Disagreement Over Security Grounds for Termination? A Case Study

Katz, Marshall & Banks

During pre-flight preparations at SFO last July, United employees discovered a disturbing image drawn on the tail of the aircraft near the access panel to one of the gas turbine engines. The image showed two faces, one of which could be interpreted as threatening, and the words "BYE BYE".

Fearing a possible bomb, the Captain opted to hold the flight because of security concerns and passengers, who had not yet boarded, were told the flight was delayed for maintenance reasons. Maintenance inspectors inspected the engine compartment and found nothing suspicious. They did not inspect the rest of the plane. The Captain, suspecting that the drawing was just a bit of ground crew graffiti, deemed the aircraft safe to fly and ordered the passengers boarded.

However, the flight attendants did not agree. They felt that the only way to ensure complete safety was to conduct a full security sweep of the aircraft. They refused a direct order from the United SFO inflight supervisor to return to work, which constituted grounds for dismissal under United rules. Thirteen flight attendants were terminated and the flight was canceled because of crew availability. The attendants have filed a federal whistle-blower complaint with the US Occupational Safety and Health Administration and are considering a lawsuit for wrongful termination.

This incident makes an excellent case study for decision makers. On the one hand, you have a genuine concern for passenger safety demonstrated by the flight attendants. On the other hand, you have United managers using risk analysis as the basis for deciding that a threat was not credible. Or you could describe it as an irrational fear for their own lives by the attendants versus corporate employees placing profits above safety. It all depends on your perspective.

This is what makes this such an great case study. We are taught that safety is always our first priority but the reality is that we can not guarantee complete safety and that safety comes at a cost. We are frequently in a position where we have to weigh that cost against other factors such as the credibility of the threat, expense, and public inconvenience. That sometimes means accepting a certain amount of risk.

Imagine yourself the person that had to make the decision as to whether or not to cancel this flight and conduct a full security sweep. What would have been your recommendation?

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Police used teargas to drive back protesters following an attempt by the Occupy supporters to shut down the city of Oakland. Photograph: Noah Berger/AP

Early last month I wrote a blog titled How The Media Raises Your Anxiety Over Terrorist Attacks in which I traced the evolution of a story from a largely unsupported series of statements to a full-blown end-of-the-world type story. There is a story currently making the social media rounds that shows once again have different perspectives, bias, and additions can change even the most common sense and routine government action into a conspiracy.

In her recent article Revealed: how the FBI coordinated the crackdown on Occupy, journalist Naomi Wolf claims proof of a coordinated effort by corporations and the government to repress dissent, citing a document obtained by the Partnership for Civil Justice Fund under the Freedom of Information Act. Ms. Wolf links this pre-event surveillance and planning to the violent response by many police departments to Occupy activities, even though the original PCJF article and the related document discusses surveillance and coordination meetings, not tactical plans. Ms. Wolf’s implication is that the violence was preplanned at the direction of corporate America rather the actions of individual officers or poor departmental planning.

However, my real issue is the implication that coordinated planning between government and the corporate sector is by its very nature suspect. This is completely contrary to what we in the emergency management community have been working towards for years. Effective response requires cooperation and integration of all available resources, whether private or public. We try to anticipate problems and to develop an appropriate plan of action.

According to the General Accounting Office, 85% of the critical infrastructure in the United States is in the hands of the private sector. Threats to this infrastructure, from whatever cause, can produce significant harm to both the economy and individual citizens and are therefore the legitimate concern of government. To discharge that responsibility, it is essential that the government work closely with the private sector. To gather information on potential threats, to meet and coordinate planned activities, and to work collaboratively during response is essential. To do otherwise would be gross negligence.

Like many Americans, I’m concerned by the overuse of government surveillance and the gradual erosion of privacy. These are legitimate concerns. However, we must recognize that there are times when surveillance is appropriate and necessary and when government and the private sector must work together for the benefit of all.

Watch for a more in-depth discussion on this topic in this month's newsletter, Emergency Management Solutions.

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In considering the recent hacking incident involving Sony, I’ve been trying to put myself in the position of the decision-makers who had to react to the crisis. I’ve been asking myself, “What advice would I give my CEO in this situation?” It is easy to second-guess such decisions after the fact. It is also easy to spout platitudes such as, “no negotiations with terrorists” or “we must stand firm in the face of terrorism.” But when it is your loved one that is the focus of the negotiation or your local theater that is firebombed, the discussion takes on a more personal dimension.

