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In re: EASCO BOILER CORP., et al., Case No. 22-10881 (JLG) Chapter 11

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In re:
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Case No. 22-10881 (JLG) Chapter 11
(Jointly Administered)

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Attorneys for the Debtors  

Times Square Tower  

Seven Times Square, Suite 2506  

New York, NY 10036  

By: Alan L. Braunstein, Esq.  

Alissa L. Poynor, Esq.  


Attorneys for 32BJ SEIU  

38 New Street  

Huntington, NY 11743  

By: Avrum J. Rosen, Esq.  




Easco Boiler Corp. (the “Debtor”) is a chapter 11 debtor herein. After the Court set a  deadline for the Debtor’s creditors to submit claims, the Local 32BJ SEIU Union timely filed the  Union Claim1 on behalf of certain of its members. In part, it asserts priority for severance  payments under 11 U.S.C. § 507(a)(4) based on the Faithful Service Clause in collective  bargaining agreements between the Debtor and the Union.  

The Debtor objects to the alleged priority status, arguing that the Faithful Service Clause,  which provides a right to three weeks’ salary after a Union employee’s disability or permanent  layoff after a term of service of at least fifteen years, does not constitute “severance” under section  507(a)(4) of the Bankruptcy Code. In opposition, the Union argues that the Faithful Service Clause  constitutes severance under Second Circuit precedent and should enjoy priority status. The Debtor  and the Union both support their positions, in part, on evidence other than the collective bargaining  agreement in effect on the Petition Date.  

Having considered the parties’ arguments and relevant case law, the Court concludes that  the Faithful Service Clause confers a right to severance entitled to priority under section 507(a)(4)  of the Bankruptcy Code.  

1 Terms that are used but not defined in this section are defined elsewhere in this document.  


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The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 157 and 1334  and the Amended Standing Order of Referral of Cases to Bankruptcy Judges of the United States  District Court for the Southern District of New York, dated January 31, 2012 (Preska, C.J.). This  is a core proceeding pursuant to 28 U.S.C. § 157(b).  


The Chapter 11 Cases  

On June 27, 2022 (the “Petition Date”), the Debtor commenced its bankruptcy case by  filing a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the  “Bankruptcy Code”).2 Thereafter, the Debtor remained in possession and control of its business  and assets as a debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.  On September 8, 2022, the Court set October 14, 2022 (the “Bar Date”) as the last day to file  proofs of claim (the “Bar Date Order”).3 On January 30, 2023, the Debtor filed its Amended Plan  of Liquidation.4 On March 24, 2023, the Court confirmed the Plan.5 

The Union  

The Debtor is a member of the Boiler Industry Employers Association (the “Association”).  It was party to certain collective bargaining agreements (each a “CBA,” and collectively, the  

2 Voluntary Petition for Non-Individuals Filing for Bankruptcy, In re Easco Boiler Corp., No. 22-10881 (Bankr.  S.D.N.Y. filed June 27, 2022), ECF No. 1.  

3 Order Establishing the Deadline for Filing Proofs of Claim and Approving the Form and Manner of Notice, ECF  No. 96.  

4 First Amended Chapter 11 Plan of Liquidation of Easco Boiler Corp., ECF No. 168.  

5 Order Confirming Debtor Easco Boiler Corp.’s Amended Chapter 11 Plan of Liquidation Pursuant to 11 U.S.C.  § 1129 and FED. R. BANKR. P. 3020, ECF No. 200 (the “Plan”).  


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“CBAs”) between the Association and Local 32BJ SEIU (Service Employees International Union)  (the “Union”). During the period from July 1998 through April 30, 2023, the Debtor and the Union  were party to at least seven CBAs.  

The CBA in effect during the period of July 26, 2001 until March 1, 2004 (the “2001  CBA”), contains a severance pay clause which states as follows: 


In the event of the discharge of a member of the Union. For other than good and  just cause, the Employer shall pay severance pay, scaled according to length of  service; and that such severance pay shall not be less than one week for each year  of service, and not to exceed four weeks pay.  

