IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Michels Corporation,

Plaintiff,

v.

Central States, Southeast and Southwest Areas

Pension Fund, et al.,

Defendants.

__________________________________________

Pipe Line Contractors Association,

Intervening Plaintiff,

v.

Central States, Southeast and Southwest Areas

Pension Fund, et al.,

Defendants.

__________________________________________

Central States, Southeast and Southwest Areas

Pension Fund, and Arthur H. Bunte, Jr.,

Counterclaim Plaintiffs, 

v. 

Michels Corporation,

Counterclaim Defendant, and

Apex Pipeline Services, Inc., et al.,

Additional Counterclaim Defendants.

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Case No. 12-CV-4144

Judge Norgle

COUNTERCLAIM PLAINTIFFS’ RULE 56.1 STATEMENT OF MATERIAL

FACTS

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NOW COME the Counterclaim Plaintiffs, by their attorneys, and pursuant to Local 

Rule 56.1(a)(3), submit this statement of material facts as to which the Counterclaim 

Plaintiffs contend there is no genuine issue and that entitle the Counterclaim Plaintiffs to a 

judgment as a matter of law:

PARTIES

1. The Central States, Southeast and Southwest Areas Pension Fund (“Central 

States”) is a multiemployer pension benefit plan and trust established and governed under 

the Employee Retirement Income Security Act of 1974, as amended. Central States is 

primarily funded by pension contributions made by multiple participating employers. 

These employers agree to make pension contributions to Central States under various 

collective bargaining agreements negotiated with the International Brotherhood of 

Teamsters (“IBT”), and its affiliated local unions. Affidavit of Peter Priede, Exhibit 1, ¶4 

(hereinafter “Priede Aff., ¶__”).

2. The Fund is administered by its Trustees, who are collectively the plan 

sponsor of the Fund within the meaning of §4001(a)(10)(A) of ERISA, 29 U.S.C. 

§1301(a)(10)(A). The Trustees administer the Fund at its offices at 9377 West Higgins Road, 

Rosemont, Cook County, Illinois. Priede Aff., ¶¶3 and 5.

3. Arthur H. Bunte, Jr., is a present Trustee of the Fund and a plan sponsor. 

Priede Aff., ¶6.

4. The Counter Defendant, Michels Corporation (“Michels”) is an employer 

organized under the laws of the State of Wisconsin. It is an “employer” and “party-inCase: 1:12-cv-04144 Document #: 149 Filed: 01/11/13 Page 2 of 8 PageID #:1460
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interest” as those terms are defined by §§3(5) and 3(14)(C) of ERISA, 29 U.S.C. §§1002(5) 

and 1002(14)(C). Michels Statement of Material Facts, ¶1 (hereinafter “MSMF, ¶_”).

5. The Pipe Line Contractors Association (“PLCA”) is an association which, 

among other things, negotiates collective bargaining agreements on behalf of member 

employers with labor unions that represent certain employees of those member employers.

MSMF, ¶6.

6. At all relevant times Michels has been a member of the PLCA. MSMF, ¶7.

7. At all relevant times certain employees of Michels have been represented for 

purposes of collective bargaining by the IBT. MSMF, ¶8.

JURISDICTION AND VENUE

8. This Court has jurisdiction pursuant to 28 U.S.C. § 1331; Section 301 of the

LMRA, 29 U.S.C. § 185. MSMF,¶ 4.

9. Venue properly lies in this Court pursuant to the venue selection clause of the 

Fund’s Trust. Venue is also appropriate under §502(e)(2) of ERISA, 29 U.S.C. §1132(e)(2), 

because the Fund is administered in, and maintains its principal place of business in, 

Rosemont, Cook County, Illinois. Ex. A to Priede Aff.. MSMF, ¶5. 

FACTS AND GOVERNING DOCUMENTS

A. The National Pipe Line Agreement

10. In February of 2006, the National Pipe Line Agreement (“NPLA”) was signed 

by the PLCA and the IBT. Administrative Record, Exhibit A to the Affidavit of James 

Condon, pgs. 88-113 (hereinafter “AR at 88-113”).

11. Article V, Section I of the NPLA provides, in part, as follows:

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I. Fringe Benefit contributions under this Agreement shall be paid for 

all hours worked. All pension and welfare contributions for Travelers 

will be remitted to the Central States, Southeast and Southwest Areas 

Health and Welfare and Pension Funds. Contributions for fringe 

benefits for all Non-Travelers will be remitted to the local funds 

having jurisdiction over the work [which in many instances is the 

Central States Pension Fund].

AR at 98.

12. Article XV(C) of the NPLA provides that, “The provisions of this Agreement

shall continue in full force and effect until January 31, 2011, and thereafter from year to

year unless terminated at the option of either party after sixty (60) days’ notice in writing to

the other. AR at 103.

13. Schedule B of the NPLA is the National Pipeline Participation Agreement. 

MSMF, ¶17

14. The National Pipeline Participation Agreement provides, in part:

NOW, THEREFORE, IT IS AGREED by and between the undersigned

Employer and the International Brotherhood of Teamsters that such

Employer hereby subscribes to the various agreements and declarations of

trust and policies and procedures of the particular funds into which such

Employer will be required to make contributions pursuant to the National

Pipe Line Agreement, and agrees to be bound thereby and to amendments 

made or to be made thereto; and authorizes the parties to such trust

agreements to name the trustees and successor trustees, and to administer 

the trusts; and does hereby ratify and accept such trustees and the terms

and conditions of said trusts as fully and as completely as if made by the

undersigned Employer; provided, however, that no amendments or

provisions of said trust agreements shall bind the Employer for any financial 

obligations or dues delinquency determinations beyond that set forth in the

National Pipe Line Agreement pursuant to which such contributions are

made. 

15. Michels was a party to the NPLA. MSMF, ¶14.

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B. The Pension Fund’s Trust Agreement.

16. Article III of the Fund’s Trust Agreement covers “Contributions and 

Collections.” Article III, Section 1, provides, in part, as follows:

Each Employer shall remit continuing and prompt contributions to the Trust

Fund as required by the applicable collective bargaining agreement to which

the Employer is a party, applicable law and all rules and requirements for

participation by Employers in the Fund as established and interpreted by the

Trustees in accordance with their authority...Upon execution of each new or

successive collective bargaining agreement, including but not limited to 

interim agreements and memoranda of understanding between the parties,

each Employer shall promptly submit such contract by certified mail to the:

Contracts Department

Central States, Southeast and Southwest Areas Pension Fund

9377 West Higgins Road

Rosemont, Illinois 60018-4938.

Any agreement or understanding between the parties that in any 

way alters or affects the Employer’s contribution obligation as set forth in

the collective bargaining agreement shall be submitted promptly to the Fund

in the same manner as the collective bargaining agreement; and any such

agreement or understanding between the parties that has not been disclosed

to the Fund as required by this paragraph shall not be binding on the

Trustees and shall not affect the terms of the collective bargaining

agreement which shall alone be enforceable. Except as provided in this 

Section, Section 7(b) of Article III [dealing with union decertification] and

Section 20 of Article IV [dealing with terminations initiated by the Trustees],

the obligation to make such contributions shall continue (and cannot be

retroactively reduced or eliminated) after termination of the collective 

bargaining agreement until the date the Fund receives a) a signed contract

that eliminates or reduces the duty to contribute to the Fund or b) 

written notification that the Employer has lawfully implemented a proposal

to withdraw from the Fund or reduce its contributions at the above-specified

address. The obligation to make such contributions shall continue during

periods when the collective bargaining agreement is being negotiated, but

such contributions shall not be required in case of strike after contract 

termination, unless the parties mutually agree otherwise.

Ex. A to Priede Aff., Pgs. 8-9.

17. The Trust Agreement, at Article V, Section 2, states, in part:

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All questions or controversies, of whatsoever character, arising in any 

manner or between any parties or persons in connection with the Fund or the 

operation thereof, whether as to any claim for any benefits preferred by any 

participant, beneficiary, or any other person, or whether as to the 

construction of the language or meaning of the rules and regulations adopted 

by the Trustees or of this instrument, or as to any writing, decision, 

instrument or accounts in connection with the operation of the Trust Fund or 

otherwise, shall be submitted to the Trustees, or to a committee of Trustees, 

and the decision of the Trustees or of such committee thereof shall be binding 

upon all parties or persons dealing with the Fund or claiming any benefit 

thereunder. The Trustees are vested with discretionary and final authority in 

making all such decisions, including Trustee decisions upon claims for 

benefits by participants and beneficiaries of the Pension Fund and other 

claimants, and including Trustee decisions construing plan documents of the 

Pension Fund.

