UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

TRUSTEES OF THE MICHIANA AREA )

ELECTRICAL WORKERS HEALTH AND )

WELFARE FUND, )

TRUSTEES OF THE MICHIANA AREA )

ELECTRICAL WORKERS PENSION FUND, )

MICHIANA AREA WORKERS MONEY )

PURCHASE PLAN, )

)

Plaintiffs, )

)

v. ) CAUSE NO.: 2:15-CV-446-TLS

)

TGB UNLIMITED INC. d/b/a S/T )

BANCROFT ELECTRIC and )

WEST BEND MUTUAL INSURANCE )

COMPANY, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Motions for Summary Judgment [ECF Nos. 35, 37] 

filed by the Plaintiffs, Trustees of the Michiana Area Electrical Works Health and Welfare Fund, 

Trustees of the Michiana Area Electrical Workers Pension Fund, and the Michiana Area Workers 

Money Purchase Plan (the “Trustees” and the “Funds”), and the Defendants, TGB Unlimited 

(“TGB”) d/b/a S /T Bancroft Electric (“Bancroft Electric”) and West Bend Mutual Insurance 

Company (“West Bend”). The Plaintiffs are seeking unpaid contributions by TGB to the Funds, 

under the Employment Retirement Income Security Act (ERISA), as well as a judgment against 

West Bend as a surety of Bancroft Electric’s contractor’s bond. Both Motions were filed on 

January 27, 2017. This matter is now fully briefed and ripe for ruling.
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BACKGROUND

The Plaintiffs are Trustees of the Funds. They filed this lawsuit against the Defendants 

under section 502(a)(3), (e)(1), and (f) of ERISA, 29 U.S.C. §§ 1132(a)(3), (e)(1) and (f), 

seeking unpaid fund contributions from TGB. In 2007, TGB entered into a business relationship 

with the Funds and the International Brotherhood of Electrical Workers Local 153 (“Local 153”), 

in which TGB would use Local 153 labor and in return, among other obligations, pay 

contributions to the Funds. Local 153 and the Funds maintained their relationship until 2015, 

after a series of events involving former Local 153 members Doug and Cody Curl resigning their 

union membership for another union. The Curls resigned their memberships in October and 

December 2014. They continued to work for TGB, but TGB stopped paying contributions on 

their behalf. And during this time, TGB continued to employ a Local 153 member and continued 

to pay contributions for him.

In March 2015, the Trustees sent a letter to TGB through the Northern Indiana Chapter of 

the National Electrical Contractors Association (“N.E.C.A.”), a not-for-profit association 

representing electrical contractors in labor issues, extending a grace period for late payment of 

contributions. (Grace period letter, ECF No. 36-18.) On March 20, 2015, Local 153 filed a 

grievance relating to TGB’s failure to pay contributions. TGB countered by filing an NLRB RM 

petition on March 25, 2015. (NLRB RM 1, ECF No. 36-25.) In the petition, TGB asserted that 

Local 153 was a recognized bargaining agent, and that “United Construction Workers Local 10, 

CLA” claimed recognition. Id. Thereafter, Local 153 disclaimed interest in representing TGB 

employees in an April 2, 2015 letter, which ended the grievance and RM petition. Upon the 

termination of the contractual relationship, Local 153 requested that the auditor for the Fund’s 

third-party administrator, TIC International Corporation (“TIC”), conduct an exit audit. TIC 
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calculated contributions on behalf of the Curls from October 2014 through the effective date of 

Local 153’s letter disclaiming interest in 2015. Bancroft disputed the audit results, claiming that 

the Curl’s resignation from Local 153 relieved TGB of the obligation to pay contributions.

The following summarizes the relevant agreements between the parties, the accounting of 

the liability, damages alleged, and liability over a contractor’s bond.