2001 CBA at 14–15. None of the CBAs in effect after July 31, 2004 contain a severance pay  clause. However, all of them include so-called faithful service and prior better conditions clauses.  The CBA in effect as of the Petition Date (the “May 2021 CBA”)6 states, as follows:  


An employee who has been employed for at least fifteen (15) years and who  becomes disabled or who is permanently laid off shall receive from the Employer  a lump sum payment of three (3) weeks pay.  

May 2021 CBA at 20 (the “Faithful Service Clause”). It also states, as follows:  

It is understood and agreed that this agreement shall not in any way alter, change,  modify or deprive any of the employees of any conditions that they are now  enjoying or working under which are better than those specified in this Agreement,  and they shall continue to receive any such better conditions during the life of this  Agreement.  

Id. at 13–14 (the “Prior Better Conditions Clause”). The 2001 CBA contains a Prior Better  Conditions Clause but does not contain a Faithful Service Clause.  

6 The May 2021 CBA is annexed as Exhibit 7 to the Eastmond Affidavit.  


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The Claims  

On November 17, 2022, the Union filed Proof of Claim No. 39 in the amount of  $305,925.77 (the “Union Claim”), in its representative capacity on behalf of the Union employees  (the “Union Employees”) identified in the spreadsheet annexed to the addendum to the Union  Claim (the “Addendum”). The Union lists “accrued vacation, sick and severance pay” as the basis  of the claim and includes priority and unsecured portions. Union Claim at 2–3. The priority  portion of the Union Claim is in the amount of $195,179.44 (the “Union Priority Claim”) and is  on account of “all amounts for accrued vacation, sick and severance pay for the 180-day priority  period [under 11 U.S.C. § 507(a)(4)] (the ‘Priority Period’).” Addendum at 1. A portion of that  amount—$106.433.38—is on account of amounts allegedly due and owing to Union members  under the Faithful Service Clause who were laid off during the 180-day period prior to the Petition  Date (the “Union Faithful Service Claim”). The general unsecured portion of the claim is in the  sum of $110,746.33, and “is for all amounts for accrued vacation, sick and severance pay outside  of the Priority Period.” Id.  

During the period between September 26, 2022 and November 14, 2022, the following  Union Employees filed union related claims against the Debtor as set forth below (the “Union Related Claims”):  

(i) On September 26, 2022, Eric Medina filed Proof of Claim No. 26 for $2,294.99  seeking priority status under Section 507(a)(4) (asserting claims for “vacation and  sick days”).  

(ii) On September 27, 2022, Ernesto Ramos filed Proof of Claim No. 20 for an  unknown amount, seeking priority status under Section 507(a)(4) (asserting claims  for wages, salaries or commission, vacation and for services performed).  

(iii) On September 28, 2022, Harold Medina filed Proof of Claim No. 27 for  $2,966.67 as a general unsecured claim.  


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(iv) On October 1, 2022, Rajnarine Singh, Jr. filed Proof of Claim No. 28 for  $3,500.00 as a general unsecured claim (asserting claim for benefits, vacation pay  and sick pay)[.]  

(v) On October 1, 2022, Rajnarine Singh filed Proof of Claim No. 29 for $5,000.00  as a general unsecured claim (asserting claim for benefits, vacation pay and sick  pay).  

(vi) On November 14, 2022, Francisco Cruz filed Proof of Claim No. 37 for  $9,581.64 seeking priority under Section 507(a)(4) for $193.67 (asserting claim for  wages, salary or commission).  

See Eastmond Affidavit, Exhibit 2.7 None of the Union-Related Claims filed by the Union  Employees assert claims for severance.  

The Claim Objections  

On March 6, 2023, the Debtor filed its First Omnibus Objection to Proofs of Claim No. 20,  21, 26, 27, 28, 29 and 37.8 In it, the Debtor objected to the Union-Related Claims on the grounds  that they were superseded by the Union Claim. The Court sustained that objection.9  

On March 6, 2023, the Debtor filed an objection to the Union Claim (the “Objection”).10  The Debtor objected to the Union Priority Claim “because based on the Debtor’s calculations of  what is due under the statute (during the 180-day period), the Union Priority Claim should be a  lower amount.” Objection ¶ 10. It asserted that “[b]ased on the Debtor’s books and records, the  

7 Affidavit of Tyren Eastmond in Support of Debtor’s Objection to Union Severance Clams, ECF No. 247-1.  (“Eastmond Affidavit.”).  

