Change of Control Update
- Thread starter Tim Nelson
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redeye
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700,
I always wondered about that.
Article XIII Section 1 of the 141 By-laws includes this statement:
It shall be mandatory for the best interest of the membership involved in
all negotiations for the respective negotiating committee to recommend
acceptance or rejection of the proposed agreement prior to its ratification
by the membership.
Why did the Negotiation Committee act against the By-laws and
decline to demonstrate leadership. That was the opportunity for the
Union to solidify the membership and give them direction.
When a Company Lays off a significant amount of workers and threatens
to chop their pay in half, they do this to scatter the membership and
guarantee a significant no strike vote.
Our leadership chose to hold an informational meeting at the voting area
and tell us "We have no recommendation, but, if you vote "no" the company
will fold".
IMO Our Union leadership sold us out.
That is why there is such a movement for "CHANGE"
Just an opinion,
Thanks,
The Bagfather
Senior
Every second that goes by gives 141 that much more time to rob you blind.
I just got the messenger in the mail. President Canale is asking for support
and unity so as not to embolden the company to give you less.
After he has given the company every opportunity to get away with
murder.
Then he has the
the nerve to tell you to get your information from his AGCs and not look
elsewhere. Here's what one of his AGCs said when asked about section 6
for the west "That wasn't considered". I asked another AGC from United
and he claimed not to even heard about it which is pathetic even if he was
telling the truth.
It's too late for 141. Canale's latest message continues to feign the same
naivety and takes no responsability for has own actions. For you easties
the update on the COC gets 2 paragraphs on the back page with zero
as to how important it could be.
I assume you think, because of the optimism expressed here that we
should wait till the COC is decided. I'm a westie but I think the COC
will be valuable to us also. I think Canale still has a chance to botch it.
But mabey we should ask one of his AGCs.
Now is the time step up to the plate IBEW we're behind you!
orioleman
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bagfather,
"I assume you think, because of the optimism expressed here that we
should wait till the COC is decided. I'm a westie but I think the COC
will be valuable to us also. I think Canale still has a chance to botch it."
You are absolutely right in assuming that a win in the COC will give Randy some superman powers to
go back and reneg. our contract and strip the east and possibly the west of any award.. I say let the COC go forward
and be rid of the IAM NOW..
"I assume you think, because of the optimism expressed here that we
should wait till the COC is decided. I'm a westie but I think the COC
will be valuable to us also. I think Canale still has a chance to botch it."
You are absolutely right in assuming that a win in the COC will give Randy some superman powers to
go back and reneg. our contract and strip the east and possibly the west of any award.. I say let the COC go forward
and be rid of the IAM NOW..
Jester
Veteran
The more I read the details of the respective arguments, the more convinced I become of Company winning CIC. Without rehashing the details, there were clearly times for which IAM should have disclosed or mentioned its views and intentions regarding the CIC, but choose not to do so from the first BK when nothing was said, to the second BK and only to mention it when new investors came in flush with cash and after IAM signed an estoppel agreement. I would think the Court would view this with a jaundices eye for IAM failing to disclose its intentions as it appears to be a lack of good faith, where representations by IAM for which have been relied or acted upon by others.
As for a sale of assets or common stock the arguments of the IAM are nearly laughable. The outstanding common stock between BKs became someone's bathroom wall paper or an Ebay collectible as no one bought those worthless pieces of paper with any plans of owning an airline or its assets. As for the assets, hundreds of creditors owned them as they were about the only ones with any security, so does that mean so goes the separate assets so there goes the employees? If US Airways was to have liquidated would that mean the mechanics and rampers have some claim or right to employment with a snapback clause as with the scores of new owners purchasing those assets at auction? Even without an auction, US Airways merged with America West, and thus no change in ownership happened outside of creditors did recieve new stock in return for their claims. The Court will be hard pressed to view any creditors as a "change in ownership" as it was the result of a BK because their assets would be severely devalued by the burden of having to take unwanted and unnecessary former employees.