A. The Agreements

Local 153 and TGB first entered into a contractual relationship in 2007. Among other 

documents, the parties entered into an Assent of Participation Agreement. The Assent of 

Participation Agreement is signed by the employer and designates the Funds to accept 

contributions on behalf of Local 153 employees. Under the Assent of Participation Agreement, 

the employer’s obligation to pay contributions continues unless each of the Funds’ board of 

trustees receives notice of termination of the Assent of Participation Agreement or until a related 

Collective Bargaining Agreement (“CBA”) is nullified between the employer and Local 153.

There are two CBAs of significance in this matter. The first had an effective date of June 

6, 2011, and expired on June 3, 2012. (2011–12 CBA, ECF No. 36-23,) The second had an 

effective date of March 1, 2012, and expired on May 31, 2015. (2012–15 CBA, ECF No. 36-24.)

The validity of this last CBA is disputed here because neither party has produced a signed copy. 

TGB also entered into various trust agreements with the Funds: The Agreement and 

Declaration of Trust for the Michiana Area Electrical Workers Health & Welfare Fund [ECF 

No. 36-20], the Agreement and Declaration of Trust for the Annuity Fund/Money Purchase Plan 

[ECF No. 36-21], and the Declaration of Trust of the Michiana Area Electrical Workers Pension

Fund [ECF No. 36-22] (the “Trust Agreements”). The Trust Agreements are the governing 

documents for the administration of the Funds.
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Lastly, the parties also signed the Collection Policy of the Michiana Area Electrical 

Workers Health & Welfare, Pension and Annuity Benefit Funds (the “Collection Policy”) [ECF 

No. 11]. The Collection Policy was created by all three of the Funds, and provides, among other 

things, an audit procedure and billing procedure.

B. Collection of Payments and Payroll Audit

Collections for the Funds are carried out by the N.E.C.A. As part of its collection process, 

the N.E.C.A accepts employer payroll reports of hours worked by employees. The employer 

payroll reports provided to the N.E.C.A office reflect Fund contributions required to be made 

under the Local 153 Inside Agreement, a subsection of the CBA.1 TGB paid some contributions 

owed under the 2012–15 CBA for January, February, March, and the beginning of April 2015, as 

well as for 2013 and 2014. It paid all contributions required for 2012. TGB also made payments 

under the 2011–2012 CBA for the first two months of 2012.

Local 153 sent a disclaimer of interest letter dated April 2, 2015, to end TGB’s obligation 

to pay contributions to the Funds. Mike Compton, Chief Officer of Local 153, also contacted 

TIC, informing it of the union’s disclaimer of interest and requesting it perform an exit audit.

TIC, in turn, conducted an audit (the “Audit Report”) [ECF No. 36-18]. When TIC

reviewed the payroll records at TGB’s place of business for the audit period of 2014–2015, it

noted that all of the work that the employer recorded was for work under the Inside Agreement 

of the CBA. TIC’s audit results are reflected in a revised billing letter with attached discrepancy 

information and audit report for the period of January 2014 through April 2015. TIC identified 

differences in amounts paid and amounts owed in the report. It noted that starting in October and 

December of 2014, two employees that Bancroft had previously paid contributions for under the 

 1 The Inside Agreement is part of the 2012–15 CBA. (2012–15 CBA §§ 5.01–5.16.)
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CBA (Doug and Cody Curl) had continued to work for the contractor, but no contributions were 

paid in that period. Even though employees may drop their affiliation and, thus, no longer must 

pay union dues, the employer is still required to pay the contributions under the terms of the 

2012–15 CBA.

Upon receipt of the audit, Ty Bancroft disputed the results and asked whether TIC

followed the standard audit process. (Steven Homer Dep. 41, ECF No. 36-4.)