CEOs receive advice from many during a crisis and the nature of that advice is, to a certain extent, predictable. Corporate counsel will inevitably recommend the most cautious approach that limits company liability, for example. But too cautious an approach carries a price as well, as we are seeing in the many voices criticizing Sony’s decision to capitulate. On the other hand, a decision to continue business as usual carries enormous liability in the event an incident actually occurs.

So how do we give the best possible advice to corporate decision-makers? Ultimately, we must fall back on the fundamental emergency management skill of assessing risk. In this case, we need to ask, “What is the capability of those making threats to actually carry them out.” Secondly we must consider our own ability to block any attempts to harm the public. But this only takes us so far. We also need to consider the ramifications of any decision that we make.

Let me put this in a slightly different context. The Disney Corporation is seldom sued. The reason for this is that years ago Disney made a conscious decision not to settle frivolous lawsuits. There was clearly an initial cost in litigating frivolous lawsuits but, in the long run, this upfront costs was recouped 100 times over through the avoidance of future frivolous lawsuits. Lawsuits against Disney became an expensive proposition that yielded few rewards and few attorneys were willing to take them on without a solid complaint.

Returning to the Sony incident, we need to consider not only the ramifications of this single incident but what it will mean in terms of future incidents. Can we allow anyone with an Internet connection to dictate how we lead our lives? Risk is an inherent part of life and I believe that if we make people aware of the risk and allow them to decide whether it is acceptable or not they will support us. There are ample historical examples of this. In the end, we must take the long term view and accept that nothing we do is truly risk-free.

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A fallen tree in Golden Gate Park caused by last week's storm

As I write this, San Franciscans are enduring what has been billed as the "storm of the decade". The forecast is for severe winds, which for us means sustained winds of around 30 MPH with gusts approaching 50 MPH and rainfall of up to 3 inches. The National Weather Service has issued a number of advisories, watches, and warnings.

So far we've seen steady and heavy rainfall and occasional wind gusts. I'm told about 38,000 are without power in my neighborhood and expect that we'll see some downed trees as we did in last week's storm. The emergency services have done a good job of providing advance notice and preparedness information and are standing by to deal with anything untoward. Schools have been closed for the day in many communities, including San Francisco, and a number of events have been canceled.

Whoa! Let's step back and put this in context. Is this a bad storm? You bet but it's no worse than others we have experienced. Winds of up to 50 MPH are not unusual in San Francisco (see the article below about a Hazardous Weather Outlook in November). But school closures and cancellations of planned events are. I'm not knocking the people that made these decisions – they are prudent precautions and were made after considerable thought. What I am interested in is the high level of public concern that prompted such actions.

To someone from the East Coast who regular experiences hurricane warnings, our concern over 50 MPH gusts must seem ludicrous. For those who endure winter storms that dump feet of snow or those in the Midwest who see regular flooding, 3 inches of rain may produce chuckles. Well, we in the Bay Area laughed at you when you had that minor earthquake a few years ago and went into panic mode.

The simple fact is we fear what we don't understand. After three years of drought, many in the Bay Area have forgotten the El Nino rains of the late 90's. We don't know what to expect from a heavy rainstorm. It doesn't help that you are reminded of the oncoming storm every time you turn on the TV or surf the net.

What can you do to relieve your anxiety? There are three simple things you can do:

1. Educate yourself about the risk and what you can do to protect yourself. In this case, local emergency services offices have provided plenty of advance warning and useful information.
2. Put the risk in context. For example, just because the NWS issues a Flash Flood Watch doesn't mean you are at risk from a flash flood. But if you're traveling or live in an area that is, you need to be aware of the potential for a flash flood.
3. Monitor the situation as it develops. Keeping up on problems that occur during the event can help you avoid trouble. Many jurisdictions offer public text or twitter alerts during an event.

Storms are unpredictable and always carry risks. Prudent precautions are never wrong. But don't let an approaching storm cause you to live in fear.

Stay dry out there!

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A colleague recently posted an article from Smarter Travel that said that "counter-terrorism officials" were considering a ban on carry-on bags and personal electronics over the holidays because of intelligence that terrorists were targeting US flights bound for Europe. My first reaction was that we were in for more "terrorist theater" where thousands of travelers will be inconvenienced because of a vague threat. It also looked like a boon to baggage thieves, with all those cell phones, laptops, and cameras being placed in checked luggage, and possibly to the airlines who charge fees for checked luggage.

But my spider-sense started tingling. The threat was very specific: only Europe-bound flights were targeted, not US-bound flights. (And, of course, terrorists would never consider changing their targets just because we implemented draconian measures for those flights.) The article said that US officials had confirmed the intelligence about the attack, so I went to the original NPR article.

