Defendants appeal from an order of the district court denying defendants' motions for summary judgment and granting summary judgment for plaintiffs and directing that a pension plan for defendant New York Recing Association, Inc.'s employees be revised to conform with Section 302(c)(5)(B) of the Labor Management Relations Act of 1947 (Taft-Hartley Act), 29 U.S.C. 186(c)(5)(B). The parties stipulated that the sole issue in this case is whether or not the pension plan, over which the employer mainains 'absolute dominance,' is violative of Section 302 of the Act, and they made cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. We previously have held that federal courts have jurisdiction over declaratory judgment actions in Section 302, disputes. International Longshoremen's Association AFL-CIO v. Seatrain Lines, Inc., 326 F.,2d 916, 918-919 (2d Cir. 1964). The district court held that Section 3021 was violated by the pension plan because it did not conform to Section 302(c)(5)(B). For reasons which follow, we reverse.

Plaintiff, Independent Association of Mutuel Employees of the State of New York, is a labor union representing as exclusive bargaining agent more than 600 employees of the Mutuel Department of NYRA, a statutory corporation created in 1958, McK. Unconsolidated Laws 7902 (1961), for the purpose of conducting thoroughbred racing in the State of New York. Following arm's length bargaining between the union and NYRA's predecessor, a collective bargaining agreement was signed effective November 16, 1955 and, pursuant to its terms, the employer, on April 1, 1956, established a pension plan for the union members and entered into a trust agreement. Under the current collective bargaining agreement, NYRA may amend the pension plan only with the consent of the union.

The plan is financed by contributions of NYRA and the employees. All payments are made directly to the sole trustee, Bankers Trust Company. The trustee is in charge of the investment and handling of contributions to the trust and of the funds in the trust. The NYRA has the exclusive right to name the trustee and the union has no right to approve or disapprove of the employer's choice. The parties stipulated that Bankers Trust Company is not a 'representative' of any of the employees of NYRA within the meaning of the Act. No funds in the trust are handled by or pass through the union.

Disbursements by the trustee must be authorized by the Pension Committee. Under the terms of 2(b) of the Trust Agreement, the Pension Committee has power to order the trustee to pay moneys the Pension Committee itself. However, thePension Committee itself. However, as a matter of actual practice no funds are handled by or pass through either the Committee or its members. The Pension Committee consists of six members and a chairman. Three members are designated by NYRA and three members are designated by the union. The chairman is designated by the NYRA with the approval of the majority of the members of the Committee designated by the union. The present chairman, defendant Frank M. Basil,2 is the Vice president, Treasurer and Comptroller of NYRA and acts as chairman of the employer's labor coordinating committee. The chairman casts the deciding vote when the Committee is deadlocked. The Complaint alleged and defendants agree that there is a 'controlling imbalance' in the Pension Committee whereby the employer maintains 'absolute dominance of the Plan.'

The district court held that the statute 'permits but one type of plan which must comply in all respects with the elements set forth (in Section 302(c)(5)) or fall as an illegal payment under one or more of the first four subdivisions.' We disagree.

As the language of the Act clearly indicates, a trust fund for the benefit of employees need not conform to the provisions of Section 302(c)(5) unless employer contributions to the fund would violate one or more of the provisions of Section 302(a). United States v. Annunziato, 293 F.2d 373, 379 (2d Cir.), cert. denied, 368 U.S. 919, 82 S. Ct. 240, 7 L. Ed. 2d 134 (1961); Mechanical Contractors Association v. Local Union 420, 265 F.2d 607, 611 (3rd Cir. 1959); Sheet Metal Contractors Association of San Francisco v. Sheet Metal Workers International Association, 248 F.2d 307, 315 (9th Cir. 1957); Paramount Plastering, Inc. v. Local No. 2, D.C., 195 F. Supp. 287, 292, aff'd, 310 F.2d 179 (9th Cir. 1962); Shapiro v. Rosenbaum, 171 F. Supp. 875, 878 (S.D.N.Y.1959). See United States v. Ryan, 350 U.S. 299, 305, 76 S. Ct. 400, 100 L. Ed. 335 (1956); International Longshoremen's Association v. Seatrain Lines, Inc., 326 F.2d at 919; S.Rep.No. 1739, 84th Cong., 2d sess. 58 (1956); H.R.Rep.No. 510, 80th Cong., 1st Sess. (1947).

We also disagree with the district court's alternative holding that NYRA's payments to the trust fund constitute payments to a 'representative of employees' in violation of Section 302(a)(1). While we agree that the independence of the trustee is not determinative since Bankers Trust Company merely has custody of funds with are disbursed by order of the Pension Committee, the district court erred in finding that 'at least 50% Of the Fund is dominated and controlled by the employee representatives' on the Pension Committee.

The pension plan makes it clear that the employee members of the Committee may not order any disbursement of trust funds without the approval of at least two employer representatives.3 If the employee and employer members of the Committee are deadlocked, the Chairman who is chosen by and represents the employer casts the tie-breaking vote. We think it is clear that the Pension Committe is not an employee representative because, as the parties have stipulated, there is a 'controlling imbalance' on the Pension Committee which gives NYRA 'absolute dominance over the plan.' Unlike the trusts in Mechanical Contractors Association v. Local Union 420, supra, Sheet Metal Contractors Association v. Sheet Metal Workers International Association, supra, and Local No. 2 of Operative Plasterers & Cement Masons v. Paramount Plastering, supra, the union does not have an equal voice with the employer in the management of this pension plan.4

The purpose of Section 302 is to prevent unions and union officials from demanding that employers contribute to 'welfare funds' under the control of the union which the union's officials could use as they saw fit. Appoyo v. United States, 359 U.S. 419, 425-426, 79 S. Ct. 864, 3 L. Ed. 2d 915 (1959); United States v. Ryan, 225 F.2d 417 at 423-424, 425-426; 350 U.S. at 304-306, 76 S. Ct. 400. What Congress wished to accomplish by enacting Section 302 was to give the employer an equal voice with the union in the administration of unionestablished welfare funds. See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 290 (1948). There is nothing in the history of the legislation to indicate that it was meant to require an employer to give a union an equal voice in employer-established welfare funds.

When a welfare fund or trust is established by the employer and the plan specifies the conditions under which funds may be disbursed and makes it impossible for the representatives of the employee who participate in the administration of the plan to use any funds as they see fit, or to authorize use of funds without the employer's consent, the dangers which Section 302 was designed to combat are not present and there is no need to invoke the specific safeguards of Section 302(c)(5). See Lewis v. Benedict Coal Corp., 361 U.S. 459, 465, 80 S. Ct. 489, 4 L. Ed. 2d 442 (1960); Arroyo v. United States, 359 U.S. at 426, 79 S. Ct. 864.

Reversed and remanded to the district court for entry of summary judgment in favor of defendants.