A Tale of Two Paths Forward

It has been a long time since we last sent out an email as we use it sparingly to highlight only the most important topics. This email will be specifically for the pilots receiving it, but all of you can glean information about how Americans, armed with knowledge, can defend their God given, and Constitutionally affirmed rights. Enjoy.

Pilots, you are faced with a once in a lifetime decision. Most of you have gone back to “life as normal” since the pressure of EO14042 was lifted. Many of us have continued to forge new paths ahead on the medical freedom front. Now is the time for you to come back, increase your level of knowledge and use your union voting rights to ensure we are protected against future intrusions upon our liberties.

As many of you know, SWAPA sent out a recent contract survey and one of the questions was polling the membership on the level of importance regarding medical freedom language. We have yet to hear the results of that specific question. I am confident that the percentage in favor of protection was significant. Herein lies a recently discovered conundrum that SW Freedom Flyers faces – A second path forward.

Like many of you, SWFF leadership and the active participants have lived on the front lines of the COVID pandemic for the last 3 years. Many of us have become subject matter experts on the nuanced points in the movement. One of the recent developments has been contract language for pilots. Delta was the first to pass decent contract language. AE4HF (the UA version of SWFF), led by Sherry Walker and Laura Cox, sought to improve upon Delta’s language. Unfortunately for them, UA/ALPA tossed their proposed language and contractualized a COVID era LOA that materially harms its unvaccinated pilots and opens the door for forced, unvoluntary, and out of seniority furloughs surrounding future mandates. While we believe that ALPA did not agree to this nefariously, we do believe that they didn’t listen to the Subject Matter Experts (SME's - AE4HF), rather they did what they thought best.

(Delta’s new language)


Words have meaning, especially in contract law. A carefully crafted contract language piece was not used at United and is now 1) open to interpretation and 2) will become binding under the Railway Labor Act and its arbitration process, if infringed upon. Truly terrifying territory. (see below)

(an excerpt from a recent AE4HF email regarding their TA’d language)

Separately and yet similar in fashion, in the 11th hour of negotiations over at American Airlines, AA and APA snuck in very weak language that went along with an additional $1B increase in wage offerings to match United’s pay. Here too, words have meaning.

(AA pilot contract language for medical “freedom”)

Specifically, and at first glance, the wording seems to be good for the pilots. “The Company may not require a pilot, at any time, to undergo any medical procedure(s)…” Well, the vaccine wasn’t considered a “procedure,” it was considered a “treatment.” Now AA & DL has the door open for a work around should this situation arise again. It’s subtle, but awareness and knowledge is absolutely essential for progress. Here again, the language is subject to interpretation and arbitration under the RLA.

Yesterday, 9/5/2023, an AA pilot filed a Federal Injunction against their 24S (picture above) contract language stating, in part, that contract language is unlawful as it removes the power of pilot to determine his/her own fitness for duty. Herein lies new information that SWFF was only recently made aware of. We’ve been wading through understanding the totality of the rights as pilots that we’ve been afforded through the The Federal Aviation Act of 1958, FAR 61.53 and Part 117. This is where your eyes may glaze over, but it is so critical that you realize the importance of your medicals so that you can defend yourself in the future.

(an excerpt from the AA Injunction filing)

The simple argument is this: FAR 61.53 is forward looking. Meaning, do you wait until you get to the aircraft before you call in sick? Obviously, the answer is no. If a mask or vaccine impedes your ability to safely operate an aircraft, it is solely your decision to call in sick. The company has no authority to determine if a mask impedes that ability. None. Hence the power of YOUR medical certificate.

Furthermore, do you want to outsource that medical decision/fitness for duty determination to a 3rd party – the union or the company? I can’t imagine the answer being anything other than no. Therefore, why would you want to enter contract language that usurps your sovereign rights?

From Capt. Bahig Saliba's court filing:

"What is the Federal Aviation Act of 1958 and why does it affect me? The Federal Aviation Act of 1958, Section 104, Public Right of Transit; “There is hereby recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.” Some United States citizens become pilots and exercise their right to transit the navigable airspace by piloting aircraft themselves, while others exercise their right by employing the services of professional pilots who provide transportation. The right is not created by the Act, it is declared and affirmed to exist.

The Act is public policy, and the FAA, the agency created by the Act, sets the rules and regulations governing and promoting safety in aviation. Pilots who exercise their right must meet technical and physical mental standards set by the FAA under 14 CFR Part 67. If a person meets set standards under §67.3 that are , “…prescribed by this part, based on medical examination and evaluation of the person’s history and condition, is entitled to an appropriate medical certificate.” Thus, the certification a person receives from the FAA is an extension of the inherent right as declared by the Act.

