B-159670, AUG. 19, 1966

B-159670: Aug 19, 1966

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GARDINER WAS DECEASED AT THE TIME OF SETTLEMENT. THAT YOU REQUEST OUR DECISION BECAUSE FUNERAL EXPENSES HAVE NOT BEEN PAID. THE RECORD INDICATES THAT FLORIDA WAS THOMAS GARDINER'S DOMICILE AT THE TIME OF HIS DEATH. - "/1) IT IS LAWFUL FOR ANY EMPLOYER. IN CASE THERE IS NO WIFE OR HUSBAND. IN CASE THERE IS NO CHILD OR CHILDREN. ANY WAGES OR TRAVELING EXPENSES THAT MAY BE DUE SAID EMPLOYEE AT THE TIME OF HIS DEATH. "/2) IT IS ALSO LAWFUL FOR THE INDUSTRIAL COMMISSION. WE HAVE NOT FOUND A JUDICIAL CONSTRUCTION OF SECTIONS 222.15 AND 222.16 IN THE REPORTED CASES. WE DO NOT HAVE REASONABLE ASSURANCE OF THE GOVERNMENT'S GOOD ACQUITTANCE BY THE BOARD'S DISTRIBUTION UNDER SUCH AN INTERPRETATION.

B-159670, AUG. 19, 1966

TO AUTHORIZED CERTIFYING OFFICER, NATIONAL LABOR RELATIONS BOARD, OFFICE OF THE GENERAL COUNSEL:

BY LETTER OF JULY 11, 1966, YOU REQUESTED OUR DECISION AS TO WHETHER $5,644.65 BACK PAY DUE THEODORE R. GARDINER, NOW DECEASED, SHOULD BE DIVIDED EQUALLY AMONG HIS FIVE CHILDREN AND WHETHER THE ENCLOSED VOUCHER AND SCHEDULE OF PAYMENTS IN RECOGNITION OF THE CLAIMS OF HIS FORMER WIFE, AS MOTHER AND GUARDIAN OF HIS MINOR SON, AND HIS FOUR DAUGHTERS MAY BE PROPERLY CERTIFIED FOR PAYMENT. YOU STATE THAT THE NATIONAL LABOR RELATIONS BOARD HAS DEPOSITED IN THE SPECIAL DEPOSIT SUSPENSE ACCOUNT IN THE TREASURY DEPARTMENT A CHECK FOR THE $5,644.65, REPRESENTING BACK PAY SETTLEMENT IN THE MATTER OF CONE BROTHERS CONTRACTING CO., ET AL, CASES NOS. 12-C A-1493, ET AL; THAT THEODORE R. GARDINER WAS DECEASED AT THE TIME OF SETTLEMENT; AND THAT YOU REQUEST OUR DECISION BECAUSE FUNERAL EXPENSES HAVE NOT BEEN PAID.

THE RECORD INDICATES THAT FLORIDA WAS THOMAS GARDINER'S DOMICILE AT THE TIME OF HIS DEATH. SECTION 733.20 OF THE FLORIDA STATUTES, 1965 ED., PROVIDES FOR A CLAIM OF REASONABLE FUNERAL EXPENSES AGAINST THE ESTATE. SECTIONS 222.15 AND 222.16 REFERRED TO IN YOUR SUBMISSION READ, SUBSEQUENT TO AMENDMENT OF 1963, AS FOLLOWS:

"WAGES DUE DECEASED EMPLOYEE MAY BE PAID WIFE, ETC.---

"/1) IT IS LAWFUL FOR ANY EMPLOYER, IN CASE OF THE DEATH OF AN EMPLOYEE, TO PAY TO THE WIFE OR HUSBAND, AND IN CASE THERE IS NO WIFE OR HUSBAND, THEN TO THE CHILD OR CHILDREN, PROVIDED THE CHILD OR CHILDREN BE OVER THE AGE OF EIGHTEEN YEARS, AND IN CASE THERE IS NO CHILD OR CHILDREN, THEN TO THE FATHER OR MOTHER, ANY WAGES OR TRAVELING EXPENSES THAT MAY BE DUE SAID EMPLOYEE AT THE TIME OF HIS DEATH.

