IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CENTRAL STATES, SOUTHEAST AND )

SOUTHWEST AREAS PENSION FUND and )

CHARLES A. WHOBREY, as Trustee, )

)

Plaintiffs, )

) No. 20 C 4610 

v. )

)

TRANSERVICE LOGISTICS, INC., )

)

Defendant. )

________________________________________

CENTRAL STATES, SOUTHEAST AND )

SOUTHWEST AREAS PENSION FUND and )

CHARLES A. WHOBREY, as Trustee, )

)

Plaintiffs, )

) No. 20 C 4611

v. )

) Judge Ronald A. Guzmán 

ZENITH LOGISTICS, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

For the reasons explained below, defendants’ motions to dismiss the complaints pursuant 

to Federal Rule of Civil Procedure 12(b)(6) are granted. 

BACKGROUND

Plaintiffs, Central States, Southeast and Southwest Areas Pension Fund and its Trustee, 

Charles A. Whobrey (collectively, the “Fund”), brought these ERISA actions seeking to recover 

from defendants Transervice Logistics Inc. (“Transervice”) and Zenith Logistics, Inc. (“Zenith”) 

a year’s worth of contributions, interest, and liquidated damages for work performed by covered 

employees between February 2019 and February 2020. 

Defendants move to dismiss the Fund’s complaints under Federal Rule of Civil Procedure 

12(b)(6).

Case: 1:20-cv-04611 Document #: 32 Filed: 11/17/20 Page 1 of 5 PageID #:459
2

DISCUSSION

For purposes of a motion to dismiss under Rule 12(b)(6), the Court construes the 

complaint in the light most favorable to the plaintiffs, accepts as true all well-pleaded facts 

therein, and draws all reasonable inferences in plaintiffs’ favor. See Bultasa Buddhist Temple of 

Chi. v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017); Bell v. City of Chi., 835 F.3d 736, 738 (7th 

Cir. 2016). To survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 

Twombly, 550 U.S. at 556). On a motion to dismiss, the Court may consider the allegations of 

the complaint itself, documents that are attached to the complaint, documents that are central to 

the complaint and are referred to in it, and information that is properly subject to judicial notice. 

Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

Under ERISA, 29 U.S.C. § 1145, “[e]very 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.” On 

January 31, 2013, Zenith entered into a collective bargaining agreement (the “Zenith 2013

CBA”) with Local Union No. 89 of the International Brotherhood of Trustees (the “Union” or 

“Local 89”). (Case No. 20 C 4611, ECF No. 1, Zenith Compl. ¶ 9.) On February 8, 2013, 

Transervice entered into a collective bargaining agreement (the “Transervice 2013 CBA”) with 

Local 89. (Case No. 20 C 4610, ECF No. 1, Transervice Compl. ¶ 9.) Both 2013 CBAs 

provided that certain full-time and part-time (referred to in the Zenith CBA as “casual”) 

employees would be covered by the Fund. Transervice agreed in its CBA to pay to the Fund the 

costs to maintain current pension benefits “for the life of the CBA with no cost to the employee.” 

(Id. ¶ 11.) Zenith agreed in its CBA to pay certain weekly contribution amounts for covered 

employees at Zenith’s Louisville location. (Zenith Compl. ¶ 11.) Defendants also agreed to be 

bound by the terms of the Fund’s Trust Agreement and all of the rules and regulations adopted 

under it. Both 2013 CBAs contained the following provision, which included an “evergreen” 

clause:

This Agreement shall be effective as of February 1, 2013 and shall expire January 

31, 2019; provided, however, that if neither party gives the other party written 

notice sixty (60) days prior to the said expiration date of such parties [sic]

intention to terminate this Agreement, said Agreement shall continue for another 

year and from year to year thereafter, subject to sixty (60) days’ notice of 

termination prior to any succeeding termination date. 

(Zenith Compl., Ex. 1, Zenith 2013 CBA, at 33; Transervice Compl., Ex. 1, Transervice 2013 

CBA, at 38.) Unlike some CBAs that allow mid-term renegotiation or modification at a party’s 

request, the 2013 CBAs did not contain such a “reopener” provision. 