C. Damages

The Trustees seek contributions owed as listed in the Audit Report, liquidated damages 

under the Collection Policy, the cost of the payroll audit, and attorney’s fees.2 TIC has

established the amounts claimed by the Plaintiffs for contributions owed as listed in the Audit 

Report, totaling $36,164.40. (Audit Report 1.) In addition to contributions due to the Funds, 

under the Collection Policy, the Trustees are entitled to interest and liquidated damages, if 

successful. (2012–15 CBA § 9.04.) The Plaintiffs may also claim costs of the payroll audit under 

the Collection Policy when delinquencies are more than $1,000.00. (Collection Policy 4, ECF 

No. 36-11.) The cost of the audit was $514.30. (Cost of Audit Email 1, ECF No.36-17 )

D. Contractor’s Bond

As part of TGB’s obligations under the agreements, Local 153 requires a contractor’s 

bond (the “Contractor’s Bond”). TGB maintains its Contractor’s Bond with West Bend. TGB’s

Contractor’s Bond requirement goes back to its consent to be bound by the Assent of 

Participation Agreement. The Contractor’s Bond’s priority is to pay wages owed and then fund 

 2 The Trustees note that if they are successful in this action, Doug and Cody Curl will receive 

contributions from a money purchase plan with direct access to those funds. Contributions paid would 

allow healthcare eligibility to be restored for the relevant months in 2014 and 2015 so that any claims 

would be paid. Because the Curls have vesting pensions, they are eligible for pension benefits too.
6

contributions for the worker’s benefit. TGB’s Contractor’s Bond with West Bend has an 

“evergreen clause” that automatically renews annually.3 If West Bend pays a claim on the 

Contractor’s Bond, TGB must repay West Bend the amount it paid plus attorney fees and costs 

of collection.

A representative of West Bend investigated the bond claim by leaving a message with a 

Local 153 representative and speaking with Ty Bancroft. Bancroft told the representative that 

TGB was looking to break ties with Local 153 and that their employees were leaving the union. 

TGB did not want West Bend to pay out the bond proceeds at that time. The representative 

corresponded with Bancroft in follow-up emails, confirming that West Bend would not pay bond 

proceeds because of the ongoing dispute. It is West Bend’s policy not to pay bond proceeds if the 

principal advises it has a dispute against the claim.

STANDARD OF REVIEW

Summary judgment is warranted when “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Summary judgment is the moment in litigation where the non-moving party is 

required to marshal and present the court with evidence on which a reasonable jury could rely to 

find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A 

court’s role in deciding a motion for summary judgment “is not to sift through the evidence, 

pondering the nuances and inconsistencies, and decide whom to believe. A court has one task 

and one task only: to decide, based on the evidence of record, whether there is any material 

dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir.

 3 The bond amount was twice reduced through a rider. The effect of the bond reduction is that 

TGB pays less premium for the financial guaranty.
7

1994). Although a bare contention that an issue of material fact exists is insufficient to create a 

factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, 

view all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 

491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is 

more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

DISCUSSION

In 1980, Congress made amendments to ERISA because “delinquencies of employers in 

making required contributions are . . . a serious problem for many multiemployer plans[.]” Cent. 

States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148 (7th Cir. 1989). 

“Sound national pension policy demands that employers who enter into agreements providing for 

pension contributions not be permitted to repudiate their pension promises.” Id. As a result, 

ERISA requires employers to make contributions on behalf of the employees covered by a CBA 

and requires employers to adhere to the contract terms. Cent. States, Se. & Sw. Areas Pension 

Fund v. Hartlage Truck Serv. Inc., 991 F.2d 1357, 1360 (7th Cir. 1993). Benefit funds may be 

considered third-party beneficiaries of a collective bargaining agreement or other agreement. 