The Medical Certification Process: The FAA has created a “wall” separating air carrier certification and pilot medical certification (see graphic above). As the agency, the FAA holds the authority created by the Act to establish the medical standards that pilots must maintain at all times. Simply put, the People who hold the power, through Congress, created the FAA who is their agent and representative. The FAA sets the standards and contracts, or creates obligations, with the pilots who operate aircraft in the National Airspace or carry people commercially.

Obligations of airline operators differ from those created by pilots in that a pilot’s medical is a right that he may exercise privately and commercially, and the pilot is expected to maintain the FAA standard of his own volition and without interference. That is, only pilots may make health decisions to maintain the FAA medical standard. Pilots are issued medical certificates which become contractual obligations with the People, therefore, only pilots can create such obligations to the People.

A pilot who requests the medical clearance must make statements of health on form FAA 8500-8 and sign under penalty of 18 U.S. Code §1001 which carries a $250K fine or 5 years in jail or both for making any false statement or falsifying any record.

After an examination, and if a pilot meets the standards, they then make a contractual obligation to continually meet the standards for the duration and signs a document along with the Aeromedical Examiner (AME), called the Medical Certificate, signifying an agreement and obligation, or contract between the parties.

The FAA has the obligation to set and protect the standard so a pilot may not be left chasing the standard to remain in compliance, and the pilot’s obligation is to maintain said standard. Any infringement or invasion of public policy by third parties will upset the balance of obligation rendering a pilot illegal by invalidating his medical certification, making the pilot legally unable to operate aircraft.

There are roughly 730K pilots who hold FAA issued medical certificates in the US and roughly 100K are airline pilots. That is roughly .02 % of the population that are commercial pilots who are subject to further obligations.

A commercial airline pilot must make a health statement every time he reports for duty as required under 14 CFR Part 117. It is a fitness for duty statement, and yet another obligation to the People, as the pilot gets closer to operating the aircraft that carries them.

These are all contractual obligations that are dependent on one parameter; the physical and mental condition of the pilot, which only the pilot can determine to enter into such obligation. (SWFF emphasis) Without accepting the pilot’s liability, the airline may not be party to such contractual obligations. Of importance to note is that the FAA does not require any medical procedure or treatment for the issuance and maintenance of the Medical Certificate. The FAA’s scope is that of setting the standard for examination of the applicant.

The FAA has been silent on the matter and there are many calls for the FAA to take action to protect the standard. If the pilot chooses certain medical treatments or procedures, the FAA may provide guidance for what is allowable, however it is always the pilot who makes such decisions under 14 CFR §61.53."

Whew! That was a lot. You can see, however, that this is no laughing matter. That little piece of paper in your wallet holds a lot of authority and responsibility! It’s certainly not authority and responsibility that I was to outsource to the company, nor depend on the union to protect!

Attached below are the case against the current TA’d version of the Medical Freedom Contract language for United.

Rebuttal against UA language (scroll down to the “Urgent Call to Action”):

Airline Employees For Health Freedom

The Federal Court case that was filed against American's contract language will be sent in another email as it is too much to post in this email. It is, however, extremely important to read once you've consumed the information about what's happening at United. We do have his case posted on the SWFF Telegram Channel if you want to read it before the next email. Please view the Join section of this website if you do not have Telegram and want to join. We must note, out of an effort for due diligence, that this case is ongoing and has not had a final ruling.

SW Freedom Flyers leadership has spent countless hours communicating about the issues described in this email. We’ve kicked around the idea of submitting our own language but understand that whatever is submitted must be TA’d verbatim or we run the risk of the path that AE4HF/United & American Airlines/APA have gone down.

We strongly believe, though late in the game, that no contract language affords us the opportunity to fight a future mandate outside of the bounds of the RLA and its binding arbitration process. It’s also important to keep away those nefarious entities that want to interpret contract language in inappropriate ways. We understand that this new information makes SWAPAs job harder. There is a lot of information to consume and digest in the late stages of the game. We also recognize that putting the brakes on the train is a nearly an insurmountable task, yet I believe it can be done if the right people listen and enough people speak up. SWAPA has the luxury of being last through the gauntlet. My hope is that this opportunity to make things right is not squandered.

Current SWFF leadership is split, 5 to 1, against any contract language.

The future of this fight is now squarely upon you, the voting pilot. This is hands down the single largest issue any airline pilot group has ever faced, and perhaps it will be the largest of our lifetime. Don't be distracted by the shiny objects surrounding contract negotiations. It doesn't matter how much your new pay rate will be if you're on the street fighting for your career.

We thank God that SWFF was afforded the time and opportunity to learn from others mistakes so that we can rise from the fold as the bold leaders of the airline medical freedom fight.

Thank you for your time and attention.

Sincerely,

SW Freedom Flyers Leadership