
USCA1 Opinion

	




          June 17, 1992                              _________________________          No. 91-2206                              RICHARD G. ALLEN, ET AL.,                               Plaintiffs, Appellants,                                          v.                                     ADAGE, INC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Keeton,* District Judge.                                          ______________                              _________________________               Ruth  A.  Bourquin, with  whom  Warren H.  Pyle  and Angoff,               __________________              _______________      _______          Goldman, Manning, Pyle, Wanger  & Hiatt, P.C. were on  brief, for          _____________________________________________          appellants.               John F. Welsh, with whom Jason Berger, Kerry M. Richard, and               _____________            ____________  ________________          Testa, Hurwitz & Thibeault were on brief, for appellee.          __________________________                              _________________________                              _________________________          ____________          *Of the District of Massachusetts, sitting by designation.                    SELYA,  Circuit Judge.   The  fifty-four plaintiffs  in                    SELYA,  Circuit Judge.                            _____________          this case sought payment  of benefits under a severance  pay plan          (Plan)  maintained by their quondam employer,  Adage, Inc.  Their          claims were preferred pursuant  to the Employee Retirement Income          Security  Act of 1974 (ERISA), 29 U.S.C.    1001-1461 (1988), and          specifically, ERISA   1132(a)(1)(B).   The district court granted          summary judgment in favor of the defendant.  We affirm.          I.  BACKGROUND          I.  BACKGROUND                    At the times material hereto, Adage manufactured, sold,          and serviced high performance graphics and CAD/CAM products.  Its          field  service unit  employed  approximately  one hundred  twenty          persons  at more than thirty  locations in the  United States and          Canada.   In 1988, as part of an effort to alter the focus of its          business,   Adage  opened  negotiations  with  National  Computer          Systems (NCS) for the sale of the field service unit.                    Eventually, an agreement  was reached.   The principals          agreed that, as a condition precedent to any sale, no fewer  than          eighty-five percent of Adage's field service employees would have          to accept continuing employment  with NCS.  A series  of meetings          ensued.    At   those  meetings,   NCS  extended   individualized          employment offers to  every field service employee.   The workers          were  given a  very  short time  within which  to respond  to the          offers.    All the  plaintiffs,  and virtually  all  the affected                                          2          members of  the work force, agreed  to join NCS.1   On August 12,          1988, the sale was consummated.                    The parties agree  that, without exception, the  former          Adage employees  were paid at least  as much by NCS  as they were          earning before the  sale.  They were given full  credit for years          in  service  in  NCS's calculation  of  vacation  time.   Waiting          periods with respect to health insurance and dental coverage were          waived.  Other incidents of employment were roughly comparable.2          II.  THE PLAINTIFFS' SUIT          II.  THE PLAINTIFFS' SUIT                    The plaintiffs, none of  whom experienced any period of          unemployment during  the transition,  sought to  collect benefits          under Part B of the Plan, which read in its entirety:                                        ____________________               1A special situation obtained in regard to plaintiff Clinton          B. Smith, Jr., Adage's director of field services.  The Adage/NCS          agreement  was expressly  conditioned  on  Smith's acceptance  of          employment with NCS.  Smith balked at  NCS's initial offer.  When          NCS sweetened  the  pot,  offering  him  a  unique  guarantee  of          employment coupled  with a  golden parachute, Smith  capitulated.          NCS and Adage also made  special severance arrangements for three          other Adage managers.               2The  record  evidences   some  disagreement  about  whether          certain  fringe benefits  offered by  NCS were  commensurate with          those provided by Adage.   These differences cut both  ways.  The          plaintiffs also claim that, although Adage had classified them as          "exempt"  employees,  NCS  reclassified  some of  them  as  "non-          exempt."  Since  the district court was punctilious in "view[ing]          the entire record in  the light most hospitable to  the part[ies]          opposing   summary  judgment"   and  "indulging   all  reasonable          inferences in [their] favor," Griggs-Ryan v. Smith, 904 F.2d 112,                                        ___________    _____          115  (1st Cir. 1990), we need not pursue the asserted disparities          in  any  detail.    The dispute  over  these  incidentals,  while          "genuine,"  is not "material"  in the Rule 56  sense.  See, e.g.,                                                                 ___  ____          Garside v.  