Robbins v. Lynch, 836 F.2d 330, 333 (7th Cir. 1988). Funds have an independent statutory right 

under § 1145 to enforce employer contributions under a CBA. Gerber Truck Service, Inc., 870 

F.2d at 1152–56. Furthermore, benefit plans must be able to rely on the contribution promises of 

employers because plans must pay out to beneficiaries whether or not employers live up to their 

obligations. Id. at 1151.
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A. TGB’s Obligation to Contribute to the Funds

TGB signed an Assent of Participation Agreement in 2007, in which it agreed to accept 

and be bound by the corresponding agreements with Local 153 and the Trustees. In the April 2, 

2015 letter, Local 153 notified TGB that it disclaimed interest in continuing to represent TGB’s 

employees. The Trustees argue that this notification terminated TGB’s obligation to pay 

contributions to the Funds; no termination event occurred before it. Several months before Local 

153’s disclaimer of interest, in October and December 2014, two TGB employees, Doug and 

Cody Curl, resigned their Local 153 membership. But TGB continued to employ the Curls after 

it ceased paying Fund contributions for them as it also continued to employ another Local 153 

member and also paid Fund contributions for him.

Under ERISA, 

Every employer who is obligated to make contributions to a 

multiemployer plan under the terms of the plan or under the terms 

of a collectively bargained agreement shall, to the extent not 

inconsistent with law, make such contributions in accordance with 

the terms and conditions of such plan or such agreement.

29 U.S.C. § 1145. The Assent of Participation Agreement states:

[C]ontributions shall commence forthwith, if they have not already 

commenced, and shall continue for a period provided in this and in 

such agreements, including all amendments, supplements, 

modifications, extensions, renewals, or successor agreements 

thereto, and shall continue thereafter until the Board of Trustees of 

the Welfare Fund and/or the Board of Trustees of the Pension Fund 

and/or the Board of Trustees of the Annuity Fund shall each have 

received from this Employer written notice of termination of this 

Assent of Participation or until the collective bargaining agreement 

is nullified between the Employer and the Union.

(Assent of Participation Agreement 2–3, ECF No. 36-10.) Thus, under the terms of the Assent of 

Participation Agreement, only two events relieve TGB of the obligation to pay contributions: (1) 
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a written notice of termination of the Assent of Participation Agreement by TGB or (2) 

nullification of the CBA by the parties. 

The Defendants first argue that there were “no agreements binding TGB to make 

contributions.” (Def.’s Mem. for Summ. J. 6, ECF No. 38.) But it is undisputed that TGB signed 

the 2007 Assent of Participation Agreement and the Trust Agreements, and it is also undisputed 

that TGB did not send a written notice of termination of the Assent of Participation Agreement. 

Indeed, there were agreements binding TGB to make contributions to the Funds.

That means the only way for TGB to be relieved of liability earlier than April 2, 2015, the 

date upon which the Plaintiffs terminated the relationship, is for the Court to find that TGB was 

not bound by the 2012–15 CBA. The Defendants contend that the 2012–15 CBA is not valid 

because neither party has produced a signed copy. The Defendants argue that when the 2011–12 

CBA expired, TGB was relieved of liability. The Trustees argue, in turn, that the 2012–15 CBA 

with Local 153 was nullified only when Local 153 disclaimed interest in representing TGB’s 

employees in the April 2, 2015 letter and that whether the parties have produced a signed copy of 

this CBA is irrelevant because TGB’s conduct manifested its intent to be bound by the 2012–15 

CBA’s terms. Just as it is undisputed that TGB signed the Assent of Participation Agreement in 

2007, it is also undisputed that it made contributions to the Funds through 2015, during the 

operative period of the 2012–15 CBA.

Whether the parties have proffered a signed version of the 2012–15 CBA is not 

dispositive as to whether it was operative during that period. TGB’s conduct belies its argument 

that it was not bound. It is a “well-established principle that a collective bargaining agreement is 

not dependent on the reduction to writing of the parties’ intention to be bound, rather all that is 

required is conduct manifesting an intention to abide and be bound by the terms of an 
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agreement.” Bricklayers Local 21 of Ill. Apprenticeship and Training Program v. Banner 

Restoration, Inc., 385 F.3d 761 (7th Cir. 2004) (quoting Gariup v. Birchler Ceiling & Interior 

Co., 777 F.2d 370, 373 (7th Cir. 1985) and Capitol-Husting Co. v. NLRB, 671 F.2d 237, 243 (7th 

Cir. 1982)) (quotation marks omitted).

