Saying no as a pilot

We all have our mentors, people who figure prominently in our apprenticeship, people who set the bar and to whom we look for the experience we don’t yet have. One of those in my early career was a fellow by the name of John Brown, a retired Air Force C-141 and KC-135 pilot from Arkansas, in his mid-fifties, with thinning red hair, red eyebrows, and red eyelashes. The only way you could tell whether John was awake in the red cockpit lighting at night was when the end of his cigarette glowed. He was the chief pilot at the small cargo airline that had hired me as a woefully inexperienced first officer.

We were flying former Air Force T-29s, which of course John had also flown while in the Air Force, that had been converted to the civilian type certificate of the Convair 240. No pressurization, no hi blowers, but a pair of Pratt R-2800s that still had, and needed, anti-detonation water injection. We operated scheduled routes every night; in those days, UPS did not have its own airplanes, and FedEx was flying personal letters around in Falcon 20s, which we thought was almost as dumb an idea as the blue potato chips handed out some years later by another upstart airline. Flying Tigers, on the other hand, competed with us, or rather we competed with them. They flew a 747.

Flying freight in a Convair was a lot easier with a mentor in the left seat.

Captain John was known for a small volume of acerbic witticisms delivered with only the slightest hint of dry humor. I will never forget such gems as “You know, Steve, we’re not aimin’ for those green lights down there…” His mentorship of me started out on my initial checkride, done in the airplane, of course, with the Fed sitting on the jumpseat, literally breathing down our necks. I was an experienced light airplane instructor by then, with a grand total of about 15 hours of multiengine time. There we were, all 36 cylinders pounding along on the inbound leg of the procedure turn during the NDB approach. I scrutinized the ADF needle and concluded it was time to turn inbound. But the yoke wouldn’t move.

I looked over at John, who was hunkered down in the left seat, staring off out into space through the left side window, smoking a cigarette. The yoke still wouldn’t move. A small light inside my brain suddenly flickered and then illuminated; the Convair had an aileron-rudder bungee type of interconnect, meant to mitigate adverse yaw in the days before yaw dampers. I suspected that John had his foot planted on the rudder pedal; I decided to try again in another few seconds. When I did, the yoke turned, and I rolled out onto a perfect inbound course. After we landed, John pointedly said that I had done a good job; I never did find out if he meant that I flew well or that I just knew when to keep my mouth shut. Both, it turned out, were useful skills in the cargo business.

One really dismal winter morning a couple of years after that first checkride, John and I were operating a flight from Cleveland up to Buffalo, with the intention to stop at Buffalo, then continue on to Toronto, and then return to Buffalo. This was advantageous to the customer because it was quicker and easier to fly the cargo over the border than it was to truck it across the Peace Bridge. That morning, however, the weather was abysmal. We arrived in the vicinity of Buffalo to find the RVR for runway 23 was one thousand variable to two thousand in snow. The winds were gusting to 30 knots or so out of the northwest, about 45 degrees to the runway 23.

We held for a while, and when the RVR finally lifted adequately, we flew the approach and landed in a cloud of blowing snow, enveloped in our own private whiteout when we reversed the big old Ham Standards and left them there in lieu of touching the brakes. As we emerged from the cloud of snow, we turned left off the runway while our station manager called repeatedly, and worriedly, asking where we were. John barked over the noise of the engines, “Tell him to just give me a minute, will ya? I don’t even know if I’m on the damn airport yet…”

The taxiway surfaces were slick, and the route over to the ramp to Prior Aviation was substantially downhill, so we were in no hurry to get there. After we parked and shut down, I stepped back out of the cockpit, kicked open the door, dropped the ladder, and started down to the ramp. When my legs got below the shield of the door, the wind literally blew the back of my parka up between my knees. It was howling. We leaned into the wind as we traversed the ramp and ducked into the trailer used for operations.

With the trailer door shut, the wind quieted and we rubbed our hands over the electric heater. John sighed, and drawled to the young station manager, “Don’t even bother to open her up, Al. We ain’t goin’ to Toronto.”

Some days, even the freight dogs have to cancel.

Al, a young kid of 19, recently married and with a very new son, was perfectly happy to stay inside that morning; he knew full well that the only way you could open the cargo doors was by standing on the tines of the forklift, and once the wind got hold of one of those doors, whoever was in its way would get flicked off the forklift like a bug. John called the home office and told the flight follower, who somewhat nervously accepted the news. And of course, everyone knew what would happen next.