"/2) IT IS ALSO LAWFUL FOR THE INDUSTRIAL COMMISSION, IN CASE OF DEATH OF ANY UNEMPLOYED INDIVIDUAL TO PAY TO THOSE PERSONS REFERRED TO IN SUBSECTION (1), ANY UNEMPLOYMENT COMPENSATION PAYMENTS THAT MAY BE DUE SAID INDIVIDUAL AT THE TIME OF HIS DEATH.

"WAGES OR UNEMPLOYMENT COMPENSATION PAYMENTS SO PAID NOT SUBJECT TO ADMINISTRATION---

"ANY WAGES, TRAVELING EXPENSES OR UNEMPLOYMENT COMPENSATION PAYMENTS SO PAID UNDER THE AUTHORITY OF SEC. 222.15 SHALL NOT BE CONSIDERED AS ASSETS OF THE ESTATE AND SUBJECT TO ADMINISTRATION; PROVIDED, HOWEVER, THAT THE TRAVELING EXPENSES SO EXEMPTED FROM ADMINISTRATION SHALL NOT EXCEED THE SUM OF THREE HUNDRED DOLLARS.'

IF DISTRIBUTION OF THE PROCEEDS IN ACCORDANCE WITH THE VOUCHER AND SCHEDULE OF PAYMENTS WOULD RESULT IN AN EMPLOYER'S PAYMENT OF WAGES DUE AN EMPLOYEE AT THE TIME OF HIS DEATH WITHIN THE TERMS OF THESE PROVISIONS, THEY WOULD NOT BE ASSETS OF THE ESTATE AGAINST WHICH THERE WOULD BE A CLAIM FOR BURIAL EXPENSES.

HOWEVER, WE HAVE NOT FOUND A JUDICIAL CONSTRUCTION OF SECTIONS 222.15 AND 222.16 IN THE REPORTED CASES; HENCE, WE DO NOT HAVE REASONABLE ASSURANCE OF THE GOVERNMENT'S GOOD ACQUITTANCE BY THE BOARD'S DISTRIBUTION UNDER SUCH AN INTERPRETATION. THE SOLE AUTHORITY AVAILABLE TO US IS OPINION OF THE ATTORNEY GENERAL 062-127, OCTOBER 1, 1962, AS REPORTED IN BIENNIAL REPORT OF THE ATTORNEY GENERAL, STATE OF FLORIDA, 1961-1962, PAGE 569. DECIDED THAT UNEMPLOYMENT COMPENSATION BENEFITS DUE A STATE EMPLOYEE AT THE TIME OF HIS DEATH COULD NOT BE PAID UNDER SECTION 222.15. IT DOES NOT SUGGEST THE POSSIBILITY OF A LIBERAL INTERPRETATION. THE STATUTE SUBSEQUENTLY WAS AMENDED WITH RESPECT TO THE PAYMENT OF UNEMPLOYMENT COMPENSATION.

GENERALLY, STATUTES GIVING REFERENCE TO PARTICULAR SURVIVORS ARE LIBERALLY CONSTRUED. SUTHERLAND STATUTORY CONSTRUCTION, VOL. 3, SEC. 6905. "WAGES," HOWEVER, HAS BEEN GIVEN A RESTRICTED MEANING UNDER A WISCONSIN STATUTE SIMILAR TO SECTIONS 222.15 AND 222.16. IN RE RIEBS' ESTATE (WIS.), 98 N.W.2D 453.

BECAUSE OF THE FOREGOING CONSIDERATIONS, WE BELIEVE THAT THE PROCEEDS OF THE CHECK WHICH WERE DUE THOMAS R. GARDINER SHOULD BE DISTRIBUTED IN ACCORDANCE WITH THE PROBATE LAW OF FLORIDA, AND THERE SHOULD NOT BE A DISTRIBUTION OF THE TOTAL AMOUNT TO HIS CHILDREN UNLESS FUNERAL EXPENSES ARE PAID.

THE VOUCHER FORWARDED WITH YOUR LETTER MAY NOT PRESENTLY BE CERTIFIED FOR PAYMENT AND IS BEING RETAINED HERE.