Osco Drug,  Inc.,  895 F.2d  46, 48  (1st Cir.  1990)          _______     ________________          (defining  a material fact as "one that 'affect[s] the outcome of          the suit'") (citations omitted).                                          3                         In   the   event  that   an  involuntary                    termination  is caused  by reduction-in-force                    the    following    guidelines   have    been                    established   to   provide   consistency   in                    severance provided to employees.                                      NON-EXEMPT                                      __________                    Years  of  Continuous  Service      Severance                    ______________________________      _________                    Salary                    ______                    6 mon. - 3 years                  2 weeks                    4 - 5 years                       3 weeks                    5+ years                          4 weeks                                        EXEMPT                                        ______                    All exempt  employees will  be entitled  to a                    minimum  of four  weeks salary plus  one week                    salary  for  each  full  year  of  continuous                    service.          This  provision  for  "consistency  in severance"  was  the  only          provision  in the  Plan relevant  to  the dispute  over severance          benefits in this case.                    After  the  pleadings  were  closed  and discovery  was          completed, the district court  granted Adage's motion for summary          judgment under Fed. R. Civ. P. 56(c).  The court assumed arguendo                                                                   ________          that  the  plaintiffs  had  been  subjected  to  "an  involuntary          termination" of their employment with Adage, and  focused on what          caused the  termination.   The court  concluded  that the  phrase          "reduction-in-force" as used in the Plan was intended "to connote          a situation of  unexpected loss  of employment" as  opposed to  a          transfer from  one payroll to  another.  Because  the plaintiffs'          separation from Adage's service  was not "caused by reduction-in-          force," no severance pay was due.                      The  district court  subsequently refused  to alter  or          amend  its judgment  in  light  of  our  opinion  in  Bellino  v.                                                                _______                                          4          Schlumberger  Technologies, Inc.,  944 F.2d  26 (1st  Cir. 1991).          ________________________________          This appeal followed.          III.  THE LEGAL LANDSCAPE          III.  THE LEGAL LANDSCAPE                    At  the  threshold,  we   consider  both  the  criteria          governing the district court's adjudication of this case and  the          standard of appellate review.                                          A.                                          A.                                          __                    Except  in  those  cases  where a  different  level  of          scrutiny  is indicated in  the benefit plan  itself, the district          court  considers a  denial-of-benefits challenge  afresh, without          deferring  to  the employer's  interpretation of  the plan.   See                                                                        ___          Firestone Tire & Rubber Co.  v. Bruch, 489 U.S. 101,  115 (1989);          ___________________________     _____          Bellino,  944 F.2d  at 29;  see also  29 U.S.C.    1132(a)(1)(B).          _______                     ___ ____          Here, nothing in the  Plan indicates that another approach  is to          be used.  Hence,  the lower court appropriately afforded  de novo                                                                    __ ____          review.                    In examining benefit denials  under ERISA plans, and in          interpreting  such plans, a  court should  employ both  trust and          contract principles.  See  Bruch, 489 U.S. at 110-12;  Burnham v.                                ___  _____                       _______          Guardian  Life Ins.  Co.,  873 F.2d  486,  489 (1st  Cir.  1989).          ________________________          Withal,  the court should keep  in mind that  severance pay plans          are employee  welfare benefit  plans, and  thus, are  not vested.          See, e.g., Adams v. Avondale Indus., Inc., 905 F.2d 943, 947 (6th          ___  ____  _____    _____________________          Cir.)  (citing  cases), cert.  denied,  111  S. Ct.  517  (1990).                                  _____  ______          Therefore,   resolution   of   questions    concerning   employer          obligations  under   such  plans   must  be  tailored   to  avoid                                          5          undermining  Congress's "considered decision that welfare benefit          plans not be subject to a vesting requirement."  Id.                                                           ___                    The question of whether a contract term is ambiguous is          one of law for the judge.  See, e.g., ITT Corp. v. LTX Corp., 926                                     ___  ____  _________    _________          F.2d 1258,  1261  (1st Cir.  1991); In  re Navigation  Technology                                              _____________________________          Corp.,  880 F.2d 1491, 1495 (1st  Cir. 1989).  