Ex. A to Priede Aff., Pg. 19.

18. The Trust Agreement, at Article III, Section 7(a), states, “An Employer is obliged 

to contribute to the Fund for the entire term of any collective bargaining agreement accepted by the 

Fund on the terms stated in that collective bargaining agreement. Ex. A to Priede Aff., Pg. 11.

C. The Fund’s governing Plan Document.

19. Section 3.01(a)(6) of the Fund’s Plan Document provides that: “A Collective 

Bargaining Agreement shall be acceptable only if such agreement requires a Contributing 

Employer to make Employer Contributions...for the entire term of such Collective 

Bargaining Agreement.” Ex. B to Priede Aff., Pg. 29.

FACTS GIVING RISE TO THE DISPUTE

20. The PLCA and the IBT agreed to a first month-long extension of the CBA, to 

February 28, 2011, as negotiations continued. The parties then agreed to a second month-long 

extension, to March 31, 2011; a third month-long extension, to April 30, 2011; a fourth month- long

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extension, to May 31, 2011; a fifth month-long extension, to June 30, 2011; a sixth month- long

extension, to July 31, 2011; a seventh month-long extension to August 31, 2011; and then an

eighth, two-and-a-half-month-long extension, to November 15, 2011. MSMF, ¶24.

21. On November 15, 2011, the PLCA and the IBT signed a document titled 

“Amendment To And Extension Of Collective Bargaining Agreement Between Pipeline Contractors

Association and the International Brotherhood of Teamsters.” AR at 120.

22. In a letter dated November 16, 2011, an attorney for the PLCA asserted that the duty 

of certain PLCA employers to contribute to the Pension Fund under the NPLA terminated on 

November 16, 2011. AR at 34-38.

23. By letter dated January 30, 2012, the Fund advised the IBT as follows:

[N]either the correspondence that legal counsel (Akin Gump) for 

various PLCA members delivered to the Fund’s offices on 

November 16, 2011, nor any of the other correspondence 

forwarded to the Fund by or on behalf of any PLCA members at 

any time during 2011, was effective to terminate any of the PLCA 

members’ obligations to contribute to the Fund. Consequently, it 

is the Pension Fund’s position that during calendar year 2011 none 

of the PLCA members withdrew from the Pension Fund or 

terminated their obligations to contribute to the Fund. However, 

the Pension Fund does not have sufficient information at this time 

to determine whether (or when), subsequent to year-end 2011, any 

of the PLCA members withdrew from the Fund or otherwise 

ceased to have an obligation to contribute to the Fund on behalf of 

their employees.

AR at 50.

24. On March 15, 2012, Michels filed suit against the Fund seeking a declaration 

that its duty to contribute to the Fund ceased on November 15, 2011. AR at 123-139.

25. In June, 2012, a new NPLA was entered into between the PLCA and the IBT, 

the acceptance of which was provided to the Fund on October 9, 2012. Priede Aff. ¶11.

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26. Michels has executed the Fund’s Participation Agreements binding the 

company to the terms of the Pension Fund Trust Agreement. AR at 290-297.

27. The Fund continued to accept contributions and bill higher rates beyond 

January 1, 2011. Fringe benefit rates beyond 01/31/2011 were provided to the Fund and 

Michels pursuant to (1) attachments to the Pipe Line Job Notifications from the IBT, (2) 

Pipeline Construction Pre-Job Form, and/or (3) PLCA notification. Michels and other 

members of the PLCA paid those higher rates. Priede Aff., ¶ 10.

Respectfully submitted,

/s/ Timothy C. Reuter 

 Timothy C. Reuter (ARDC #06279373)

CENTRAL STATES FUNDS

Law Department

9377 W. Higgins Road, 10th Floor

Rosemont, IL 60018

(847) 518-9800, Ext. 3481

Treuter@centralstatesfunds.org

January 11, 2013 ATTORNEY FOR CENTRAL STATES

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