*IF* the ruling is in favor of Company, will the East put this issue behind themselves and along with the IAM recognize there is a large group on the left side of the country who has been pretty much ignored for the past two years and work with the West to bring us to some parity?
So opines Jester.
As for a sale of assets or common stock the arguments of the IAM are nearly laughable. The outstanding common stock between BKs became someone's bathroom wall paper or an Ebay collectible as no one bought those worthless pieces of paper with any plans of owning an airline or its assets. As for the assets, hundreds of creditors owned them as they were about the only ones with any security, so does that mean so goes the separate assets so there goes the employees? If US Airways was to have liquidated would that mean the mechanics and rampers have some claim or right to employment with a snapback clause as with the scores of new owners purchasing those assets at auction? Even without an auction, US Airways merged with America West, and thus no change in ownership happened outside of creditors did recieve new stock in return for their claims. The Court will be hard pressed to view any creditors as a "change in ownership" as it was the result of a BK because their assets would be severely devalued by the burden of having to take unwanted and unnecessary former employees.
*IF* the ruling is in favor of Company, will the East put this issue behind themselves and along with the IAM recognize there is a large group on the left side of the country who has been pretty much ignored for the past two years and work with the West to bring us to some parity?
So opines Jester.
The Bagfather
Senior
Jester: I guess we'll find out in Feb. But that's what worries
me. 141 will have all that time to mess it up.
It's interesting that we both have at least half a brain and
come to completely different conclusion
IMO the common sence approach to the meaning of the
terms should be taken into account. Laws are meant to
take normal meanings of things into account.
So one should ask the simple question. Is US Airway
under control of the same entity as it used to be?
Are the former owners of the company still running it?
If not then there was a change of control.
The company never comes close to even considering
whether or not there was a real change of control but
sidesteps any real discusion and makes very good but
completely irrelavent arguements. What does Delaware
law have to do with a company coming under control
of a different company?
US airways was a company in BK . For me to understand
that there was no change of control would mean that
US airways with the help of investers emerged from
bankrupcy as the same company. That would have
to mean that America West experienced a change of control.
One Particular question I have is why did whoever was the
company get two other labor groups to agree to drop
COC language and not the IAM? Did ALPA at one point
say; "Hey guys, before you agree to take us on as
employees there's something you should know about our
contract"
When one company purchaces or merges with another
company they assume responsabiliy for all contracts
including labor contracts. The labor force is a commodity
in that respect. The lawyers are responsible to advise
their employer as to the details of the contract.
What appears to me to have happened is someone dropped
the ball on this and the company until now has been able
to ignore it. The fact that the company would not have
agreed to FS contract with it's CIC clause is completely
irrelevant. At least in terms of the arbitration.
Is anybody still reading this crap? If you are your either
pretty crazy or a closet lawyer wannabe like me..Thanks BF
me. 141 will have all that time to mess it up.
It's interesting that we both have at least half a brain and
come to completely different conclusion
IMO the common sence approach to the meaning of the
terms should be taken into account. Laws are meant to
take normal meanings of things into account.
So one should ask the simple question. Is US Airway
under control of the same entity as it used to be?
Are the former owners of the company still running it?
If not then there was a change of control.
The company never comes close to even considering
whether or not there was a real change of control but
sidesteps any real discusion and makes very good but
completely irrelavent arguements. What does Delaware
law have to do with a company coming under control
of a different company?
US airways was a company in BK . For me to understand
that there was no change of control would mean that
US airways with the help of investers emerged from
bankrupcy as the same company. That would have
to mean that America West experienced a change of control.
One Particular question I have is why did whoever was the
company get two other labor groups to agree to drop
COC language and not the IAM? Did ALPA at one point
say; "Hey guys, before you agree to take us on as
employees there's something you should know about our
contract"
When one company purchaces or merges with another
company they assume responsabiliy for all contracts
including labor contracts. The labor force is a commodity
in that respect. The lawyers are responsible to advise
their employer as to the details of the contract.