Case: 1:20-cv-04611 Document #: 32 Filed: 11/17/20 Page 2 of 5 PageID #:460
3

In February 2019, the Fund received a letter from Transervice that attached a copy of a 

new CBA that Transervice had entered into with Local 89. In the letter, Transervice stated that, 

effective January 31, 2019, its obligation to contribute to the Fund would cease and that 

Transervice would withdraw from the Fund with respect to employees who were members of 

Local 89. The Fund received a similar letter from Zenith in February 2019. The 2019 CBAs 

provide that defendants’ obligations to contribute to the Fund ceased on January 31, 2019, and 

that effective February 1, 2019, the covered employees would participate in a different pension 

plan, the IBT Consolidated Pension Plan. The week ending on February 2, 2019 was the last 

week for which Transervice and Zenith paid contributions to the plaintiff Fund on behalf of 

employees covered by the 2013 CBAs. 

It is the Fund’s position, however, that neither Transervice or Zenith nor Local 89 sent a 

timely written notice to the other party of an intent to terminate the 2013 CBA. Because there 

was no such notice, says the Fund, the 2013 CBAs continued for another year under their

respective “evergreen” clauses, and defendants were obligated to contribute to the Fund for that 

additional year pursuant to the Fund’s Trust Agreement.1 

Defendants contend that the complaints must be dismissed because Local 89 did send

written notices to Transervice and Zenith more than sixty days before the 2013 CBAs expired, 

which they say made clear the Union’s “intention to terminate” those CBAs. The letters were 

dated November 6, 2018 and bore the boldface header “CONTRACT EXPIRATION: 

1/31/2019” for Transervice and “CONTRACT EXPIRATION: 2/01/2019” for Zenith. The body 

of the letters is identical and states as follows:

Your present contract with General Drivers, Warehousemen, and Helpers, Local 

Union No. 89, expires as noted above.

It is our desire to meet with you at an early date for the purpose of negotiating a 

new contract.

We trust the forthcoming negotiations will result in an agreement that will be fair 

and just too [sic] all parties involved and that a better spirit of harmony and 

cooperation will be derived there from [sic].

(Case Nos. 20 C 4610 & 4611, ECF Nos. 1-2.) Enclosed with the letters was a copy of a “Form 

F-7” notice that the Union had submitted to the Federal Mediation and Conciliation Service 

(“FMCS”), an independent federal agency that must be notified if a party to a CBA notifies the 

other party of an intent to terminate or modify the agreement. The Form F-7 provides three 

checkboxes for “Notice Type”—“Initial Contract,” “Reopener,” and “Renegotiation.” The 

 1 The Fund’s Trust Agreement states in relevant part: “An Employer is obliged to 

contribute to the Fund for the entire term of any collective bargaining agreement or participation 

agreement or any other written agreement accepted by the Fund (including any extension of a 

collective bargaining agreement through an evergreen clause or through an extension agreement 

of eighteen months or less) on the terms stated in that collective bargaining agreement . . . .” 

(Case No. 20 C 4610, ECF No. 1-4, Trust Agreement, at 12.) 

Case: 1:20-cv-04611 Document #: 32 Filed: 11/17/20 Page 3 of 5 PageID #:461
4

Union had checked “Renegotiation” on each form and had provided the 2019 “contract 

expiration date” for each contract. (Case No. 20 C 4610, ECF No. 17; Case No. 20 C 4611, ECF 

No. 1-2.) 

Defendants point out that the employees at issue were covered between February 2019 

and February 2020 because the 2019 CBAs, copies of which are attached to the complaints, 

require defendants to make contributions to an entirely different pension fund, the IBT 

Consolidated Pension Plan. Defendants argue that there is no plausible construction of the 

Union’s November 2018 notice and Form F-7 other than stating an intent to terminate the 2013 

CBAs, and that the Fund is therefore pursuing windfall contributions. Defendants emphasize 

that the Fund’s theory is not that the Fund failed to receive the notice that it required, but that

neither party to either of the 2013 CBAs (each employer and the Union) provided sufficient 

notice of termination of the 2013 CBAs to the other party, even though after the Union sent its 

letters the parties proceeded to negotiate and execute new CBAs.