8 Debtor Easco Boiler Corp.’s First Omnibus Objection to Proofs of Claim No. 20, 21, 26, 27, 28, 29, and 37, ECF  No. 183.  

9 Order Granting Debtor Easco Boiler Corp.’s First Omnibus Objection to Proofs of Claim No. 20, 21, 26, 27, 28,  29, and 37, ECF No. 252.  

10 Debtor Easco Boiler Corp.’s Objection to Proof of Claim No. 39 Filed by Local 32BJ SEIU in Its Representative  Capacity on Behalf of Certain Employees, ECF No. 180.  


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Union Priority Claim shall be reduced to $88,746.06.” Id. As support for the Objection, the Debtor  included an exhibit setting forth its calculation of the priority claim. Id., Exhibit A. 

On November 7, 2023, with leave of the Court,11 the Debtor supplemented the Objection  with a memorandum of law (the “Memorandum”)12 and the Eastman Affidavit. Briefly, the Debtor  contends that the Union Faithful Service Claim is not entitled to priority status under section  507(a)(4), because, as a matter of law, the Faithful Service Clause does not give rise to a claim for  severance under section 507(a)(4). The Debtor contends that is so because:  

(i) “The word ‘severance’ does not appear anywhere in the clause and New York  law does not require employers to provide severance.”  

(ii) “[Mr. Tyren,] the Debtor’s principal[,] has confirmed that it was understood  that the ‘faithful service’ provision was not a severance provision, but a bonus  provision intended to reward ‘faithful’ employees who consistently worked for the  Debtor for 15 consecutive years before retiring from the Debtor.”  

(iii) “[T]he history of negotiations regarding the CBA support [sic] the Debtor’s  position; and . . . had the parties agreed on severance the CBA would have  continued to incorporate the specific language providing for severance as it did in  the 2001 agreement.”  

Memorandum at 4–5.  

The Opposition  

On November 7, 2023, the Union responded to the Objection (the “Opposition”).13 The  Union contends that the Union Faithful Service Claim is entitled to priority treatment under section  507(a)(4) of the Bankruptcy Code because, as a matter of law, the Faithful Service Clause qualifies  

11 Order, Minutes of October 24, 2023 Proceedings, ECF No. 245.  

12 Debtor’s Supplemental Memorandum in Support of Objection to Union Priority Severance Claim No. 39, ECF  No. 247.  

13 Opposition to the Debtor’s Objection to Claim No. 39 Filed by Local 32BJ in Its Representative Capacity on  Behalf of Certain Employees, ECF No. 248.  


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as a severance provision under that section. See Opposition ¶ 5. The Union also argues that  application of the Prior Better Conditions Clause in each CBA prevents any covered employee  from losing any benefit conferred by a prior CBA or pattern and practice. The Union contends  that the Prior Better Conditions Clause grandfathers benefits that were conferred under prior CBAs  to the extent that those benefits are “better” than the benefits conferred under the operative CBA.  It contends that since the 2001 CBA contains a severance provision, the Court must construe the  Faithful Service Clause to provide covered employees with severance benefits. See id. ¶¶ 10–13.  

Legal Framework  

Under section 502(a) of the Bankruptcy Code, “a claim . . . proof of which is filed under  section 501 of this title, is deemed allowed, unless a party in interest . . . objects.” 11 U.S.C. §  502(a). The filing of a proof of claim executed and filed in accordance with the Bankruptcy Rules  constitutes “prima facie evidence of the validity and amount of a claim.” FED. R. BANKR. P.  3001(f). The objecting party bears the initial burden of overcoming its prima facie validity. See  In re Adelphia Commc’ns Corp., No. 02-41729, 2007 WL 601452, at *5 (Bankr. S.D.N.Y. Feb.  20, 2007).  