TGB followed the provisions of the CBA by paying contributions to the Funds from 2012 

through 2014 on its three electricians and continued paying contributions for one of them, Ron 

Edinburgh, until April 2015. The totality of TGB’s conduct unambiguously shows its intent to be 

bound by the provisions of the CBA.

The Defendant’s second argument that the CBA was nullified before the April 2, 2015 

letter is that Doug and Cody Curl’s resignation letters were “directions to stop making” 

contributions. (Def.’s Mem. for Summ. J. 8.) And that “to act otherwise would have put TGB in 

the untenable position of going against the instructions of its employees and risk action being 

taken by a new employee or by the new Union for the employees possibly engaging in unfair 

labor practice.” (Id.) But TGB does not cite to any legal authority for this argument. The letters 

are not a request that the employer should stop paying contributions on their behalf. The only 

way to cease contributions is by the method set forth in the Assent of Participation Agreement. 

An employer is still liable to the benefit funds it contributes to until a termination event occurs. 

See Gerber Truck Service, Inc., 870 F.2d at 1152–56. And here, Local 153’s April 2, 2015 

disclaimer of interest is the action that terminated TGB’s obligation to pay. Contributions 

accruing before that date, reflected in the payroll audit, must be paid by TGB to the Funds.

The Defendants also argue that the Trustees “allege a violation only of the Trust 

Agreement related to the Pension Fund, and not of the other two Trust Agreements. . . .” (Def.’s 

Mem. for Summ. J. 7–8.) TGB argues that this would limit the Plaintiffs “to recovering for any 
11

delinquent contributions to the Pension Fund only.” (Id.) Assuming the technical thrust of the 

Defendants’ argument, the Trustees do, in fact, allege that TGB failed to contribute to the other 

funds as well. The Complaint references the payroll audit, which includes the alleged 

deficiencies of all of the Funds. And the Complaint also includes in the Plaintiff’s request for 

relief, “all amounts owed pursuant to the audit report.” (Compl. ¶ B; ECF No. 1.) It is undisputed 

that the payroll audit provided to TGB includes deficiencies in payments to all the Funds. 

Additionally, all three Trust Agreements were provided in discovery to counsel for TGB. The 

Plaintiffs have asserted that their claims are for all amounts owed for all the Funds.

B. Adherence to Collection Policy

The Defendants next argue that TGB is relieved of liability because the Trustees did not 

strictly comply with the Collection Policy. (Def.’s Mot. for Summ. J. 6–7, ECF No. 38.) The 

Defendants argue that the Trustees failed to comply with the Collection Policy by billing TGB 

for the audit deficiency amount fifty-one days after the audit instead of thirty; failing to provide 

an exit interview or other “opportunity to discuss the audit results as prescribed”; and not 

affording TGB “a complete appeal or allow TGB to dispute the audit results.” (Id. at 9.) The 

Defendants argue that these failures “[s]imply put, . . . did not afford TGB its right to challenge 

the audit results and have a review of its dispute. Because the Plaintiffs did not follow the dispute 

process, they are precluded from collecting any amounts they allege are due.” (Id.) In support, 

the Defendants cite Levit v. Ingersoll Rand Financial Corporation (In Re Deprizio), 874 F.2d 

1186, 1193 (7th Cir. 1989), for the proposition that the terms of the plan documents and CBAs 

are to be “strictly enforced.” “Exactitude works both ways. Just as pension and welfare plans get 

no less than the agreements provide, so they get no more.” Id. at 1193.
12

The Defendants are correct that Levit stands for the proposition that the Court must 

strictly enforce the terms of the various agreements between the parties, including the Collection 

Policy. But the Defendants are incorrect about the remedy. The Defendants’ liability is not 

abated merely because the Trustees allegedly committed the above violations of the Collection 

Policy. The Defendants have not cited which terms of the Collection Policy, the Assent of 

Participation Agreement, the Trust Agreements, or the CBAs that characterize these violations as 

a material breach, for which the contractual remedy constitutes the relief the Defendants seek.