What appears to me to have happened is someone dropped
the ball on this and the company until now has been able
to ignore it. The fact that the company would not have
agreed to FS contract with it's CIC clause is completely
irrelevant. At least in terms of the arbitration.
Is anybody still reading this crap? If you are your either
pretty crazy or a closet lawyer wannabe like me..Thanks BF
flybynite
Veteran
To answer one of your questions, USAirways is incorporated in the state of Delaware.
I think it was changed to Delaware some years ago, someone correct me if I'm wrong, because the state of Delaware has very strict laws preventing hostile takeovers of corporations.
We also had what is called a "Poison Pill" in our charter(I think that's what it' called) so an entity couldn't buy up a controling amount of stock.
I think it was changed to Delaware some years ago, someone correct me if I'm wrong, because the state of Delaware has very strict laws preventing hostile takeovers of corporations.
We also had what is called a "Poison Pill" in our charter(I think that's what it' called) so an entity couldn't buy up a controling amount of stock.
The Bagfather
Senior
OK I plead ignorance. So it sounds like in Delaware the langauge
in a labor contract needs to fit Delaware law. Or in this case
for instance in order to be effective a contract would have to
define what a COC in that context is meant to be.
So I guess the argument is whether or not COC means different
things in different states. But and correct me if I'm wrong
the "all or substantially all" criterion is from Delaware case law
involving a unrelated type of dispute.
in a labor contract needs to fit Delaware law. Or in this case
for instance in order to be effective a contract would have to
define what a COC in that context is meant to be.
So I guess the argument is whether or not COC means different
things in different states. But and correct me if I'm wrong
the "all or substantially all" criterion is from Delaware case law
involving a unrelated type of dispute.
flybynite
Veteran
Delaware is a corp. tax haven. And they enacted a law back in '88 to help corps. prevent hostile takeovers. This was back when there was a rash of hostile takeovers. An acquiring company has to capture 85% of another companies stock in one transaction or wait 3 yrs. Something like that.
Anyway, that's one of the reasons we're incorporated there.
Jester
Veteran
Bagfather,
Allow me to briefly respond to your various comments as I see it:
"IMO the common sence approach to the meaning of the
terms should be taken into account. Laws are meant to
take normal meanings of things into account.
So one should ask the simple question. Is US Airway
under control of the same entity as it used to be?
Are the former owners of the company still running it?
If not then there was a change of control."
By that definition, when any corporation has stock holders buying and selling stock or experiences a change in managment, then that would be a 'Change in Control'. Clearly, the CIC language was placed into the contract for a pending United deal in which neither company would be in BK.
"US airways was a company in BK . For me to understand
that there was no change of control would mean that
US airways with the help of investers emerged from
bankrupcy as the same company. That would have
to mean that America West experienced a change of control."
To expand a company or to have a merger does not automatically mean a change of control, but the BK issue alone creates if nothing else a change in ownership from the stockholders to the creditors, which again, using the most lose definition of 'Change in Control' would mean the creditors would be forced to accept a labor snap back agreement? I don't see that happening.
"One Particular question I have is why did whoever was the
company get two other labor groups to agree to drop
COC language and not the IAM? Did ALPA at one point
say; 'Hey guys, before you agree to take us on as
employees there's something you should know about our
contract'"
I have said from the beginning that very intelligent and very informed legal minds from both Management and other labor groups have crawled through this issue of CIC, and yet IAM was the only one who saw things differently? Another reason why I don't think IAM will win this one.
"When one company purchaces or merges with another
company they assume responsabiliy for all contracts
including labor contracts. The labor force is a commodity
in that respect. The lawyers are responsible to advise
their employer as to the details of the contract."
Unless the another company is in BK and all contracts are subject to modification or rejection and often times an estoppel agreement is signed just to be sure everyone does not have some material issue which needs to be addressed before further actions are taken. (As was done with the IAM.)
