to accommodate them. But Republic probably can't put its crew on United Express flights operated by different contractors, at least not without paying United for those seats. That may be be part of the explanation for what happened with Republic Airlines Flight 3411 on April 9th.

There are sometimes good reasons, I should note, to bump paying passengers to put a deadheading crew on a flight to be in position to work some subsequent flight. That can be necessary on short notice if a scheduled crew member gets sick, or the planned crew "times out" due to delays on earlier flights.

Airline crews are subject to a complicated set of FAA regulations limiting how long they can work at a stretch and how long rest periods they must receive. If a crew has been scheduled to work a flight that will take them close to their time limit, even small delays before departure can cause them to time out, or reach a point where they would time out before the flight reached its destination. I've been on a flight where, after we boarded, further delays before we could depart forced us to return to the gate and wait for the pilots to be replaced by a fresh crew.

In other circumstances, delays may create a situation where the pilots still have time to work the flight, but will be required to take a rest break at the destination and won't be eligible to work the return flight or their next scheduled leg. Unless the airline has another crew available and rested at the downline station, they either need to send out a fresh crew (bumping passengers to do so, if necessary, even if they have already boarded) or cancel an onward or return leg. Better to offload four passengers to make room for two pilots and two flight attendants than to cancel the onward or return flight that will inconvenience and delay seventy passengers in the case of a regional jet, or several times that if the cancellation has ripple effects through the later schedule.

Airlines make business choices with respect to both passenger reservations and crew scheduling that can save them money (if all goes well) but make bumping or offboarding more likely, and its consequences for passengers more severe.

Over the last fifteen years, United (which, as discussed above, had total control of reservations and ticket sales for this flight) increased the average percentage of seats filled by paying passengers from 72% to 86% -- cutting the number of unsold seats on a typical one of its flights in half. That's good for profits, but drastically reduces the airline's ability to cope with unexpected dips in the number of no-shows, flight cancellations, or other operational irregularities.

Other industry trends are exacerbating the impact of overbooking. Random variations in the number of no-shows are, statistically speaking, more likely to cause problems on smaller planes such as the regional jets that have replaced larger Boeing or Airbus planes on many "feeder" routes like Chicago-Louisville. With all flights closer to full than they used to be, it's more likely that people who are bumped will be accommodated the next day, and not necessarily on the next flight the same day, which might also be overbooked. The elimination of many interline ticketing agreements between airlines over the last decade means that in many cases airlines are unable to endorse bumped passengers' tickets to a competing airline, even if the competitor has space available. United still has ticketing agreements with both American and Delta, but American and Delta no longer have any agreement to accept each other's tickets, for example.

Republic controls the crew scheduling and positioning of its flights. Having the right type of plane and rested pilots and flight attendants qualified to operate that type of plane in position for each flight is an exceptionally difficult "travelling salesman problem" in operations research. Most airlines, including feeder contractors like Republic, outsource this problem to IT companies such as those that also provide reservations software and hosting services. But the allowances for contingencies can be adjusted by each customer or user of these scheduling systems. Scheduling crews up to their time limits is the sort of cost-shaving that might be attractive to an airline operating in bankruptcy, but increases the risk that a fresh crew will have to be deployed in the event of delay -- even if positioning that crew for the next flight requires offboarding paying passengers.

I wanted to ask Republic who provides their crew scheduling and positioning software, what events led Republic to deadhead a crew from Chicago to Louisville that evening, when their operations personnel responsible for crew scheduling and positioning learned of those events, and when they passed that information on to the gate agents. But Jon Austin, the crisis management consultant currently serving as spokesperson for Republic, told me that he had been told to refer all questions about this incident to United. That's clearly evasive when those questions related specifically to Republic policies and practices not under United's control. Mr. Austin offered to talk with me off the record. But if I wouldn't have been able to attribute his statements to a spokesperson for Republic, they wouldn't have helped me tell you how Republic explained its actions.

I e-mailed my questions to United, including whether United had any control over Republic crew scheduling and positioning. In-house United spokesperson Charlie Hobart e-mailed back later on Thursday, "We'll look into your questions, Edward." But as of Tuesday evening, five days later, neither he nor anyone else at United has contacted me again nor responded to multiple follow-up e-mail and voicemail messages requesting answers.

The Republic aircraft that operated United Express Flight 3411 on Sunday, April 9th (two hours late), tail number N632RW, sat overnight in Louisville and then flew from Louisville to Newark on the morning of the 10th (two hours late) as United Express Flight 3658. That timing suggests to me that the deadheading crew wasn't rested -- perhaps they had just worked another flight or series of flights -- and that the flight in the morning was delayed to allow them the requisite layover time. But better a flight two hours late than a cancelled flight.