Section 502(b) sets forth the grounds for disallowing a proof of claim filed under section  501 of the Bankruptcy Code. See 11 U.S.C. § 502(b); see also Travelers Cas. and Sur. Co. of Am.  v. Pac. Gas and Elec. Co., 549 U.S. 443, 449 (2007) (“even where a party in interest objects [to a  claim], the court ‘shall allow’ the claim ‘except to the extent that’ the claim implicates any of the  nine exceptions enumerated in § 502(b)”). Section 502(b) prescribes nine categories of claims that  will be disallowed, including that “such claim is unenforceable against the debtor and property of  the debtor, under any agreement or applicable law for a reason other than because such claim is  contingent or unmatured.” 11 U.S.C. § 502(b)(1). If an objection filed pursuant to section  


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502(b)(1) refutes at least one of the claim’s essential allegations, the claimant has the burden to  demonstrate the validity of the claim. See In re Lehman Brothers Inc., No. 08-01420, 2015 WL  7451411, at *6 (Bankr. S.D.N.Y. Nov. 23, 2015). “When the burden is shifted back to the  claimant, it must then prove by a preponderance of the evidence that under applicable law the  claim should be allowed.” In re Oneida, Ltd., 400 B.R. 384, 389 (Bankr. S.D.N.Y. 2009).  

Section 507(a)(4) provides that priority status will be granted to allowed unsecured claims  for “wages, salaries or commissions, including vacation, severance, and sick leave pay” earned by  an individual “within 180 days before the date of the filing of the petition,” but “only to the extent  of $15,150.” 11 U.S.C. § 507(a)(4).14 Thus, for a severance claim to be entitled to priority under  section 507(a)(4), claimant must earn it within 180 days prior to the bankruptcy filing.  

The two objectives behind severance pay policies are “first, to protect employees from the  economic hardship of joblessness, and second, to reward employees for past service to the  company.” Bradwell v. GAF Corp., 954 F.2d 798, 801 (2d Cir. 1992). Consistent with that policy,  in Straus-Duparquet, Inc. v. Local Union No. 3, IBEW (In re Straus-Duparquet, Inc.), the Second  Circuit defined severance as “a form of compensation for the termination of the employment  relation, for reasons other than the displaced employees’ misconduct, primarily to alleviate the  consequent need for economic readjustment but also to recompense him for certain losses  attributable to the dismissal.” 386 F.2d 649, 651 (2d Cir. 1967) (quoting Adams v. Jersey Central  Power & Light Company, 120 A.2d 737, 740 (N.J. 1956)). In other words, Straus-Duparquet stands for the proposition that severance pay is compensation for the termination of employment  that is earned in full upon an employee’s termination.  

14 The dollar amount is adjusted in 3-year intervals pursuant to 11 U.S.C. § 104.  


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A severance right is thus characterized by an entitlement to payment which does not accrue  on a day-to-day basis, Straus-Duparquet, 386 F.2d at 651, where (i) the payment is due fully to an  employee who has served for a given period after termination of employment, id.; (ii) the pay is  made in lieu of advance notice of job loss, In re AppliedTheory Corp., 312 B.R. 225, 242 (Bankr.  S.D.N.Y. 2004); (iii) the job loss does not occur as a result of an employee’s misconduct, id. at  242; and (iv) the length of the payment bears a reasonable relationship to the length of the  employee’s service and is not disproportionately high in light of the purpose of severance in  alleviating an employee’s transient financial hardship due to job loss, cf. In re Hooker Invs., Inc.,  145 B.R. 138, 150 (Bankr. S.D.N.Y. 1992).  


The Petition Date is June 27, 2022. There is no dispute that the Union Faithful Service  Claim accrued “within 180 days before the date of the filing of the petition.” Likewise, it is  undisputed that those claims do not exceed the sum of $15,150 for any of the Union Employees.  At issue is whether the benefits payable under the Faithful Service Clause constitute “severance”  payments under section 507(a)(4) of the Bankruptcy Code.  

The Extrinsic Evidence  

In support of their respective arguments, the parties both rely, in part, on extrinsic evidence.  The Debtor argues that that the Faithful Service Clause would be called “severance” if the intent  of the provision was to confer such a right, since historical CBAs had such a provision. It also  argues that the history of negotiations and understanding between the parties confirmed that the  Faithful Service Provision did not confer a severance right, but only a bonus. In contrast, the  Union argues that the historical CBAs and the Prior Better Conditions Clause in each, taken  together, confirm that the Faithful Service Clause confers a right to severance.  