"What appears to me to have happened is someone dropped
the ball on this and the company until now has been able
to ignore it. The fact that the company would not have
agreed to FS contract with it's CIC clause is completely
irrelevant. At least in terms of the arbitration."
You are right that someone dropped the ball... it was the IAM. They failed to act and notify either the Courts or Management of their intentions and their understanding as to the meaning of the CIC even after the first BK. They hid their true intentions and while they claim not to have any obligations to disclose their bargaining tactics, a Judge might find this to be misleading and a deliberate material omission in a bankruptcy proceding for potential investors. Parker himself said that there would have been no deal if the CIC was going to be claimed later by the IAM. Probably Parker would have used the BK laws as a hammer to remove it, but since IAM wasn't making any claim (along with other labor groups), why bother?
"Is anybody still reading this crap? If you are your either
pretty crazy or a closet lawyer wannabe like me..Thanks BF"
Still reading and maybe law school yet for me.
Allow me to briefly respond to your various comments as I see it:
"IMO the common sence approach to the meaning of the
terms should be taken into account. Laws are meant to
take normal meanings of things into account.
So one should ask the simple question. Is US Airway
under control of the same entity as it used to be?
Are the former owners of the company still running it?
If not then there was a change of control."
By that definition, when any corporation has stock holders buying and selling stock or experiences a change in managment, then that would be a 'Change in Control'. Clearly, the CIC language was placed into the contract for a pending United deal in which neither company would be in BK.
"US airways was a company in BK . For me to understand
that there was no change of control would mean that
US airways with the help of investers emerged from
bankrupcy as the same company. That would have
to mean that America West experienced a change of control."
To expand a company or to have a merger does not automatically mean a change of control, but the BK issue alone creates if nothing else a change in ownership from the stockholders to the creditors, which again, using the most lose definition of 'Change in Control' would mean the creditors would be forced to accept a labor snap back agreement? I don't see that happening.
"One Particular question I have is why did whoever was the
company get two other labor groups to agree to drop
COC language and not the IAM? Did ALPA at one point
say; 'Hey guys, before you agree to take us on as
employees there's something you should know about our
contract'"
I have said from the beginning that very intelligent and very informed legal minds from both Management and other labor groups have crawled through this issue of CIC, and yet IAM was the only one who saw things differently? Another reason why I don't think IAM will win this one.
"When one company purchaces or merges with another
company they assume responsabiliy for all contracts
including labor contracts. The labor force is a commodity
in that respect. The lawyers are responsible to advise
their employer as to the details of the contract."
Unless the another company is in BK and all contracts are subject to modification or rejection and often times an estoppel agreement is signed just to be sure everyone does not have some material issue which needs to be addressed before further actions are taken. (As was done with the IAM.)
"What appears to me to have happened is someone dropped
the ball on this and the company until now has been able
to ignore it. The fact that the company would not have
agreed to FS contract with it's CIC clause is completely
irrelevant. At least in terms of the arbitration."
You are right that someone dropped the ball... it was the IAM. They failed to act and notify either the Courts or Management of their intentions and their understanding as to the meaning of the CIC even after the first BK. They hid their true intentions and while they claim not to have any obligations to disclose their bargaining tactics, a Judge might find this to be misleading and a deliberate material omission in a bankruptcy proceding for potential investors. Parker himself said that there would have been no deal if the CIC was going to be claimed later by the IAM. Probably Parker would have used the BK laws as a hammer to remove it, but since IAM wasn't making any claim (along with other labor groups), why bother?
"Is anybody still reading this crap? If you are your either
pretty crazy or a closet lawyer wannabe like me..Thanks BF"
Still reading and maybe law school yet for me.
Hadenough
Senior
Jester
FWIT: I think the ruling on the COC would have been in our favor. We all have opinions on this matter. We are all real good s**t house lawyers but alas we choose to sling bags for a living. Bagfather yes we are still reading this stuff. Everyword. I think its great to hear everybodys ideas about the brief. Good read by the way. It was easier to print it out and then read it. Actually took it to work after I was through so others could read it.
