freedom
Veteran
- Feb 15, 2006
- 3,244
- 274
What if your wrong joe , and the COC means nothing to anyone put our union memebers , what if it has no teeth ( like the last time )
Do you realise all that you may once again gamble ? is it worth it ?
Once again here is my factual position on the COC , with excerpts taken from the arbiters decision .
A merger has occurred at US AIRWAYS , it was between AWA and US AIR … we here today are the final product of that merger . The text in italics is from the arbiters decision .
FACTS :
in August of 2002, US Airways filed for bankruptcy. Subsequently, in
negotiations with the International Association of Machinists (IAM) and the
Company’s other unions, the parties reached various “restructuring agreementsâ€
by which the unions granted substantial labor concessions. The parties also negotiated a variety of so-called Change in Control provisions (CIC) that would,
in the appropriate circumstances, reinstate -- “snap-backâ€-- many of the benefits
conceded by the unions through bargaining. The question of whether those
provisions in the IAM agreements have been triggered is at the heart of these
grievances.
NOTE here is an important part of text
The bankruptcy exit and merger with America West Airlines
occurred on September 27, 2005.
We now can conclude that there has in FACT been one merger already , albeit tinged by BK … Below are requirements from the arbitrator that are necessary for our union to win ANY change of control grievance .
if the transaction does not comply in all respects with the contractual
framework, the Association’s claim must fail .
Below is the contractual language agreed on by both the union and company .
The parties agree a “change in controlâ€, as that term is defined in the
Labor Agreement, requires a specific set of elements, including (1) the sale of all
or substantially all the assets or the common stock of the Company (2) in a single
transaction (or in multi-step related transactions) (3) to a single purchaser (or a
group of purchasers acting in concert).
Please pay attention to this , the union and company did not really DISCUSS just what these terms meant .
The parties agree there was no discussion, during bargaining, of the contract language set forth above. Both parties direct the Board to, among other things, a range of statutory and common law interpretations they say serve to provide perspective as to the intended impact of the language in question
The arbiters first reasoning in denying the change of control is in my mind the most damaging to the effectiveness of the change of control .
One begins with the observation that this was a sale of stock, not assets.
The bargained language requires the sale of common stock, which is further
specified4 as “then outstanding common stock†issued and in the hands of
shareholders. In this case, however, all “then outstanding stock†of the US
Airways Group that had existed prior to the Company’s emergence from
bankruptcy was cancelled. What was issued and sold was new common stock.
At first when I read through this a few times I didn’t quite get it , but if you look at the PDF file , you’ll see that the word OUTSTANDING has been bolded by the court to add special meaning . Notice how the court defines the “stock “ as “then outstanding common stock “ . … it could be that the change of control has forever been altered by the loss of the “then outstanding common stock “ which it might have been permanently LINKED too .the “Stock “ option as written in the Change of control provision could be useless but the change of control could still apply to assets , so for example , strike stock from the change of control provision and here you have .
The parties agree a “change in controlâ€, as that term is defined in the
Labor Agreement, requires a specific set of elements, including (1) the sale of all
or substantially all the assets of the Company (2) in a single
transaction (or in multi-step related transactions) (3) to a single purchaser (or a
group of purchasers acting in concert).
You see brothers and sisters , if our union and the company didn’t bother to discuss the legal terms within the provision ,that means that any future arbitration is going to go off of common law definitions , and seeing as our union has already agreed to the terminology from this first case , those same definitions will be used in any other future cases .
These are the arbiters words , see them here in more detail
the bargained language requires the sale of common stock, which is further
Specified as “then outstanding common stockâ€
Ok let it sink in …..
In this case, however, all “then outstanding stock†of the US
Airways Group that had existed prior to the Company’s emergence from
bankruptcy was cancelled.
What was issued and sold was new common stock. .
At this point your probably scratching your head like I was .. Ok outstanding stock , common stock , big deal right ? RIGHT , otherwise why would the arbiter have even mentioned the “past or present†form of the stock , UNLESS it made a very big deal in triggering the COC… The arbiter was telling us that the change of control dealt with the old stock and not the NEW stock .
So in conclusion , the change of control would in my opinion only be triggered by
the sale of all
or substantially all the assets
That is why I feel the change of control is not nearly as valuable as many believe it to be .