While "an argument          _____          between parties about the  meaning of a contract is  typically an          argument about a 'material fact,'" Boston Five Cents Sav. Bank v.                                             ___________________________          Secretary of Dept. of HUD, 768 F.2d 5, 8 (1st Cir. 1985), summary          _________________________          judgment  is not  necessarily  foreclosed.    "Even if  there  is          ambiguity in the language . . .  the evidence presented about the          parties' intended meaning may be so one-sided that  no reasonable          person  could decide the contrary."  Id.; see also American First                                               ___  ___ ____ ______________          Inv.  Corp. v.  Goland,  925 F.2d  1518,  1522 (D.C.  Cir.  1991)          ___________     ______          ("summary  judgment may be appropriate in a contract case even if          the contract  is ambiguous so long  as there is no  evidence that          would support a  conflicting interpretation of the  agreement").3          A  good illustration of the  rule is contained  in Foster Medical                                                             ______________          Corp.  Employees' Pension  Plan v. Healthco,  Inc., 753  F.2d 194          _______________________________    _______________          (1st  Cir.  1985).    There,   the  plaintiff  alleged  that  the          defendants had  failed  to  abide  by certain  provisions  of  an          agreement for the transfer  of designated assets and liabilities.                                        ____________________               3The flip  side of the coin is that, in situations where the          extrinsic evidence relevant to the interpretation of an ambiguous          contractual  provision  is  contested  or  contradictory, summary          judgment will often  be inappropriate.   See, e.g., Space  Master                                                   ___  ____  _____________          Int'l, Inc. v.  City of Worcester,  940 F.2d 16, 19-20  (1st Cir.          ___________     _________________          1991); Computer  Sys. of America, Inc.  v. International Business                 _______________________________     ______________________          Machines Corp., 795 F.2d 1086, 1090-91 (1st Cir. 1986).          ______________                                          6          We  found the  challenged provisions to  be ambiguous,  but noted          that defendants  had adduced  evidence probative of  the parties'          intent  while  plaintiffs,  for   their  part,  had  "offered  no          substantive evidence to challenge [this proof]."  Id. at 198.  We                                                            ___          concluded that, in such  circumstances, plaintiffs had "failed to          establish the  existence of  a genuine  issue  of material  fact"          concerning  the meaning of the  agreement.  Id.   Accordingly, we                                                      ___          upheld   a   summary   judgment   in   the   defendants'   favor,          notwithstanding the ambiguity.  Id. at 198-99.                                          ___                    Here, Adage proffered  evidence in connection with  its          Rule 56 motion  to the  effect that several  reductions in  force          were  conducted in  the  period 1987-1989,  resulting in  various          awards  of severance benefits pursuant to the Plan.  The affected          employees were not notified  of their impending termination until          their last  day of work.   They were  then furnished with  layoff          notices and personnel documents advising that "[i]f you choose to          collect unemployment during  such severance time, your  severance          checks  will stop  immediately.  You  have the right  to file for          unemployment  at  any time  while  unemployed."   The  appellants          neither challenged  this description  of Adage's past  praxis nor          submitted evidence of any divergent practices.  Because there was          no  dispute concerning  the  underlying facts,  insofar as  those          facts were  material, summary  judgment might  appropriately lie.          See Franklin v. Pitney  Bowes, Inc., 919 F.2d 45, 47-48 (6th Cir.          ___ ________    ___________________          1990)  (noting  that  summary  judgment  was   appropriate  where          defendants had proffered evidence supporting their interpretation                                          7          of  a  plan,  including  past  practice  under  that  plan,   and          plaintiffs had  offered no  contradictory evidence);  Burger King                                                                ___________          Corp. v.  Horn & Hardart  Co., 893 F.2d  525, 528 (2d  Cir. 1990)          _____     ___________________          (disposition by  summary judgment  is proper  if the evidence  of          intent  submitted by one party "does not conflict with [the other          party's] evidence");  Burnham, 873 F.2d at  488 (determining that                                _______          where  the   only  "authentic  controversy  presented  on  appeal          concerns  the  parties'  divergent   interpretations  of  .  .  .          established facts,"  summary judgment was  appropriate); Chambers                                                                   ________          v. Prudential Ins. Co., 776 F. Supp. 1166, 1168, 1172 (S.D. Miss.             ___________________          1991); cf. Adcock v.  