As disturbing as is the now widely-discussed incident of the brute force removal of a 69 year old doctor from a United flight last week, equally troubling is the poor job the press has done on such a high profile and relatively simple story. We’ll go over some of the glaring and regular errors as well as troubling oversights before turning to another puzzlingly under-examined issue: what this incident says about management at United. And we don’t mean arrogance and tone-deafness.

Reporting Failures

Widespread misreporting of the cause of the incident as “overbooking”. It would be difficult to figure out how to construct a reasonable sample, from reading a large number of accounts of the incident, a substantial majority, which I would guesstimate as being in the 75% range, refer to the cause of United’s perceived need to eject the elderly passenger, Dr. David Dao, as “overbooking”. Confirming this impression is that that four Senators and Governor Chris Christie, when weighing in on the incident, all referred to it as the result of overbooking or overselling.

Overbooking is a capacity management practice of selling more tickets for a particular flight than there are actual seats. Airlines do that because they have sufficient experience with the level of no-shows and late-in-the-game rebookings to not wind up with oversold flights all that often.

In fact, as careful readers know, United wanted to free up four seats so that crew members could fly to from O’Hare to Louisville. The excuse for United’s urgency was that if these crew members didn’t get to their flight, it would create cascading delays. Early accounts can be excused for this error, since the initial tweets with the appalling videos described the cause as overbooking. But any article published more than 24 hours after the story broke has no excuse for getting this basic and important detail wrong, particularly after United CEO Oscar Munoz said the flight was indeed not overbooked.

This widespread misreporting has the unfortunate effect of making United’s abuse seem like a disastrous handling of a routine problem when it was much worse than that. For instance, Amy Davidson of the New Yorker gets this wrong even with the knowledge that United decided to bump passengers to seat crew:

United overbooked it; that happens all the time. The airline let everybody board, and then decided that it needed four more seats to get some crew members to Louisville for work the next morning.

Let us underscore: even putting aside the violence, what happened in this case does NOT happen all the time, and that has legal implications.

Absence of reporting on airline regulations leads to widespread skewing of story in United’s favor. Even though most readers may think United is getting beaten up aplenty in the press, in fact it is getting a virtual free pass as far as its rights to remove a paying passenger with a confirmed seat who has been seated.1 This seems to reflect the deep internalization in America of deference to authority in the post 9/11 world, as well as reporters who appear to be insufficiently inquisitive. And there also seems to be a widespread perception that because it’s United’s plane, it can do what it sees fit. In fact, airlines are regulated and United is also bound to honor its own agreements.

It is telling, in not a good way, that Naked Capitalism reader Uahsenaa found a better discussion of the legal issues on Reddit than Lambert and I have yet to see in the media and the blogosphere (including from sites that profess to be knowledgeable about aviation):

Lawyer here. This myth that passengers don’t have rights needs to go away, ASAP. You are dead wrong when saying that United legally kicked him off the plane. First of all, it’s airline spin to call this an overbooking. The statutory provision granting them the ability to deny boarding is about “OVERSALES”, specifically defines as booking more reserved confirmed seats than there are available. This is not what happened. They did not overbook the flight; they had a fully booked flight, and not only did everyone already have a reserved confirmed seat, they were all sitting in them. The law allowing them to denying boarding in the event of an oversale does not apply. Even if it did apply, the law is unambiguously clear that airlines have to give preference to everyone with reserved confirmed seats when choosing to involuntarily deny boarding. They have to always choose the solution that will affect the least amount of reserved confirmed seats. This rule is straightforward, and United makes very clear in their own contract of carriage that employees of their own or of other carriers may be denied boarding without compensation because they do not have reserved confirmed seats. On its face, it’s clear that what they did was illegal– they gave preference to their employees over people who had reserved confirmed seats, in violation of 14 CFR 250.2a. Furthermore, even if you try and twist this into a legal application of 250.2a and say that United had the right to deny him boarding in the event of an overbooking; they did NOT have the right to kick him off the plane. Their contract of carriage highlights there is a complete difference in rights after you’ve boarded and sat on the plane, and Rule 21 goes over the specific scenarios where you could get kicked off. NONE of them apply here. He did absolutely nothing wrong and shouldn’t have been targeted. He’s going to leave with a hefty settlement after this fiasco.

His analysis checks out. “14 CFR 250.2a” is an FAA regulation. Here is what is says per a Cornell law school site, which courteously supplies links to definitions of key terms:

§ 250.2a Policy regarding denied boarding. In the event of an oversold flight, every carrier shall ensure that the smallest practicable number of persons holding confirmed reserved space on that flight are denied boarding involuntarily.

