The opinion
EDWARDS, * Circuit Judge
(dissenting on one issue):
I regret to find myself in disagreement as to what appears to me to be the principal issue involved in this appeal. I recognize this court’s long encounter with the problems posed by that strange but lasting John L. Lewis 1 creation known as the United Mine Workers of America Welfare and Retirement Fund. Additionally, I respect the well-written majority opinion of the court. My Brother Wilkey has woven his argument skillfully from the warp of prior decisions of this court 2 and the woof of responding Retirement Board resolutions.
Unfortunately, the result in one important respect appears to me to be completely wrong in both law and equity, and I am compelled to dissent. This case (and its companion case, Pete v. UMWA Welfare and Retirement Fund of 1950, 170 U.S.App.D.C. 437 , 517 F.2d 1267 No. 73-1270) will occasion the UMWA Welfare and Retirement Fund to pay lifetime pensions to miners whose coal digging contribution to the Retirement Fund is as little as one year. I doubt that there is any precedent in history for judicial imposition of such private philanthropy. Of course, I do not doubt the need of the individuals who will receive these contributions. But this is not a case involving public financing of miner’s welfare. It is, on the contrary, a wholly private fund created by the UMWA and the mine owners, members of the Bituminous Coal Operators Association, who signed labor contracts with the union. The Fund was created to provide benefits (primarily pensions) for employees under those labor-management contracts. Under this pension every retired miner who is found eligible is granted the same pension as is every other pensioner — regardless of the extent of his contribution to the fund and regardless of his family need. Although this fund deals in many millions of dollars each year, its obligations are such as really to make its pensions represent equally shared poverty.
The highest pension the miners in signatory mines have ever received is $150 a month for support of themselves and their families. The orders of this court will not increase the amount available to the Retirement Fund for distribution as pensions. It will simply decrease the amount available to all pensioned miners (present and future) by increasing the *433 total number of pensioners who will share the funds available. 3
The record in this case discloses no reason in law or equity why mine owners who have signed union agreements and joined together to finance this fund should be called upon against their will to pay full lifetime pensions to retirees who spent ^oths of their productive work lives in the nonunion mines of their competitors. Nor does the record disclose any reason why miners whose collective efforts created this fund and whose work in the mines dug the coal which financed it should have their present and future inadequate pensions reduced by full pensions for other miners whose contributions were only the most minimal.
My Brother Wilkey’s opinion argues that succeeding D. C. Circuit cases and UMWA Welfare and Retirement Fund resolutions inexorably require this result. This result, however, offends established principles of equity, a controlling federal statute, and the controlling case law of this circuit.
The United Mine Workers of America Welfare and Retirement Fund was a creation of collective bargaining. It was established by the National Bituminous Coal Wage Agreement of 1950 under the terms of Section 302(c)(5) of the Labor-Management Relations Act of 1947, codified at 29 U.S.C. § 186 (c)(5) (1970). The funds for the pension trust are generated by a payment of a contractually determined amount per ton of coal mined by each producer who is signatory to the National Bituminous Coal Wage Agreement. (Under the NBCW Agreement of 1950, the figure was thirty cents per ton.) The Fund is administered by a Board of Trustees consisting of an equal number of representatives of the UMW and the Bituminous Coal Operators Association, who choose an impartial third member. The trustees “have full authority with respect to coverage and eligibility.” As noted above, the trustees have seen fit to pay all pensioners whom they accept as eligible, the same pension in dollar amount. (During the years in question here the highest pension ever paid is the present $150 per month.)
The National Bituminous Coal Wage Agreement of 1950 established the purposes of the Fund in the language of an irrevocable trust:
“It is agreed that this Fund is an irrevocable trust created pursuant to Section 302(c) of the ‘Labor-Management Relations Act, 1947,’ and shall endure as long as the purposes for its creation shall exist. Said purposes shall be to make payments from principal or income or both, of (1) benefits to employees of said Operators, their families and dependents for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or life insurance, disability and sickness insurance or accident insurance; (2) benefits with respect to wage loss not otherwise compensated for at all or adequately by tax supported agencies created by federal or State law; (3) benefits on account of sickness, temporary disability, permanent disability, death or retirement; (4) benefits for any and all other purposes which may be specified, provided for or permitted in Section 302(c) of the ‘Labor-Management Relations Act, 1947,’ as agreed upon from time to time by the Trustees in- *434 eluding the making of any or all of the foregoing benefits applicable to the individual members of the United Mine Workers of America and their families and dependents, and to employees of the Operators other than those exempted from this Agreement; and (5) benefits for all other related welfare purposes, as may be determined by the Trustees within the scope of the provisions of the aforesaid ‘Labor-Management Relations Act, 1947.’ Subject to the stated purposes of this Fund, the Trustees shall have full authority, within the terms and provisions of the ‘Labor-Management Relations Act, 1947,’ and other applicable law, with respect to questions of coverage and eligibility, priorities among classes of benefits, amounts of benefits, methods of providing or arranging for provisions for benefits, investment of trust funds, and all other related matters.” Joint Appendix at 32-33, Roark v. Boyle, 141 U.S.App.D.C. 390 , 439 F.2d 497 (1970).
The critical language of this trust indenture establishes as its first purpose providing “benefits to employees of said Operators [previously defined as Operators who signed the National Bituminous Coal Wage Agreement] for pensions on retirement or death of employees.” It is perhaps the most fundamental rule in the law of trusts that the trustees owe absolute loyalty to the purposes of the trust as declared by the settlors.
Thus concerning beneficiaries of a trust, the Restatement of the Law of Trusts provides:
Ҥ 226. Liability for Payments or Conveyances Made to Persons Other Than the Beneficiary
If by the terms of the trust it is the duty of the trustee to pay or convey the trust property or any part thereof to a beneficiary, he is liable if he pays or conveys to a person who is neither the beneficiary nor one to whom the beneficiary or the court has authorized him to make such payment or conveyance.” Restatement (Second) of Trusts, § 226 (1957).
And Scott on Trusts elaborates:
“§ 226. Liability for Payments or conveyances made to persons other than the beneficiary. Where the trustee makes payment of trust funds or conveys trust property to a person other than the beneficiary entitled to receive the money or other property, he is liable to the beneficiary, unless the payment or conveyance was authorized by a proper court. This is true, of course, where the trustee intentionally or negligently makes a payment or conveyance to the wrong person. It is also true where he reasonably believes that the person to whom he makes the payment or conveyance is entitled thereto. Thus the trustee is liable if he makes payment to the wrong person as a result of a mistake of law or an erroneous interpretation of the trust instrument, even though the mistake is a reasonable one.” 2 A. W. Scott, The Law of Trusts § 226, at 1647-48 (2d ed. 1956). (Footnotes omitted.)
When in the Labor-Management Relations Act of 1947 (Taft-Hartley Act), 29 U.S.C. § 141 et seq. (1970), the Congress of the United States decided to legislate on the question of pensions arising out of collective bargaining, it did so in language drawn from the underlying principles of trust law outlined above.
The controlling statute provides:
“(c) The provisions of this section shall not be applicable .
“(5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, *435 and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities; . . . 29 U.S.C. § 186 (c)(5) (1970). (Emphasis added.)
In prior cases of this court we find recognition of an adherence to these principles. Thus the court rejected the Retirement Board’s requirement that no miner could be eligible for a pension unless he had worked the last year prior to retirement in signatory mining. But it did so in cases where the three named plaintiffs had 11 years, 9 years and 14 years of signatory employment. Roark v. Lewis, 130 U.S.App.D.C. 360 , 361, 401 F.2d 425, 426 (1968) (Roark I).
In what appears to me to be the controlling case (Roark II), Judge Leventhal’s opinion for the court said:
“What is arbitrary, however, is a plan that puts a miner, leaving signatory employment through no fault of his own, to such a hard choice, all in the interest of employer loyalty and economic survival of a pension system, when the plan has not at least taken the step of furthering both these interests with an eligibility condition requiring substantial contributory employment. In a plan with flat equal pensions, eligibility requirements rationally calculated to reward employer loyalty cannot depend on the single fact of employment by a contributing employer during the year immediately preceding retirement. They must also focus a significant period of contributory employment.” Roark v. Boyle, 141 U.S.App.D.C. 390 , 400, 439 F.2d 497, 507 (1970).
The court’s opinion continued:
“This defect mars the eligibility requirements applied to deny a pension to appellants. The Trustees’ contention that the signatory last employment requirement is a rational ‘minimum’ requirement of contributory em *436 ployment is not persuasive. It is a strange ‘minimum’ that can be satisfied by someone who has worked one year for a contributing employer and yet be deemed unsatisfied by a man who has worked for contributing employers for 19 of his 20 years in the coal industry.” Ibid.