Furthermore, the record reflects many communications between the Funds and TGB over 

the audit. For instance, Ty Bancroft provided to TIC, at the completion of the Audit Report, the 

Curls’ CLA Union cards, with which he wanted to dispute the audit results. This argument also 

relies on the letter from Cody Curl asking TGB to stop making contributions. But as discussed 

above, the letter did not effectuate a termination event that would initiate an audit. That 

termination event was the disclaimer of interest that occurred when the Trustees sent the April 2, 

2015 letter. 

Also importantly, the Defendants do not present an argument about how the audit was 

deficient. The Defendants merely argue that the audit was not conducted in the exact method set 

forth in the Collection Policy and that because of that violation, they are relieved of liability.

Accordingly, the Court, upon review of the record, finds that any alleged violation of the 

Collection Policy asserted by the Defendants is not material to the agreements between the 

parties as to void or abate TGB’s liability.

C. Bond, Calculation of Damages, and Attorney’s Fees Award

Under the Payroll Audit, TGB failed to pay the required contributions into the Funds 

from October 2014 through April 2015. (Audit Report 1.) The Audit Report determined that 
13

TGB failed to pay $11,638.40 to all of the Funds from October through November of 2014 and 

that it failed to pay $21,021.49 to all funds for January through March of 2015. The total 

contributions claimed are $36,164.40. Id.

Under 29 U.S.C. § 1132 (g)(1) and (2), a multiemployer plan that is awarded a judgment 

under § 515 is entitled to (1) delinquent contributions; (2) interest at the rate specified in the 

plan; (3) the greater of interest (again) or liquidated damages of up to 20% as specified in the 

plan; (4) reasonable attorney’s fees and costs; and (5) other legal or equitable relief that the court 

deems appropriate. “ERISA provides for a mandatory award of reasonable attorney’s fees when 

a plan fiduciary prevails in an action to collect delinquent contributions.” Laborers’ Pension 

Fund v. Blackmore Sewer Const., Inc., 298 F.3d 600, 608 (7th Cir. 2002) (quoting Moriarty v. 

Svec, 233 F.3d 955, 963 (7th Cir. 2000)). Also, a multiemployer plan may recover audit costs 

under § 1132(g)(2)(E). Moriarity ex. rel. Local Union No. 727 v. Svec, 429 F.3d. 710, 721 (7th 

Cir. 2005).

The total amount of liquidated damages is $7,232.88 (20% of $36,164.40, the 

contributions amount listed in the Audit Report). The payroll audit cost is $514.30. Interest 

continues to accrue. Accordingly, the Court finds TGB liable for the amounts owed less the 

proceeds from the Contractor’s Bond.

Trustees of benefit funds have standing to sue the surety for unpaid contributions. United 

States v. Carter, 353 U.S. 210, 220 (1957). West Bend has not paid bond proceeds to the Funds 

per its policy regarding ongoing disputes. Accordingly, the Court holds Defendant West Bend 

Mutual liable for the amount of the bond, $6,500.00.
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CONCLUSION

For the foregoing reasons, the Court GRANTS the Plaintiffs’ Motion for Summary 

Judgment [ECF No. 35] and DENIES the Defendants’ Motion for Summary Judgment [ECF 

No. 37]. However, because the issues of damages, costs, contractor’s bond, and attorney’s fees 

remain ambiguous, the Court ORDERS that the Clerk withhold entry of judgment in the case 

until these issues are fully resolved. The Plaintiffs are directed to file any motion and brief

regarding the same, consistent with this opinion, within ten (10) days of the date of this Opinion 

and Order. The Defendants have ten (10) days thereafter in which to file any response brief. The 

Plaintiffs will have seven (7) days thereafter to file any necessary reply brief. The Court will take

the matter under advisement after briefing is complete.

SO ORDERED on September 28, 2017

s/ Theresa L. Springmann

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION