The opinion of the court was delivered by: GOLDSBOROUGH
As I remember it, those were the two important questions.
I don't think there is any great difficulty in making an analysis of the situation. Assuming, for the sake of argument, that subsection (B) of section (c) of Title 29 U.S.C.A. § 186 is not only an exception but a limitation, the Court is of the opinion that the Bituminous Wage Agreement of 1947 is in no way violative of that provision.
The provision says that, 'The detailed basis on which such payments are to be made is specified in a written agreement with the employer.'
The Bituminous Wage Agreement of 1947 was an agreement with the employers, and it states specifically, 'It is further agreed that the detailed basis upon which payments from the fund will be made shall be resolved in writing by the aforesaid trustees at their initial meeting, or at the earliest practicable date that may be by them thereafter agreed upon.'
Now, the operators elected that the detailed basis should be worked out in that way. So the Court thinks that Section 186 was literally complied with. In other words, the payment shall be made as specified in a written agreement with the employer. And the employer specified that they should be made by this Board of Trustees, all three of them. And when I say all three of them I mean there should be no difference between the power and the duties of any of the three trustees.
The agreement also states that: 'The operators signatory hereto do hereby appoint Ezra Van Horn of Cleveland, Ohio, as their representative on said Board of Trustees. The United Mine Workers of America do hereby appoint John L. Lewis of Washington, D.C., as its representative on the Board of Trustees.
'It is further stipulated and agreed by the joint contracting parties that the aforesaid two Trustees shall with all dispatch designate and name a third and neutral trustee. Said three trustees so named and designated shall constitute the Board of Trustees to administer the fund herein created.'
That is, the operators agreed that these three trustees should work out the detailed basis and should also administer the fund.
Then, in the matter of actuarial basis, which is one of the difficulties contended for by the trustee Van Horn, he says the actuarial basis has not been worked out.
Well, what happened was this: These trustees, that is, the two trustees Van Horn and Lewis, and Murray who was then the third trustee, began to work on this thing last September, and I think in November they agreed on an actuary.
The results the actuary reached were not satisfactory to Lewis and there was another actuarial computation made which was not satisfactory.
And then a third actuary made his report, the actuary selected, I think, by Mr. Lewis; Latimer was his name. And he said that the actuarial basis was sound.
Now, of course, the Court knows from a rather long business experience that actuaries can reach very many different conclusions if they want to reach them.
I once knew of an insurance actuary, a rather famous one, who claimed he could reach any conclusion you asked him to reach.
So that in April of 1948, when it was very necessary to administer this fund -- the matter had become critical -- the two trustees, Lewis and Van Horn, agreed upon Senator Bridges as the third trustee (Murray having previously resigned).
Now, the third trustee made a suggestion which was agreeable to the trustee Lewis, and this is what he said; this was the resolution which he offered and which was adopted by Lewis and by him.