Firestone Tire & Rubber Co., 822  F.2d 623,                 ___ ______     ___________________________          626-28 (6th Cir. 1987) (same; using pre-Bruch test).4                                                  _____                                          B.                                          B.                                          __                    We  subject  the  district  court's  grant  of  summary          judgment to plenary review,  taking the record in the  light most          congenial  to   the  nonmovants  and  indulging   all  reasonable          inferences in their favor.  Garside v. Osco Drug,  Inc., 895 F.2d                                      _______    ________________          46,  48 (1st Cir. 1990).   This standard  applies unreservedly in          the ERISA context.  See, e.g., Bellino, 944 F.2d at 29; Harper v.                              ___  ____  _______                  ______                                        ____________________               4We note that the Third Circuit has taken a more restrictive          slant.   See  Taylor  v.  Continental  Group  Change  in  Control                   ___  ______      _______________________________________          Severance  Pay Plan,  933 F.2d  1227, 1232,  1236 (3d  Cir. 1991)          ___________________          (holding that the meaning of ambiguous terms in an  ERISA plan is          a question  of fact  forestalling brevis disposition);  Schoch v.                                                                  ______          First Fidelity  Bancorporation, 912 F.2d 654, 656  (3d Cir. 1990)          ______________________________          ("If the  opposing party  asserts a reasonable  reading differing          from that of the district court, then the meaning of the contract          must be resolved at trial.").  We decline  to follow this course,          believing that these decisions are at variance with  the approach          we  have charted in cases  such as Burnham  and Boston Five Cents                                             _______      _________________          Savings Bank.          ____________                                          8          R.H. Macy & Co., 920 F.2d 544, 545 (8th Cir. 1990).  To  affirm a          _______________          grant of summary judgment,  we must be satisfied that there is no          genuine dispute concerning a material fact and that the movant is          entitled to  judgment as a matter  of law.  Burnham,  873 F.2d at                                                      _______          488.                      This  protocol,  while  generous  to  summary  judgment          opponents, does  not  free  them  from  all  obligations.    When          nonmovants bear  the burden of  proof on particular  issues, they          must  "reliably  demonstrate that  specific  facts  sufficient to          create an authentic dispute exist."  Garside, 895 F.2d at 48.                                               _______          IV.  ANALYSIS          IV.  ANALYSIS                    The  appellants'  argument  has two  main  ingredients.          First,  they contend that the district court erred in finding the          term "reduction-in-force"  ambiguous.  Second,  they contend that          the court compounded its initial error by resolving the perceived          ambiguity incorrectly, thereby skewing the Plan.                                          A.                                          A.                                          __                    We  start  with  the certainty  vel  non  of  the words                                                    ___  ___          "reduction-in-force."  The district court,  finding an amphiboly,          felt  free to  place an  interpretive gloss  on the  phrase.   In          appellants' view,  this freelancing offended both  our holding in          Bellino and the dictates of plain meaning.  We disagree.            _______                    The Effect of Bellino                    The Effect of Bellino                    _____________________                    We  think this  case is  distinguishable from  Bellino.                                                                   _______          Although  both cases arose out  of similar fact  patterns and the                                          9          Bellino  court ruled  that the  term "reduction  in force"  had a          _______          clear, unambiguous meaning, Bellino, 944  F.2d at 30, that ruling                                      _______          was  made  against  the backdrop  of  a  particular  set of  plan          provisions.  By  its very  nature, ambiguity is  not an  abstract          concept.    Rather,  it  concerns  meaning  in relation  to  some          identified  issue   or  issues.    To   illustrate,  saying  that          "reduction-in-force" has a clear, unambiguous meaning in relation          to  the disputed issue  in Bellino  is not to  say that it  has a                                     _______          clear, unambiguous meaning  in relation to all  similar issues in          all other cases, regardless  of the particular characteristics of          the severance pay plans under consideration.                    Schlumberger's  severance  pay  plan,   scrutinized  in          Bellino,  spelled  out  the  reach  and  rationale  of  the  term          _______          "reduction in  force" for Schlumberger's purposes.   