There was another United Express flight from O'Hare to Louisville later on the night of the 9th, and some commentators have wondered why "United" didn't put the deadheading crew on that later flight. That might have required bumping paying passengers, but at least they wouldn't have been passengers who had already boarded.

It's possible that the later flight would have gotten to Louisville too late for the relief crew to get enough rest time before the flight in the morning. That might also have been the case if the relief crew had driven from Chicago to Louisville, as some have suggested they could have done. But another possibility is suggested by the fact that the later flight to Louisville was operated by a different contractor, Trans States Airlines. If the Trans States interline agreement with United looked like the one with between Republic and United quoted above, then Trans States might not have been allowed to carry a deadheading Republic crew.

If Republic took seats out of inventory to transport their crew on their own flight, United bore the cost of denied boarding compensation to the paying passengers they displaced. But if Republic put its crew on the later Trans States flight, Republic would have had to pay their fare and possibly also reimburse United for any denied boarding costs to make room for them.

If someone in crew scheduling and positioning at Republic made a choice -- either on a case-by-case basis or as a matter of policy -- to offload paying passengers who had boarded the Republic-operated flight, to avoid having to pay United to transport a crew on the later Trans States flight and reimburse United for the cost of bumping passengers who hadn't yet boarded that flight, Republic deserves most of the blame for the offboarding and a substantial share of the blame for the subsequent consequences of that choice.

I asked Trans States whether their interline agreements would have allowed them to carry a Republic crew being repositioned, and if so, whether Republic would have had to pay for the seats. But Trans States did not respond to multiple e-mail and voicemail messages from Friday through Tuesday.

This brings our story to the point at which Republic took seats already occupied by paid passengers out of inventory.

Can an airline legally revoke a boarding pass after a paid passenger has boarded? After reading the applicable Federal regulations and United's conditions of carriage, I think that the airline has at least an arguable claim that it can. This incident may help clarify the answer. Historically, airlines have always claimed this right, although they rarely exercise it.

Normally, if passengers already seated on a plane have to be offloaded for some operational exigency, the first passengers asked to deplane will be "non-revenue" passengers. I've seen it done, and they left with so little fuss that most other passengers didn't even realize what was going on. It's part of the deal: If you are flying on employee or other industry free or discounted passes, you are subject to a dress code and to offloading to accommodate revenue passengers. But this is rare. A retired United employee told me they've only been asked to deplane once in more than 25 years of non-revenue pass travel.

It's also possible, although rare, for two passengers to be issued boarding passes for the same seat, and for the error not to be discovered until both of them are on the plane. I've seen a passenger told to deplane in such a situation.

The gate agents offered offered $800 in airline scrip to anyone willing to deplane, which from past observation I think is the maximum that was allowed by United policy. That's an illegal cheapskate policy for which United fully deserves the condemnation it has received, and the fines it should be assessed for violating Department of Transportation regulations on denied boarding compensation. Obviously, the gate agents should have been allowed to offer more, and in cash, as Federal law requires. But they were probably following United company policy by calling police once nobody took the bribe, passengers were somehow selected to have their boarding passes revoked, and one of these passengers refused to leave their seat.

The United pilots' union has pointed the finger at Republic, saying specifically that, "Republic Airline made the decision to assign four of their crewmembers to deadhead on Flight 3411 within minutes of the scheduled departure" and that "the flight crew and cabin crew of Flight 3411 are employees of Republic Airline, not United Airlines."

But while the United pilots union says that, "the gate agent requested the assistance of law enforcement," the United pilots' statement is curiously silent on who employed the gate agents working the flight. Were they employees of Republic (unlikely at a hub where United Express flights using the same gates are operated by multiple airlines), United (possibly), or a third-party passenger ground handling contractor (also possible, and a common arrangement for subcontracted feeder flights at a major airline's hub)? Nobody will say who employed the gate agents, but I wouldn't be surprised if the person who called in the cops turns out to have been employed by some company that hasn't yet been named. This was another of the specific questions to which United chose not to respond.

Why hasn't United tried to shift the blame to Republic? And why haven't the passengers' lawyers focused on Republic as the culprit, or one of the culprits?

Major airlines like United want to keep their contractors financially dependent, but don't want to take on the costs of operating feeder flights with their own higher-paid employees. Contracting out these flights enables airlines to evade their union contracts and create a de facto two-tier wage scale, with contractors' employees paid less than the union scale for mainline airline employees. United wants Republic to emerge from bankruptcy and keep flying, which probably depends on Republic dodging the bullet of blame for this incident.

United also doesn't want to face the backlash from the public and the Department of Transportation that it deserves for failing to properly disclose to passengers which airline would really be operating their flight.