Sure enough, about ten minutes later, the phone rang. It was Jim, the owner. I didn’t have to hear the other end of the line to know what was said. I had opened this station a few months earlier, and I had hired Al myself. Jim and I had frequent telephone conversations, in a manner of speaking, and I could pretty much guess at the gist of the conversation. After a few minutes of subdued, murmured conversation, John hung up the phone, walked over to where Al and I were standing, and said, “Well, boys, we’re not goin’ to Toronto today. I already made that decision…but now Jim’s blessed it…” Not a man given to much humor or emotion, I did detect a bit of a twinkle in his eye, perhaps even a very slight eye roll, and that said it all.

Herein lies the fractious interface between the pilot-in-command and the pilot-as-employee. It can lead to some pretty polarized opinions. As a young pilot, or really a pilot of any age just trying to pay the bills, it can be sort of intimidating, to put it politely.

There are several places within the Federal Aviation Regulations that define the authority and obligation of the pilot in command. 14 CFR 91.3 is the benchmark; it is here that the words “final authority as to the operation of the aircraft” are found today. These words, like so many in the FARs, have been in place for decades. Beginning in the 1930s, the “first pilot” was, by regulation, in command of the aircraft during flight. In April of 1945, Civil Air Regulation 60.100, Authority of Pilot, stated that “the pilot in command of an aircraft shall be directly responsible for its safe operation.” A little over two years later, in August of 1947, the rule had been revised to state that:

“The pilot in command of an aircraft shall be directly responsible for its operation and shall have final authority as to operation of that aircraft.”

And so it remains today. Encoded here is that singular autonomy, that point of application of free will, that has not changed through eons despite all of the changes in the architecture of man-machine interface as well as the changes in management theory and even the emphasis on crew resource management. The pilot in command is directly responsible and has the final authority.

This authority includes a standing license to deviate from air traffic clearances, published company procedures, AFM limitations and FARs in general… but only in emergency situations and only so far as is necessary for the safety of flight. In all other cases, the pilot in command’s authority is intended, first and foremost, to function as a firewall to ensure that all interested parties act in compliance with the appropriate regulations and limitations. In a violation culture, one that is accustomed to driving ten to 20 miles per hour over the speed limit and manipulating tax law to our benefit, this point can be easily blurred. Indeed, some employers and operators are happy to accept varying degrees of blurriness, the success of which leads to one version of what is known as the normalization of deviance.

Don’t forget it.

Somewhat later in my round engine career, I had the opportunity to fly with a wizened old Swede by the name of Herb Edwardsen. Herb was a veteran of several thousand hours flying C-46s for the UN around the Belgian Congo when it was the Belgian Congo, and then a lengthy career in DC-6s and 727s. One night, while awaiting the loading of our cargo in Detroit, we were basking in a haze of cigarette smoke in the line shack, debating the pros and cons (actually just the cons) of an unwritten expectation to bend certain regulatory limitations and how far they could be bent. Herb would have none of it. I’ve never forgotten his words; he said, “Look, it’s three o’clock in the morning. I’m tired. I’ve got plenty of decisions that I have to make tonight. Why would I want to make decisions that have already been made for me?”

Beyond the requirement to ensure regulatory compliance, we get into the netherworld of “It’s legal, but is it safe?” Here we find the core purpose of the phrase “final authority as to the operation of that aircraft.” Here, also, we find a variety of divergent opinion. Because the authority itself is vested in public law, it transcends the conditions of employment, making the pilot-employee something of a greased pig for all styles of management.

Arriving at Baltimore one night, I was scheduled to change aircraft from one Fairchild Metro to another. Upon entering the new aircraft, I discovered that the crew oxygen system had been placarded as inoperative. It wasn’t just inoperative; there was no oxygen bottle installed. The approved minimum equipment list allowed this at the time. However, the airplane flight manual emergency procedures required the use of oxygen in the case of smoke in the cockpit. Pressurization was irrelevant. In my opinion, it was not appropriate to operate the airplane in revenue service without oxygen available for the crew. I had no problem with deferring it for the passengers and staying below ten thousand feet; but I had a big problem with the smoke in the cockpit issue. So I refused the airplane.

Well, that created a bit of an uproar. The next day, the company put out a short-lived memo stating that the requirement to don oxygen in the cockpit smoke emergency procedure only applied if the system had not been deferred under the MEL, a rather interesting interpretation of the Airplane Flight Manual. Nonetheless, the director of operations supported my decision, which certainly made my life easier. But, as John Brown had pointed out years earlier, the captain’s decision is not dependent on official support. It is, however, dependent on knowing the airplane and the operation.

A couple of months later, I did enjoy a brief moment of certitude. The union had asked me to attend the FAA Flight Operations Evaluation Board meeting in Kansas City, and to present the argument that the minimum equipment list was in error. Over the objections of several air carriers, the FAA listened to my argument and summarily ruled in favor of it; the certification office engineer chairing the proceedings was somewhat embarrassed that the situation had ever existed at all.

