United Airlines didn't intend to raise ire of nearly 20,000 flight attendants. But to successfully reorganize and pull itself out of the red, something had to give. And that something was their employees' pension plans, which the airline decided to cut.

But cutting pension plans, especially plans under contract with unions, isn't easy. Normally, a company has to convince a bankruptcy court that breaking the contract is necessary for reorganization. Each jurisdiction has its own set of standards, some stricter than others.

Yet, United was smart. It knew the Pension Benefit Guaranty Corp. (PBGC), the government agency that insures pension plans, was in dire need of capital. If United could convince the PBGC to take on its pensions in return for United stock, it could dump its pension plans without a lengthy courtroom battle.

“Absent a settlement with the PBGC, there would have been significant litigation with the PBGC and the Association of Flight Attendants (AFA) over the termination of the pension plan,” says James Sprayregen, a partner at Kirkland & Ellis who represents the airline.

The PBGC did strike a deal with United. In exchange for taking on United's pension plans, the PBGC received $1.5 billion in company stock. United's controversial move saved the company about $645 million a year. Other corporations in the midst of bankruptcies or posed to file may copy United's strategy.

Pension Trimming

One reason the United deal was possible is the PBGC's monetary woes. United's bankruptcy combined with the filings of other airlines raised the already struggling agency's deficit to $22.8 billion for 2005. With General Motors on the brink of bankruptcy, the agency needs whatever capital it can get. This means it may be willing to take on pension plans in return for some equity that could help the agency make money in the future.

“The question is whether the PBGC wants to entertain more of these offers, and if so, will they want to entertain them with greater restrictions,” says Michael Alaimo, a partner at Miller, Canfield, Paddock and Stone in Detroit. “Maybe they are going to require something more than what United offered next time.”

Aside from dealings with the PBGC, removing unions from the equation simplifies the bankruptcy process. By passing pension plans onto the PBGC, companies can discharge their obligations without getting court approval to terminate union contracts. Instead, with the court's ultimate approval, the company passes the agreements onto the PBGC, eliminating unions' right to litigate and appeal in bankruptcy court.

“United just eliminated dealing with the union,” says Debbie Thorne, a partner at Barnes & Thornburg in Chicago. “So they didn't have to deal with issues involved in rejecting a collective bargaining agreement.”

Yet, this benefit didn't come without a fight. Angry that the airline went behind its back, the AFA filed suit. The case reached the 7th Circuit Court of Appeals, which in November found in favor of United.

The union is considering an appeal.

“We haven't agreed to anything, and the company hasn't filed the normal procedures for aggregating our contract,” says David Borer, the AFA's general counsel. “As far as I'm concerned we've still got a contract with United that requires them to have a pension plan.”

The AFA also has a suit pending in a Washington, D.C., district court against the PBGC for its part in the deal.

Turbulent Times

The AFA lawsuit isn't the only drawback United will face. With 15,000 working flight attendants affected by the pension plan termination, United may feel the heat of disgruntled employees. And in an industry that sells itself on its level of service, this could be bad for business.

“You are selling the person at the ticket counter and the flight attendant who greets you,” says Joe Tiberi, a spokesperson of for the International Association of Machinists, which was also affected by the pension cuts. “You don't want those people angry at their employer.”

Aside from angered workers, United also has to work with angry creditors. United agreed that the PBGC's claim in the bankruptcy was about $10 billion. The creditors objected, citing that the claim should be lower.

“The claim is ultimately going to be converted into a portion of the common stock of the reorganized company,” Sprayregen says. “So the smaller the PBGC claim, the more stock the other creditors will get.”

Finally, even with settlement negotiations, the PBGC is buckling because of its deficit. If large companies continue to dump their pension plans on the PBGC, the agency may find itself so deep in the red it can't crawl out. Congress is currently working on a pension overhaul plan. The plan, which the Senate approved in mid-November, would force companies to make good on their pension plans without abandoning them.