Now back to my reason for all this. Notice I said "would have been in our favor".
IMO its a moot point. Rumor has it that Canale is conducting prelim talks with the company. I really do not think either the IAM nor the company wants the ruling to proceed. The repercussions of a unfavorable ruling are huge for both sides. The only way for both side to assure a "win" is to prevent the arbitrator from making a ruling. The only way to do that now is to come to a agreement between the two parties.
Now this is where I take some heat.
I would gladly trade the COC for a fair offer. What I mean by that is $20 an hour, a 5th week of vacation after 30 years, full pay sick time, no 60 day rule, no extention. That would be a good starting place. There are other issues but from everybody I talk to these are some of the main issues. I am not alone in this. This would be acceptable to the majority of east and west. Remember all this is my opinion. I am ready to move forward and put all this behind us. We have the potential to make USAirways something to be proud of. We have a long way to go to get there but I know what the people I work with are capable of achieving.
FWIT: I think the ruling on the COC would have been in our favor. We all have opinions on this matter. We are all real good s**t house lawyers but alas we choose to sling bags for a living. Bagfather yes we are still reading this stuff. Everyword. I think its great to hear everybodys ideas about the brief. Good read by the way. It was easier to print it out and then read it. Actually took it to work after I was through so others could read it.
Now back to my reason for all this. Notice I said "would have been in our favor".
IMO its a moot point. Rumor has it that Canale is conducting prelim talks with the company. I really do not think either the IAM nor the company wants the ruling to proceed. The repercussions of a unfavorable ruling are huge for both sides. The only way for both side to assure a "win" is to prevent the arbitrator from making a ruling. The only way to do that now is to come to a agreement between the two parties.
Now this is where I take some heat.
I would gladly trade the COC for a fair offer. What I mean by that is $20 an hour, a 5th week of vacation after 30 years, full pay sick time, no 60 day rule, no extention. That would be a good starting place. There are other issues but from everybody I talk to these are some of the main issues. I am not alone in this. This would be acceptable to the majority of east and west. Remember all this is my opinion. I am ready to move forward and put all this behind us. We have the potential to make USAirways something to be proud of. We have a long way to go to get there but I know what the people I work with are capable of achieving.
pjirish317
Veteran
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Hadenough,
I don't think I would vote for anything that sells out the "COC", unless it was a very good deal for both east and west. By very good deal I mean vacations that we had in our 1999 CBA, full sick time pay, doubletime, 10 holidays with the option for holidays/vacation, overtime by-pass back to what it used to be, at least $21.00 per hour, keep profit sharing, at least a 3% raise yearly for the duration af the contract, Shift differential, holiday pay back to what it used to be in our 1999 CBA. Now I know that I will get blasted for being "unrealistic" But lets face it folks, those of us who work in Clas II cities, any award will be close to $27,000. It would really hard to give that up for another BK contract with a few additions.
I don't think I would vote for anything that sells out the "COC", unless it was a very good deal for both east and west. By very good deal I mean vacations that we had in our 1999 CBA, full sick time pay, doubletime, 10 holidays with the option for holidays/vacation, overtime by-pass back to what it used to be, at least $21.00 per hour, keep profit sharing, at least a 3% raise yearly for the duration af the contract, Shift differential, holiday pay back to what it used to be in our 1999 CBA. Now I know that I will get blasted for being "unrealistic" But lets face it folks, those of us who work in Clas II cities, any award will be close to $27,000. It would really hard to give that up for another BK contract with a few additions.
lithuanian
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Today, our representative in Phoenix, Mr. Roth, posted the points of the Briefs. He was polite enough to add that the Briefs on the 141 site are also abreviated. That there are also case files from the negotiations and much more information submitted to the arbitrator. So, if anyone, like myself, who thought we could've added more in our defense, Mr. Roth. stated that there was plenty of material for the unions defense that the Brief did not mention. He did not however, mention any deadline. We agree together that the result and what results after the COC, or CIC, will remain with Mr. Broch.
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