United States v. Embassy Restaurant, Inc.
Dissenting Opinion
dissenting.
I believe payments made by employers to union welfare funds are “wages . . . due to workmen . . . ,” under the Bankruptcy Act’s priority section.
The Chandler Act passed in 1938 raised the workers’ priority to second behind expenses of administration and ahead of federal and local taxes. At the same time its scope was further broadened to cover “workmen, servants, clerks, or travelling or city salesmen on a salary or commission basis, whole or part-time, whether or not selling exclusively for the bankrupt.”
This last change in the priority section was the sole subject of a very short Act passed by Congress. Like most of the earlier changes, it was enacted after court decisions barring some workers from the protected class or indi-
The Court argues, however, that payments to welfare funds are neither “wages” nor “due to. workmen.” It is hard for me to see how they could not be “wages.” The payments are certainly not gifts. As was stated less than a year ago by a Senate Committee, which had made an extended study of plans such as those here involved, “regardless of the form they take, the employers' share of the costs of these plans or the benefits the employers provide are a form of compensation.”
,■ It cannot be argued that a sum paid by an employer for a worker’s services loses its status as wages merely because it is used to purchase insurance benefits.
It is also hard for me to imagine how the fact that the moneys are paid to parties other than the workmen is in any way connected with the question of whether the payments are wages,.- whatever its relevance might be to whether'the sums are. “due to workmen.” This is especially true in the light of Shropshire, Woodliff & Co. v. Bush, 204 U. S. 186, which held that moneys due an assignee of the worker were entitled to priority as wages. The Government admits that if a formal assignment had been made here, wage status might be granted. It does not explain," however, how the lack óf a formal assignment can change payments from “wages” to somer
The question of whether the payments are “due to workmen” is on its face somewhat more difficult. • But to my way of thinking, the correct answer has'been made easy by prior cases in this Court. In the Shropshire case, the Court said, “The priority is attached to the debt and not to the person of the creditor; to the claim and not to the claimant. The act does not enumerate classes of creditors and confer upon them the privilege of priority in payment, but, on the other hand, enumerates classes of debts as 'the debts to have priority.1 ” 204 U. S., at 189. It then held that an assignee of a worker had priority sincé the debt was wages due to workmen.
Even if it could be meaningfully argued that in Shropshire the money was at one time due to workmen, and therefore remained so after assignment, while here it never' was due to them, we are, I think, precluded from that position unless we depart from the reasoning of United States v. Carter, 353 U. S. 210. That case construed § 2 (a) of the Miller Act, 49 Stat. 794, 40 U. S. C. § 270b (a), which provides that “Every person who has furnished labor . . . and who has not been paid in full ... shall have the right to sue on [a] payment bond- . : . for the sum or sums justly due him.” The Court held that, for the purposes of the Miller Act, payments to welfare funds are, “as much ‘justly due’ to the employees who have earned them as are the wages payable directly to them in cash.” 353 U. S., at 220. In fact, the Court stated that trustees of the welfare fund have an even better right to sue than most assignees since
Finally it seems to me undesirable to make a distinction in this area between payments on assignment and payments in trust. At best it would let the carrying out of congressional policy depend on the. skill with which unions prepare legal documents, and on the various- state laws covering the validity of wage assignments. At worst it would give priorities to assignees of the workmen, usually creditors, while denying them to insurance funds for their benefit. Unless we are prepared to repudiate what we said in the Carter and Shropshire cases, I think § 64 (a) (2) of the Bankruptcy Act means that the sums which Embassy contracted to pay to these employees for their' labor by making payments to welfare funds are wages due to workers. If the provision granting priority to wages is to be narrowed, it should be done by Congress — not by this Court.
I would affirm.