So the lawyer who popped up on Reddit looks to be on solid ground in saying it was an FAA violation to try to kick off a confirmed passenger in favor of crew.

Similarly, if you look at the relevant part of United’s Contract of Carriage, which indeed is Rule 21, “Refusal of Transport,” you will see a remarkably long list of situations and types of passengers, including “have or cause a malodorous condition (other than individuals qualifying as disabled), those who violate United’s policies regarding voice calls, and pregnant women in their ninth month, unless they have a recent doctor’s note (pray tell, since when are airline personnel expert in determining how far along a pregnant woman is?). And again you see nothing remotely like a “we need the seat for business reasons” or a catchall “because we feel like it”.

Astonishingly, a USA Today story, United Airlines can remove you from a flight for dozens of reasons you agree to, where the reporter was alert enough to consider United’s legal position and even mentioned the contract of carriage, spun the piece completely in United’s favor. Not only did the author apparently fail to read the relevant section, his sources gave the Big Corporate Lie that United must be right. From the article:

“Those contracts are well thought through. They are generally fair and balanced, and they reflect the market,” said Roy Goldberg, a partner at Steptoe & Johnson who practices aviation law in Washington, D.C. “As a general matter, passengers have rights, but airlines have rights, too.”

And the article like so many others, mischaracterize the issue as overselling, falsely telling millions of readers that United was on solid ground.

Similarly, Amy Davidson of the New Yorker distorted what happened to justify Dr. Dao’s removal:

The man, at any rate, refused—not on the principle of having bought a ticket and having some right to use it but because, he said, he was a doctor and had patients to see in the morning. That is a good reason, and one that was worth more than eight hundred dollars to the doctor as well as to, presumably, his patients. The airline seems to have disagreed; that’s when it called the cops for a forcible removal. Or, as the airline put it, in a tweeted statement that ignored the ordinary meaning of the words it used, “After our team looked for volunteers, one customer refused to leave the aircraft voluntarily and law enforcement was asked to come to the gate.”… In Chicago, the doctor’s emphatic “no” appears to have moved him into a category of non-compliant, troublemaking passengers, whom the airlines have, with what appears to be increasing indifference, treated as they see fit.

No, no, no. The very act of asking Dr. Dao to get off was illegitimate, and calling the cops didn’t make it so. One of the more detailed accounts, at the New York Post, suggests that things got out of hand when a third officer arrived and escalated matters:

Officials said a pair of security guards with the Chicago Department of Aviation had tried talking the man into leaving, to no avail. A third later arrived and threw the passenger against the armrest before the guards dragged him out of the plane.

One skeptical account comes from CBS’s Philly affiliate, Aviation Attorney Believes United Airlines Violated Its Own Contract, and on the Federalist blog.

Understating the extent of Dr. Dao’s injuries. Most of the accounts focus on his bloody lip and bruises. Far more serious was that he was knocked out. That is an almost certain sign of a concussion, which is also suggested by the fact that when he reboarded the plane, passengers depicted him as dazed. Only recently has the medical community started studying the danger of concussions particularly multiple concussions. However, an expert I know who is working with sports teams to try to reduce the risk of injury says there is increasing concern that as few as three concussions can produce cognitive impairment 10 to 20 years later. Those findings are based on trauma to young athletes like football players and boxers. The damage might show up sooner in an older victim. Admittedly, we have no idea if Dr. Dao has ever suffered a previous head injury, but the point is a concussion is far more serious than most people probably realize.

Troubling inconsistencies across stories. Dr. Dao was removed from the plane, yet some stories depict him as reboarding, as one put it, in “about ten minutes”. Yet Dr. Dao’s attorney has issued a statement saying in part:

“The family of Dr. Dao wants the world to know that they are very appreciative of the outpouring of prayers, concern and support they have received. Currently, they are focused only on Dr. Dao’s medical care and treatment,” said [Stephen L.] Golan [of Golan Christie Taglia]. “Until Dr. Dao is released from the hospital, the family is asking for privacy and will not be making any statements to the media”

Similarly, some accounts say the plane was emptied to clean up the blood from the removal and then reboarded. How does that square with Dr. Dao supposedly getting back on the plane shortly after being dragged off?

Lack of discussion of the status of the airport security personnel. The Financial Times was one of the few publications to be early to describe the airport security staff correctly, as security officers of the Chicago Department of Aviation. The Department of Aviation is a self-funded governmental unit (virtually no municipal airports in the US have been privatized). Its security personnel are airport police. They are not part of the Chicago Police department but appear to have their own special purpose authority within the airport.