The Court must “interpret collective-bargaining agreements, including those establishing 

ERISA plans, according to ordinary principles of contract law, at least when those principles are 

not inconsistent with federal labor policy.” M & G Polymers USA, LLC v. Tackett, 574 U.S. 427, 

435 (2015). Where the words of a written contract are clear and unambiguous, the meaning of 

the contract is ascertained in accord with its plainly-expressed intent. Id. The question is 

whether Local 89 provided an “unambiguous, timely notice” of its intent to terminate the 2013

CBAs—in other words, what this party to these particular CBAs set out to achieve with its 

chosen language. See Rutherford v. Judge & Dolph Ltd., 707 F.3d 710, 712 (7th Cir. 2013); Off. 

& Prof’l Emps. Int’l Union, Local 95 v. Wood Cnty. Tel. Co., 408 F.3d 314, 316 (7th Cir. 2005). 

The parties agree that in order to demonstrate an intent to terminate an agreement, a 

communication need not explicitly use the word “terminate” or “termination.”

In the subject line of its letter, the Union referred to the impending “expiration” of the 

contract, and it stated again in the body of the letter that the contract would “expire” on the stated 

date. The Union said that it desired to meet to negotiate “a new contract.” (ECF No. 1-2 

(emphasis added).) It did not refer to reopening, modifying, or renegotiating the current contract 

in any way and did not imply any desire to change or continue the current contract past its

expiration date. The letter therefore constituted an unequivocal expression of the intent to 

terminate the current contract; as defendants point out, how could there be a “new” contract 

without a termination of the old one? This conclusion is buttressed by the Union’s enclosure of 

the Form F-7, on which the Union did not check the “reopener” box, but chose “renegotiation,” 

the only alternative for a contract that was not an initial contract. Under 29 U.S.C. § 158(d)(3), a 

party desiring “termination or modification” of a CBA is required to notify the FMCS of a 

potential labor dispute, and the form serves as that notice. The terms of the 2013 CBAs did not 

provide for modification; termination was the only alternative. And, indeed, the effect of the 

letter was that the parties went on to negotiate and enter into new CBAs within the sixty-day 

notice period. While the Union did not use the word “terminate,” the only reasonable reading of 

its letter is that it was conveying an intent to terminate the 2013 CBAs. Notably, the Fund does 

not provide any alternative construction of the letter that takes into account its entire text. 

Case: 1:20-cv-04611 Document #: 32 Filed: 11/17/20 Page 4 of 5 PageID #:462
5

The Fund asserts that the Union’s statement that it believed negotiations would bring a 

“better spirit of harmony and cooperation” indicates that its expectation was that “the 

relationship [with defendants] was continuing, not ending.” (ECF No. 26, Pls.’ Mem. Resp. at 

6.) The Court agrees, but the Fund does not accurately frame the salient issue, which is under 

what governing document the contracting parties’ relationship would continue. The Union 

clearly contemplated, and expressed, that the negotiations it desired would result in “a new 

contract,” because the current one was “expiring.” Given the terms of the 2013 CBAs, which did 

not provide for modification or reopening, the Union was stating its intent to terminate. 

The Fund also cites Wood County for the proposition that “a mere reference to 

negotiations for a replacement agreement will not forestall an evergreen clause,” (id. at 6-7), but 

Wood County is distinguishable. There, the union notified the employer of its “desire to reopen 

th[e] Agreement and to negotiate on wages, hours and conditions of employment for a successor 

agreement.” 408 F.3d at 315. Local 89’s letter, however, makes no reference to any desire to 

“reopen” or to otherwise modify the existing CBA. Other decisions cited by the Fund in support 

of its position are similarly distinguishable. 

Local 89 provided defendants with unequivocal, timely notice of its intent to terminate 

the 2013 CBAs. Therefore, the Fund’s complaints will be dismissed. Because there appears to 

be no possibility of successful amendment, the dismissals will be with prejudice. 

CONCLUSION

Defendant Transervice Logistics Inc.’s motion to dismiss the complaint in 20 CV 4610 

[18] is granted. Defendant Zenith Logistics, Inc.’s motion to dismiss the complaint in 20 CV 

4611 [17] is granted. These actions are dismissed with prejudice. Civil cases terminated. 

DATE: November 17, 2020

Hon. Ronald A. Guzmán

United States District Judge

Case: 1:20-cv-04611 Document #: 32 Filed: 11/17/20 Page 5 of 5 PageID #:463