And passengers and their lawyers would rather United accept the liability than put it on Republic, since it will be hard to collect much, if anything, from Republic while it is protected from creditors by its status in bankruptcy.

The police who responded have police powers but aren't part of the Chicago Police Department. That's not as strange as you might think. Many of the people wearing United Airlines uniforms at many airports don't work for United. Most of the people wearing TSA uniforms at SFO don't work for the TSA -- they work for Covenant Aviation Security. Similarly, many of the people with badges patrolling airports aren't regular police, or aren't the ones you would expect.

Some airports are patrolled by special-purpose and/or multi-state police forces, while others are patrolled by police who appear to be out of their jurisdiction. SFO, for example, is owned by the City and County of San Francisco and patrolled by a special division of the San Francisco police, even though the airport isn't in the City and County of San Francisco but in an unincorporated area of San Mateo County. SFPD officers can make arrests at SFO, but any prosecutions are conducted by the San Mateo County District Attorney's Office in San Mateo County courts.

The result is that travellers often can't tell who at an airport is really a police officer acting within their jurisdiction, just as they often can't tell who is really acting with the authority of the TSA or the airline. That makes it especially important for airport police to clearly identify themselves and the basis for their orders.

In the case of Flight 3411, what would the basis have been for police to order or force a passenger off the plane -- even if they identified themselves as police? Presumably, the passengers thought they had a right to remain in their seats. But the airline -- Republic Airlines, whose plane it was -- had at least an arguable claim that once the passengers' boarding passes were revoked and they were ordered to leave by the owner or occupant of the plane -- i.e. a representative of Republic -- they were trespassing, as that crime is defined in Illinois law. It's not clear whether such an order was given, though: Some accounts suggest that it was gate agents or ground staff who ordered the unlucky selectees to deplane. Gate staff who didn't work for Republic may have had the authority to revoke boarding passes. But they didn't have the authority to turn a contract dispute into a lawful basis for a trespassing arrest on someone else's (Republic's) plane.

I take it for granted that the passengers assumed they had a right to remain in the seats they had been assigned if they declined the airline's offer of a bribe to deplane. The passenger who wouldn't leave their seat was, at worst, an unwitting trespasser, if and only if they had been given a lawful order to leave by a person in lawful command of the plane. Did a Republic employee order the passenger off the plane? I don't know, but that is likely to become an issue in court. Without an order from Republic, there was no trespass and no basis for an arrest.

When the police responded to what amounted to an allegation of a trespasser on a Republic plane, they should have investigated the complaint by checking with the person in control of the plane -- the pilot in command -- to see if that person had, in fact, ordered that passenger off the plane. Instead, the police seem to have acted as a goon squad for the airline, rather than as neutral officials to whom the airline was merely a complainant entitled to no greater deference than was the passenger with whom airline staff (or third-party contractors) were arguing.

Another question Republic chose not to answer: If the police did check with the Republic crew, did any crew member authorize the use of police force? If so, why? Police won't normally arrest or forcibly remove a trespasser unless the property owner specifically asks the police to do so.

The police used an amount of force that was clearly excessive for arresting an unarmed (and of course already thoroughly searched for weapons) and unwitting trespasser. But we only know that, in spite of the lies in the police reports, because other passengers recorded videos on their phones -- in spite of a statement on United's Web site (although not in United's Conditions of Carriage) that purports to prohibit such photography: "Photographing or recording other customers or airline personnel without their express consent is prohibited."

The U.S. Department of Transportation should make clear to all airlines that they can't hold passengers to "policies" or conditions that aren't included in their published tariff, and that this restriction on photography on a common carrier would violate the First Amendment even if it were moved to the airline's Conditions of Carriage.

The airlines involved will probably say that some of this is speculation, and that is correct. But they have only themselves to blame for declining to respond to my questions. Their silence should not be a reason for journalists, the flying public, or consumer advocates to stay silent or refrain from trying to figure out what happened and what should be done about it. I would be happy to discuss this with them for a follow-up story.

I can't resist noting that the perfect segue from the previous United Breaks Guitars fiasco to the current flap over a Republic Airlines flight operated in the name of United Airlines is Tom Paxton's classic Thank You, Republic Airlines (For Breaking the Neck of My Guitar). It's one of his self-styled "short self-life songs" that's remained relevant longer than he probably expected. Its final line about airline bankruptcy resonates with respect to today's Republic Airlines, even though it has no relationship to the earlier Republic Airlines: "There could be no satisfaction greater than if / You should be the next to go the way of Braniff!"

Link | Posted by Edward on Wednesday, 19 April 2017, 08:23 ( 8:23 AM) | TrackBack (0)
Comments

I think the subtitle for this post should have been: "If you only knew," and I thank you for not dumbing down or holding back with your answer!

