for a pension under these requirements.
Resolution 10 also provides that the regulations contained therein shall govern the payment of pensions to employees of the coal operators signatory to the 1950 National Bituminous Coal Wage Agreement, although this Fund was set up several years prior thereto; but by stipulation his last employer, namely, W. N. Mayse, was a signatory to this agreement, as well as to its predecessor, the 1948 agreement, effective during plaintiff's last employment in the industry. Plaintiff therefore comes within this requirement of the Resolution.
However, defendants also contended in final argument, although not expressly included in their pleadings as a defense, that the Fund is a charitable trust and that the court cannot interfere in its decisions unless the Trustees act arbitrarily or unreasonably. In the first place, I do not agree that this Fund is a charitable trust, involving mere gratuities, but am of the opinion that money paid from it is in the nature of a fringe benefit, a term of recent origin, or deferred, contingent compensation which the employees of signatories may be entitled to receive in addition to their wages, and which was procured for them by their bargaining agent, the United Mine Workers of America. This conclusion is not contrary to the provision in the Wage Agreement that the moneys paid into the Fund shall not be deemed wages nor liable for debts, etc., for to me this provision only relates to current wages and makes them immune from deductions by the employer or attachment for debts. Cf. Inland Steel Co v. National Labor Relations Board, 7 Cir., 1948, 170 F.2d 247, 12 A.L.R.2d 240, certiorari denied 336 U.S. 960, 69 S. Ct. 887, 93 L. Ed. 1112; Hooker v. Hoey, D.C., 27 F.Supp. 489, 490, affirmed, 2 Cir., 107 F.2d 1016; Hurd v. Illinois Bell Telephone Co., D.C., 136 F.Supp. 125, affirmed, 7 Cir., 234 F.2d 942. An employee therefore has a contractual right to this pension if and when he comes within the regulations prescribed by the Trustees.
But, say the Trustees, plaintiff may look only to them for a determination of this right to a pension, absent arbitrary or unreasonable acts on their part, and they cite in this connection the Wage Agreement, which grants them full authority in respect of coverage, eligibility, amounts of benefits, etc. Does that mean that an applicant for a pension may never look beyond the Trustees to the Courts for the enforcement of his contractual right, except under the circumstances mentioned? I do not think so, but on the contrary believe that the full authority given to the Trustees comprehends the right to set up requirements for eligibility, etc., which they have done by Resolution 10, and which are not challenged by plaintiff, and to pass upon applications for pension when made and determine whether they come within the requirements. However, I do not believe it comprehends the deprivation of an applicant's right of recourse to the Courts when he disagrees with the determination of the Trustees on this point, regardless of whether they acted arbitrarily or unreasonably. Neither the Resolution, nor the Wage Agreement which is the source of the authority, contemplates such deprivation, because in them there is no provision that the determination of the Trustees as to whether an applicant comes within their regulations shall be final and conclusive, as is found in those instances where recourse to the Courts has been denied. Cf. Hurd v. Illinois Bell Telephone Co., supra, 136 F.Supp. at page 154; Menke v. Thompson, 140 F.2d 786, 791.
In reaching this conclusion, I have not overlooked Van Horn v. Lewis, D.C., 79 F.Supp. 541, where the Court in its conclusions of law states that the Retirement Fund of 1947, predecessor to the one here involved, constitutes a beneficial charitable trust. The issues involved in that case were whether the Wage Agreement of 1947 violated the Labor Management Relations Act, 1947 and whether the Court would interfere with the administration of this trust by a majority of the Trustees, at the behest of the minority, where there was disagreement between them. The issues, therefore, in the Van Horn case differ from those involved herein, and in addition I question whether the conclusion of law that the Fund is a charitable trust was necessary to the decision, particularly as the Labor Management Relations Act, 1947 makes no mention of such a trust, nor does the Wage Agreement herein.
But assuming the Fund to be a charitable trust, there is ample evidence of arbitrary and unreasonable acts by the Trustees, if they be considered a sine qua non to recovery by plaintiff as contended by defendants. They are shown by the following facts: Resolution 10 provides that certification by a local union that an applicant served in the coal industry shall be deemed satisfactory proof of service for the periods covered by such statements. Notwithstanding this provision in the Resolution, and the certification by the union, the Trustees rejected plaintiff's application upon ascertaining that the Social Security records did not bear out, in part, plaintiff's statement of employment. Moreover, they did not call upon the applicant for an explanation of the apparent discrepancy, nor did they make an independent investigation of their own by communicating with the local union or otherwise. Instead, plaintiff was first informed that membership in the United Mine Workers was a requisite to eligibility, that he had lost his membership, and that the only way he could become a current member was to obtain employment and join the United Mine Workers, the former of which was an impossibility because of plaintiff's age and physical condition. Defendants now concede that this information was erroneous and contend it was unauthorized, having been written by a director of a Compensation Department of the United Mine Workers and not an officer of the Fund, but nevertheless that was the information plaintiff received when he made inquiry through an attorney, during the pendency of his application for a pension. He was next informed by the counsel for the Fund that he had failed to meet the requirements without any explanation or request for further information, as above stated. To me the foregoing equates unreasonable and arbitrary acts on the part of the Trustees who are acting in a fiduciary capacity and have a high duty to make certain that all those who are eligible for a pension receive it, and all those who are not eligible are denied it. It has been argued that to expect the trustees to do more than reject, as they did, would shift the burden of proof which is placed upon the applicant by Resolution 10. With this contention I do not agree, because to me all that I suggest should reasonably have been done is to shift the burden of going forward on the trustees when confronted with the situation above set forth, and not summarily to reject the application.
Judgment therefore will be entered declaring that plaintiff is entitled to his pension, and for a money judgment for the amount of accrued pension since the institution of suit. He is not entitled to any pension prior thereto because he has abandoned his application containing the misstatements above set forth and his claim is now based entirely on the evidence adduced at this trial.
It thus becomes unnecessary to discuss the defense of the statute of limitations, also raised as a defense, because the payment of a pension is a continuing obligation and no back payments before institution of suit are included in the finding herein, for the reason stated.
Counsel will submit judgment accordingly. This memorandum makes unnecessary the submission of further findings of fact and conclusions of law.
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