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A collective bargaining agreement is a contract that is “enforced according to the plain  meaning of its terms . . . .” Matter of Lin v. N.Y.C. Dep’t of Educ., 142 N.Y.S.3d 10, 12 (App.  Div. 1st Dept.) (quoting Greenfield v. Philles Records, 780 N.E.2d 166 (N.Y. 2002)). Therefore,  unless it is ambiguous, the Court must interpret the May 2021 CBA by itself to determine if it  confers a right to severance under section 507(a)(4) of the Bankruptcy Code. See Greenfield v.  Philles Records, 780 N.E.2d at 170 (“Extrinsic evidence of the parties’ intent may be considered  only if the agreement is ambiguous . . . .”).  

Under New York law, “[w]hether or not a writing is ambiguous is a question of law to be  resolved by the court.” W.W.W. Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990).  If a writing is not ambiguous, a court may not consider extrinsic evidence to “create an ambiguity  in the agreement.” Id.; see also Golden Unicorn Enterprises, Inc. v. Audible, Inc., No. 21-7059,  2023 WL 4561718, at *5 (S.D.N.Y. July 17, 2023) (“a party’s personal, subjective intent is not  relevant to the interpretation of a contract”).  

Neither party argues that the Faithful Service Clause is ambiguous. Therefore, the history  of the negotiations and parties’ respective understandings of whether the Union Employees  enjoyed a severance right is inadmissible. Cf. Aeneas McDonald Police Benevolent Ass’n v. City  of Geneva, 703 N.E.2d 745, 748 (N.Y. 1998) (emphasis added) (“Courts also may look to the past  practice of the parties to give definition and meaning to language in an agreement, including a  collective bargaining agreement, which is ambiguous.”). Moreover, this evidence is inapposite to  whether the Union Employees’ rights under the Faithful Service Clause constitute a right to  “severance” under section 507(a)(4) of the Bankruptcy Code, which is a pure question of law. For  the same reason, the previous CBAs are parol evidence to the extent that the Union contends they  alter the meaning of the Faithful Service Provision.  


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The Faithful Service Clause  

The Faithful Service Clause constitutes “severance” under section 507(a)(4) of the  Bankruptcy Code. It grants an entitlement to payment in full upon job loss and is due to employees  who have served a defined term of years. It does not vest until an employee meets two conditions:  first, the employee must have been employed for at least fifteen years. Second, the employee must  have become “disabled” or be “permanently laid off.”  

The Faithful Service Clause requires that the Debtor pay employees in lieu of advance  notice of job loss. Nowhere in the May 2021 CBA is the Debtor required to warn employees that  they will be laid off permanently; it expressly contemplates that employees may be laid off in the  middle of a workday. See May 2021 CBA at 9. The Faithful Service Clause compensates  employees for the hardship associated with sudden termination. Moreover, under the May 2021  CBA, sudden job loss that occurs as a result of employee misconduct does not qualify for payment  under the Faithful Service Clause, which only applies when an employee becomes “disabled” or  “permanently laid off.” Cf. Lay off, MERRIAM-WEBSTER, https://www.merriam (last visited Dec. 23, 2023) (“to cease to employ (a worker)  often temporarily”); accord Lay off someone, CAMBRIDGE, (last visited Dec. 23, 2023) (“to stop  employing a worker, esp. for reasons that have nothing to do with the worker’s performance”).  

The Faithful Service Clause also provides for a payment that is not disproportionately high,  at three-weeks’ pay. The Debtor does not argue that the payment is disproportionately high, but it  implies that the payment is not reasonably related to the length of an employee’s service because  Union representatives understood the payment to be a retirement bonus. See Memorandum at 5  (“Union representatives . . . repeatedly sought and obtained ‘faithful service’ payments for qualifying  


