See text above, typescript at 141. Judge Holtzoff, writing in 1960 in Kennet v. United Mineworkers of America, 183 F. Supp. 315 (D.D.C. 1960) still found the question vexing. He began his answer by noting that the LMRA "authorized the establishment of welfare funds by employers for the sole and exclusive benefit of the employees of the employer and their families and dependents," and that "[t]he statute further provided . . . that the employees and employers were to be equally represented in the administration of th[e] fund."
It appears that prior to 1960, the trustees, in computing the required 20 years of employee service in the coal industry, gave credit for periods of self-employment to coal miners who operated small coal mines. But it seems that in 1960 the trustees began to doubt the propriety of equating the status of an entrepreneur with that of an employee, see Kennet v. United Mine Workers of America. 183 F. Supp. 315, 318 (D.C.D.C., 1960), since the Taft-Hartley Act requires that funds paid into the Trust be used "for the sole and exclusive benefit of the employees of such employer, and their families and dependents." (Emphasis added.)
Barlow v. Roche (Lewis), supra, and 2 Scott, Trusts, §§ 198, 198.1 (1956). There is also a diversity of opinion among the courts as to the amount of judicial review available in cases similar to this one. Certainly, the furtherest the courts have gone in establishing the extent of judicial review is that expressed by the court in Kennet v. United Mineworkers, etc., 1960, 183 F. Supp. 315, 318: Compare Hobbs v. Lewis, supra, and Kennet v. United Mineworkers of America, D.C.D.C. 1960, 183 F. Supp. 315 with Ruth v. Lewis, supra.
ThurberThurber Finally, although some courts have reached a contrary result, see Dohrer v. Wakeman, supra; Melang v. I. B. E. W. Pac. Coast Pension Fund, supra; Kennet v. U. M. W., 183 F. Supp. 315, 318 (D.D.C. 1960), and there are strong arguments on the other side, plaintiff's contention that a sole proprietor can be considered an "employee" as that word is used in section 302(c)(5) is not frivolous. The Supreme Court has indicated that the word "employee" in the LMRA may vary in scope depending on the policies of the specific LMRA section in question where inclusion or exclusion is not totally clear. See Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971).
Stated another way, our interest here is directed to the reasonableness of the opportunity afforded to mature pension eligibility under current standards where all that is lacking is the actual termination of employment, rather than in debating whether such eligibility should be regarded in substance as already having been matured. Danti v. Lewis, supra; compare Ruth v. Lewis, 166 F. Supp. 346 (D.D.C. 1958), with Hobbs v. Lewis, 159 F. Supp. 282 (D.D.C. 1958); cf. Kennet v. United Mine Workers of America, 183 F. Supp. 315, 317-318 (D.D.C. 1960). This brings us to appellant's second major contention, which is that the Trustees acted arbitrarily in altering the eligibility requirement in respect of years of service without prior notice of any kind or the provision of an opportunity rationally calculated to give appellant an opportunity to elect between taking his pension or continuing in employment subject to the new requirement.
The scope of judicial review of the Trustees' decision that an applicant is not a beneficiary of the Fund has been discussed in several decisions of the United States District Court for the District of Columbia, as well as in decisions of courts in other jurisdictions. See Hobbs v. Lewis, 159 F. Supp. 282 (D.D.C. 1958); Kennet v. United Mineworkers of America, 183 F. Supp. 315 (D.D.C. 1960). Compare Ruth v. Lewis, 166 F. Supp. 346 (D.D.C. 1958); Barlow v. Roche, 161 A.2d 58 (D.C.Mun.App. 1960).
The judgment of the District Court is affirmed. Kennett v. Roche, No. 15892, D.C. Cir., Dec. 20, 1960; Kennet v. United Mine Workers, D.C.D.C. 1960, 183 F. Supp. 315. Affirmed.
May's claim that Corley lacks standing to bring an action on behalf of the plan is not supported by District of Columbia case law. See Kennet v. United Mineworkers of America, 183 F. Supp. 315, 317 (D.D.C. 1960). 2.
The scope of review is, however, very narrow and is limited in the manner just stated. Danti v. Lewis, 114 U.S.App.D.C. 105, 108, 312 F.2d 345; Kosty v. Lewis, 115 U.S.App.D.C. 343, 346, 319 F.2d 744; Kennet v. United Mineworkers of America, D.C., 183 F. Supp. 315, 317. The next step to be taken is to extend this authority of the courts to setting aside and declaring invalid a qualification for eligibility for a pension, if the Court concludes that the requirement is arbitrary and capricious.
Where the interpretation of an eligibility requirement is deemed reasonable and where there is substantial evidence to support the Trustees' application of that requirement, as interpreted, the Court may not find the determination of the Trustees to be arbitrary or capricious or made in bad faith. Kennet v. United Mine Workers of America, 183 F. Supp. 315 (D.D.C. 1960) aff'd per curiam No. 15,892, D.C. Cir., December 20, 1960. This Court has concluded that the Trustees were reasonable in interpreting the eligibility requirement of "classified" employment set out in Resolution 41 to require reference to the collective bargaining agreement in effect at the time the service was performed.