Originally Posted by
ImperialxRat
To try and answer your question a little more thoroughly, we have in our contract a clause that says:
"This Agreement shall be binding upon any successor or assign of the Company unless and until changed in accordance with the provisions of the Railway Labor Act, as amended. For purposes of this paragraph, a successor or assign shall be defined as an entity which acquires all or substantially all of the assets or equity of the Company through a single transaction or multi-step related transactions which close within a 12 month period."
It also then goes on to say that all pilots involved must be merged into a single seniority list. We (ExpressJet) are saying that Skywest Holdings is the aquiring entity, which would require a 3 way seniority list integration. Skywest Holdings is saying that ASA is the acquiring entity, which would only require a 2 way SLI.
Hope that helps clarify, and anyone please feel to correct me if I am mistaken.
If that's the extent of your contract language, I'm pretty sure that it will be found to be binding on ASA only, not INC. You and i both know what the INTENT of that language is, but unless it is spelled out in crystal-clear, unambiguous black-and-white language it will be binding only on who is specified in writing, which is the acquiring "entity", which is ASA in legal terms.
Your language does not say that the provisions will be binding on other companies which happen to own the successor. In contract law this sort of thing is interpreted literally, at face value...that's why you should hire professional contract lawyers to do this kind of thing.
Here's what I think your contract SHOULD have said....
"This Agreement shall be binding upon any successor or assign of the Company unless and until changed in accordance with the provisions of the Railway Labor Act, as amended. For purposes of this paragraph, a successor or assign shall be defined as an entity which acquires all or substantially all of the assets or equity of the Company through a single transaction or multi-step related transactions which close within a 12 month period, TO INCLUDE ANY CORPORATION, PERSON, OR ENTITY WHO EXERCISES DIRECT OR INDIRECT CONTROL OR MAJORITY OWNERSHIP OVER THE ACQUIRING ENTITY."
Or words to that effect. That would work for one degree of separation, but you might need some sort of iterative language to protect against multiple layers of ownership (INC creates "SGU Holdings", transfers ASA to SGU, then buys XJT).
But like I said, you have to read your language verbatim and then STOP. There's nothing in there that remotely designates a once-removed holding company as a successor.
I suppose there is a remote chance that you could claim bad-faith on the part of INC, but I also think that would be doomed to failure because they are using ASA to acquire XJT....
If INC had created a NEW holding company solely for the purpose of acquiring XJT you could reasonably claim that was done for sole purpose of evading your scope language. But since they are using an established, operating airline to do it the waters are pretty muddy...there are wide variety of legit business reasons to roll XJT into ASA, and INC can claim that scope was not the reason or sole reason for doing that.
BTW, unlike slappy I'm all for one list (with fences).