I'm also as outraged as you, Dr. Dao and presumably anyone else ever put in a situation even remotely like this, but, now that you've given so many examples of what could have motivated these events, I can also see things (somewhat) from the point of view of those responsible: they must have felt they were doing their jobs, and that Dr. Dao needed to "do HIS 'job'", too, by complying with their orders...and CHEERFULLY at that!

Given the value the travel industry seems to place on obfuscation (as you document even more extensively in "The Practical Nomad") it only makes sense that nobody would have been in any more of a mood to share all -- or, indeed, ANY -- of the specific bits of knowledge you've just shared here with Dr. Dao at the time, any more than, for example, any airline wants to let the world know the cost-reducing provisions of its contracts with consolidators; instead, every single last person and entity involved with this incident would just have expected Dr. Dao to take them -- and their directives to him -- at face value, and do as they told him to do without asking any -- from what would surely have been their point of view 'impertinent' questions. After all, even had anyone actually TOLD Dr. Dao WHY he needed to deplane, they WOULD still have demanded that he do so. Ultimately, they weren't going to transport him on that flight, so he would at least have been less traumatized by all this had he simply walked off the plane on his own...and then launched whatever campaign he wanted to against those who had wronged him...within the law, at least.

Sad as this whole incident is, I think it holds a lesson for us all, and that lesson transcends air travel: Sometimes you just have to go with the flow, content in the knowledge that people (and the business entities they run and work for) are going to pursue their best interests, no matter what. After all, it's in ANY airline's best interest to have rested crews, and it's also in any carrier's interests -- whether in bankruptcy or not -- to do whatever it legally CAN do to minimize its operating costs. (Indeed, if an airline DOESN'T consistently make such choices, it probably DESERVES to go bankrupt!)

What lesson am I personally taking from this fiasco? Sometimes it doesn't matter "why," only "that". Things might be clearer -- simpler, and therefore more transparent -- if fewer total entities were involved. I think that's why Thomas Jefferson is purported to have advised that no more people should be governed than could meet to hash things out face to face.

In our modern lives, by contrast, so many laws and policies might potentially come into play in ANY business context that I think we only hurt ourselves by refusing to realize that: a) nobody actually WANTS to be held liable or accountable for ANYTHING, and therefore: b) that whenever doing business with any person or company, the customer (passenger) needs to know what I will call that opposite number's "culture of disclosure" going into any dealings, and needs to factor that knowledge into the decision of whether or not to patronize that business.

So, I'm TOTALLY on Dr. Dao's side here, but I also hope he had some clue that the airlines' culture of disclosure is -- and has been for several decades -- one in which disclosures are to be minimized so as to protect the guilty. I also hope he understands now -- even if he didn't at the time -- about the "ripple effect" you've shown us again and again, both here in your blog, and in "The Practical Nomad", that is, how a delay in one part of our complex and intertwined air travel system can cause LOTS MORE delays and other problems downline, at other carriers, and even other airports.

I guess that's why you have to have the patience of a saint to travel anywhere by air these days.

Posted by: Ben Bangs, 19 April 2017, 11:19 (11:19 AM)

Thanks Mr. Hasbrouck, excellent reporting as usual. Another reminder of what fluff we generally get in the mainstream media. You are a treasure in the world of travel.

Posted by: Charles Mattoon, 19 April 2017, 11:59 (11:59 AM)

Some other interesting commentary on this incident, in addition to the articles linked form mine above:

"How Algorithms and Authoritarianism Created a Corporate Nightmare at United" (by John Robb, NewCo Shift, 16 April 2017):

https://shift.newco.co/how-algorithms-and-authoritarianism-created-a-corporate-nightmare-at-

"US mainline-regional system likely contributed to bumping incident" (by Aaron Karp, Air Transport Wortld, 14 April 2017):

http://atwonline.com/blog/us-mainline-regional-system-likely-contributed-bumping-incident

Posted by: Edward Hasbrouck, 19 April 2017, 13:26 ( 1:26 PM)

"The anatomy of a denied boarding fiasco -- UA 3411" (Travelers United, 19 April 2017):

https://www.travelersunited.org/uncategorized/denied-boarding-fiasco/

Posted by: Edward Hasbrouck, 19 April 2017, 13:31 ( 1:31 PM)

The consensus on flyertalk now seems to be that UA's Conditions of Carriage do NOT allow Involuntary Denied Boarding after a passenger has boarded the aircraft, only before boarding. It seems you disagree?

There has been no indication that the pilot was involved in this situation. At what point does the pilot become responsible for the aircraft and the passengers?