The NPR article originated with an article from a UK newspaper site. NPR did receive confirmation from "US officials" that they had intelligence suggesting a high-profile attack by al-Quaida over the holidays. However, the NPR article did not reference flights originating in the the US. In fact, it said just the opposite:

The plot, the U.K. newspaper reports and U.S. officials confirm, is thought to involve the smuggling of bombs onto planes bound for major cities in Europe. The plan did not seem to include any U.S.-bound flights, U.S. officials told NPR.

Turning to the original UK article, several things are immediately apparent. The intelligence is over two months old and supposedly came from US intelligence sources, according to an unnamed "airport security source". Neither Scotland Yard nor the Department of Transport (with responsibility for airline security in the UK) would comment on the allegations. According to the unnamed source, bans on carry-on bags and electronics were options that were under consideration. However, the article does a good job of explaining why such measures would be difficult to implement. And even the source says: 

All electronics may be banned from hand luggage and placed in the hold, that has been considered, and there has been behaviour analysis training at airports but while it's effective, it's difficult to roll out quickly and is not a sufficient safety net.

The threat is aimed at Europe. The U.S has improved their security over the summer but we have not.

If we consider all three articles, it's easy to see how minor changes transform the threat from a UK issue to a US one, raising concerns that the Department of Homeland Security will once again over-react and make travel even more miserable than it is already. The threat of terrorism is very real, particularly in Europe but, as with any threat, it is important to keep it in perspective. We need effective security, not reactive security.

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Reflections on Veteran’s Day

If you were to ask, I would never have said that my family has any sort of military tradition. Our family history doesn’t include any great heroes or participants in major battles or campaigns. However, on doing some personal reflection yesterday for Veterans Day I realized that at least three generations of my family have served.

Mind you, I am stretching a point with my father. The sum total of his military experience was a brief stint in the home guard in Belize during World War II. In the unlikely event that the Axis powers invaded the mangrove swamps of Belize, my father and his friends were prepared to defend their homeland. I only know about his service from a funny story he used to tell. It seems that while they were drilling in an aircraft hangar my father accidentally discharged his rifle. The resulting scramble for cover by his fellow soldiers did not bode well for the future performance of the home guard in battle.

My own service was considerably different. After completing college on an Army scholarship, I spent seven years in Germany at the height of the Cold War. It was a serious time – Vietnam was just winding down, there was war in the Mideast that threatened to spill over into a nuclear conflict, and the Warsaw Pact forces were becoming aggressive. As so often happens after a war, we had to deal with outdated equipment, personnel shortages, and limited training budgets. Drug and alcohol abuse was common as the Army tried to redefine itself after the debacle of Vietnam. But I learned more about life in one year there than I had in four at college.

If my war was cold, my son’s was considerably warmer. Following September 11, my son felt the need to do something and enlisted in the Army Reserve. Shortly after completing his training, his transportation unit was deployed to Kuwait for a year to provide support for the combat in Iraq. He still doesn’t talk much about his experiences there.

I left active duty to complete my Master’s degree and enter a career in public service, though I did continue to serve in the Reserves until retirement. My son completed his service and is currently enrolled in a police academy. We do not consider ourselves a “military” family. Nor do we consider ourselves “heroes” for having served. I did meet a number of true heroes during my service and I think that title truly belongs to them, not to me. The rest of us were just getting on with the job we had chosen.

Yet our experiences in the military changed us in subtle ways. The lessons I learned about leading groups of people from disparate backgrounds have influenced and continues to influence me. My son returned from Kuwait a confident, mature man. We are proud of our service and of the bond we share with other men and women who have served. But we are well aware that neither the military nor everyone who serves in it is perfect. So please don’t call us heroes; we’re just ordinary people who chose to do a particularly nasty job.

Oakland University Hosts World’s First Zombie Health Symposium

Had enough of zombies yet? Goodness knows I have. But it is that time of year and I suppose it’s to be expected that someone would come up with yet another way of using zombies as a metaphor. This time it’s the faculty at Samuel Merritt University in Oakland, California. The University is hosting a zombie health symposium today. The idea is to blend fantasy with real science and use zombies as a springboard for discussing larger health issues while at the same time engaging students with a bit of whimsy. If you’re truly interested, you can read more on the University’s website.

Full marks to the faculty at Samuel Merritt for coming up with a way to have productive scientific discussions with their students. However, the curmudgeon in me has to ask why we feel this need to go to such extraordinary lengths to engage audiences. I’m all in favor in making learning fun and trying to avoid mere boring recitation of facts. But sometimes the message can get lost in the medium. When we use metaphors such a zombies and vampires there’s always a risk that audience will be having so much fun with the fantasy we’ve created that they miss the point of the exercise. I’ve written before about how such scenarios can be taken out of context and generate negative publicity. For this reason, we need to be very careful how we use such methods, particularly if we are a public agency.

That being said, I think the approach that the faculty at Samuel Merritt is using sounds like great fun. If I’d known about it sooner I might even have dropped by. You never know when a bit of knowledge will come in handy…

It’s The End of the World! So What?

One of the things I constantly battle against as an emergency manager is the "flavor of the month" approach to emergency management. This is our tendency to only focus on preparing for an event when it's about to smack us in the face.

A good example is the current scare over Ebola. I mean, it's not like we've ever had to deal with such a deadly disease, is it. Remember how we panicked when H1N1 reared it's head a few years ago? And before that, SARS scared us silly. We also have the example of the 1918 influenza pandemic that killed around 50 million people. Yet are we prepared for a pandemic? Doesn't look like it, judging from the way things have been handled so far. So we're jumping through hoops to craft strategies that could have been put in place years ago.

And recent news here in California will come as a surprise to many: there's a serious risk of a major earthquake in the Bay Area! A recent paper in the Bulletin of the Seismological Society of America found the following:

From mean accumulation rates, we infer that four urban faults appear to have accumulated enough seismic moment to produce major earthquakes: the northern Calaveras (M 6.8), Hayward (M 6.8), Rodgers Creek (M 7.1), and Green Valley (M 7.1). The latter three faults are nearing or past their mean recurrence interval.

Suddenly everyone is talking about earthquake preparedness. as if we've never even considered such a thing before, even though we had a 6.0 earthquake in Napa less than two months ago.

Wake up people! The world is not a safe place. If you live in the Bay Area, earthquakes are a fact of life. Just because some scientists published a paper reinforcing what we've know all along doesn't mean that the risk of an earthquake in the Bay Area has changed from yesterday. It has been and still is high, just as it is for Seattle and Los Angeles. And Ebola has been around for years – we've actually dealt with an outbreak in the US before (read Richard Preston's 1994 book, The Hot Zone if you want some sleepless nights). We just haven't bothered to do anything about Ebola because it wasn't "in our face".

So stop living in fear every time Fox News needs to raise its ratings. If you're really worried about the end of the world as we know it, get off your dead butt and do something about your personal preparedness. And sleep soundly – I guarantee the world will not end tonight.

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Are Volunteers a Liability?

One of the risks that we accept in any emergency operation is that of liability exposure. We live in a litigious society where lawsuits are common, particularly in the aftermath of disaster. But can we allow the threat of a potential future lawsuit to stop us from doing the right thing? I like to think that most of us would say no. The city of Petaluma would not agree.

In 2010, a CERT volunteer driving home from training severely injured a pedestrian in a crosswalk. The attorney for the pedestrian named the city in the lawsuit on the basis that the driver was carrying city issued radio equipment used in the training. As is usual in many cases of liability, the city attorney opted to settle the case rather than risk a larger judgment in a trial. The case was settled in excess of $1 million.

As a result of this lawsuit, the city of Petaluma has withdrawn sponsorship from the CERT program. The program has been in existence since 2006 and has been funded entirely by grants to the Petaluma Fire Department. According to the program coordinator, withdrawal of sponsorship affects FEMA certification of the graduates and registration as State Disaster Service Workers, a designation which provides Workers Compensation coverage during disaster operations.

Legal experts familiar with the case believe that the city made an error in not litigating the lawsuit. There is existing legal precedent that does not hold an employer liable for accidents that occur while an employee is traveling to or from work, suggesting that the city could have prevailed had the case gone to trial. Even if this is not the case, the decision to withdraw sponsorship for the CERT program to prevent future lawsuits is hard to justify.

The real issue here is the mistaken belief that volunteers create a liability exposure that exceeds their value to the community. This excuse has been used on occasion to prevent the startup of programs such as CERT. The simple fact is that trained volunteers are infinitely more valuable to a community at the time of crisis than emergent volunteers with no training.

Do volunteers create a liability exposure? Of course they do, in the same way that any employee does. However, that exposure can be reduced through a well-documented program and a clear definition of what constitutes a volunteer’s job. This is merely good project management and there are ample tools to guide the development of such a program.

So don’t let the threat of liability exposure stop you from starting volunteer programs. Assess and mitigate the risks as much as possible but stop using them as an excuse for inaction.

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