The relevant                                ___________________________          language of the Schlumberger plan merits reproduction here:                    Reduction in Force                    From time to  time, Schlumberger may  need to                    terminate an employee for lack  of work, poor                    business  conditions,  or change  in business                    focus.    Should  such   terminations  become                    necessary,    Schlumberger    will    provide                    employees    with    salary   and    benefits                    continuation for a specified period of time.          Bellino, 944 F.2d at  30.  The very language  of the Schlumberger          _______          plan made  clear  that personnel  actions  taken in  response  to          certain enumerated  events would  comprise a reduction  in force.          The  case before  us is at  a considerable remove.   Adage's plan          contains neither an explanation  of the phrase nor any  effort to          define it.                    Contrary to appellants' insinuations, the Bellino court                                                              _______                                          10          did not presume to announce a rule of construction mandating that          "reduction in force"  was henceforth to be  deemed a denotatively          rigid term  of  art.   This  much  is obvious  from  the  panel's          repeated limitation  of its  discussion to  the facts of  record.          See, e.g., id.  (agreeing that  the plan language  "is clear  and          ___  ____  ___          unambiguous as  applied to  the facts  of  this case")  (emphasis                      ________________________________________          supplied); id. at 30-31 (concluding that "appellees' terminations                     ___          constituted  a 'reduction  in force'  within  the meaning  of the                                                ___________________________          plan") (emphasis supplied); id. at 32 (referring to the necessity          _____                       ___          of discerning the meaning of questioned terms by considering them          within  the  context of  the  particular  plan).   Indeed,  after          examining  the diverse  interpretations  of "reduction  in force"          interspersed throughout the case law, the Bellino court concluded                                                    _______          that  judges,  instead  of crafting  "rigid  definitions," should          strive to "construe ERISA  plans by employing accepted principles          of contract and trust law."  Id. at 31.                                       ___                    In sum,  while  we  do  not  retreat  from  Bellino  or                                                                _______          question  its  rationale, we  agree  with  the court  below  that          Bellino does not  foretell the interpretation  to be accorded  to          _______          the entirely distinct plan here at issue.                    Plainly Unplain                    Plainly Unplain                    _______________                    Lacking  the  authority  of Bellino  to  support  their                                                _______          argument  that  the  phrase  "reduction-in-force"  is  inherently          unambiguous,  appellants'   contentions  are  left   with  little          foundation.    The Plan  itself  contains no  elaboration  of the          phrase.  Dictionary definitions are inconclusive.  Ordinary usage                                          11          points toward the  district court's construction.   Last but  not          least, common  sense counsels  against the  appellants' position.          Whatever  the exact  ramifications of  the highly  nuanced phrase          "reduction-in-force," that term would rarely be thought to cover,          for  severance pay purposes, the selling of a division to another          company  under circumstances  in  which the  work  force is  kept          solidly in place by the purchaser,  doing roughly comparable work          for roughly  comparable wages.   Indeed, several  courts have  so          held.  See,  e.g., Adcock, 822  F.2d at 626-27 (holding  that the                 ___   ____  ______          sale of  a division, not resulting in  displacement of employees,          did  not constitute  a  reduction in  force;  noting split  among          courts on the issue); Lesman v. Ransburg Corp., 719 F. Supp. 619,                                ______    ______________          621  (W.D.  Mich.  1989) (holding  that  the  sale  of an  entire          business  to a  new employer  did not  constitute a  reduction in          force), aff'd, 911 F.2d  732 (6th Cir. 1990); see  also Awbrey v.                  _____                                 ___  ____ ______          Pennzoil Co., ___ F.2d ___, ___  (10th Cir. 1992) [1992 WL 69070,          ____________          at   *4]  (holding  that  employees  of  a  division  sold  by  a          corporation were  not entitled  to severance benefits  from their          former employer); Lakey  v. Reminington Arms  Co., 874 F.2d  541,                            _____     _____________________          545 (8th Cir. 1989) (similar).                    To  be sure, cases can be found that reach the opposite          result.   But, the point is not  whether cases such as Adcock and                                                                 ______          Lesman are inevitably  correct.  