Joint Industry Board v. United States
391 U.S. 224 (1968)

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U.S. Supreme Court

Joint Industry Board v. United States, 391 U.S. 224 (1968)

Joint Industry Board of the Electrical Industry v. United States

No. 616

Argued March 25, 1968

Decided May 20, 1968

391 U.S. 224

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

An employer's unpaid contributions to an employees' annuity plan established by a collective bargaining contract are not entitled to a priority under § 64a(2) of the Bankruptcy Act, which grants priority, limited to $600 and to wages earned within three months before commencement of bankruptcy proceedings, to "wage . . . due to workmen." United States v. Embassy Restaurant, Inc.,359 U. S. 29 (1959), followed. Pp. 391 U. S. 225-229.

379 F.2d 211, affirmed.

MR. JUSTICE WHITE delivered the opinion of the Court.

Section 64a(2) of the Bankruptcy Act, 30 Stat. 563, 11 U.S.C. § 104(a)(2), grants priority over the claims of other creditors to "wages . . . due to workmen, . . ." the priority being limited to $600 and to wages earned within three months before the commencement

Page 391 U. S. 225

of the proceedings. [Footnote 1] The question before us is whether priority under 64a(2) must be accorded to an employer's unpaid contributions to an employees' annuity plan established by a collective bargaining contract. The referee and the District Court denied the priority, and the Court of Appeals affirmed. In re A & S Electric Corp., 379 F.2d 211 (C.A.2d Cir.1967). We granted certiorari, sub nom. Joint Industry Board of the Electrical Industry v. United States, 389 U.S. 969 (1967). We affirm the judgment.

The Annuity Plan of the Electrical Industry in New York City was established by a collective bargaining agreement between Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, and four associations of electrical contractors. The plan covers all employees in the bargaining unit represented by the union, and is funded by employer contributions of "Four Dollars ($4.00) per day for each day worked or each holiday for which payment is received by his employees. . . ." Payments are made to trustees who are empowered to collect and administer the contributions under the provisions of the plan. These trustees are the petitioners here. Contributions received by the

Page 391 U. S. 226

trustees are credited to the account of the individual employees but are "payable to him only as hereinafter provided," namely, upon death, retirement from the industry at age 60, permanent disability, entry into the Armed Forces, or ceasing to be a participant under the plan. Death benefits are paid only out of income, if available, and other benefits, though they may be payable in installments, will at a minimum return to the employee the total of the contributions credited to his name, without interest.

A & S Electric Corporation, an employer liable for contributions to the annuity plan, was adjudicated a bankrupt in 1963. The Joint Industry Board filed a claim which included $5,114 representing payments under the plan which fell due but were unpaid during the three months prior to the commencement of the proceedings. Priority for this amount was asserted under § 64a(2). The United States, with a fourth-class priority claim for unpaid taxes, objected to the allowance of the Joint Board's priority claim. The referee and the courts agreed with the United States, holding that payments due to the Joint Board were not wages due to workmen, relying for this conclusion principally upon United States v. Embassy Restaurant, Inc.,359 U. S. 29 (1959).

We agree that Embassy Restaurant controls this case. There, the claim was for unpaid employer contributions to a welfare fund, the contributions being $8 per month for each full-time employee; the fund provided life insurance, weekly sick benefits, hospital and surgical payments, and other advantages for covered employees. That claim, the Court held, was not entitled to § 64a(2) priority because payments to such a welfare fund did not satisfy the manifest purpose of the priority, which was

"to enable employees displaced by bankruptcy to secure, with some promptness, the money directly due to them in back wages, and thus to alleviate

Page 391 U. S. 227

in some degree the hardship that unemployment usually brings to workers and their families."

359 U.S. at 359 U. S. 32. [Footnote 2] The contributions involved there were payable to trustees, not to employees, and were disbursable to employees only on the occurrence of certain events, not including the bankruptcy of the employer. Neither the contributions nor the plan provided any immediate support for workmen during the period of financial distress.

The case before us concerns employer contributions to the welfare fund which are similarly not due the employees and never were; they were payable only to the trustees, who had the exclusive right to hold and manage the fund. Though the contributions were credited to individual employee accounts, nothing was payable to employees except upon the occurrence of certain events. Until death, retirement after age 60, permanent disability, entry into military service, or cessation of participation under the plan, no benefits were payable. Further, as the referee pointed out, the employee could not assign, pledge, or borrow against the contributions, or otherwise use them as his own. [Footnote 3] Quite obviously the annuity fund was not intended to relieve the distress of temporary unemployment,

Page 391 U. S. 228

whether arising from the bankruptcy of the employer or for some other reason. Hence, if Embassy Restaurant is to be followed, the unpaid contributions in this case do not satisfy the fundamental purpose of the § 64a(2) priority for wages due to workmen.

Nor are we inclined to overrule Embassy Restaurant's construction of § 64a(2). This is a matter more appropriately left to the Congress, which has not infrequently given attention to § 64a of the Bankruptcy Act and to the priorities it creates. [Footnote 4] The latest amendments to § 64a occurred in 1966, in the Acts of July 5, 1966, 80 Stat. 268 and 80 Stat. 271. Although the section was completely reenacted in 1967, [Footnote 5] § 64a(2) was left unchanged despite the fact that, in every Congress since Embassy Restaurant bills have been introduced to overrule or modify the result reached in that case. [Footnote 6]

Despite the general policy of the Bankruptcy Act to distribute assets of the estate equally to creditors, the priorities established in § 64a give priority to wages due workmen up to $600 if earned within three months prior to bankruptcy. Other unpaid wages are allowable as general claims but are not entitled to priority. If delinquent contributions to welfare and annuity funds providing deferred benefits to employees were to have equal priority with wages payable directly to employees, the maximum payable immediately and directly to employees would be reduced whenever individual wage

Page 391 U. S. 229

claims approached $600 or whenever the assets of the estate would not permit all wage claims to be paid in full. Also, increasing the amounts payable to second priority creditors would reduce the assets available for distribution to lower priority claimants and general creditors, including wage claimants not entitled to priority. [Footnote 7] Embassy Restaurant was decided nine years ago. If there is still any question as to whether claims for unpaid contributions to provide deferred benefits to employees should share the assets of bankrupts with general creditors or should be entitled to the limited priority granted wages due to workmen, any new resolution of that question should come from Congress.

Affirmed.

[Footnote 1]

Section 64a, 30 Stat. 563 (as amended by Act of June 22, 1938, 52 Stat. 874, and Act of July 30, 1956, 70 Stat. 725), 11 U.S.C. § 104(a), provides in relevant part:

"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 and commissions, 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, and for the purposes of this clause, the term 'traveling or city salesman' shall include all such salesmen, whether or not they are independent contractors selling the products or services of the bankrupt on a commission basis, with or without a drawing account or formal contract. . . ."

[Footnote 2]

The cases in the lower courts are in agreement as to the purpose of § 64a(2). See 3 Collier on Bankruptcy

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