B-161514, JUL. 7, 1967

B-161514, JUL. 7, 1967

DECEDENT'S ESTATES - COMPENSATION - OTHER THAN SURVIVING SPOUSE DECISION TO CERTIFYING OFFICER OF NLRB AUTHORIZING BACK PAY TO BE PAID TO ADMINISTRATRIX FOR DISTRIBUTION IN ACCORDANCE WITH LAWS OF DECEDENT'S DOMICILE (GA.) RATHER THAN PURSUANT TO A STIPULATION AGREEMENT BETWEEN ADMINISTRATRIX, WHO IS MOTHER OF DECEDENT AND TO WIDOW FOR USE OF MINOR CHILDREN IN HER CUSTODY.

TO MISS ETHELREDA C. FESMIRE, AUTHORIZED CERTIFYING OFFICER, NATIONAL LABOR RELATIONS BOARD:

BY LETTER OF MAY 12, 1967, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO THE PROPER DISTRIBUTION OF $427.42 BACK PAY DUE CHARLES T. BASHLOR AT THE TIME OF HIS DEATH.

AN ORDER OF THE COURT OF ORDINARY, BRYAN COUNTY, GEORGIA, ACKNOWLEGES A STIPULATION BETWEEN THE ADMINISTRATRIX, WHO IS THE MOTHER OF THE DECEDENT, AND THE WIDOW, EACH AGREEING TO TAKE ONE-HALF OF THE PROCEEDS, WITH THE WIDOW'S SHARE FOR THE USE OF MINOR CHILDREN IN HER CUSTODY. THE STIPULATION HAS BEEN MADE A RECORD OF THE COURT UPON ADVICE "THAT SAID MONEY IS IN THE NATURE OF A REMEDY FOR THE VIOLATION OF A PUBLIC RIGHT AND HAS NO PRIVATE NATURE WHATSOEVER UNLESS AND UNTIL THE TREASURY CHECKS ARE CONVERTED INTO CASH OR ARE DEPOSITED TO THE CREDIT OF A PRIVATE BANK ACCOUNT * * *;, IN HIS MEMORANDA OF MARCH 9, 1967, AND APRIL 24, 1967, THE DIRECTOR OF THE TENTH REGION, NATIONAL LABOR RELATIONS BOARD, CONCLUDES THAT THE DISTRIBUTION PROPOSED BY THE STIPULATION IS PROPER, NOTWITHSTANDING THE FACT THAT FUNERAL EXPENSES HAVE NOT BEEN PAID AND AN ADMINISTRATRIX HAS BEEN APPOINTED. HE STATES THAT THE BACK PAY HAS NO PRIVATE CHARACTER WHATSOEVER UNTIL PLACED IN THE HANDS OF THE CLAIMANT, AND UNTIL THEN THE MATTER IS ENTIRELY UNDER ADMINISTRATION OF THE BOARD AND IN CONTROL OF THE COURT. IN SUPPORT OF THIS PROPOSITION, HE CITES NLRB V. STOCKPOLE CARBON CO; 128 F. 2D 188, AND NLRB V. SUNSHINE MINING CO; 125 F. 2D 757. BOTH OF THESE CASES CONCERNED PARTIES WHO, BEFORE RELEASE OF THE PROCEEDS, BASED THEIR CLAIMS ON THEIR RIGHTS AGAINST THE EMPLOYEES ENTITLED TO THE AWARD.

WE BELIEVE THAT WHEN THE PROCEEDS ARE PAID THEY ARE A PART OF THE DECEDENT'S ESTATE AND MUST BE DISTRIBUTED IN ACCORDANCE WITH THE LAWS OF THE DECEDENT'S DOMICILE. IT WOULD SEEM THAT THERE IS A DUTY TO PAY AS DIRECTED BY THE ORDER OF THE BOARD AND ENFORCED BY THE UNITED STATES COURT OF APPEALS. BACK PAY MAY PROPERLY BE PAID TO THE PERSONAL REPRESENTATIVE OF A DECEASED EMPLOYEE, EVEN THOUGH THERE IS NO RIGHT OF ACTION TO OBTAIN AN AWARD. NATIONAL LABOR RELATIONS BOARD V. HEARST, 102 F. 2D 658. THE SUPREME COURT OF THE UNITED STATES HELD IN NATHANSON V. NATIONAL LABOR RELATIONS BOARD, 344 U.S. 25, THAT THE GOVERNMENT MERELY COLLECTS BACK PAY AS AN AGENT FOR THE BENEFIT OF THE EMPLOYEES, AND THEREFORE THE EMPLOYER OWES NO DEBT TO THE UNITED STATES SO AS TO ENTITLE IT TO PRIORITY IN BAKRUPTCY PROCEEDINGS.

SECTION 66-103 OF THE GEORGIA CODE PROVIDES THAT WAGES DUE A DECEASED EMPLOYEE, NOT IN EXCESS OF $1,000, SHALL BE PAID TO THE SURVIVING SPOUSE OR, IF NO SURVIVING SPOUSE, TO THE QUALIFIED GUARDIAN OF MINOR CHILDREN. IN OUR DECISION OF AUGUST 19, 1966, B-159670, DECIDED AT YOUR REQUEST, WE COULD NOT FIND THAT BACK PAY WAS WITHIN THE MEANING OF "WAGES" AS USED IN A SIMILAR FLORIDA STATUTE. ABSENT AN AUTHORITATIVE OPINION TO THE CONTRARY, WE CANNOT REACH A DIFFERENT CONCLUSION UNDER THE GEORGIA LAW.

WE RECOGNIZE THAT ATTORNEYS OF THE TENTH REGION ARE IN A POSITION TO BE ENTIRELY FAMILIAR WITH LOCAL PRACTICE AND HAVE A THOROUGH KNOWLEDGE OF THIS CASE. HOWEVER, ON THE BASIS OF OUR REVIEW OF THE GEORGIA CODE, WE CONCLUDE THAT THE ENTIRE PROCEEDS SHOULD BE PAID TO EULA A. BASHLOR IN HER CAPACITY AS ADMINISTRATRIX. DISTRIBUTION BY HER TO THE PROPER CLAIMANTS WILL ASSURE THE GOVERNMENT'S GOOD ACQUITTANCE AND IS PARTICULARLY ADVISABLE BECAUSE FUNERAL EXPENSES, WHICH HAVE PRIORITY AS A CLAIM, HAVE NOT BEEN PAID.

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