As a 727 first officer, I listened as the captain engaged in a rather stressful telephone conversation with the folks in maintenance when he refused an aircraft that had one of the two yaw dampers deferred. We were in St. Louis, heading for Miami and then up to New York. His concern was that we would be flying up the Atlantic route from Miami, somewhat off shore until reaching Wilmington, North Carolina. There were Gulfstream thunderstorms already building out there, and the MEL limited the altitude to 26,000 feet with only one yaw damper operative. The captain wasn’t interested in poking around the Gulfstream that day at 26,000 feet. He wanted another airplane.

In a similar situation, I arrived one night to find that my 757 had an inoperative auxiliary power unit. We were heading to London from New York. The company was brand new; we had no authorization for extended range operations (ETOPS) yet, and were still required to use what were known as the Blue Spruce routes, up over Greenland and Iceland. This ensured that, theoretically, a diversion airport was always within 60 minutes flying time in case anything happened.

When Greenland is your alternate, you think hard about your inoperative equipment.

At the time, the minimum equipment list required the APU to be operative for ETOPS flight. Although we were not ETOPS, and thus did not technically require an operative APU, nobody in the three-man cockpit crew wanted to be one generator failure away from a diversion along the Blue Spruce routes, any more than we wanted to be in a similar situation while on an ETOPS flight. I refused the airplane in favor of one arriving within the hour, and this led to a somewhat heated telephone conversation. We took the other airplane anyway.

Years later, I made a similar decision in refusing an airplane in Minneapolis when it arrived with the captain’s windshield heat circuit breaker popped. I had already reviewed the maintenance history, and I knew that the breaker had popped four times in the last five days. I was open to fresh ideas to fix this problem, but a routine check and reset wasn’t going to cut it. While the first officer and I had dinner before the airplane arrived, we discussed this issue. Predictably, in the bedlam of a late arrival an hour later, gate change, and three nearly simultaneous boardings in the same boarding lounge, neither one of us remembered to go look for this particular circuit breaker.

If we had, we would have realized that you can’t actually see it during the routine inspection of the circuit breaker panel from the cockpit doorway; you have to lean around to the left of the captain’s seat. Fully boarded, we started the Before Takeoff checklist, got to the part about windshield heat, immediately detected a cold windshield, looked at each other, rolled our eyes, and then looked at the breaker. Sure enough, it was popped. We probably could have executed that a bit more gracefully, but the decision was made… everybody got off and we found another airplane.

In the latter case, working for a very large, established airline, there was no heated telephone conversation. There was only the maintenance controller supporting my decision while expressing some disbelief at the unresolved history. In the former case, I was working for a brand new, trying-to-get-started airline. These contrasting situations lead to very different responses and tensions; yet, the pilot retains the final authority and must make the decision.

Curiously enough, although the word does not appear in Part 91, there are three instances of the word “opinion” within Part 121. These three rules essentially all require a suspension of operations if, “in the opinion of the pilot in command or dispatcher,” it is unsafe to continue. No mention is made of the opinion of the CEO, chief pilot, passengers, maintenance technician or anyone else who may be involved. While all of these folks may have valuable input, at the end of the day only two opinions count… indeed, only one counts if no dispatcher is involved. The use of the word opinion in regulatory language is intended to extend beyond the concrete aspects of legality and functionality, and directly address the question of “It’s legal, but is it safe?” Indeed, the use of the word opinion in Part 121 essentially requires the pilot in command to set the legal standard: if, in your opinion, it isn’t safe, then it isn’t legal, either.

The question to ask yourself, when forming an opinion and making decisions based on that opinion, is whether you can look your passengers, your fellow crewmembers – and their families – in the eye.

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Steve Green

Steven D. Green started flying at age 14, and soloed on his 16th birthday in 1972 off runway 9R at Palm Beach International. He began his airline career flying a Convair 240 for Providence Airlines around the Great Lakes, then flew Metroliners up and down the east coast through the 80s and then all over the world for TWA, Eos and American. Beginning in 1986, he participated in numerous aircraft accident investigations as a representative of the Air Line Pilots Association, including TWA 800. Association with the 1994 Roselawn accident involving Simmons 4184 led to work with ALPA’s Inflight Icing Certification Project, as well as the Ice Protection Harmonization Working Group ARAC. He has remained involved with aircraft icing issues, writing a number of papers on the topic and continuing to serve as a consultant to the FAA. He and his wife have lived in Vermont for 27 years, and have two grown sons.

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