The point is  that those cases            ______          which  flatly reject the notion that the  sale of a business unit          constitutes a reduction in force, triggering payment of severance          benefits,  when the  sale  does  not  result  in  any  period  of                                          12          unemployment  or  significant loss  of  income  for the  seller's          former  employees     convincingly demonstrate  that  the  phrase          "reduction-in-force," shorn of built-in definitional trappings or          compelling context, does  not have a single plain and unambiguous          meaning.    In our  view,  a  phrase  which,  like this  one,  is          susceptible    to    differing,   but    nonetheless   plausible,          constructions,  depending in part on  the context in  which it is          used, is ambiguous.  See Fowler  v. Boise Cascade Corp., 948 F.2d                               ___ ______     ___________________          49, 54 (1st Cir.  1991) ("Contract language is ambiguous  when it          is  reasonably  prone  to  different  interpretations.");  In  re                                                                     ______          Navigation Technology Corp., 880 F.2d at 1495 (similar).          ___________________________                    So   here.      The  phrase   "reduction-in-force"   is          sufficiently imprecise  in the  present setting that  its meaning          must be  considered  unplain.   Refined to  bare essentials,  the          extent of Adage's liability to its former employees for severance          pay, if any, cannot definitively be ascertained from the language          of the           Plan alone.   Because appellants' interpretation  of the disputed          phrase  is  only  one  of several  possible  meanings  reasonably          available on an  unvarnished reading of  the Plan    and, in  the          bargain,  among  the  least  persuasive  of  that  cadre5     the                                        ____________________               5Of course,  appellants cannot win by  simply persuading the          court  that  "reduction-in-force"  is  unambiguous.    They  must          proceed  to  show  that  their  proposed  interpretation  of  the          allegedly unambiguous term is  correct.  In this case, if we were          to  assume no  ambiguity  and consider  only whether  appellants'          proposed  interpretation  is supportable,  we  would nevertheless          affirm  because appellee and the district  court have proposed an          interpretation  of "reduction-in-force"  that is  more reasonable          than appellants' proposed interpretation.                                          13          district court did  not err  in determining that  the phrase  was          ambiguous.                                          B.                                          B.                                          __                    This  determination does  not  end our  inquiry.   Even          though  the Plan is ambiguous, we must still consider whether the          district court appropriately resolved the ambiguity.                    Appellants' Assertions                    Appellants' Assertions                    ______________________                    Appellants urge  that we  should apply the  doctrine of          contra proferentem  and resolve  the ambiguity against  Adage, as          __________________          the  draftsman.    But in  most  ERISA  cases,  resort to  contra                                                                     ______          proferentem  contradicts the  combined principles  of the  law of          ___________          trusts and de novo review.  In Bruch, the Court analogized  ERISA                     __ ____             _____          benefit  plans  to  trust  agreements  and  observed  that  trust          agreements  are  to be  construed  "without  deferring to  either          party's  interpretation."   Bruch, 489  U.S. at  112.   The clear                                      _____          implication  of Bruch is that  courts should not  defer to either                          _____          side  in interpreting severance pay plans.  See Bellino, 944 F.2d                                                      ___ _______          at 31-32;  Brewer v. Lincoln Nat'l  Life Ins. Co.,  921 F.2d 150,                     ______    ____________________________          153-54 (8th Cir.  1990), cert.  denied, 111 S.  Ct. 2872  (1991);                                   _____  ______          Avondale Indus., 905 F.2d at 950.  In short, de novo review looks          _______________                              __ ____          to the language of the plan (supplemented in appropriate cases by          evidence essential to resolving a relevant ambiguity), not to any          one party's interpretation of that language.6                                        ____________________               6It is true that the doctrine of contra proferentem has been                                                __________________          applied to insurance  contracts in the  ERISA environment.   See,                                                                       ___          e.g., Masella v. Blue  Cross & Blue Shield of  Connecticut, Inc.,          ____  _______    _______________________________________________          936 F.2d 98, 107 (2d Cir. 1991); Kunin v. Benefit Trust Life Ins.                                           _____    _______________________          Co., 910 F.2d  534, 539-41 (9th Cir.),  cert. denied, 111  S. Ct.          ___                                     _____ ______                                          14                    Equally  unavailing  is appellants'  bootstrap argument          that  Adage should lose because it was required to memorialize in          writing any  exceptions or amendments  to the grant  of severance          pay  contained in the Plan.  The central fallacy of this argument          is that  it presumes the validity  of a proposition that  we have          already  discarded.    In order  to  know  that  something is  an          exception or amendment, one must assume that he knows exactly how          far the basic  document reaches.  But, this is  precisely what we          do not know from the face of  the Plan which is, as we have said,          ambiguous in  respect to  the  sweep of  the term  "reduction-in-          force."                    The Meaning of the Phrase                    The Meaning of the Phrase                    _________________________                    Putting  these assertions  to one  side, we  must still          determine the meaning of the  ambiguous phrase.  In doing so,  we          are bound to construe the language of the plan "as interpreted in          light of all  the circumstances  and such other  evidence of  the          intention of  the settlor .  . . as is  not inadmissible," Bruch,                                                                     _____          489  U.S. at 112 (citation  omitted), and in  a manner consistent          with the method of Rule 56.  Thus, we must satisfy ourselves that          the evidence presented about  the parties' intended meaning would          not support conflicting interpretations of the disputed phrase.                                        ____________________          581 (1990),  reh'g denied, 111 S.  Ct. 802 (1991).   But we, like                       _____ ______          other courts, believe that application  of the doctrine in  ERISA          cases  generally would be inappropriate.  See Taylor, 933 F.2d at                                                    ___ ______          1233-34; Brewer, 921 F.2d at 154 n.2.  In fact, the Ninth Circuit                   ______          appears  recently  to  have limited  Kunin  in  much  the way  we                                               _____          suggest.  See Eley v. Boeing Co., 945 F.2d 276,  279-80 (9th Cir.                    ___ ____    __________          1991)  (noting that  contra proferentem  is applied  to insurance                               __________________          contracts, but not "automatically  or universally . . .  to other          [ERISA] contracts").                                          15                    In deciphering the words "reduction-in-force," we think          it is important to remember  that, typically, reductions in force          are  permanent  layoffs  undertaken  for  budgetary  or  economic          reasons.  Adams v. Ampco-Pittsburgh Corp., 733 F. Supp. 998, 1001                    _____    ______________________          (W.D. Pa. 1989).  It  is also important in this case  to remember          that the words appear in a  severance pay plan and that the usual          purpose  of  such  a plan  is,  first  and  foremost, to  provide          employees with  a buffer  against the privations  which so  often          attend  unforeseen layoffs.  See,  e.g., Awbrey, ___  F.2d at ___                                       ___   ____  ______          [1992 WL 69070, at *4]; Bradwell v. GAF Corp., 954  F.2d 798, 801                                  ________    _________          (2d Cir. 1992);  Adcock, 822 F.2d at  626-27; Jung v. FMC  Corp.,                           ______                       ____    __________          755 F.2d 708, 713 (9th Cir. 1985); Sly v. P.R. Mallory & Co., 712                                             ___    __________________          F.2d 1209, 1211  (7th Cir. 1983).   While unemployment  resulting          from a reduction in force is not always a necessary condition for          receipt of severance  benefits, Bellino,  944 F.2d at  31, it  is                                          _______          probable, in the absence of language indicating otherwise, that a          severance pay plan is  geared to sheltering loyal workers  from a          precipitous loss of income.                      This probability is enhanced when the district  court's          recension  of  the  phrase  is contrasted  with  the  alternative          reading  advocated  by  the   appellants.    It  is  surpassingly          difficult to fathom  why an employer  would provide a  trouvaille          for  employees   who,  when  separated  from   its  service,  are          simultaneously  transferred  en   masse,  by  prearrangement,  to          another  employer's  payroll,  without  any  temporal  hiatus  or          significant diminution  of earnings or benefits.   Accord Awbrey,                                                             ______ ______                                          16          ___ F.2d at ___ [1992 WL 69070, at *4] (listing cases); Bradwell,                                                                  ________          954  F.2d at 801 ("in the context of the sale of a business where          the buyer retains the  former owner's employees, it would  give a          windfall to award  severance pay to  employees who never  changed          their jobs,  and were never out  of work").  We  think it beggars          credulity to  impute such  altruistic beneficence to  an employer          without  some  clear  indication  to  that  effect  in  the  plan          documents.                    