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retiring employees based on the mutual understanding that [its] purpose . . . is to provide a bonus to  long-serving employees when they retired.”). This is parol evidence and, as discussed further below,  it does not weigh on the Court’s analysis. Nonetheless, the suggestion the Faithful Service  Provision provides a reward or bonus for past service, at least in part, is not necessarily inconsistent  with the purpose of severance. See In re AppliedTheory Corp., 312 B.R. at 242 (“The policy  behind severance pay is to ‘protect employees from the economic hardship of joblessness, and  reward them for past services to their employer.’”). That the Faithful Service Clause applies to  employees with at least a fifteen-year tenure does not cut against this conclusion. It merely  indicates a limitation on the benefit to newer employees. See id. at 243 (noting that in Straus Duparquet, “[e]mployees employed more than three years were entitled to two weeks’ pay as  severance.” (citing 386 F.2d at 650)). A several-week lump sum is also standard for employees  who serve long terms and is not akin to a disproportionate gift such that it anticipates that the  recipient would have no need to find other work in light of the payment. See id. at 243, 246  (comparing terms of service and severance payment amounts and noting that “[p]ayments for the  duration and in the amount sought here far exceed the amounts necessary to compensate for the  economic hardship of temporary joblessness”).  

In sum, the Faithful Service Clause is a severance provision under 11 U.S.C. § 507(a)(4).  Its minor differences from the paradigmatic severance clause are not differences that  fundamentally change the character of the provision such that it confers a right to something other  than severance. That conclusion is not altered by the parties’ prior dealings or subjective  understandings of what rights the Faithful Service Clause conferred upon Union Employees.  


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Form of Payment  

The Debtor and the Union disagree on whether the Debtor should be required, in paying  any allowed part of the Union Claim, to issue a Form W-2 to the Union Employees. In the  Opposition, the Union asserts that pursuant to an agreement between the Debtor and the Union,  the Union would not object to confirmation of the Plan so long as the Debtor agreed to escrow the  Union Claim in an IOLA account, including the “employer’s portion of the escrow and to distribute  the undisputed amount on the Effective Date.” Opposition ¶ 16. Exhibit C to the Opposition  details an email conversation between the Debtor’s counsel and the Union’s counsel taking place  between March 15, 2023 and March 16, 2023, wherein the Debtor’s counsel acknowledged that  the “[m]oney was . . . placed in clients [sic] trust. We are figuring out employer portion which  will be wired as well.” Opposition, Ex. C at 1.  

On December 12, 2023, the Court heard oral argument on, among other things, how the  Debtor would pay the Union Claim. At the argument, the Debtor argued that providing the Union  Employees with Form W-2s would burden the administration of the Plan given the Debtor’s lack  of information that it contended would be necessary to compile and distribute them. Moreover, it  maintained that doing so would represent a substantial expense to the estate, which it did not  quantify. The Plan Administrator said that since the Debtor’s payroll service has been terminated  for longer than a year, the Debtor would need to reengage a payroll service provider to calculate  and issue the Form W-2s. The Debtor asserted that distributing Form 1099s to the Union  Employees would remedy these issues. The Union argued that sending Form 1099s to the Union  Employees could burden them with tax issues, that the proposed solution was contrary to the  Union’s expectations pursuant to its agreements with the Debtor, and that issuing employees a  Form 1099 instead of a Form W-2 in this scenario is nonstandard.  


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On December 18, 2023, the Court entered an order directing the parties, by December 22,  2023, to submit supplemental briefing as to their proposed methods of payment to the Union  Employees.15 The parties have not done so. Though the Court recognizes the Debtor’s concerns  regarding the expediency and costs to the estate of providing the Union Employees with Form W 

2s given their termination of the legacy payroll service provider, the Court does not understand  this expense to provide a sufficient justification why the Debtor should not be required to pay the  Union Employees in the same manner as it had in the past.  


For the reasons above, the Objection is denied. The Court finds that the Union Faithful  Service Claim is entitled to priority status under section 507(a)(4) of the Bankruptcy Code. The  Debtor will pay the Union Claim as the Plan provides, but will provide the Union Employees a  Form W-2 on account of any distributions thereunder and comply with applicable tax law,  including with respect to any state or federal contributions it is required to remit as part of the  Union Claim.  


Dated: December 23, 2023  

 New York, New York /s/ James L. Garrity, Jr.  Honorable James L. Garrity, Jr.   United States Bankruptcy Judge  

15 December 18, 2023 Memorandum Endorsed Order, ECF No. 257.  




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