Chicago airport police attack passenger on Republic Airlines plane

[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 an 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 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 almost 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 $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, and was a 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, the owner in control of the plane, 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!”