The extrinsic evidence, though not robust, is one-sided          and  points unerringly  in  the  same  direction.   As  mentioned          earlier, see  supra p. 7,  Adage offered uncontroverted  proof of                   ___  _____          its  past practice under the  Plan.7  Although  past practice may          not  have as much probative value after Bruch as theretofore, see                                                  _____                 ___          Avondale Indus., 905 F.2d at 950, it is  still frequently used by          _______________          courts  as a device for deciphering the meaning of ambiguous plan          provisions.  See, e.g.,  Taylor, 933 F.2d at 1233;  Franklin, 919                       ___  ____   ______                     ________          F.2d at 47; Garavuso v. Shoe Corps. of America  Indus., Inc., 709                      ________    ____________________________________          F.  Supp. 1423,  1428 (S.D. Ohio),  aff'd, 892 F.2d  79 (6th Cir.                                              _____          1989).   The  lower  court was  entitled to  look  to such  "past          practice"  evidence in its effort to establish the meaning of the          phrase "reduction-in-force."                                        ____________________               7We  do not consider, under the rubric of past practice, the          statements of Adage officials concerning the meaning of the Plan.          These  officials  were not  the  Plan's  draftsmen nor  otherwise          involved in  its formulation.   Notwithstanding our  disregard of          this evidence, we  agree with  the district  court that,  "[e]ven          without these statements  of the Adage  officials . . .  there is          ample objective,  undisputed evidence contained in  the record to          establish the true intent of Adage's policy."                                          17                    Here, the  evidence of Adage's past  practice in layoff          situations  confirmed that  the Plan's  primary goal  was to  aid          terminated workers  who faced the hardships  of unemployment, not          merely to reward past service.  Typically, Adage gave very little          notice to employees prior to layoff and it conditioned receipt of          severance  pay   upon  loss   of  income,  i.e.,   nonreceipt  of          unemployment insurance benefits.   This is strongly indicative of          a view  that the Plan was  meant to provide a  cushion to workers          faced unexpectedly with the rigors of sudden unemployment.  While          Adage  had not previously sold  a segment of  its operations, and          thus,  had no track record in identical situations, we think that          its previous method of handling layoffs had appreciable probative          value.                    In  fine,  the  ambiguity  in the  wording  of  Adage's          severance pay  plan was susceptible to clarification by resort to          ordinary usage, the realities of commerce, and the company's past          practice.  These factors  convince us that, in the  utter absence          of elaborate definitions or  explicit statements of aspiration to          reward myrmidons for past service regardless of the circumstances          surrounding  termination,  the  phrase  "reduction-in-force"  was          manifestly intended to have an economic dimension, requiring loss          of  income  or, at  least,  unemployment as  a sine  qua  non for                                                         ____  ___  ___          coverage.    Thus,  appellants'  interpretation of  the  Plan  is          insupportable on this record.                    To  sum  up,  the Plan  must  be  accorded its  natural          construction  and interpreted to comport with the root purpose of                                          18          severance pay  plans generally.  Given  the uncontradicted facts,          the district  court correctly concluded on  summary judgment that          Part  B of the  Plan did  not cover  former Adage  employees who,          coincident  with their separation  from service, began comparable          employment  at comparable wages  with NCS  (the company  that had          acquired the  relevant  unit  of  Adage's  business  operations).          Accord  Harper,  920  F.2d  at  545-46  (holding  that  employees          ______  ______          immediately rehired  by a terminating employer's  successor under          terms comparable to those previously  in effect were not entitled          to severance pay benefits).                     V.  CONCLUSION          V.  CONCLUSION                    We  need go  no further.8   On what we  have before us,          there is no  disputed issue of material fact.   The Plan and past          practice  under it combine to reflect the intended meaning of the          phrase "reduction-in-force."   The  appellants, who did  not come          within  that meaning, were not entitled  to receive the severance          benefits for which they sued.          Affirmed.          Affirmed.          ________                                        ____________________               8The  parties  have raised  a number  of other  arguments in          connection with this matter.  Our disposition of  the plaintiffs'          appeal  renders consideration  of  most such  points unnecessary.          The remainder do not warrant discussion.                                          19