Regrettably, it seems to me that the court in our instant case now stands this logic on its head. Out of concern that a miner who worked 19 of 20 years in the mines in signatory employment should be excluded from a pension, we now award pensions to miners who worked 19 out of 20 years in nonsignatory and competitive mines. And to do so, we either disregard the Roark II requirement of a “significant period of contributory employment,” or, astonishingly, we are defining one year out of twenty as “a significant period of contributory employment.”
Under the instructions of this court the UMWA Retirement Board has now established five years as its definition of “a significant period of contributory employment.” I do not see how the District Judge or we can properly hold that the five year period is “arbitrary and unreasonable.” Indeed, this court in Roark II appears to me to have directed the Retirement Board to accept just such a standard. After reviewing private pension plans under collective bargaining, this court’s final holding in Roark II was:
“[WJe conclude that a requirement of signatory last employment can be a valid eligibility requirement only if it is in context of a plan that conditions eligibility on a period of contributory employment that is of sufficiently significant duration to warrant eligibility for a flat pension. A period less than five years would manifestly not be sufficient under this standard.” Roark v. Boyle, 141 U.S.App.D.C. 390 , 401, 439 F.2d 497, 508 (1970). (Emphasis added.)
As this dissent is being drafted, the United States Congress is considering a bill which would seek to spell out public policy concerning pensions more fully than has yet been done. A noncontroversial aspect of the bill now being considered by the House and Senate conferees provides as follows:
“SEC. 411. MINIMUM STANDARDS RELATING TO VESTING.
“(a) GENERAL RULE. — Except as provided in subsection (e), a trust shall not constitute a qualified trust under section 401(a) unless the plan of which such trust is a part satisfies the requirements of paragraphs (1) and (2).
“(1) EMPLOYEE CONTRIBUTIONS. — A plan satisfies the requirements of this paragraph if, under the plan, an employee’s rights in his accrued benefit derived from his own contributions are nonforfeitable.
“(2) EMPLOYER CONTRIBUTIONS.—
“(A) NONFORFEITABLE PERCENTAGE. — A plan satisfies the requirements of this paragraph if, under the plan, after 5 years of service (3 of which are consecutive) with an employer, an employee has a right to a percentage of his accrued benefit derived from employer contributions which is nonforfeitable other than by reason of death. The percentage shall not be less than the percentage determined under the following table:
Nonforfeitable
“Years of service percentage
5 ............................... 25
6 ............................... 30
7 ............................... 35
8 ............................... 40
9 ............................... 45
10 ............................... 50
11 ............................... 60
12 ............................... 70
13 ............................... 80
14 ............................... 90
15 or more ...................... 100
*437 H.R. 2, 93d Cong., 2d Sess. § 411(a) (1974).
As has been made obvious above, I would reverse the judgment of the District Court as to the requirement that pensions be awarded to any claimant with less than five years of signatory employment. As to other issues presented, I join the opinion of the court.
Sitting by designation pursuant to 28 U.S.C. § 291 (a).
. Shakespeare might have been talking about the former UMWA president when he said, “The evil that men do lives after them,/The good is oft interred with their bones.” W. Shakespeare, Julius Caesar, Act III, sc 2, ll. 80-81.
. Danti v. Lewis, 114 U.S.App.D.C. 105 , 312 F.2d 345 (1962) ; Roark v. Lewis, 130 U.S. App.D.C. 360, 401 F.2d 425 (1968) (Roark I) ; Collins v. UMWA Welfare and Retirement Fund of 1950, 141 U.S.App.D.C. 387 , 439 F.2d 494 (1970) ; Roark v. Boyle, 141 U.S.App.D.C. 390 , 439 F.2d 497 (1970) (Roark II) ; DePaoli v. Boyle, 144 U.S. App.D.C. 364, 447 F.2d 334 (1971) ; Belcher v. Boyle, 82 L.R.R.M. 2435 (D.D.C.1971), aff’d sub nom. Belcher v. Carey, No. 71-1622 (D.C.Cir. 1972) (unreported) ; Teston v. Carey, 150 U.S.App.D.C. 256 , 464 F.2d 765 (1972).
. The record shows that only a relatively few of the claimants in this appeal are seeking pensions with less than five years of signatory employment. Neverthless, as we will see, how and under what circumstances a pension vests is one of the most important questions in pension law.’ Additionally, under the majority holding, the court must anticipate a class suit on behalf of all miners, dead or alive, who could and would have filed claims had they known that such minimal signatory employment could justify a pension, seeking waiver of their failure to file promptly.