First, we have the wee question of why the police didn’t operate more independently of United. Their job is to enforce airport rules, not act as agents of airline overreach. Second, a red flag is that Richard Zuley, an interegator at Guantanamo Bay as well as a 30 year member of the Chicago Police Department, had been homicide officer involved with a series of wrongful convictions. A 2015 Guardian story not discussed at length his aggressive techniques, which included allegations of torture. He had then left the CPD and was working as a security officer at the Chicago Department of Aviation. Is this just an isolated example or have other Chicago cops with dodgy records find a second career at the Chicago airport?

Underplaying Magnitude of United’s Management Fail

The press hasn’t bothered to go beyond cheap outrage. Too much of what passes for reporting comes straight from Twitter: first the video clip from passengers, then the appalling half-hearted statement of CEO Oscar Munoz contradicted by his internal e-mail that depicted Dr. Dao as “disruptive and belligerent” and defended staff for complying with “established procedures for dealing with situations like this.” It’s an open question as to whether he would have switched gears to a way-too-late attempt at a faux sincere apology had the story not gone even more viral in China than in the US, which is a top priority market for United, and the stock losing over $1.6 billion the next day.

The missed significance of the four crew members showing up after the plane has boarded seeking seats. This is no way to run an airline. The FAA tracks flight status of planes by their tail numbers in real time. If the four crew members were in a fix due to a flight delay, United should have known well before they landed and alerted the gate personnel of whatever flight it wanted to put them on as soon as the gate opened. Even though it was illegal to dump confirmed passengers, United could have come up with a cock-and-bull story, like the had been forced to use a smaller plane and some passengers would have to travel late. They could have called out the names of the four unfortunates. In that scenario. Dr. Dao’s only recourse would have been to make a stink in the gate area, which would have gone nowhere. And if the crew had been in Chicago and got to their original flight to Louisville late and therefore had to be moved over to this flight, that is inexcusable.

This in turn reveals the lack of any slack whatsoever in United’s system. Clearly the urgency was due to the four crew members somehow being late; Plan A had failed and the last minute boarding effort was Plan B or maybe even Plan C. As one experienced passenger said, “They can’t come up with four crew members in one of their biggest hubs?”

It also is a symptom of a badly fragmented business system heavily dependent on contractors. As reader Jerry Denim said:

United’s real problem isn’t PR though, it’s outsourcing. An astonishing amount of United Airlines flying is conducted by outsourced employees who work for contractor shell companies. The whole idea is cost savings/profits through labor arbitrage and the typical race to the bottom dynamic. Regional airline employees have coined their own term for it- “The Whipsaw”. Even worse than the shell-company Regional airlines whose employees are second class citizens are the shape-shifting contractor companies that provide gate agents, bag handlers and other random airport services for United. These people are really paid peanuts and mistreated, they are something akin to third or fourth class employees and usually not what I would call the cream of the labor pool. The United flight with the passenger that was brutally manhandled was UA 3411, it was technically operated by Republic Airlines, one of United’s many “regional partners”. As this event took place in Chicago O’Hare the person who made the decision to cap the offer for volunteers willing to give up their seats at $800, then call in a goon squad to get rough was likely a full-fledge United employee, but then maybe not. When I was a outsourced regional jet captain operating United Express flights between 2010 and 2014 the gate agents in charge of the regional (out-sourced) flights at United hub, Washington-Dulles, were third-party contractors. They were horribly trained and frequently surly. The gates were always crowded, everyone there was angry, nothing worked, it was utter chaos and misery. I absolutely dreaded flying there and did my best to avoid it, Chicago was only a little better. Sadly the horrible, unnecessary violence that played out on United Express flight 3411 doesn’t surprise me a bit and is par for the course with a company as disgruntled, disorganized and dysfunctional as United. I really don’t think the upper management at United has any clue about the nuts and bolts, day to day, inner workings of the company. Post-merger United is too big to fail, too big to manage and far too Balkanized to govern. I fully expect the ugliness to continue at United.

It’s bad enough when travelers suffer the indignity of disrupted plans, crowded planes, security theater and too often cranky airport staff. Now we’ve seen United execute a private sector extraordinary rendition. Perhaps this fiasco will lead to some improvements, but the lousy economics of airlines combined with their oligopoly status in the US says they will be extremely reluctant to make anything beyond bare minimum changes.

Update 4/13/17: Confirming our section Understating the extent of Dr. Dao’s injuries, and in particular our observation that Dr. Dao has almost certainly suffered a concussion, this morning the Wall Street Journal reported Doctor Dragged From United Flight Suffered Multiple Injuries, Will ‘Probably’ Sue. From the story: