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Homer air carrier faces big fine over claim of whistleblower retaliation

  • Author: Zaz Hollander
  • Updated: September 28, 2016
  • Published February 23, 2016

Homer-based Bald Mountain Air Service faces more than $500,000 in penalties from the U.S. Department of Labor's Occupational Safety and Health Administration over claims that it retaliated against a former pilot who reported safety problems to federal investigators.

The Department of Labor on Tuesday announced a preliminary order that would require Bald Mountain to pay the pilot $100,000 in compensatory damages, $350 a day in back pay from November 2012 until he gets the offer of his job back, and interest on the back wages totaling more than $408,000 so far.

A top regional OSHA official called the order "significant" given the amount of potential penalties involved and said it's one of just a handful of aviation whistleblower cases in a four-state region.

The pilot had reason to think he was suspended, fired and then blacklisted in 2012 after he raised safety concerns, according to the Feb. 16 order signed by Department of Labor acting regional administrator Galen Blanton.

The pilot raised concerns ranging from drug and alcohol testing gaps to forged or falsified records, according to a news release issued Tuesday and documents obtained by Alaska Dispatch News through a public records request.

The complaints led to Federal Aviation Administration investigations that triggered civil penalties against Bald Mountain Air, the records show.

Bald Mountain Air Service has 30 days to file objections to the OSHA order and request a hearing before an administrative law judge. If no objections are filed, the findings become final and not subject to court review. It could take up to a year to resolve the case if it goes before a judge, OSHA officials say. The penalty could be reduced through settlement.

The longtime air carrier conducts bear-viewing flights, ferries oil workers to the North Slope and once held a medevac contract for Alaska Regional Medical Center.

The company is owned by Gary and Jeanne Porter, according to its website. An employee contacted about the OSHA order Tuesday morning said Bald Mountain had no comment.

Attorney Aaron Sperbeck of the Anchorage firm Birch Horton Bittner & Cherot emailed the following statement Tuesday afternoon: "BMAS recently received a copy of the preliminary investigative report and steadfastly denies the conclusory allegations continued therein. BMAS has 30 days in which to file its objections and seek review before an administrative law judge. BMAS intends to thoroughly examine all of its legal options before commenting further."

Gary Porter implied his former pilot was involved in some kind of wrongdoing involving the FAA, according to the preliminary order. The pilot was suspended and then terminated within days of the start of the FAA investigations into his complaints.

OSHA noted in the order that Porter was "evasive and inconsistent" during the investigation.

Aside from a short-term medevac job, the former pilot hasn't worked in aviation since leaving Bald Mountain and suffered financial as well as emotional hardship in the aftermath, OSHA maintains.

The pilot did not want to be interviewed for this story.

His attorney, Molly Brown of the Anchorage firm Dillon & Findley, said her client's inability to find work was the fault of his former employer.

"We knew Bald Mountain contacted other aviation companies and told them not to hire my client," Brown said. "Typically when we see whistleblower cases … this is exactly what happens to the person that makes the claim. They end up unemployed."

The OSHA order relates only to the merits of Bell's claims of retaliation, according to Tobias Kammer, the agency's acting assistant regional administrator for whistleblower programs.

Kammer said the Bald Mountain order is the only one of 20 aviation whistleblower complaints received in the past two years to make it to a decision at the regional administrator level. Eleven were dismissed and eight settled.

The U.S. Department of Labor doesn't release the names of employees involved in whistleblower complaints.

The pilot is Brian Bell, according to federal documents obtained through a prior records request.

Bell's complaints to the Federal Aviation Administration resulted in several civil penalty cases against Bald Mountain Air.

The company ultimately agreed to pay a $50,000 civil penalty that combined two separate cases, according to the 2014 penalty order.

One case involved a proposed $37,500 penalty for falsifying records including those concerning pilot competency and flight time. The other involved a $20,000 proposed penalty for operating a turbo-prop plane without an air-conditioning compressor belt after a frayed belt triggered an engine fire indicator.

Bald Mountain is still paying off the $50,000 penalty, with the last of three payments due in June, according to a settlement agreement.

A separate penalty case centered on the drug and alcohol violations. The FAA proposed a roughly $62,000 penalty after investigating 2012 drug testing issues at Bald Mountain but that amount was lowered to $42,000 for a final amount, records show.

Before he contacted the FAA, Bell in October 2012 brought his safety concerns to Gary Porter's attention in an email. Bell references "creative handling" of safety reports, drug and alcohol program protocols, as well as other documents in the email, which was part of the FAA document file.

The next month, federal documents show, he met with an Anchorage-based FAA aviation safety inspector.

Bell and two other employees accused Bald Mountain of records falsification involving a 2011 "check ride" -- a required pilot competency evaluation -- for Gary Porter. The chief pilot signed off on Porter's "check ride" even though Porter was in Georgia and the chief pilot was in Alaska at the time, according to FAA findings based on flight records and interviews.

Documents inspectors obtained showed someone later corrected the documents with Wite-Out or some kind of correction fluid, the investigators said.

The FAA revoked the chief pilot's certification, though it has since been restored.

Bell told FAA inspectors he also discovered his own and other pilots' signatures forged on training and audit forms used by outside companies and organizations to audit the carrier's safety.

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