§64, 30 Stat. 563, as amended, 11 U. S. C. §104. The ques-. tion has caused considerable • difficulty in the federal courts. Compare, e. g., the opinions below in this case, 254 F. 2d 475, 154 F. Supp. 141 and In re Otto, 146 F. Supp. 786, with Local 140 Security Fund v. Hack, 242 F. 2d 375; In re Brassel, 135 F. Supp. 827; In re Victory Apparel Mjg. Corp., 154 F. Supp. 819. Similarly commentators have split. Compare, e. g., Notes, 19 Ga. B. J. 107; 66 Yale L, J. 449; 44 Va. L. Rev. 995; 57 Mich; L. Rev. 403, with Notes, 34 Chi.-Kent L. Rev. 235; 42 Minn. L. Rev. 295.
Act of August 19, 1841, 5 Stat. 445.
Act of March 2, 1867, 14 Stat. 529; Act of July 1, 1898, 30 Stat. 563.
Act of June 15, 1906, 34 Stat. 267.
Act of May 27, 1926, 44 Stat. 667.
Act of June 22, 1938, 52 Stat. 874.
70 Stat. 725, 11 U.. S. C. (Supp. V)‘ §’104.
See, e. g., In re Scanlan, 97 F. 26; In re Greenewald, 99 F. 705; In re Kominers, 252 F. 183; In re Collin, 18 F. Supp. 848; In re Clover Dairies, Inc., 42 F. Supp. 1006; In re Herbert Candy Co., 43 F. Supp. 588. In recommending the latest change the House Judiciary Committee stated “. . . language in some court cases has been confusing . . . x. [T]here is language from which one might infer that a salesman who-, was a 'separate contractor’ could not qualify.” H. R. Rep. No. 921, 84th Cong., 1st Sess. 2-
S. Rep. No. 1440, 85th Cong., 2d Sess. 4. The Committee also called attention to the fact that “In little more than a decade private employee welfare and pension plans have grown from relatively small significance to a position where approximately 84 million persons are depending in some manner upon the benefits which they promise.” Id., at 3.
E. g., In re Gurewitz, 121 F. 982; Glandzis v. Callinicos, 140 F. 2d 111; National Labor Relations Board v. Bemis Bro. Bag Co., 206 F. 2d 33, 37. See also Note, 19 Ga. B. J. 107.
See, e. g,, Inland Steel Co. v. National Labor Relations Board, 170 F. 2d 247, 251. See also Note, 66 Yale L. J. 449, 458, 460.
68A Stat. 32, 26 U. S. C. (Supp. IV) §106; 68A Stat. 417, 26 U. S. C. (Supp. IV) § 3121 (a); 68A Stat. 447, 26 U. S. C. (Supp. IY)- §3306 (b)(2). Cf. Brown v. Maryland, 12 Wheat. 419, 438, “. . . the exception of a particular thing from general words, proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made . . . .”
See In re Otto, 146 F. Supp. 786, 790; In re Ross, 117 F. Supp. 346.
The Court- notes that workmen’s compensation claims wfere at one time given priority by Congréss and were subsequently, rerjroved. As compensation rights are not contracted for in exchange for labor I do not see how their disposition is relevant to the problem m.this case.
Opinion of the Court
delivered the opinion of the Court.
The sole issue involved here is whether contributions by an employer to a union welfare fund which are required by a collective bargaining agreement are entitled, in bankruptcy, to priority as being “wages . . . due to workmen” under § 64 (a) (2) of the Bankruptcy Act, as
The facts are undisputed. Embassy Restaurant, Inc., was bound in collective bargaining agreements with Local Unions 111 and 301. The agreements related to hours, wages and other conditions of employment. Under these agreements Embassy was obligated to contribute to the trustees of the welfare funds of Locals 111 and 301 $8 per month per full-time employee. The welfare plans were organized to maintain “life insurance, weekly sick benefits, hospital and surgical benefits” and other, advantages for members of the locals. Trustees administered each plan under a formal trust agreement and were authorized to formulate and establish the conditions of eligibility for benefits, control all the funds received, collect all contributions, and in théir “sole discretion” to handle all legal proceedings incident thereto. • Title to. all of the funds, property and income was placed in the*trustees exclusively and no employee or anyone claiming under him had any right whatsoever in the plan or any part thereof. In the
At the outset we point out that “The broad purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate. . . .” Kothe v. R. C. Taylor Trust, 280 U. S. 224, 227, and that “if one claimant is to be preferred over others, the purpose should be clear from the statute.” Nathanson v. Labor Board, 344 U. S. 25, 29.
The trustees attempt to bring contributions within this preferred class-by claiming them to be “wages . . . due to workmen.” • This class of claims has been given a preferred position in the Bankruptcy Act for over . 100 years,
Let us examine the nature of these contributions. They are flat sums of $8 per month for each workman. The amount is without relation to his hours, wages or productivity. It is due the trustees, not the workman, and the latter has no legal interest in it whatsoever. A workman cannot even compel payment, by a defaulting employer. Moreover it does not appear that the parties to the col
It is contended, however, that since “unions bargain for these contributions as though' they were wages” and industry likewise considers them “as an integral part of the wage package,” they must in law be considered “wages.” This approach overlooks the fact that we deal with a statute, not business practice. Nor do we believe that holdings that various fringe benefits are wages under the N. L. R. A.
The contributions here are not “due to workmen,” nor have they the customary attributes of wages. Thus,, they cannot be treated as being within the clear, unequivocal language of “wages . . . due to workmen” unless it is clear that they satisfy the purpose for which Congress established the priority. That purpose was to provide the workman a “protective cushion” against the economic displacement caused by his employer’s bankruptcy.
Respondents argue that precedent allows the priority to be asserted by one other than the workman himself. We are cited to Shropshire, Woodliff & Co. v. Bush, 204 U. S. 186, and United States v. Carter, 353 U. S. 210. In Shropshire, wages due a workman had been assigned by him, and the assignee was seeking the wage priority enjoyed by his assignor. ■ In allowing the claim to have priority, the Court said:
“When one has incurred a debt for wages due to workmen, . . . that debt . ■. . is entitled to priority ....
“The character of the debts was fixed when they were incurred, and could not be changed by assignment,” 204 U. S., at 189,
and also, that “The priority is attached to the debt and not to the person of the creditor ....’’ Ibid. Application of these principles to the facts here helps respondents not at all; the obligation to make contributions, when incurred, was to the trustees, not to the workmen. The debt was never otved the workmen. Furthermore, assignability of wage claims as in Shropshire, may benefit the bankrupt’s employees, who are thus enabled to obtain their money sooner than they might by waiting out the bankruptcy procedure. '
Nor does the Carter case, supra, support the granting of a priority to these contributions. There we dealt with the Miller Act,
The judgment is
Reversed.
30 Stat. 563, § 64, as amended, 11 U. S. C. (Supp. V) § 104 (a) (2), provides:
“(a). The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be .... (2) wages 1 . . not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; ... (4) taxes legally due and owing by the bankrupt to the United States or any State or any
See also Kuehner v. Irving Trust Co., 299 U. S. 445, 452; Sampsell v. Imperial Paper Corp., 313 U. S. 215, 219.
30 Stat. 550, as amended, l'l U. S. C. § 35 (a) (5).
The Act of August 19, 1841, c. 9, 5 Stat. 445, established a third priority for those who had performed “labor as an operative”, of the bankrupt.
E. g., Act of May 27, 1926, c. 406, § 15, 44 Stat. 666.
E. flf. Act of June 22, 1938, c. 575, § 64, 52 Stat. 874, 11 U. S. C. § 104.
E. g., Act of June 15, 1906, c. 3333, 34 Stat.' 267.
Act of June 7, 1934, c. 424, 48 Stat. 924.
Id., 923.
Inland, Steel Co. v. Labor Board, 170 F. 2d 247, 251 (contributions to an employee pension plan).
MacPherson v. Ewing, 107 F. Supp. 666 (sick pay).
In re Victory Apparel Mfg. Corp., 154 F. Supp. 819, 822; Blessing v. Blanchard, 223 F. 35, 37.
49 Stat. 793, 40 ü. S. C. §§ 270a-270d.
Reference
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- UNITED STATES v. EMBASSY RESTAURANT, INC., Et Al.
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