Posted by: Kathy, 19 April 2017, 13:31 ( 1:31 PM)

"United Breaks Guitars 4? - Dave Carroll Responds to Customer Service incident on United Flight 3411":

https://www.youtube.com/watch?v=yQz8qqioCt8

Posted by: Edward Hasbrouck , 19 April 2017, 14:29 ( 2:29 PM)

I've been told that all gate agents at ORD are UA mainline employees.

I'm really glad that you have not tried to make Dr. Dao out as some rulebreaker that deserved what he got. I've read a number of takes assigning some blame to him and my response is: CIVIL DISOBEDIENCE. We do not live in a dictatorship and if airlines are allowed to cross the line into them, something is gravely wrong with the industry.

Posted by: Tiffany, 19 April 2017, 21:18 ( 9:18 PM)

Hacker News discussion of this article:

https://news.ycombinator.com/item?id=14153346

Posted by: Edward Hasbrouck, 20 April 2017, 04:56 ( 4:56 AM)

Thank you for writing such an excellent, informative and exhaustively researched article and analysis. I concur that United should not be able to enforce its so-called "policy" stating "Photographing or recording other customers or airline personnel without their express consent is prohibited" unless it provides passengers with better notice (also see: http://www.npr.org/sections/thetwo-way/2013/05/15/184290151/take-your-seat-the-no-photography-sign-is-lit). But I believe you have conflated an abridgment of First Amendment rights by a state actor (as in "Congress shall make no law . . . ") with a company's ill-conceived and arbitrarily applied policy.

Posted by: Mickey Osterreicher, 20 April 2017, 05:55 ( 5:55 AM)

Mr. Hasbrouck, you assign blame to many parties, but no mention of the passenger's role. When the passenger is ordered off the plane by aviation police and refuses, the passenger is knowingly disobeying a police order. Is that action blameless?

The passenger wouldn't know it was a possibly illegitimate request -- he's likely not an expert on airline trespass authorization. Nor did the passenger seem to be protesting for a greater good. So this passenger was acting against societal authorization to limit civil disorder. Why would you leave this piece of the story out of your analysis?

Posted by: Josh, 20 April 2017, 07:13 ( 7:13 AM)

Safety first rested crews are essential and yes a better way to handle the situation is needed...

Posted by: Jacque btkin, 20 April 2017, 08:20 ( 8:20 AM)

What kind of bullshit is this?
The article needs to be concise!

It talks about unrelated crap. Such a waste of time.

Posted by: impatient nerd, 20 April 2017, 09:02 ( 9:02 AM)

@MickeyOsterreicher -- The state action at issue here is Federal government licensing of the airline, the condition of that license (mandated by Federal statute) that the airline operate as a common carrier, and government approval of tariffs and conditions of carriage for common-carrier transport.

I will grant that there isn't a lot of case law on the intersection of common carrier, public forum, and First Amendment law, especially as that relates to what tariff or other conditions of carriage can Constitutionally be approved. But I don't believe that the government can, consistent with the First Amendment, approve a common carrier tariff or conditions of carriage that purport to impose content-specific restrictions on speech or photography.

I would welcome citations to any cases on point with which you may be familiar.

Posted by: Edward Hasbrouck, 20 April 2017, 10:08 (10:08 AM)

@Josh -- You say, "When the passenger is ordered off the plane by aviation police and refuses, the passenger is knowingly disobeying a police order."

I don't know by whom the passenger was ordered to get off the blame, or what the passenger "knew" or believed. And the "order" may have been invalid.

The passenger may or may not have been given a valid order to leave by the owner of the property (Republic Airlines) or someone with legal authority to act on their behalf.

The passenger may or may not have known that the police were police rather than "security guards" with no police power, who might have been employed by a third party and have had no authority to order passengers off the plane.

If the passenger hadn't been given a *valid* order to leave by a person with the legal authority to give such an order on behalf of Republic, they weren't trespassing.

The police may or may not (likely not, if they didn't check with the pilot-in-command) have had probable cause to believe that the passenger was trespassing. If the police didn't have probable cause to believe that the passenger was trespassing or committing some other crime, both their orders to the passenger to leave and their arrest of the passenger were unlawful.

The passenger almost certainly didn't know or believe that they were trespassing. Even if the police properly identified themselves (which I don't know) and even if the passenger believed them (which I don't know), I presume that the passenger believed that the order to leave was unlawful.

A bunch of thugs came down the aisle and start giving orders that -- as the reaction to this incident shows -- seem bizarre and legally suspect to most travellers, and that were of questionable (at most) validity. One passenger ignored what they probably thought were illegal orders.

What would the result be if everyone always obeyed anything stated as an order by anyone wearing a uniform, without thinking about who was giving the "orders" or whether they were really legally binding?

Posted by: Edward Hasbrouck, 20 April 2017, 10:31 (10:31 AM)

"Throwing book at United Airlines' rules" (by Susan Carey, Wall Street Journal, reprinted by The Australian, 18 April 2017):

http://www.theaustralian.com.au/business/wall-street-journal/throwing-book-at-united-airlines-rules/news-story/06bce2780e32d0749e17f0df3f4e6b93

Posted by: Edward Hasbrouck, 20 April 2017, 12:04 (12:04 PM)

I finally spoke with United Airlines spokesperson Charlie Hobart today, after this article was published.

Mr. Hobart told me that the gate agents handling United Express flights at O'Hare, including those who called in what Mr. Hobart described as "Chicago Department of Aviation security officers", were employees of United and not of Republic or a third-party contractor.

Mr. Hobart claimed not to know whether or not "CDA security officers" are sworn law enforcement officers. That claim to ignorance strains credulity, unless United has deliberately kept its own spokespeople in the dark. And if United still hasn't been able to figure out, 10 days later, whether these thugs (I use that term deliberately, in its original sense of organized gangs that prey specifically on vulnerable travellers) were really police, how were passengers supposed to figure that out in the moment?

"I don't have access to that level of detailed information," he said in response to this and most of my other questions. When I asked if he could find out, he declined. "I'm not going to get into that level of detail."

Mr. Hobart said he didn't know whether the passenger was asked to leave by United or Republic employees, whether the "officers" were asked to remove the passenger by United or Republic employees, whether the officers talked to the pilots before removing the passenger, or how the officers identified themselves to the passenger.

"They were unable to obtain the cooperation of the passenger," Mr. Hobart said. He referred all my other questions to the City of Chicago Department of Aviation.

Posted by: Edward Hasbrouck, 20 April 2017, 13:09 ( 1:09 PM)

Very good article and I appreciate your in depth work. One question I have is how did the airline choose those particular passengers to bump?

Posted by: Hilary Boslet, 21 April 2017, 15:53 ( 3:53 PM)

I agree with @Josh. You cannot just ignore the passenger's role in this, especially when 3 other passengers were asked to leave the plane & did so without incident. Your reporting is biased & incomplete. Dao was asked to leave the the plane by the flight staff & became belligerent. That is when they called in Aviation Security.

There is video of Dao before the incident telling the security officers to take him to jail & that if they wanted him off the plane, they would have to drag him off. It was very clear that he knew their role & purpose. If security asks you to get off a plane, you get off the plane. By purchasing a ticket, you are agreeing to follow the airlines rules & policies whether you like them or not.

Also, people need to stop acting like this guy is a saint! He had his medical license suspended for 10 years for prescription drug fraud & other charges. He only recently got it back & is still on probation. Dao is, obviously, someone who thinks the rules don't apply to him.
I'm not saying that I agree with how the situation was handled by the airline, but I think there is blame on both sides.

Posted by: Tara McNulty, 21 April 2017, 16:02 ( 4:02 PM)

Thank you, Edward, for the great post!

Whether it is a secret or Mr. Hobart did not really know the answers to the questions, and whether UA has the right to unload revenue pax to accommodate crews literally last minute (thus not really an oversold situation before the minute they decide to unload the pax or after the boarding gate supposed to be closed 15 mins before the take off), the way they treated this passenger and the arrogance they exhibited in this fiasco have created new LOW after what happened during "United Breaks Guitars" era.

Lastly, the lady above really speaks for the big corporation. The video before Dr. Dao got dragged off from the plane, he was on the phone with his lawyer, and I believe he was informed by the lawyers that it was his rights to remain on board because neither parties have conducted this incident properly or presented proper removal order to this Dr Dao.

Lastly, to Miss/Mrs McNulty Painting Dr. Dao with his past is just as low as how United treating their customers by the way.

Posted by: Allan, 21 April 2017, 17:02 ( 5:02 PM)

Dr. Dao clearly violated United's Contract of Carriage which says "We're always right: the passenger is always wrong. Simple!

Posted by: Eli Bensky, 21 April 2017, 17:48 ( 5:48 PM)

As a retired airline pilot I was asking the same questions. Thanks for looking into this.Everybody shares some blame here, but obviously the real issue is how it was handled. Obviously neither Republic nor United cared how it would be seen by the public. Whoever was in direct control was immediately at fault,
Muños said the exactly wrong thing the next day which has cost him becoming the head of the board at United, and both airlines showed their incompetence and lack of care or even of knowing good Public Relations practice. I retired from Continental before the merger and didn't have to put up with this nonsense, but it brings back memorues of the "bad old days" when Frank Loenzo ran the Continental with the same distain for both Flight Crews and passengers. United should replace Muños with Gordon Bethune who succeeded Lorezo and brought us from "Last to First." As Santayana said, "those who are ignorant of history are bound to repeat it."

Posted by: Richard Gross, 21 April 2017, 20:18 ( 8:18 PM)

Times Insider: What We’re Reading (New York Times, 21 April 2017):

https://www.nytimes.com/2017/04/21/insider/what-were-reading.html

How United Falls

From The Practical Nomad: Some of us are still blown away by the violent way a paying airline passenger was recently dragged off a United Airlines plane. Well, Edward Hasbrouck, a travel writer and consumer advocate, offers up a deep dive into the episode with fascinating details behind the story. — Lynda Richardson, senior staff editor, Travel

Posted by: Edward Hasbrouck, 21 April 2017, 22:26 (10:26 PM)

Do airlines have an SOP to do this? That is, lift a boarded passenger off a flight? I am very surprised the captain didn't observe and intervene. But your narrative about the complications of "who's in charge" explains it. With this web of business shenanigans, it is easy for anyone to shrug and say it isn't my responsibility. But the captain is responsible, surely, for the safety and security of the passengers on the plane, on the ground or in the air.

Posted by: Ned Walker, 22 April 2017, 05:09 ( 5:09 AM)

I appreciate the depth and detail of the article. On scanning the comments, with the exception of the retired airline pilot, no one has spoken about civility which unfortunately is so lacking in today's America, and in the current President and his behavior during the election... remember "get them out of here ...I wish I could punch them myself ". But, back to civility... how is the lay person to know about all of the ins and outs of what has been so effectively described in the article? So for starters, why didn't the 'airline' explain the situation to the passenger, in a civil manner, and then enter into a give and take discussion/negotiation which would have covered each side's position, priorities, and urgency... in such an exchange Dao's need to get to Kentucky that evening would have surfaced, and if I were he, I would have requested that an alternative passenger, with less urgent commitments, be approached. Yes, this would have taken time, but in hindsight, time well spent. Civility and patience is the key, in all walks of life , not just in this instance. But alas, in today's America, Dao was luck he wasn't shot.

Posted by: Inder Singh Cheema, 22 April 2017, 09:31 ( 9:31 AM)

Excellent informative read! That said, I'd welcome renewed focus on "fixes" that don't leave everything in the hands of the fine print lawyers and green (greed?) eyeshade clerks.

Is it too much to ask that FCC decline to approve Conditions of Carriage that are ambiguous at best about passenger rights? Must I be prepared to call my lawyer from the cabin? European airlines have put in place basic passenger protections. That's a starting point at least.

Posted by: John Schlosser, 22 April 2017, 12:39 (12:39 PM)

Very little mention of the four passengers "randomly" selected being all Asian?

Reported in Asian media not Western media?

translated link Japan.
https://is.gd/MI1yeu
or see yourself not translated
http://diamond.jp/articles/-/124820?page=3

Posted by: Harry Rennicks, 23 April 2017, 10:44 (10:44 AM)

The bankruptcy court which has been overseeing the operation of Republic Airways Holdings approved the company's plan for reorganization on 20 April 2017:

http://www.businesswire.com/news/home/20170420006692/en/Republic-Airways-Plan-Reorganization-Receives-Final-Approval

Posted by: Edward Hasbrouck, 24 April 2017, 05:54 ( 5:54 AM)

"After United Clash, Airport Police Brass Warn Officers to Avoid Such Feuds" (by Andrew Tangel and Doug Cameron, Wall Street Jounral, 22 April 2017):

https://www.wsj.com/articles/after-united-clash-airport-police-brass-warn-officers-to-avoid-such-feuds-1492858807

"O'Hare ... is secured by a mix of Chicago Police Department officers and staff drawn from the city’s Department of Aviation. United staff at O’Hare called the police in an effort to remove Mr. Dao, but officers from the aviation department -- who share a radio frequency -- arrived first.

Chicago Mayor Rahm Emanuel has said the city is reviewing the future of the Department of Aviation security force. The 300-strong airport unit is made up entirely of city employees. All are sworn police officers...."

Posted by: Edward Hasbrouck, 24 April 2017, 06:36 ( 6:36 AM)

United Airlines has issued an unenlightening report on this incident, which never mentions Republic Airlines, which company operated the flight, or which companies the gate agents and crew members worked for, or what (if any) actions have been taken by Republic Airlines:

https://s3.amazonaws.com/unitedhub/United+Flight+3411+Review+and+Action+Report.pdf

Republic Airlines has remained silent.

Posted by: Edward Hasbrouck, 27 April 2017, 11:47 (11:47 AM)

According to several press reports, lawyers for the passenger attacked by Chicago police specifically confirmed that the settlement agreed to between United Airlines and the passenger includes provisions forbidding the passenger from suing either Republic Airlines or the City of Chicago:

http://uk.reuters.com/article/dr-david-daos-settlement-with-united-inc-idUKL1N1HZ270

http://uk.reuters.com/article/dr-david-daos-settlement-with-united-inc-idUKL1N1HZ270

Why did United think it was worth paying a larger settlement to buy off those claims against third parties?

I assume that United thought that the additional publicity about any lawsuit, even against Republic Airlines or the City of Chicago, would further damage United's reputation and/or prompt further questioning of United's (poorly disclosed) subcontracting and code-sharing practices.

Unfortunately, the settlement means that none of the legal issues discussed in my article will be clarified by court decisions.

Posted by: Edward Hasbrouck, 8 May 2017, 06:48 ( 6:48 AM)

To impatient nerd, the article is not overly lengthy, definitely NOT as you indelicately say bullshit or crap, Ed is being as comprehensive as possible in explaining the situation. Say it was boring, if you will, but not unnecessary crap.

Here are some comments that nobody mentioned. What I will post is as equally lengthy but brings a lot of light to the situation to explain why nobody wanted to take the vouchers NOT the money as money was NEVER offered.

In the discussion forum next to the NYTimes article printed the day after the incident to people with Asian sounding surnames gave some VERRY (sic, imitating the German soldier that Arte Johnson played on Laugh In) interesting information that was not mentioned elsewhere. I do not know whether one can still pull up the comments after this time to be able cite the information, but I will post it to the best of my memory.

The first poster had done a statistical analysis of the racial background of the passengers which showed only 3% of the passengers were Asian, yet stated all FOUR asked to leave were Asian, perhaps that is why Mr. Dao said he was discriminated against. I do not know however unless this poster was an employee, how he knew the racial background, if by name, Black and White names could be the same and there is nothing to denote race on a reservation although one could discern. Hispanic and Asian names. In response to another poster here, maybe they felt that Asian people who generally are (being Chinese I can say that) USUALLY more passive and obedient or so they thought (very wrongly as it turns out) that they could discriminately deboard them with no protestation.

The second poster, brought up many points, as to why nobody took United/Republic on the offer. Again I do not know the veracity of the facts as that guy knew what the other flights on other airlines were that day (how would he know unless again he was a passenger on that flight, as the story appeared the day after when it would be near impossible to pull up the past flights and he related something that happened on that flight.) First the flight that U/R claimed they could put the pax on was, after 2 PM the next day although there were later flights THAT evening on other airlines and flight on U/R earlier in the AM the next day, if it was only flight vouchers w/no hotel or meal vouchers of course nobody would want to take that PLUS the fact one would miss a days work and the loss of income that would entail.

In my opinion, in this stupid attempt to be chintzy UA had to pay out, probably hundreds of thousands if not millions. The best thing (other than transporting the crew in another way, it was a 5 hour drive so they could have just hired a van and the crew would have been rested for a flight the next day or PAY for tickets for them to fly on other airline) was when nobody wanted the flight vouchers, was to use rule 240, which is when an airline endorses their ticket so the passenger can take it to another airline to be used, you have to read the rules as to how long the delay for the next flight on that airline to be able to use it, but it CAN be done on ANY flight, I want everyone reading here to know and tell your friends to be aware of it, because the airlines do NOT want to tell you about it as they want to keep you on THEIR airline no matter how much it makes it inconvenient for you.

The second, of course was to offer to pay for the hotel and meals (who wants to be hanging around the airport, was it approx. 19 hours??) and then put you on the first flight out but here is the other thing. U/R could have put them on an earlier flight out on Monday but they probably did not want to as it is on a higher fare level and they probably wanted to keep those seats open for last minute business travelers, they probably had stats these were the seats that were could be more likely to be sold at the last minute vs. the afternoon seat.

The second poster also said that once the passenger was boarded, an airline employee threatened them and said" if nobody gets off this flight, no one was going anywhere," (I am paraphasing as I don't remember the exact words but that was the gist) which put all the passengers in an antagonistic mood and maybe after that of course, no one wanted to cooperate.

Posted by: Evangeline Hu, 14 May 2017, 10:50 (10:50 AM)

I just wanted to pass on some praise to you. My brother is a Delta Airlines Captain. I sent him your take on the dragging-man-off-airplane situation. My brother, I might add, is the one in the family who analyzes our contracts, family trust, etc. -- he is just real good with that kind of thing (as you probably are).

Anyway, he reported back to me to say: "The guy got everything exactly right!"

Thanks for keeping us filled in...

Posted by: Anonymous, 16 May 2017, 16:13 ( 4:13 PM)
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